NAMES OF THE JUDGES AND L AW

OFFICERS OF THE UNION

SUPREME COURT
H on'ble Agga Maha .Thray Sithu SIR BA U, Kt.,
M.A. tCantab.), Barrister-at-Law, Chief Justice
of the Union.
PUISNE JUDGES
H on'ble J usTICE Thado Thiri Thudhamma U E MAU.NG,
._ M.A., LL. M. (~ant:~~& f!.f:!.!.;!:!!r-at-Law. _ _
H on'ble J usTICE Thada Thiri Thudhamma U T HEIN
MAUNG, M. A.,. LL.B. (Can tab.), Barri ster-at-Law.

LAW OFFICERS
ATTORNEY-GENERAL
U CHAN HTOON, LL.B., Barrister-at-Law.

ASSISTANT ATTOR NEY-GE NERAL

U CHAN T uN AUNG, B.A., B.L., Barrister-at-Law.

GOVE RNMENT ADVOCATES

U CHoON FouNG, B.A., B. L.
ll TIN MAUNG, B.A., B.L.
U MYA TH.EIN, B.A., B arrister-at-Law.
U BA S EIN, B.Sc., B.L.
U K YAW {l), B.A., B:L.

ASSISTANT GOVERNMENT ADVOCATE.

u KHIN MAUNG, B.A.~ B.L.
 TABLE OF CASES REPORTED

SUPREM E COURT
PA GE

Ajam Mohamed Loova Walla v. Ebrahim Dawjee

Jeewa 73 .

Cassim Jeewa and another v. The Moulmein Munici-

pality 176
Charles R. Manasseh "The Collector of Rangoon and
another 201
Chit Tin {a) Su Thi and one v. The\ Union of Burma 142
Chunilal Dalabh1ji v. The Assistant Controller of
Rents, Rangoon and others 241

Daw Cbo v. U Ganni and others 158

--Hla May v. U Ko Yin 64
--Ngwe Tin v. The Controller of l~ents and one 85
- - Tbike (a) Wong Ma Tbike v. Cyong AhLin 133
- -Yu and others?'. Maung Khin and others 241
Dr. R. C. Das v. The Controller of Rents, Rangoon 225
- -Tha Mya v. Daw Kbin Pu 108
Gurbachan Singh Bindra v. ] os. E. Fernando 255
Yaw Lim On v. Ma Aye May 69
J. Huie v. L. K. Aiyavoo Naidu and four others 81
Kantilal Gordhandas Shal1 v. The Assistant Collector
of Customs (Preventive) .. . 244
Ko T in v. The Chairman, Public Property Protection
Board and one 183
-Tim Sein and hvo others v. Ko Wa Nab 193
Kyi Chung York v. The Controller of Immigration,
Burma 197
.
M. R. Das il. C. R. Das and three others ... 211
..Ma E Khin v. Ma Abma H pyu 248
Maung Wein and three others V The District Agdcul-
: .. tnr;1l :committee of Tharrawadch and. three
others. . 22Z
.Mrs. Constance Minoo. Writer 11. A. M. Khan 169
VI TABLE OF CASES REPORTED

PAGE

Noor Mohamed V The Financial Commissioner

(Commerce), Burma and one 94
Shyam Sunder Ananda v. The Collector of ~Customs,
Rangoon 28
Sooniram Rllmeshwar v. The: Controller fof Rents,
; Rangoon and three others 43
Steel Brothers & Co. Ltd. v. The Court of Industrial
Arbitration, Burma and one 57
T. C. Mohamed v. A. Kunjalam and two others 98
The Burma Oil Company (Burma Concession) Ltd. v.
T he Court of Industrial
Arbitration, Burma and two
others 1
_ _ _ _ _ _ _ _ _ __....td. v. The Court of Indus
trial Arbitration, Burma . and another 49
TQn Bin v. The Union of Burma 148
U Ba Hla v. Ko Han T un and another 251
..:_H;tun T in v. U ' Ba Tun and two others 216
- Pe and another v. The Hon'ble Minister for Health
and Local Government and others 228
- Po Kyaw v. T he District Land Committee, Pegu
and one 88.
- Sein Liu and another v. The Assistant Judge,
T aungdwir.gyi ;mel two others 214
- Zan v. T he Deputy Commissioner~ l nsein and
a nother 188
 TABLE OF CASES CITED

PAGR

Abdurahiin Haji Ismail Mithu v. Halimabi, 43 I.~. 35 14()

Ailen v. Flood, (1898) A.C. 1 ... ... 210
Attorney-General for Canada v. Cain, (1906) A.C. 542
at 546 ; 19~
- - - - - - - - - - ,---.u. Brown, (1920)1 K:B. 773 184, 187
Banga Chandra Dhur Bisw.as l'. Jagat Kishore Chow_.
dhuri, 44 Cal. 186 ; 43 ~.A. 249 167
Bawa Singh v, The Crown, 23 Lab. 129 151
Bbimji Dalal v. The Bombay Trust Corporation Ltd.,
54 Born. 381 ... 204
Boclardoja and others v. Ajijuddin Sircar and others,
A.I.R. (1929) Cal. 651 . 17Z
British Coal Corporation v. The King, (1935) A.C. 500
at 518 77
Crowther's Case, L.R. (1948) 1 K.B.o: 424 ... 15
Dadey v. The Qu.een, 12 ch. and F. 537 at 541 21S.
.Daw Kyin Hmon v. Daw Mya . Gale,'A.J.R. (1936)
Ran ..247 ... ... .:. .:. llZ
Dr. Tha Mya.v.:Daw Khin Pu,~B.L.R. (1951) (S.C.) 108... 13 ~
Dunhill v. Bartlett & Bickley~ 39 R.P.C. 426 104
.Edge & So~~. ttd. v~ Ni~h~lls & S.ons . J_.td., . 28
R.P.C. 582 . ... . ... 104
Edwards v. Attorney-General for Canada, (1930) A.C.
124 at 136 ... 7fi
Finch v. Oakes, {18961 1 Ch. D. 409 .... 16
F.o ne Lan II. MaGyi, 2 L.B.R: 95 at 97: .. 135-
~w Kan Lye" Saw~Kyone
Saing, (1~39)R:L.R.
4S8. .
at 501-502 ;.~ . :.. - ~.. . ... 102, 10s:
.Glossop ~ Glossop, cl907) 1 Ch. D. 370. ... ~.. 1~

>.': :.: . >

.Gwan -Kee " The Union of Burma, (1949) B.L.R. 151
.: ,.<s._c_.l . .. :./ ...' . . : ~i .
'Har.Uiar. a~nerji . P .R~.masha~~ii Roy;.46 Cal.4$8
-;'~..
, . ... ...
..
J7?
9~
Vlll ~ABLE OF CASES CITED

PAGE

lnrc Bali Heddi, 37 Mad.ll9 155

---Nirams, (1891) 1 Q.B.D. 594 209
Jsmail Mohamed v. The King, (1941) R.L.R. 536 209

.J. Petley & Son v. S. Ab Kyun, 2 L.B.R. ,159 - ~ 105

James v. Commonwealth of Australia, d9J6)" A.C. 578
at 614 ' 77
John H. Kilmer v. British Columbia Orchard Lands
Ltd., (i913J A.C. 319 254
johnston &Co. v. Orr Ewing .& Co., 7 A.C. 219 101

Kishan Singh v. The King-Emperor, SO All. 722 150,

154 ,155
Kupparakutti Adammeera v. Esoof and one, (194:8) B.L.R.
421 212

Lala Beni Ram and another v. Kundan Lall and others,

26 I.A. 58 . 195
Leather Cloth Co. Ltd. v. Amt<rican Leather Cloth Co.,
11 H.L.C. 538 ... 101
Loke Nath Sen v; Ashwini f<:umar De, I.L.R. (193.8)
1 Cal. 665 at 667-668 ... 102, 105

v.
Ma Hnin Bwin b Sh"'e Gon, (1914i 8 'L.B.R. 1 121
- Hnio Z3.il v. Ma Myaing, 13 Ran. 487 117
- Ka U v. Po Saw,-4 B.L.R. 340 112
- Nyun v. Maung San Thein, 5 Ran. 537 109, 111
- Olm Tin v. Ma Ngwe Yin and another, 7 Ran. 398 . .. 240
-Saw Kin v. Maung Tun Aung Gyaw, 6 Ran. 79 ... 109
-Yin Mya v. Tan Yauk Pu, 5 Ran. 406 118, 139
.Madhowji Thawo~ v. Yar Ht.{ssain Hydor Dasti and
another, A.I.R. (1926) Sind 40 . 38
.Mahler v. Eby, 264 U.S. 32 ... .-~ 200
Markajin v:
Nabari, 27 I.A. 216 181
..
Maung Po Maung, . v.. .Ma. Pyit Ya,
-~. . 1. Ran ..
.... . .161
. -~ .
at
. . 169 . P8
- - - Tbei'n Maung .v. Ma Kywe, 13 Ran. 412 .. 116
Minister of AgricuLture.. and Fishe~eS>. il .-Mathews,. . . .. ,.,
. <t9S~0 ~~,; ~48 : :.
'!' . , .. !~:.1 ' : , _; .:-, 208
.Mohamed. H~ssein :u. The Union of Burma, Criminal,. .. . .
Misc. Appln. No. 115 of 1948 of pi~ lligh ~O.l;lt't, . . . _
. ' overruled .... ,. ,.;'I' . . . ~~; ' :. ,:..~.; ~; ! :. . . i\~ l84nss
 TABLE OF CASES CITED

PAGE

Nakhuda Ali v. M. F. DeS. Jawaratne, 54 C.W.N. 883 ... 191

Nathu Piraji Marwadi v. Umedmal Eadumal, 33
Born. 35 194
NaV.7ab Syud Allee Shah v. Mussamut Amanee Begum,
19 W.R. 149 161

Pakala Narayan ~wami v. T'he King-Emperor. (1941)

R.L.R. 789 at 798 145 '
Pandurttng Krishnaji v. Markandeya Tukram, 49 Cal.
334 ... 167
Powell v . .The Binningham Vinegar Brewery Co. Ltd.,
14 R.P.C'. 720 104

Ram K:mi Mandai and others v. Gunesh Chunder Sen

and others, (1921) 33 Cal. L.J. 275 172
'Ranchhoddas Jethabhai & Co. v. The Secretary to the
Union Government, Ministry of Judicial Affairs and
two, B.L.R (19SO) (S.C.) 68 . 32, 40
Rani Chandra Kunnwar v. C haudhri Narpet Singh.and
others, {1907) L .R. 34 I.A. 27 . , .. 160
Re. The Central Pt:o~inces and Berar Act No. ){J'V of
1938, (1939) I".C.R., Vpl. I, 18 at 57 ... 77
Reg v. Tyler; (1891) 2 Q.B.D. 588 38
Rex v Sp:tyer an0 Cassel, (1916) 1 K.B. . 59.5 . 218
--- v. Northumb~rl~md Compensation 'Appeal Tribunal
Ex-Pai"teShaw, (1951) 1 K.B. 711 227

S. A. Nat~ a~ v. $. F, S~msoTJ, 9 Ran .. 4~0 .at 490 179

.S. R. Rajuv. The Assistant Controller of Rents,:Rangoon
and other.s, B.L.R. (1950) (S:C.) 10 ;.. ... 257
S. S. An~Ad3: ~' . The Controlle~ of C1,1sto~s, {195~)
. B.L.R . 28 . ' ... . ..: , . . . . ' . . ... 247
- -Mangnliild v. Me~ intyre Bros. & ~9 (t92o)3 K..B: .. ~ 185
sa~dar Gurba~hsh $ingh f>. Gurdiai Si'ngh a~d imqt~er,
AJ.~. (1927}' P.C 230' :.: i . ,. :: . . ; . 7. 16i.
Selections. from the r.ecords of the H luttaw, p. 24 and
. . .. Civil Clrcular No: 12 of th6' Ju~i.ci~l 9?i.i\nl~ssi~~er!
. Uppet Bur~a . ot t.he 25th S~ptember 1892 . ~.. 120 '
sr.e.eman cSuild~f:' : D~y k Gop:i~tchiiitder cl1ilbl(~rbutt~
-: .,!: .and:c5f.bers,
. ' -
11 ~tbbt:e's
. ..
l.A. 28... .. 161
 TABLE OF .,CASES
. CITED
PAGE

St. Catherine's Milling and Lumber Co. v. The Queen,

(1888) 14 A.C. 46 at 50 . 76
Steedman v. Drinkle and others, A.I.R. (1915) (P.C .) 94 :. . 254

T. H. Khan v. Dawood Yo.oof AbO\.:ath and others,

(1947) R.L.R. 35~ ... . 172
Tai Chuan & Co. v. Chan Seng Cheong,(t949) B.L.R.
86 (S.C.) ~~ 76
Tan Ma Shwe Zin v. Koo Soo Chong, (1939) R.L.R. ~8 .
at 563 117, 134
The Broad.mayne, (1916) P. 64 ... 208
--King v. Secretary of State for Home Affairs, (1917)
. . 1 K.B. 922 . : . 199
- - - v . U Saw Hla Pru and one, (1947) R.L.R. 82
at 86-87 185, 186
The Rangoon Botatau1;1g Co. Ltd. v. The Collecter of
Rangoon, 6 L.B.R. 150 (P.C.) 70
-- Steaua Romana v. The Oltenia, (1944) P. 43 at 48 208
- - Queen v. Church Wardens of All Saints, Wigan,
{1976) 1 A.C. 620 ... ... . ?7
- - -. v. Cousins, (1873) 8 Q.B.D. 216 ~.~ 219
:-:---- v. Garland, (1870) L.R. 5 Q.B. 272 97
----- v. Th~ Mayor and Town Co~nc'n of Wigan ',
(1885)-14 Q.B.O. 908 . 19
- - - v. Ward, : (l873) 8 Q.E.D. 210 at 215 ... 219
Thein Pe v. iJ Pet, (1906) 3 L.B.R. 75 ... . . 109
1'homas Somerville v.
Paolo Schembri, (1887) L .R. i 2
101
A.C. 453 at 456-457 .
Tinza Maw Naing v. The Commissioner of Police and
one, B.L.R. (19SO).(S.C.) .17 191
'

u Htwe (a) .A:E:.Matlaii ~. u Trlh Onn and~6ne, (194S) 10,24

'B.L.R: 54l ... . ... :.. . ... 77,234
~ . . .. : ,. .
- Pe v. U Maung MaungKba, ~0 Ran. 261 .. . 121
- Pit ;, . Thegeh . Village . Agricultural Com'mittee and . r.
two others, (1948} B.L.R. 7S9 ... .. .... . lZ
-Saw. and four ~thers .~- The .U nio.n or'B~rma, (f94~( ' .
-~ .B;L:i:t 249 at2.5 2 . . . . . . "... . 100
:...:Thein fi>Ma J{hf~, Ny.~nt, (I94:8Y B:L.R~ .108.-over.'
. ..~ . ruled
. ;.. . . ; .: . . ~ ..: . ft~
 TABLE OF CASES CITED xi
PAGE

Venkata Narasimha Appa Row~. T he Court of Awards,

13 LA. 155 at 158-159 79

Western India Automobile Association's Case, (1949)

11 F.C.R. 321 15, 62
Wotherspoon v. Currie, L.R. 5 H.L. 508 en 101
 GENERAL INDEX
OF

CASES REPORTED IN THIS VOLU:\-IE (SUP REM E COURT) .

AcTs:
B URMA IMMIGRATION (EMERGENCY PROVISI<'NS) ACT.

--LAWSACT.
- - - MUNICIPAL ACT.

CITY OF. RANGOON MUNICIPAL ACT.

CIVIL PRdpEDURE CODE.
CoNSTITUTION ACT.

CRIMIN AL PJ;OCEDUR.E CODE.

D EFE:-ICE OF BURMA RULES, 1940.

DISPOSAL OF TEKANCIES ACT.

EVIDENCE ACT.

FOREIC>NEHS' ACT.

G F.I:\ERAL CLAUSES ACT.

IMPORT TRAOE CoNTROL ACT, 1947.

LIMITATION ACT
L OCAL AUTHORITIES (SOSPENSION) ACT, -194f,

M ONEY LENDERS AcT, 19-15.

P ENAL CODE.

PUBLIC ORDER (PRESERVATION) A<Yr.

- - - PROPERTY P ROTECTION ACT., 1947.

R EQUISITIO:o!ING (EMERGENCY PROVISIONS) ACT, 1947.

R uRAL SELF-GOVERNMENT AcT.

SALE OF GooDS Ac:r.

SEA CUSTOMS ACT

.STAMP ACT.

TRADE Dl.SPUTES ACT.

UNI~N .~OJ?.ICIARY ACT.

URBAfl RE~~ CONTRQL ACT!
XIV G:El!ERAL INDEX

PAGE
ACQUITTAL BY MAGISTRATE-Subseq!IC1t ftro reedi1f!.S tmder s. 167 (8),
Sea Customs Act for e<mfiscatiolt before Collector of
Customs-Ju,isdicliott of Collector-JudiciaJ-When wtil of
prohibition lies- Crimittal P1ocedure Code, s. 5 12} and s. 182 (1),
Sea Cttsloms Act- Noincottsistellcy belwee1f.-S. 403 II), Crinzi11al
Procedu1e Code-Offence- S. 2o, Genera.t Clauses Act and.
s. 2 142). 'The applicant was tried before the Subdivisional
Magistrate, Insein, for an offence under s. 24 (1) of the
Foreign Exchange Regt1la1ion Act for attempting to export
money without the requisite permit from the Controller of
Foreign Exchange. And, during the pendency o( the trial
the Collector of Customs. lx:mgoon, took proceedings :mder
s. 167 (8) of the Sea Cust 11ns Act against applicant for
confiscation and imposition of a penalty, but the proceedings
were stayed by the Collector pending the decision of the Sub-
divisional Magistrate. The Subdivisional Magistrate acquitted
the applicant: In spite of such acquittal, the Collector decided
to proceed with proceedings before him. The applicant moved
the Supreme Court. Held: That the acquittal was a bar to the
continuation of the proceedings before the Collecto~ oi Customs.
The Collector of Customs when he imposes fines and penalties
under the Sea Customs Acl exercises a judicial function. He is
for the time being a Judge bound to act in his individual jud!!-
ment. In such proceedings it is not competent for him to take
legal advice nor for others to g;ve Ieg:al afivice. Where there is
another remedy open to an applicant he is not entitled to a writ
of Mandamus ; but where an inferior judicial tribunal is founa
to be usurping a jurisdiction not properly vested in it, a writ of
prohibition clearly lies. Ranchlloddas Je/ltabhai & Co. v.
The Secretary to the Union Government, Ministry of Judicial
Affairs tmd two, B.L.R. (1950) (S.C.) 68, referred to and
followed. A Criminal Court proceeds on allegations of fact
in a complaint . to determine whether such facts . would
constitute an offence. When the facts alleged constitute offence
both under s. 24 (1) of the Foreign Exchange Regulation Act and
s. 167 (8} of the Sea Customs Act then on proof of such facts the
Magistrate is bound to convict the accused under both Ihe Acts
even though the complaint mentions only I<'oreij:!n Exchange
Re:!ulation Act. When the accused was acquitted by the
Magistrate, such acquittal would be a complete answer under
s. 403 (l) of the Co1e of Criminal Procedure to a trial for an
offence under s. 167 (8} of the Sea Customs Act. S. 1 of the
Critninal Pr":>cedure Code in enacting "nnthing in the Code
affecting any 'speciai or local law or special jurlsdlcliou or powt'i
conferred, etc.. has qualified the words by the phrase'' in the
absence of any specific provision to the contr;1ry. " There is
specific provision to the contrary in s. 5 (2) of the Code. The
proceedings before the Ma~istrate and before the Collector of
Customs are not different. There is no inconsistencybetween
s. 5. (2) of the Code of Criminal Procedure and s. 182 (l) of the
Sea "Customs Act as there are no express words in the latter
abrogaling the jurisdiction of the ordinary crimind courts;
consequently the contention that the Cs.t oms Authority had
exclusive jurisdiction to try the offence under s. 182 (1} of the.
Sea Customs Act is not tenable. Nor can the jurisdiction. which
the Magistrate had, come to an end bec.'luse nolj,ce~was giveh()f
proceedings before the Colle.c tor of Customs. The Criminal
Court once seized of jurisdiction cannot have that, jurisdiction
taken away lightly and there is no warrant for s:.~c':l. tak~ng. away
in the Sea Customs Act. ' Both in India and in Burma the word
" offences" .is used and not'' Crimes" as in Eng!~~~,. '' Offence"
 GENERAL IN DEX XV

PAGE
is described in s. 2 {-12) of the \Jenera I Clauses .\ct. In
England it is possible to define offence" as meanino~: any act
which is not .t ' .:rime" in some limited cases. MadhtJ;c-ji
Thawor , .. Ya ; Hll>>altl li) d.>: Daslt and <IIIOI!ter, (19261 A.l.l{
Sind 40; Reg. , .. Tylrr, t1891l 2 Q.H.D. 588, referred to and
distinguished. There is also no warrant for grouping offences
under s. 167 of the: Sea Customs Act into criminal acts and
nCin-criminal class.
SHYA'M Sl'~LlER A~ANDA v. THE COLLECTOR OF (;U;;TOMS,
RANGOON .. 28
ADMlSSioN-S. 31 <1/ Evidcttce Act-PresuwtUotJ aBai,st Pcrso111tol
giving evidcucc "' suPPort-Decision ojCo,r/ cvuld uot rest on
su.spicion-.ltt.-.tat io11 how /ttr creates estoppel. Held: S. 31 of
E vidence Ad pro,ides that admissions are not cor.clusive or !be
matter admitted. \\' here a person is not a partv to a deed
there is no c:sloppel by that deed. The party making an
admission tn ay ghe evidence lo rebut the presumption that
arises al!ainst him ,,.... ing to the admision : hut unless ancl until
that is satisiO\ctorily done, the fact admitted must be taken to be
established. Ra111 Cha11dra Kuuttwar v. CT1a11dhriNartet Si11gh
and other:.. ( l90i) L.R 34 LA. 27, followed . t resumptions are
necessarily made against a person who willuo: subject himself
to examination. when a Prima facie case is established against
him and by his own evidence he might have to answer it.
The true object to be achieved can only be furthered with
propriety by th e testimony of the party who, p<:r:~onally knowing
the whole circumstances of the case, can dispel the :;uspicions
attaching to it. .Vawab Syud Allee Shah v. Mussumut Amauee
Begum, JQ \\'.R 149; Sarclar Gurbakl:sl~ Siugh v. Gurdwl
Sitzl!h aud auotller, A.I.R (19271 (P.C.) 230, followed. It is
essential to take care that a decision of the Court rests not
upon suspicion but upou legal grounds established by legal
testimony. Sru ma1~ Chumler Day v. Gnp.zulclttwder Chuckerbutty
a11d otT~rs, . 11 Moore's I.A. 28. Mere attestation of a
deed by itself does not estop a man from denying anything
exceptio~ that he has witnessed the execution of the deed. It
confesses neither directly nor by implication any knowledge
of the contents of the document. Attestation may take place in
such circumstances as would show that the witness did in fact
know the contents of the document; but no such knowledge
ought to be inierred from the mere fact of attestation.
Pandunug Krishattaji v Markaudeya Tukaram. (1922) I.L.R.
49 Cal. 334; Banga Chaudra Dhur Bisuas v ... Jagat Kisltore
ChoTudhuri, ( 191 Ol I L.R. 44 Cal. f86 ; L.R. 43 I.A. ~49, followed.
DAW Cao v. U G ANNI AND OTHERS ... 15
AGRICULTUR.-\L CoMMITTEE WHETHER CAN DISLODGE OWNER JN
POSSESSION OF LANIJ 222
APPEAL BEYOND TJMB TO TH& D!S'l'RICT LAND COMMITTEE 88
- -- FROM CONVICTION. POWI!PS OF API'ELLATJ> CoURT 148
APPELLATE ' COURT (CRt'Ml~ALl. Po\\'ERS OF
. : .. ' 148
APPLICATION FOR DIRECTION IN THE NATURE OF CERTIORAR'I-The
Court of Judustrial ArhrtrattOIIPaSsing' an award directtng the
B.O.C. to iuve~ttgate the possibilities of river transport- Whether
au..ordi11 t .:J l .w. Where the Presid<!nt referred to the Cotirt of
 GENERAL INDEX

tA G E

Industrial Arbitrat ion a dispule between the Burma Oil <.:omp<tll y

Ltd. and the Oil l{efine ry Workers, Syriam and the Court by i ts
award directed the Co mpany h) iuvestigate the possibi lities of
river transport of crude oil t" Syri:un within three months a nd
mentioned that the arbitration court woul d recon$ider t he
qnestion of retrcnchm<:nt of employe<s thereafter. Held : T bat
the court acted arbitrarily and without jurisdiction h directing
such invest igation and they allowed their judgment regardil1g
reasonableness or otherwise of the proposed retrenchment to be
inAueucecl by extraneous ancl irrelevan t considerations. In the
ordinary co urse tbe Company for n1any years before the war
used to ~et c rud e oil for refinement at Syriam through their' pipe-
line and their present plan for rehabilitation is in act:ordan ce
w ith th e ~aid cnurse. The operation of the pipeline is the
essential link in that plan. The direclion to investi gat e th e
possibilities of river transport itn plies that the ordinary course of
such business should he a ll!:'red for the time being and the court
of Industria l Arhitration had no authoritv to di rect such
alteration or to decide in what manner the Company should
carry on t heir business.
THE BURMA OIL COMPANY, L TD. v. THE COUR1' OF
INDUSTRIAL AR~ITRATJON , BU RMA AND ANOTH.I!R

APPUCATION FO R WRIT OF CF.RTI OHARI-Trade nispute-Awar:i of

gratuity-Whether 11 t1ade d isfmt c-lmlicial discntion-No
gmtuity in Statuting Order f Mt h.:Stat eand 'Stu!e partnered'. mdls
if conclusivr. . When the applicant published?. notice to close in
Ap ril1949 their businesl:> as Saw Millers and in anticipation of
such threatened do:;ilt~ down the Worke rs' Union n1ade
demands fo1. grafuifies which were met in part and on a
reference lo the lndus:rial Court an awar.cl was passed raising the.
scale of such gratuities and this was challenged by an applicatnon.
to the Supreme ~ourt fl)r a writ of r.Ntior::.ri and pro hibitio n ..
Htltl :That an In dustrial Court -must necessarily sub$titutc its.
discretion for that of th e eu1ployers or the employees or both,
whenc,er occasion arises in all ma1 ters within its jur-isdiction.,
Ind ustrial Arbitration may invoivc the extension of an existing
agreeme n t or the makinJ.! of a new ona, or in general the.
creation of new obligati on or modification of old o nes. West em
11/(lia Automobile Associatiou v. lndttslrilll Tribun . l, Bom'bay
amt otlters, (19491 F.C.R 321 at 345, referred to .
The fact that in the Standinl! Order for th e State and State-
partnered mills there is no proviston for payment of gratuity bad .
been taken into accowtt b y the Court and it considered and ~
concluded that the St;mding Orders cannot be rt>garded as final,
on the subject. It had jurisdiction 10 cliect such pa)ments and in
making the award it c;lid not exceed its jurisdiction.

~TEEL ' BROTHERS & Co. LTD. t/. THE COURT OF

INDUST~IAL A RBITRATION, BURMA .\ND ONE 57..,
APPOINTM'ENT OF CHAIRMA~ O F 'STANDING COMMITTEE OF RANGOON
MUN~CIPALITY Z16-
ATTESTATION HOW FAR C_RF.4 TE's .!.!STOPPEL ... 158
AUTHORITY . OF' ~anugye . :. . . 108 .
.AUTOIU.TIC DrtroRqE 108..
 GENERAL INDEX xvii

PAGF.

Bouft fide OCCUPATION 241

B u n.DHIST LAW-S.JJ . Burma La;;, ..Jcf, lS98-Meaniugof B11ddhist
Law-De~ertiou by couple- Trh ct/1.; , dhorcc automat ic after a
spcci,'ierl Penvd-Az~tllority t >J ) Jnnugye. Held :That tsuddhist
Law witl1in t.1e meanin~ oi s. 13 of the Burma La1vs Act means
the Dhammathats and collecticll of precedeuts. U P e v. U Mmmg
JiautJg ~ha, (1932) I.L.l<. i C 1~:111 . 261 P.C., follvwed. T he view
exp;essed in the Full Hench case of /tla Nyun v. Jllaut:g Sa11 Tlzei1t
reportec1 in I.L.R 11'.127) 5 Han. 537 that where a BUlmese
Buddhist husband deserts his wife and for three years nei ther
contributes to her m aintena;:c;: nor has any communication with
he r the marriage is automa:i<aih dissolve~ is incorrect. Such
conduct on the pan of t he husband evidences his desire for
dissoluticn ofthe mard a)!C bt!lcl ; an d cannot in itself suffice to
dissolve the bond createci by m:n ual c.msent of the husband anrl
wife. For that bond to be dis; o!n :d it i~ necc~sary that the wife
reciproc:.tes the desire : .lnd th : reci procation m::t y be express or
by conduct clearly pointu:r iu rlla t direction .. Them Pe v. U Pel.
'( t906) 3 L.B.R. 75; Afn Sa;c Kin v. Mauug Tun Atmg Gyaw,
!1928) 6 Ran. 79; Dr. Tha Mya v /JJ,; Khi11 P11 and auotiler,
Civil Jst Appeal No. 37 oi 1940-(1940) R.L.R. 807; Ma Ka U
v. Po Saw. 4 B.L.R. 340: Daw Kyin Hmo11 v. Daw !tlya G:~l e,
A.I.R. (1936lRan.247: Matmg TheitzM.111ngv. MaKy;ce, (1935:
13 Ran. 412: Mn Httin Zatt v. M 4 Mytrint.., (19351 13 Ran. 41\7:
Tat~ Ma Shwe Zin v. Koo Soo Chong (1939) R.L.R 5~8at 563;
Ma Yi" Mya v. Tau Yattk Pu , 119271 5 Ran. 400: Selections from
the records of the Hlultaw. p . 24 and Civil Hegular No. lZ of the
Ju dici:~l Commizsinner, Upp er Burma, dated 25th September
1892: U Pe v. lJ Matwg Matt n g Kha, (1932) 10 Han. 261, rtferred
to. Ma ,\ 'yutz v. Jlfaung San Tltciu, 11927) S Ran. 537;
U Tlt.eitt v. Ma Kltin Nyzt11t. Cl948) B .L.R. lOP. over-ruled.
Remarks in 8 L.B.R., dissented from. The Mauugye Dltamma-
that is not the paramount authority in the body of the
Dhammalha~s .as ennnciated by the Privy Council in Ma Hm:u
Bwin v. U Shwe G01t, (19141 8 L.H.f?. 1. followed by the High
Court of Jtdicature at Rangoon in MaNym1 v.Ma11ug San Tllciu,
(1927) 5 Han. 537.
. -
Dn. THA MYA v. DAw KHI N Po .108
BURMA hiMIGRATlON (EMER GENCY P ROVISIONS) ACT, S. 4 197
BURMA M'tiN!CIPAL ACT, SS. 79 A NI> 201-Vdlidily of decree or order
passed by Court of comPetent jttrisdidio~A PPlicability to quasr-
;udicial officials-Subsequent assessment by Mrmicipal
Committee tt.nder. s. 79 (1) of the MuniciPal Act-Writ of
certiorari- lnterferttrce by. The Finance SubCoiui>itt~ of
Moulmcin Municipality recommended to the Municipal
Committee th:1t applicant's damaged Mill should be assessed
at SO per cent of the rental value. This recommendation was
accepted by the Municipal Committee. The applicant appealed
to the Deputy Commissioner, who treating the decision as
decision of Assessment Snh.OJmmittee entertained the.appeal
unders.79 (2)of the Burma Municipal Act and set asid e the order.
Subsequently the Municipal Committee passed a resolution to
recover arrears of tax on the basis of the original decision at
.so per cent of the rental va lue. The applicant appealed to the
C..mmissioner who held that no ;~ppeal hy to him .. 'The appli~
. cant applied to th e Supreme Court.{ or a directipn in the nature .
of certiorari. Held : Though the Commissioner was wrong in
.not entertaining the appeal, directions in the n atnre of certiorari" .

2
xviii GENERAL INDEX

PAGE
are discretionary and the Court wi!l be siow to interfere .if the
re sult of an irregularity o an inferior tribunal has been to
pr..,mole substantial justice between the parties. Though the
Deputy Commissioner exercised jurisdiction t:nder s. 79 (1) of
the Municipal A<'t the applicants never took the preliminary steps
w hich could enable them to exercise the right of appeal. There-
fore this Court should not exercise it now. The decree or order
passed by a Court of competent jurisdiction wi 11 not be decldred
void or a nullity ur.Iess the same has been set aside in proceedings
b y way of review, revision or appeal, and this applies in relation
to a tribunal exercising judicial or quasi-judicial functions as to a
Court. The Court has jurisdi~tion to decide wron~ as well as
right. S. A. Nat/tau. v. R. S. Samson, 9 Ran. 480 at 490, referred
to and applied: Makajan v.Narltari, (1901) 27 I.A. 216, followed.
The proceedings by the Municipal Committee hy way of re-
assessment must be treated as a fresh decision under s. 79
(1) of the Act and this i~ so even though the Committee did not
think it was acting under the said provisions.
CASSll'it }EEWA AND ANOTHERV, THE 1\IoULI,IEIN MUNICIPALITY 176
BURMESe BUDDHIST LAW APPLICABLE TO SINO-BURMESE BUDDHIST ... 133
BURMESE. BUDDHIST LAW-Re-marriage of motlzer-Estafe to be
divided is the estate held by mother at the re-rnarriage-Share of
itthcrttnnce claimed and gi7en-Sttch ltcirdebarredfrom clainrinl;
further inileriltznce. On re-marriage of mother a son claimed
from his mother and ~tep-father property with which to set
himself up independently. He was ~ivc n property ;1nd C7sh
which was not less than half thee!\tate brought by mother to the
second marriage. Demand was not for a g:ft but for a share.
Held : That on the . re-n.;.rriage of a parent the estate to be
divided is the estate held by the parent althetime of re-marriage.
Held further : That it is settled law tl1at when on re-marriage
of one parent, the ate t' child or children sou~ht and obtained a
sl1are from the parent remarrying, that child or chi~ren have no
fnrther claim in the est1.te of. tbat parent. Ma 01, Thin v.
Ma Ngwe Y,:,., aml another, 7 Ran. 398, foliO\\ ed.
DAW Yu AND OTHERS v. MAUNG KH!N AND OTHERS 236-
BYF:-LAw o~> HAN'I'HAwAnuv DisTRICT CouNCIL 228
CASH WHE'fHF.It PUBLIC PRCI;>BRTY 183

CER'l'IORARI, WUiT OF-INTBilFERENCE IN MUNICIPAL ASSESSMENT .. . 17().

CERTIORARI-OrdcY'o/ Controlkr Cf/ lmmigYation directing.aPflicatd
to leave cou11try-Burma lmmi~;r;~fiot~ (Emerge11cy Provisions)
Act. s. 4 .:1...Foreigncrs' Act, s. 3. The applicant was granted
permission to enter Burma and work as an Assistant Editor of
a Chinese paper for four years, t11e manager and publisl1er
th~reo( guarartteeing th:tt 'the applicant would so work. Before,
tba expiry of the time so fixed, the applicant resigned tl::e post
and wor){ed as a teacher : whereupon tbe guarantors withdrew
their guar:\ntee. The Controller of Immigration, acting under
orders::'of the Foreign Office,. t;:ancellerl' the appli~nt's Stay
Permit' and ordered him to leave the country.' Held :.That what
the Controller had done was f!lerely to car.ry o.t:tthe order of the
Government: Every. count.ry w.hich extends its ho<;pitality to an
alien can w ithdraw it and send him bacl, to his own country. .
Eyery l>ower !Jas the right to refuse to permit ari alien .to enter:
L'le ~tate and, if it permits. ait alien to e1~ter;to annex whl\t .
 GENERAL INDEX Xl X

PAGE
conditions it pleases tu such f!<::rmi.>i<>n a nd ex f)(:l o . <l.:port
him!r01u the State: at plc:aurc:. Thi~ principle is propo:111dc<l and
followed by En g lish nnd Aonerh:;ul Courts and s in <.:Onlormi:y
with the practict: of every sovereign Stat.:. This principle is !o
be found embodied in s ..i of the Foreijo!ners' Act whereby the
Presideut may order any forei~utr 10 remove himself fron: the
Union of Burma. Withod ~u<.:h power the p<>sitiun of the
State will be almost intolerable. Governmt:nt was perfectly
within ils rights in C:\ncelling the pt:rmit for breach of condition .
The Ki& v. S(Cretary of Sla tr.for Home A. ffairs. (19171 1 I<. B.
922 ; Attorney-Getle1a/ for Canad,, v. Cain, (190ol A.C. 542 at
546 ; Mahler v. Eby , 2~4 U.S. 32, referrtd to.
KYI CHUN G YORK v. T H E CO:>;TROLLER OF IAIMIGR:\T C0!-11
BURMA 19 7
CERTioRARI-Lessee bt1ildi11g a hotue Oil leased land a11d letiill/! it
out to tenm/ 3-IIPPlic.,liol for fi:mtion of fair rmt ttutft r
s. 19 12) lg) of llrbm1 Rfllt t:ontrol llct- AssislMil Controller
_fixing sta11dard rcut at co11tract rate. Held : Before the third
provisio to s. 19 (2) g1 of the Urban Hent Control Act can
operate, it is necessary that the Controtltr of Rent.s shoul d be
satisfied that the rent fixed for the first !imc after 1st September
1939, when the premises were first let was txcessi,e Cl~ 1:ot j ust
or f:lir.
U SEIN LtN Al'D ANOTHER V. THE ASSISTANT JUD GE,
TAUNGDWINGYI AND TWO OTHERS 214
CERTIORAIU-C rba11 Rt~JI Cout rol Act. s. 16-AA (41, 11'> -AA. Ill-
Decision b<~sed 011 misconetP/iOII of facts a11d wro11g ass11m#ion
of law. Where the Cc.n~ru:ler of Rents purporting to <let uncer
the Urbea Rent Control Act, s. 16-AA (4) and 16-AA (2) held that
the applicant had vacated a room and failed to J.!ive notice
thereuf a:1d tllat the unauthorized occurant was liable to. be
e victed therefrom and there was no legal evidence of the room
havmg been vacated. Held : That the order itself contains a
statement of what led to the decision. lt is" a ~peaking order "
and the Supre me Co ~trt can inquire into the correctness of the
decision b.v cerlil\r:tri. Rex v. No rthumberlar:d Ccmpensalion
A.Pfea l Ttibuuul Ex-Parte Sha1t', 11951) 1 K.B. 711. referred to.
D R. R. c. O AS t. THE CONT ROLLER OF RENTS, R ANGOON ... 225
C ERTIORARt-S. 14, Li1111/ation Ad-Supreme Court Rule.<, Order 21,
Rule 8~S11jJ;cient cause-Local Autlu>rities (Stls.Pe11SiOIIJ Act,
1946 and Rules 3 (1), 7 and 8-Byc-law 4 of Ha1Jilun.taddy
Dis/riel Council mack i11 pursuance of s. M 111 of Rural Self -
Goveretmrmt Act-Failure to advertiu i" cottspjcuous plaus in
the market of increose of rat e-8\elaw superseded-Revision
attd enha~ceme11t af rates-Judicial or qut~si.judicial act. An
order for increase of rates of s tall rent in Kayan Market was
passed and a\!ction sale of the ri)!ht to collect stall ren~ at
enhanced rates was held. The applicant being aggrieved filed
an appeal to the Commis$ioner a~ provided for by s. 80 (II of
Rural SelfGovernment Act and on the dismiss;~ I of the appeal
re >ision was filed to the President. Held: That time thus
occupi~d in th(se proceedings may be txcluded under s 14 of
the Limitation Act read with Order 28, Rule 3 of the Supr eme
Court Rules. TJI.lder Rule 3 1}1 or Local Authoritie~ (SuspeMion}
Rule$ ... 194~ al~ the existing rnles and bye-Jaws under the 'R ural
Self-G.overnment Act shall' appl}' unless they are superseded_
XX GENERAL INDEX

PAGF.
Bye-law 4 of Hanthawacldy District Council Public Market !:lye-
laws proviclcs that the rates ci d;lily fees shall be fixed and be
subject to the revi~ion by the District Council and they shall be
publicly advertised in conspicuous places in the market. When
there was not public advertis<:mcnt in the mar ket this rule was
not complied with. Rule 7 of th..: Loc:tl Authorities (Suspeusion)
Rules, 1946 supersedes Bye-law .J ,j the Hanthawaddy District
Council Public Market Bve-Jaw. li r>m,ides U1al if it is considered
that the collection of tiu:: rates o r t<'.x<:s should be superseded or
amended, propMals for tlw sam~ sho:ld he f Jrwarded to Govern-
ment through the Deputy Commissioner and the Commisslouer.
As this rule applied and no rderencc was made .t o Government,
the order of enhancement was b;td. Hedsion and enhancement
of rates ol stall rent is j"dlcial or quasi-judicial aet and therefore
amenable to the jurisdiction of the Supreme Court. As regards
auction of stalls or collection ol stall rent at revised or enhanced
ntes they are executive acts in respect of which applications for
the writs of cetiorari and p~ohibition :~re absolutely incompetent.
U Hhve Ia) A. E. Mtrdari v. U TuTl Olm and otze 1 (1948) B.L.R.
541 at 559-560, referred to.
U PE AND ANGTHEF< V. THE HoN'BLE MINISTER FOR HEALTH
A~D LoCAL GOVERNMENT AND OTIIERS 228
CERTIORARI - S . 167 (8) of lite Sea C1tsiom s Act-S: 3 (2) of lm:/>orf
T rade Conhol Act, 1947-Procecdings befote the Collector tmder
the above Act quashed. Applicant's shop was raided by the Police
and part of the stock of uncut synthetic stone were seized and
they were laler r eturned. Later Custom Officials went and seized
some synthetic stones and the Applicant was callerlupon to show
ca use w.hy penalty should not be imposed under s. ~67 (8) ~f the
Sea Customs Act read with s. 3 (2) of the Import Trade Control
(Temporary) Act, 1947 oh the ground that these stones wer.e
r eported to have been imported into Burma without import licence
and without payment of duty. On an application to quash th.e
proceedings. He~d : That s. 167 (8) of Sea Cu~toms Act provid~
of impo$ition of penally upon persl)nS concerned in import and
export of prohibited goods and the burden of proof nnder tlll\l
sect4on is on the accuse!' to prove his ac-cusation ag::~inst thf'
accused and un less and until the accuser can prove his allegation
the accused must b~,let off. Procedure ~doptcd by the Collector
is the very antithesis of the one contemplated ins. !67 (8) of ~ea
Customs Act and i~ a breach of the ca rdina l rule of criminal
jurisprudence. S. S. A 11at1da v. Colleclo1' of Cusfonzs, B.L.R.11951)
(S.C.) 28. distinguished.
KANTILAL GoRDHAN OAS SHAH v. THE ASSIS'l'ANT COLLECTOR
o~ CUSTOMS (PREVENTIVE) . 244
CHAIRMAN OF STAI'OING COMMITTF.E OF RANGOO N MuNiCIPALITY
ADJoURNI NG ELECTJO:\ . OF CRA!Rl,fAN : DA'l'E TO BE FIXED
L.~TER

C ITY OF
..
R .ANGOON MoNtcrPAL ACT, RuLE 251, CH. IX, Scs.I
216
216
Ci ViL PrOCEDURE CODE, ss. 4i, l04 ~NO ORDER ~3. 69
ORDER 47 APPLY T O SUCH.:REVI EW UN.OER
s . 2 l-A OF THlt URBAN RY.NT CONTROL' AC'I' .. ... 2p
; .Co MP E NSATION. OwNER. T-!>NA NT IF OW NER 201
CONFISCATION 28
 ~ ..
GENERAL INDEX XXI

Co~STITI:TJ O)I J\CT, s s. 2:2 (31 A:"D !46 73

CONSTRU C'r!ON Of STA1'rTI' ii 169
- - - - - - - - -- - - -I<ur.r. OF Ejusdem gem.,.,., !76
CONTRIRUTION TO PROVIllENT Ft.:ND 1

CONTROLLER OF IMMIGRATI ON; ORDER DIRECTING A PERS0:-1 T O LI!AVE

COUNTRY 197
COURT-}UIHSDICTION OF 1
CODE OF CRIMINAL PROCEI IURE- S. 423 (1), S. 439 (1) - Couviclion
tmder s. 4 11), High Tre11son Acl. - Cl)uviclion ami seufcnce of
death rasscd by the High Court under s. 3 (1) of the High
TreaSOII Act-Procedure lu be folloued. under s. 423 (1 ) {b) in
an l'lppeal from a conviction the Appellate Court can do anv of
the following things :-
( 1) Alter the finding and maintain the sentence.
(2l Alter the find1ng and reduce the sentence.
(3) Reduce the sentence without altering the f;nding. But
tllis does not mea n that t he Court can alter the finding and
retain the sentence passed which would he illegal acc.:.rding to
t11e finding. What the section provides for is maintenance of
a sentence which can legally be passed for the offence for which
the finding is altered. When the accused is tried on a charge for
a major offeuce but is convicted for a minor offence, and there is
an appeal, the High Court can open a Revision pmceeding and
call upon the accused to show ca11Se why the acquittal of the
major charge should not be ~et asicle and a re-trial ordered. If
the explanation is not sati;lactory, the High Court then in exercise
of its appellate jurisdiction mus.t get rid or the order 01 conviction
for a minor ollcnce by setting it aside. The Hi gh Court then
in exercise of its revisionary jurisi.:liction must set aside the
order of acquittal and under sub.s. 4 of s. 439 of the Criminal
Procedure Code order the retrial of the case, but the High
Court in its revi$iOnal power cannot convert an acquittal into
one of conviction. Kislum Singll v. Tile King-Emperor, SO All.
72!, (P.C.), followed. &twa Singh v. Tile Crow11, 23 Lah. 129,
dissented from. In re Bali Reddi, 37 Mad. 119, referred to.
TUN B1N v. THE U.sioN o~ BuRMA. 148
CRIMINAL PROCEDURE CoDE, SS. 5 (2) AND 403 (1) 28
DECISIO~ BASEO O.S MISCO.SCEPTION OF FACTS ANI> WRONG ASSUMPTIJN
OF LAW 255
- - --OF COURT COULD NOT REST ON SUSPICION 158
DEFENce OF BUR)t~ RuLEs, .194(1, RuiE 2 (91 AND 2 (101 201

D ESERTION ... 108

DETAINING FIRS'J: AND SI!RKING MATERIALS IN SUPPORT LATER 188

D IRECTION .lN THF. NATURE OF CERTlORARI-..Qunshing of tlze order of
the Collector impositzg a Stamp nuty-Dircction in th e nature of
mandamus to rlirctl FiuuuLiol Commissiouer to .send a cnse .to
the Higii.Courlunrler s. 57 (l).o/ the $lamP Act. A deed of sale
XXll GENERAL INDEX

PAGE
was execnled in favour of Ma J.{hin Pu on the 18th March 19~7:
on the 2\lth June 195Ci she executed a Deed described as a Deed
of Disclaimer and Reli.tquishment in respect of the same pro-
perly in f:tvour of the Applicant. When the document was
presentee! for registration the t Sub-Registar ~ent it to the
Collector under ss. 33 and 36 of the Stamp Ad and the Colledor
ordererl payment of deficit stamp fee under s. 40 of lhe Stamp
Act. Applicant filed a redsion to the Fina cial Commissioner
under s. 56 of the Act and the application was rejected , There-
after. the Applicant filed an app)icatio n to the Financial Commis
sioner :~sking him to state a case and refer it to the High Court
under s. 57 of the Act and the application was rejected. The
Applicant then filed an application for dir.:ction in the nature of
certiorari. Held: Th'atthe Collecfor.and the Financial Coqlmis-
sioner had jurisdiction to decide under what article: of-the St;~mp
Act the document should have be.e n stamped and in passin~ the
orders ia questiorr th<:y have not exceeded their judsdiction in
any way. A writ of certiorari will not lie if the authority whose
order is impugned by means of the writ has jurisdiction to dea l .
with the matter and dealt with it, even though the Su preme
Court might not al-(ree with the said authority on questions either
of law or fact or of both, Gwan Kee v. Tltc Union of Bunna,
(1949) B.L.R. 151 {S.C.) The writ of mandamus cannot
be demanded E:c Debito Justitiae. It is issued only in the
discretion of the Court and the Court will not is~ue it unless
under any law for the time being in force it is clearly incumbent
on a person holding a public office to do or to forbear from
doing a specific act. S. 57 of the Stamp Act J!ives discretion to
the Financial Commissioner in the matter. It is not incumbent
on him to state a case and refer it to the High Court. Therefore
application for writ of mandamus does not lie. The Queeu v.
Garland, (1870) L K 5 Q.ll. 272; Tlte Queen v. Clmrch Wardtns
of AU S.wds, Wigatl, {1ll76) 1 A.C 6::0, referred to.
NoOR MOHAMED v. TRE FINANCIAL COMMISSlONBR:
(COMMERCE), BURUA AND ONK 94

DISPOSAL OF TENANCIES ACT, S.3, PROVISO (a)-Rigltb of onmer fo

I'CnTfJin i n possession -Whether t:llll br. disladted by Jf11/age
Agricultuml Comwitlce or Distri~t Agricull11ral Conmutlec.
Where the owners applied to the Village Agricultural Committee
to Cl'ltivatP. their land which is just over 10 acres for the s~:ason,
1950.:51 andweFe ;.lJowed to do so but the old tenants applied
for permis$ion to work the same lajld which was ~ranttd by .. the.
new Vill~ge Agricultural Committee and whjch was confirmed
in a{'peal and the owner applied for a writ of cer1iora~i to quash
the said pro<.:eedings. Held: That under the provision of s. 3,
proviso (a) of the Disposal of Tenan~ies Act the owners of the
land are entitled as of right to remain in poss_ession wht:n it is.
proved that they are engaged in the cultivation of the land with
thei rown hands as their. principal'means of ~ubsiEtence: Neither
tile Village Agricultural Committee nor the District Agricultural
Committee on appeal have power un(ler the said proviso to
dislodge the owner.
MAUNG WEIN AND TH~E~' OTHERS t'. THE DISTRICT
AGRI9UI:-:rURAX. COMMITTEE OF THARRAWADDY ASD.
THREE OTHI!NS. .-.. 222
Dl~PUTED ~ENAN CY.~H~~.~~R ~AN BE J;>ECIDEO nv:;~ E REN~ Co~;rRof.LE~-. 85
 GENERA-L INDEX xxiii

PAGE
EFFECT OF I~I':FEI!Iol\CE TO INDUSTRIAL COI! WC OX l\O'f!CES TO 1\'0!; KM El\ 1
EMPLOYEE

ESTATE TO H F. t>IVJD0 ON REMARRIAGE OF ) ICTHF.R 236

ESTOP PE L- ATTESTATION HOW F A R CREATES 158
193
EVIDENCE ACT, S. 31 158
.EXTRANEOUS CONSIDERATIONS TAKEN II\ TO ACCOUNT. EFFECT 1

FAILURE T O At>V EI~TISE IN CONSPICUOCS PLACES IN THE ) tARKT OF

INCREA SP. Ot' RATE 228
FINA:-/CIAL C O)! MISSIONER (Co!IIMERCE) TO SEND A CASE TO T HE HIGH
CoURT Ul\DER THE STAMP A CT 94
FINDING OF FACT BY RENT CONTROU.ER IF CAN BE QUESTIONF.D IX
CERTIOilAJli I'ROCt.EDING 241
lo'OJlJUGNERS' A CT, S. 3 ' ... 197
'GENERAL CLAUSES ACT, SS. 2 (42) AND 26 28
- - - - - - - . s.12 (Z) 73

HEIR DEBARRED FROM CLAI~UNG FURTHJlR INHERITANCE 236

\

'HiGH TREASON. EXCULPATION OF OFt' ENCE 142

- - - - - ACT, CONVICTION UNDER S. 4 (1) ALTERI!D TO ONE
UNDER S. 3(1) ON APPF.AL. PROCEDURE T0 BE FOLLOWED liY
HIGH COURT 148

iMPORT TRAUE CONTROL ACT, 1947, S. 3 (2) 244

!NDUSTRIAL COURT-AWARD OF 49
- -- - - - - - 1 DISCRETION OF 57
- ---
. - - - - Jc<'RAMING OF ISSUES ' ]:

INTERPRETATIO~ OF CONSTITUTION ACT. 73'

JUDICIAL OR QUA SI-JUDI~l~L ACT 228

jURISDICTION OF COLLECTOR OF CUSTOMS 28

LANDLORD . ... 43
LEASE A~D LICBNCF.-Dijfcrefi.Ce betwee11-Tesl~ exclusive r Jght of . ,
occupatiotl. Where the parties entered into an agreemen
whereby the Appellant was allotted a floor space 17' x S' and
agreed to pay " a guaranteed monthly commission " of Rs. ~00
as consideration and the Appellant constructed fixtures and
show cnses on the space allotted to him with exclusive right of
occupation in that area. Held: That the Appellant was a
lessee and not a licensee. The circ.u mstances leading to the
execution of the dpcumen~,-the fixtures : put up thereafter 'b y the
 GENERAL INDEX

PAG !i

.O.pp~llantand the fact that a specified space was allotted for

business purpost:s with exdsil e right of occupation to the
Appellant leads only to the ('Ondusion that the Appellant was a
Jessee. S. R. Raju v. Tire Ass;sfmd Conttoller of Rents. Rangoon
and others, (1950) B.L.R. (S.C.) 10, referr<"d to and applied.
GURBACHAI\ SII'WH BIN!>RA t:. Jos. E. FERNANDO 255
LT>SSF.E BUILDING A HOUSE ON LEASED LAND AND LETTll'G OUT TO
TE~AN1'S, FIXATION OF F AIR !lENT 214

LIMITATION ACT, s. 14 228.

Lis I'tmdens 1
LoCAL AUTHORITIES ISUSPENSI oN) ACT, 19-16 AND RULES 3 (1),
.7 AND 8 11213
MANDAMUS, WRIT OF 94
MEANING OF THE WORDS "POSSESSION", " REQU!Sll'!O.N ","PUBLIC
SERVA~T '' 201
MONEY LE!"DEHS ACT, 1945, S. 12-Corrccf inltrPrctatiou. Hetd;
That under$. 1:i of the Bunna !\Ioney Lenders Act prohibition
is against a decree for !he aggregate of the principal of the
original Joan and such sum to \\'ards arrears of interest which
together with any interest already paid exceeds the amount of
the principal. In other word$, s. 12 bars the Court against
granting a decree for arrear:; of interest in excess of a figure
which, ,,ith the interest already pllid, adds ttp to tb.e amount of
the princip:t.J. If the interest already paid exceeds the .Jimit
under s. L2 of the Act, an that t11e Court can do is to refLtse
a decree lor interest without affecting however the daim for
r epayment of the original loan, Under that section the Gourt has
,no power to reduce the amoU;nt of principal, but the Court may
reoreu thP. transaction and grant reliet to debtor in respect of
interest payable prior to the suit under s.. L3 of the Act.,
MA E KH!N 1/, MA AHMA HPYU 248
MOTIVE OF RF.QUISITIONIKG, RELEVANCY OF 20L

NEW CASE I.N SPECfAL APPEAL 193-.

OFFENCE 23
PENAL CoDE-Of!wce under s~.121, 122 Cl) as amended by Act 20
of 1950-High Treason-Excultationof offence- S.94 txclndes
offence against State punishable wtlh death. Held :No state
n1ent that co!'!tains selfexculpatory matter can amount to a con-
fession, if the exculpatory statement is of some fact which if true.
would negative the offence alleged to 'be confessed. Moreover,
a confession .m ust either admit in terms the offence;or at any rate
subs!Mfially all the facts which consti!LJte the offence. An ad-
mission of" a gravely incriminating fact, even a couclt!sheJy
incriminating fact is not of itself a confession. Pakg!a-!'larayan
Swami y. The King-Emperor, (19-1 I l R:L.R; 7~9 at 79.8, approved
and followed. The claim in exculpation made by the ll~cused. in
his confession t:l'tat he did not willi-ngly joi,n the insurgents, but.
was f.orced to become of tbeircompail,v by threats of death,~ven if
it be tru~, is nqt sustainable in rei at ion to an. c.ffence ;~ogaiqst the
 GENERAL INDEX

I'AGE

State punishable w ith dca th : !. 94 o' llw Pe nal Code exduc!cs the
plea of Cl)tnpulsi on lw :ri'c 0lcn-inu of in ~tan l <lt.:ath iu excuse ol
the >fie nc< againsi Statt I'Uili:!h.tllc with death.
CHIT TIN (a) Su Tm A:-\ D t>:-. t: v. 'fH I( U :'\ ION 01.. HURltA 142
PENAL CODE, S. 478 98
PowERS oF C!IDII:"A l. :\PPF. LLAT" Cot: If!' 148
PREMISES TO Bf: V,\<:Al'ED OR LtKP. I.Y TO BE \'ACA'fEO ... 48
PRESUMPTlllX .~GA! NST Pl!I(~ON NOT GIVI:'\G E\' IOE):CE !N l>UPPORT. .. . 158
PRINCIPLES UXDJ::RLYI1'G Wll!TS Of' PROHIB!TIO:'\ A:'\0 CERTIOIURI .. . 1
PROPERTY OCCt; PIED HY TENA~T; PURCHASER ll0\'1:'\G GOVEJ~NMENT
TO NF.QUISITIO:\ 201
PROVID.EXT FUND 1.
PUBLIC ORDER !PRESERVATION) ACT. 1947 , s. 5 (21-Report by
Police InsPcdor and ddenlton by Deputy Commissiouer tllereon-
Delention on rensona/lle stS/>icion-IJettduifi/J first .rnd seeking
materials in support Ia/ er-Practice coJnrlcmmed. Hi!ld :That
a detentln" under s. 5 (2) proviso tii ) of the Public Order
(Preser va !ionl Act on reasonable suspicion cannot be for any
period in excess of two months and this period is permitted by
the Act to .:nablo: investigation into the activities of the person
detained. \\'here the Deputy Commissioner t()(lk action eight
months later after being addressed by the Applicant and the
earlier order was e2ncelle,: 3nd a fr~h order of detention wa$
p;1ssed. on " being satisfied " with the necessity therefor
without enquiry of all available evidence or wi!ho,tt :my
examitl:ltion whatever by the Deputy Commissioner, the detention
is illegal. Re:~sonable satisf~ction of the necessity to direct
detention is the basis of t.hc: exercise of powers under s. 5-A of
the Public Order (Preservation) Act. There must be known to
the authority su::h re:ldonable ~rounds before he can validly
exercise the power. Titu:a Maw Naing v. Com.,,issiontr of
Police and one, B.L.R. (IYSO) (S.C.) 17 : Nakhuda Ali v. M. F.
De S. J awarat1ze, 54 C. W.N. 883, referred to and followed.
The prar; tice of directing detention 6rst for an iudefinite pc::riod
and later to seek materials in support of the order of detention,
followed by the Deputy Commissioner, cannot be too highly
d eprecated. .As there were no materials at the time of the order
of d~tention on which the 3uthority could be reasonably ~atisfi~d.
the detention order is ille:;!nl.
tr ZAN v. THE DZPUTY COI.UIISSIO'NER, 11:\SEIN Ato:D
ANOTHER 18&
PUBLIC PROPERTY PROTECTIOX ACT, 1947, S. 2- Cash <t:ltefher pu/.lic
Properly-Rule of ejusdem generis m comtructionof Slatutes.-
Condilions for ap;licat iot. Held : Cash issued to a Village
Headman for agricultural loans is public property within the
meaning of s. 2 of the Public Property Protection A'ct, 1947.
The doctrine of ejusdem gcneris must be ~pplied with caution in
connectic>n with the COJ!Siruction d Statutes. Where in an act .):
Parliament there are strong reasons from the history and circutn-
stan~es connected with ih passing aod from I he stn:ctu: e of th.:
Act l,tself, I? indicate fhe real meaning of the Legislature, .lh is
xxvi GENERAL. INDEX

PAGE

doctri ne has no applica:ion. The specified tl:ing must po~scss

some conmon <ttHI dominant feature so that the l!en lls can be
a$ccrtained; bt:t tht.:re i$ 11> al;thNity for the propositi(!n that the
wle must be applied whenever a common and dominant feature
can be found in the spc:;ified thin!!s. -lttontey-Gcneral v. Brown.
(1910) 1 ICB . 77.", aJ'plied. Jlfo!Mmecl HnsseiJL v. Thr. Unio~> of
Bttrma, Criminal Misc. Application No. 115 of 1948, over-nllcd .
S. S. Mcgnhil~lv .!Nc lulyrc Bros. & Co .. (19201 3 K.B.; The King
v. U Saw Hla J>ru owl on e. (t9-17) R.L. R. 83 at 8..i-,7, rdcrred to.
Ko TIN v . THE CHAIRMAN, 'PUBLIC PllOI'I<RTY PRO'fELTIO~
. BoAm AND Ol\E 183

'Quo WARRANTO-City of RaugoOIL J.fu11ici(>al A ct, Rttlc 2.)1, Clt aN c1

IX. Sc!ted~t/e 1-Siandlltg c;ommit/ee-Appuinlment of ChairmatL
-M.:eting attcnd;d liy eight mem/Jers-Chairmalt adj,111rniug
election of Cltaim;tttl - /)a te to be a11nounccd later, reu:aiuing
n1eml:e1s clcctmg 11 C!lairmau- Valitlity- Q uo warranto plocce-
diugs- Na/u,e an.l SC<Pe. Held : Proceedill;!S in the nature nf
quo warraulo wilt lie for .u surping any office whether created bv
charter or bv the Crt>wn with I he consent of Parliament, provided
the office be of a public nature, ::tnd a s ubstantive office and
not one held at the will ancl pleasure of ot hc:r s. It' e.~ v. Spayc1
ami Cassel, (1916) 1 K.B. SQS, referred to. Darley v. Th e Qlteet~,
12 Ch. <tn d F. 537 at 541, followed. The said remedy is ;wail able
to private persons within the limi ts mentioned and s nhject to the
-<liscrt-tion of the Court to refuse or grant it. The Court . in
-exercising its discretion will consider the facts and ci rcumstances
and the consequences likely to follow. The Q11ee1t " Cousin,,
(1873) L.R. 8 Q.B.D. 216; Tile Quew v. Warri, 1873) L.R. 8
oQ.B.D. 210 at 2!5, referred to. Jn the present case the term of
the Chairman d a Standing Committee of the Municiral Cor-
poration of Ran~oon e xpired at midnight on the 20th March
1951.. A meeting of the Standing Coinmitlee was called on tl e
20th March 1951 to eled a Chairman for the next year. Out of
-eleven .members: eight were present (three forming a quorum).
The Ch.a irman adjourned the meeting announcing that the date
for next meeting would be announced later in consultation with
the Commissioner . Six nut o( the eleven members protested
against adjournm ent. The Chairman and other fc,ur members
;then left the meeting. On the advice of the legal addser of the
Corporation who was preser.t at the met:tin$!, thr rema:ning six
members held a meeting and elected the first Respondent as
Chairman for the next year. Held :The election of the Chairman
was legal. The Chairman of the Standin~ Committee had full
discretion to adjourn the meeting of the 20th March, blt R ulr 9
'()[Chapter IX provides that in adjournin~ the meeting: the
Chairman ''shall fix such time and place for an adjourned
meeting as he shall think fit." Witho ut such fixation of ti me and-
place of the next meeting. a mere ;sdjournmtnt tn a date which
the Ch;ti, man r~opMed .to announcP. later after consdting with
1h~ Co~nmi~sioner of the Corpora!ion is not a lawful exercise of
the power of adiournment under l~ule 9.. The Chairman would
"have ce::tsed to function after the 20th March, .o one could fix a
date {or. the adjourned meeting. It is to provide for such
, con~equeuce that the rule requires that ti1e adfo.u rned m~etin'g
-shall peat a-fixed time and. place. No practice howeve rconsistent .
can Civerride t!le ~1lain ptov-isions of Ia~: .' .
u HTUN TIN 11. U BA :tttN AND TWO OTHERS 216
 GENERAL INDEX xxvii

236
RENT CONTIWLLEII \\"H KTHEII CAN I)ECliJI( OISi'UTEO 1"E:-;A:\ CY 85
RF.QUI ~I'fll)~ " .\ IEA:\1"'; OF 201
REQUISlTJONING (l::~I~:tlt:E:\CY PROVISIO:>:~) ACT, 1947-Jllenu ing of
rcquisit iou- Proferl \' occuf>ied by ll1ul11t - Pu relit! Sa woving
governucnt to reqni;ilton-RequJsitiotliug ;I cf wllcl/:rr appt.cabtc-
Conslil11ti:, ,,_( l:J,,.,n. ss. 13 and 23 (4)--lf Rcquisdt<>ni11 g Act
r tpug11anl l o1-Cou:p.;1tSatiou to OW/It:r-Tctl aut if C'wuer- Urba:
Rt1U Control Act . .<. 32- Possessiou of ~ovcmment - llfetUting of
the uords tos!e.-sion, r,qnisitiou, putlic serf!auf-Dcfet.ce oJf
Burma R11lcs, 19+0. Nule 2 (9 ) ancl Rule 2 (JOJ-.IIolivc ;,
requisiliouin;:. rd<"t<tttcy of. Applicant was a monthly tenaul of
premise~ sine.: 1~~6. In 1950 the 2nd Hesponc!ent, an Officer in
the M"dical S.:r\"il;e oi the Govt-rnm.:nt of Burma purchased the
premill<">. r l c Collector of Han goon made an order on the lorh
January 1951 reqt1isitioning lhe prcmiHs and follow ed it up on
31st Janu:tr v 1 ISl calling on the applicant to vacn te, warning
him th.tt 0:1 failure to vacate an order authorisinj! his removal
would le issued. Up<Jn an a pplication for a:1 appropriate
c!irecti<nl under s . 25 of the Constitution of Burma it was
c:on~enclo:d that the Hequisitioniug Act is repugnant to the
Constitution ; that the requi~itiouing was not in good f~ilh ; that
the Ac t did not apf>IYto property in the possession of a tenant ;
that there had been di~crim i nation in that governmen t servant ~
had been preferred as ;tgainst ordinary citizens and that it is n ot
in pnbtk interest; that depri ving :t tenant of his property would
amount to !.imitation or expropriation of private property and
that the Urban Hen! Control Act can be invoked only to property
in actu al possession of Government. Held : Negativing the
con:entions :-S. 2 (IJ of the Requisitiuninl! Act empowers the
President by order in writing to requisition any land, buildinj!,
etc. A tenant in possession is not exempted from having th<:
propertv requisitioned. .Pr ovisions of s. 2 cannot be narrowed
down and the absence of specific provision for payment of
compeu~ation can amount to no more than a casual vmission.
Held: (i) That th o R<"q uisitiQning Act is not repugnant to s. 13
or s. 23 (41 of the Constitution. No arhilrary discrimination ;.s
contemPlated by s. f3 is perpetrated when Government provides
accommodation to a person charged with the performance of
public duties in prelerence to a person not so charged. The
requisittbnin~ docs not also amount to limitalio(t of private
properl y within the meaning of . s. 23 (4) ol the Constitution.
A ten ant has a righ t in property to the extent of hi s terms and l1e
is the owner of an interest in the property. When s. 6 of the
Requisilionin~ Act provides machinery for assessment and
payment of compensation to the owner it satisfies different and
concurring estates in the property. Held also: That s. 32 of th~
Urban Ren t Control Act providin~ for prohibition against
termination of a. monthly ]rase on notice does not extend to
premises which have come into the possession of Government.
Possession iu this section is not restricted to physical
possession; so to read it would unduly restrict that term and
make s 32 a "futility. JJ!it~ister of Agriwllu re and Fisheries v.
Mat hews, (l950) 1 K.B. 148 ; Tlt~Slemta Roman a v. The Oltenia,
U944t 43 at 48, referred to. Th~ .word "Requisition is not a
term of art and does not connote the same state of things in every
xxviii GE NEliAL INDEX

PAGE.
particular ca,;e. It may m ean hiring or may involve l:king o ve1
o f absolute dominion. It is so used in Rule 2 (JO) of tl; e Heq uisi-
tioning Act to the extent th at the properly is p laced at the
di~posal oi Government. T he Requisitio ni ng Au thority 1n ay
well cvme withi n the meanin!! or landlord under s . 2 (c) of the
Urban Rent Control Act. T he word " public servan t " 1S not
defined in the Hequisitionin!! Act ; it is a re-en actment of t11e
Defence of BJrma Hule, J 9l.O. Ru le 2 (9) of the $aid Rules
defines th e terr;l as including p ublic servant according to t he Penal
Code and an y servant of any local authority or Hailway Admini-
stration. The test is wh ether his pay com"s cut of th e Nati o nal
funds and lhe office must be public in the stricl sense of the term,
namely, an office in th e discharge of public duties. The
Bronclma yuc. (19161 64; Jsmt~il Moh-amed v. Tl1e J..'ing , !1941 )
R.L.R. 536; In re N iranzs, ( I R9l) 1 Q. B.D. 594, referred to. Au
exercise of a law ful statutory right ca nnot be vi tiated by any
improper or ul!erior motive. A llet v. Flovrl, (1 o98J A. C. 1,
Teferred lo.
CHARLES R. MANASSEil v . THE COLLECTOR OF RA~GOON AND
ANOTHER 201'
REVIF.W OF SUPREME <.:ouln JUDGMENT 73
- -- - , Vl'!iETHER A CO-TENANT WHO IS NOT .;N AGGRlEVk.O PA!!TY
CAN APPJ, Y 211
RULES Oi'' NATURAL J USTICE

RURAL SELF-GOVERNMENT ACT, S. 80 (1) 228

SALE OF Gooos ACT, S. 20 25f.

S ALE OF MOTOR CAI~-Paym,wt of Rs. 10,000 out of Rs. 14,000
purchase price- Delir:ery of f/Ic C<lr-Forfeiturc of Rs. 10.000
fo r foJilurc to P:ty the balance-S. 20 of S ale of. Good~ . Act.
A rpcllant sold a motor car to the Respondenh for Hs. 14,500 and!
delivered the car to the Respondents and received ns. 10.000 as
part-price. T he sale agreen:ent provided that if the balance
Rs. 4,500 was not paid by 30th April, the sum of Rs. 10,000 will
be forfeited and the car w ill be returned to the Appe ll<~nt .
T he Respondents failed to pay Rs. 4,500 on due.{date <~nd the
Appel lant fil ed a suit for possession of the car. Held: That
under the contract between the parties the property in the l'ar
passed to the Respondents. The cla\1ge relating to forfeiture oi
.Rs. 10,000 was a penalty clause and High Cou1'1 was jn$tified in
~rantin~ relief against forfeiture. John H . Ki lmer v. Brtf/ltslt
Col11mbia Orchard Lauds Lt d .. (1913) A.C. 319 : S l tt:dma7t v.
D ri11'!ue .u,d others , i 19151 A.I.R. (P.C.) 94 ; Bhi mji D nlal v.
'Tht Bom bay Trust Corporatiou L t d ., (19301 T.L.R . 54 Hom. 38 1.
followed.
U BA H r.A v. Ko H AN T UN A~_D ANOTHER 251
SEA CUSTOMS AcT, ss: 167 (8) AND 182 (1)..... 28
- - -....,- - , ::;. 167' (8) . 244
SINO- BURMESE B UOOHIST - -i'aw ~nvernin.g-C!:inesr. Custt>ma.Yy
Lnw .:. Cusfvm-Pow.e r /o make will by Sino-Bur mese Bttddhisl_:_ .
Evidence; Act. Held: .Pt'ima f acie a Buddhist in Burma .
irrespective of what hisnation\\lit.y is, and irr espective of whel:ce
hc::.ca !lle is gov-er.n edby the Bur.mese Buddhist Law, i .e., by the
 GENERAL INDEX xxix

Dltamwolltats :tnd tae prcc~denl;. iu the m.otter o! marriage,

iuhcrit;:m:e and su.:.:u>Jon 11nle~~ he ~an pro\e that he is
governed by~ cu~tflm whkh h;u the force I law in Burma and
whit.:h is oppv~td to the Burme!C Huddhist L aw. Tau Ma
Shwc Zi11 v. 1\M So" Cltoug, t 19391 KL.R 54~ (P.c :.) ;
Dr. 1/tCI Mya ,.. Da;; Khin Pu, B L.K 1!951) (::>.<;.) 101:1 , fol lowed.
If a <;hines<: Du d d hi-: is f>rimii f acie govern<cl by the Burmese
Huddhist Law. lher.: :, a ll the 1110re reM on whY a Siuo-Hurmese
Buddhis t s hout;! be ;.:overnecl by the 8 t1 rnoes~ Ruclclhist Law.
H is wa \S, m;m11crs and modes of tile arc the same as the
Hurmese and he i; a citizen of Ute Union of Burn1a by birth.
T herefore un!ts' and un til he can prove that h e is subject to a
custom whidt h :tt the force of law in Hunna :mel that custom is
opposed to the prv\'isions of Burmese B udd hist Law, he is
governed by l:h:nuese Buddhist Law. The custom allel!ed
must be ancient. certain a nd rea:~onablc. Ma Yin MytJ
v. Tm1 Jlauk l'rt, 11927) 5 R:~n. 406 tF.B.I ; Abdurahim Haji
Ismail Mr:lru \' , Halimabi, 43 I.A. 35, followed. Fo11e La1 v.
Mo G:,i, 2 L.U.R 95 al97, over-ruled. Chinese Customary Law
being foreign law shou lcl l>e proved accordin!! to sections 38 and
45 of E\idcnce Act. /Jaung Po Maung v. Ma Pyit Yo, 1 Ran.
161 at 169, iollowed.

0.-1.\\' TIIIKE (a) \VoXG MA THIKE t'. CYOUNG AH LIN 133

SPECIAL Lr.AVE-WHEX API'LICATI0:-1 '1'0 UE El'TERTAINED 81
, WIIEX GRA>-.;TED !!'\CRIMINAL CA~ES 98
STA~IP AcT, SS. 33, 3c, 40, 56 AND 57 94
.STANDING O RDER FOR TilE STATE AND STATE PART!\EREO MILLS 57
SUFFICIJ;..NT CAUSE 228
SuPREME Cour,'T BE!\CH CONS1'l'l'U'l'l!D WITH TWO ]UDGF.S FROM THE
H I GH CoURT-S. 146, /:J"rmn Constitution-Jnterpretiou oj-
PritteiPlcSf!lliding-Get~elal Clauses Act , s. 12 (2)-Consfitutio1l
Act. s. 222 (31-Review of $upreme Court judgmelf-Order 10,
Rule 3, Urder 28, Rule 4, Sttprcmc Court Rules- Grou11ds
for n:view. Ci vi'l Appeal No. II of 1949 was first heard by the
Supreme Court on 25th September 1950. The Chief J ustice wa~.
abseul owing to illness. The other Jud~e of the Supreme Cour t
on d uty was disqualified having deal ~ with the matter as a Judge
;On the Original Side in the High Court. The Acting Chief
Justice applying s. 146 of the Constitution invited two Judges
from the High Court to form a Bench. The Chief Justice
~-~sumecl office on lst August 1950 but was not well enou):!h to
ltear the appeal. The Court w as constitute d later with the same
three Judges who passed j ud;.(ment. tipon an objection. that a
Hench of the Supreme Court cannot in law be constituted with
two Judges invited from the Hi~h Co urt or in the alternative that
such a Bench could not be constituted when the Chief Jnstice had
resumed charge. Hel.d: That the objeclions were un tenable,
I n interpreting the Constitution the provisions must nol be cut
down by a narrow and te chnical construction but must be ~iven
. :a large, liberal and c..,mprebensive SJ.>irit, eonsidering the
.. magnitude of the su bjects n,olved. The construction most .
benefiCial to the widest possible amplitude of its powers m!.lst be
adopted and cha nging drcumstances must also be .taken into
account. Edwar'!s v. Attome:;Gcneral for Canada; (1930) A.C.
XXX GENERAL INDEX

124 at 136; St. Cutltuwes ilblltng and LttmOcr Co. v. Tit.: Queen,
(18881 I <I A.C. 46 ;tt SO: Britts~< Coal Corfomli<>n v. The Ki11g,
(tv35) A.C.SOO at SUS; Ja111es v. Commonwealth of Australi<l,
11936) A.C. 5/8 at 614, referred to and aprrm-ed. A C<>nstitution
o a Government is a liviug ancl organic thing, which o all
instrnments has the greak~t claim to be con,trued u/ res wagis
vateat quam per cat. Re. The Ce11iral Prot<inces tW.t Rcra r .4ct
No. XI V oJ1938, (lV39) F.C. R. Vol.!, lll at 37, rderred to. Such
construction ought to avoid absurdit)' or inconsistent\, out must
be interpreted in such ~ way as t o make it most benefidal to th"
widest possible amplilt:dc o its powers. U Htwc v. U TutJ Ohn,
(1948} B.L.R. 541 at 553, referred to. S. 146 Il l cf the Constitu
lion not mere! y refers to" a vacancy" but also of Vacancies
in order to ena ble Judges from the Hii!h Court bein~ requested
to attend to con~titute a q~10rum. It also contemplates the
possibility of t he Chief Justice .and the Acting Chief Jus:ice being
abse11t irom the Court. The Constitution does nc.t provide for
appointment 9f acting Judges to the Court. The rtsult o
acceptin!-: the appellant's contention would lead to hearing of
appeals bein~ kept pending indefinitely in cases of two vat.ancies.
till the President with the approval of the Parliament appoints
additional members of the Supreme Court. This would lead I<>
an impossible situalion and the maxim le.Y non cogil nd
imPohibilia becomes appropriate and applicable. Even though
the Chief Justice may not have been on leave s. 446 of the
Constitution contemplates arsence throu)!h illness from a session
oi U1c CQurt. A right of review should be strirlly construed.
Doubt should not be thrown qpou the finality of the dedsion of
the :)upre-nl'c Trib na! of the country. These principles are
cover.e d by Order 10. l~ule 3 and Order 26, Rule 4 of the Supreme
\.'cull Rules. Vc,kata Namsimlta Af>Pa Row v. The Court of
A1MI'ds, 13l.A. 1~5 at !SR-59. reierred to. The:: grounds taken
for review were either fullv argued previously or could have
been sv argued, the parties bei"~ represented by very senior
couns~.:J. A new point irHoldng mi:"Ced questicons of law ~nd fact
not taken before the court cou:d not be a fo11ndatirn !or a revitw.
AIAM MoHA~rtw LoovA ' VALLA v. Est<AHI)f DAWJ tm ]F.RWA 73'
SUPREME COURT l{11JL.!;, ORnER. 10. Hut.E 3 AND 0R[)I!R 28, RUI.E 4 73
- - - - - - - - - - - , Oni>P.n 21, RuLE 8 ... 228
TENANCY DISI'OS,T, ACT. RULES 3 (a), 8 AND 9-D cciSiM by Village
Conmut/ ce-A ppra/ beyo11(/lime f(l I he Dist r:ct Land Ccmmitlcc-
Decision uf llc Dist r1ct Land Com mittee mod if ywJ: Vtllo ge
Ccmmi/lec'sde.-isio11- RcvitwallOwed by Dtslricl T.an.d Committee
Held: That a District Land Committee c:mnot entertain an
appeal under Hule 8 ll} beyond the 1 '5 days provided hv Hole 1\ (I~
of the Tenancy Disposal Rtikl', 194~. The District Land Com-
mi.tee has no jurisdiction to ente; tain an ar-pljcation Iur review,
review beir~ excluded hy Rule 8 (31 of the Disposal of Tenancy
Rules, 1949. A District Land Com:nittee has no orij!inal jurisdic-
tion. Accordingly if on appeal to it from an order of what-
purported to be a Villa_ge Land Committee- it found that the
Committee was not lawfully constitute~. it should refer the-
. disrute to the Villal!e Land Committee constituted in accordanc-e
with law for cthposal. Wher e .an.' owner of the land not
exo;eedin~ ~0 ::cr<s if! are:1 has been .cultivatirg the same with
his own hands he c;~nnot t:e ousted f~om the possesison of tlmt
 GENERAL ,.INDEX

PAGE:
land-proviso (al to s. 3 of the Tenancy Disposal Act. 1948
operates to excbde the jurisdiction of any Tenancies Disposal
Authority. '
U Po KYAW v. THe Or~TR!Cr LAim Co~miTT!!E, PEGU AND
O~E 8~

TENANTS El{ECTING PERMANE1'\T STRUCTUHI!:S WITHOUT INTERFERENCE

BY I.E~SORS . l9J;
TRADE DISPUTE 57
TH:C TRADE DISPUTJ\S A.CT, s. 2 (j), (k). ss. ' (9}, 7 (5), 10 (1J. 14 (bl
AND 20-Jrmsdictiou of ltrdustrial Coutl Whether
rcitJslatemelll of discharl!ed workmen permis5ib~e-Prwciptes
ttndtrlyirlg writ of Prohibiltotl and catiorari- Jurisdittiofl
of<;ourts-Scnse in which the term" trade dispute" ' emPloyee"
is used-Comfarisou of Burmese Act witll Etrglish and
ludia1l Acls-Jurisdicli1>11 of Industrial Court to be exercised
judicially-Framing of issues by Industrial Couri.- Ru/es
of natura~ Justice if infringed by nou-fr.rmill/1 of issuc-
Tite effect of reference to Industrial Court on notices td
'i!.torkmen--PrincipZc of Lis Pendens doctrit~e ajJjJlicable-
Contribution o Protideut Fund-Nature of-t.:>:tranrou~
corlSic/errr/i.or:staken iuto accouut-Effccl. Applicant-Companies.
operated. Burma Oil Fields. Prior to 1942 the Oil fields were
connected to Syriam by pipe Jines. The main pipe lines
were wret:ked or destroyed under the Denial Schem~. After
re-occupation the Companies started !ehabilitation and went
on till rebellion broke out. On 30th October 1948 the-
Applicants wrote to the Minister for Industry that they proposed
to make redudion of staif as a C)IISequence of the rebelli0n.
The Oil fields were occupied in February 1949 by rebels and the
occupation continued_till Jum:'l9t9. In July 1949the Companic.s
closed their works in Yenangya\mg and withdrew to Chatik.
When it became clear-that neither t11e British Government nor
tlie Government of Burma covld gttarantee rehabilitation
expenditure, the Applicants served notice on 2,432 employet-s
at Chau)c terminating their services . from the 16th and
17th January 1950. The matter went before the Industrial
Trib.unal who made an award. The Companies objected to. the
Awar<l on five grounds, viz. :-(i That the Indu~trial Court had
no juris<liction after the termination of service by notice;
(ii) That the ~ndustrial Court acted illegally in holding that the-
_Companies acted illegallv in discharging the workmen on the
16th anri 17th January 1950 ; (jji) The Court acted illegally in.
directing the Companies to make it a terrr: of-service so as tl>
include disc;harge allJwance; fiv) The Court acted ill egaII y in
. directing travelling allowance to be paid for tr:-tnsporting the
workers back to their home; and (v) The Court acted
illegally iii directing the Award of discharge allowance-and
cost Of 1ivin1 allowance to .the discharged workmen of
. Yenangyaung. _ Htlrl': (1) The principles on which di-rections
in the nature of a writ of prohibition or certiorari will be issued
'by the Supreme Court are laid down in UHtwe's case; these
writ deal. with que~tion of jurisdiction. Jurisdiction is used in
the said 'ruling in both 'lCnscs-'in the narrow sense, it means
terrjtorial or pecuniary jurisdicti!)n and i.n tile wider sense th~
.authority of a Court to do a .certain thing according to law .
U Htwc v. U Tun Ohn and 011e: 11948) B.L:R. 541, followed.
U P_it v. ThcgoiJ. Village mid Agriet~lt#ral :~o_mmiltre. ~md. f'lD(> .
.XX:\l l GENERAL INDEX

I' AGE

others, 119-=IS) B.L.R. 7:'>CJ, referred to. Unl~ss there is a Trade

Dispute, the Industrial Court has no jurisdiction to entertain a
reference under s. 9. It is a condition precedent to the assump-
tion of jurisdiction. The terms "Trad<: Dispute" and " \Vork
men are defined in s. 2 (J) and {k) . The workmen paid off on
the 16th and 17th January 1950 are undoubtedly workmen undc::r
s. 2 (k:l of the Act. In dealing with the Question of disc-harge of
workmen, the Court was not exceeding its jurisdiction or
interfering witli the runni11g of an industry. The Court OJ
Indu~trial Arbitration has power to order reinstatement. The
Trade Disoutes Act in Burma is more or less the same as the
Indian Act and different in cenain respects from the English
1\ct. .CrP'Wtfter's cast, L.I<. (1948) 1 K.B.D. 424, distinguished
Wc:slertJ lr~dia A"tomobile Association CastJ,l (1949; II. F.C.R.,
~' 321, followed. The jurisdiction regarding reinstatement of
workmen is h be exercistd judicially and not arbitrarily or
capriciously. If the industry affected is not in a position to run
as it is designed to run, and to employ labour to maximum
.capacity, the Industrial Court would not exercise its jurisdiction
judicially if it directed reinstatement of discharged men. This
is the effect of s. 11 of the Trade Disputes Act. (2) The
Industrial Courts ~re not governed by the procedure prescribed
for ordinary Courts of Law, but only by rules prescribed by
themselves as provided in s. 15 of the Act. .Such rules of
procedure do not contain any rule rdatin~ to the framing of issues.
Tli.e object of framing issues is to draw the ;~ttention of disputants
to the points in dispute. If the parties knew what the dispute
was and lead evidence thereon they cannot be prejudiced if no
i~sue is framed. If neither party is prejudiced the trial is not
vitiated. Failure to frame an issue docs not in any case affect the
:iurisdiction of the Court. The principles underlying, The Qzteen
v. The Mflyn,. rrnd To111n Cou1r.cil of Wi!lan, (lRS.5) 14 Q.E.D. 908 :
.Finch v. Oakes, (1885) 1 Ch. D. 409; Glossop v. Glossop, {1907)
1 Ch. D. 370; Halsbut'y's Laws of E1Lgland, 2nd Ed., V ol. 22,
p. 247-249. have no application when a dispute is taken out of
the h[).nd:l of the parties by the State before !hi' clay lilred for the
discharge and is referred to an bdustrial Court. The notice
.did not take effect on the dates therdn : on the day reference was
made it put a stop to the running of the nC)Iice. The object of
the Act could not be nullified by terminating the contract of
.service before a reference was ordered or before the Tribunal
considered it. c.. owlher's case, L . 1~. (1948) 1 K.B . 424,0bserva
t:o1z"s of Lord Goddard, L.J., followed. Further the principle
underlying the ruie of LU. Pe11dens is app:icable to the case .
When a Court of L:J.w gets seized of a dispute nothing ca.n be
done in respect thereof till the dete rmination thereof by Court.
(3) What is awarded in the present case to the workmen is
compensation for having their career cut short in their prime of
life. t.. provision for Providen~ Fund cannot be treated as a
substitute for such compensation. In making this Award the
Indus~al Court did not exceed it~jurisdictiOJ?- ~4) In awardin&
travelling allowance the Industnal Conrt mfnngcd rules ot
natural justice and failed to exercise its discretion judicially. .
They were influenced more by political and tconcmic com.iclera-
tions than bv justice of the claim and ia arriving at the varticular
decisio:n. The tiecisi,..n is also vitiated by the. fact tb;tt the .
Company's advocMes wCFe not grven full hea'ring. (51 The grant:
of discharge :tllowance to the Ycnangyaung workmen was also.
without ju~is<!iction . . ~h~ w~re discbar,g~d in fuly 1949and the
dispute arqse on l). afte.r thetr dts:harg.e . The iliscbarged work
 men are not workmen within s. 2 (k) of the Act. The discharge
made in July 1949 had nothing to do with the alleged dispute
in Janua.ry 194S relied (:pon in their behalf.
THE BURMAH OIL Co. (BURMA COr<CESS!ON) LTD. AND TWO
OTHERS 1/. 'fHE COURT OF INDUSTRIAL ARBITRATION,
HURlli!A AND TWO OTHERS 1

TRADEMARK--Sf>ecial Leave-Trr(ldC-11l&J1'k-Diolill~lt!ve feat'' res-

S. 478, Pe1~al Code. The principle vn which spedal leave in
criminal matter will be given by tht: Supreme Court i~ laid down
in l.U~.aw nt~dfollr others v.1'he U1&irm o Burmu~ 1948 B.L.I~.
249 af 25'2. Ret : a m urma ere is no aw or
Statute establishing Registration vf Trade:: Marks and no
authorities exist from which an exclusive right to a particular
Trade Mark could be:: obtained The right to Trade Marks in
Burma ave therefore dependent upon the: get:eral principles of
Commerci'a l Law. The right which a manufacturer has in his
Trade Mark is the exclusive right to use it for the purpose of
indicating where, or by whom Of at-what manufactory, the a ticle
to which it is affixed was manufactured. As soon, therefore. as a
Trade Mark has been so employed in the market as to indicate to
purchasers that the goods to which it is attached are the
manufacture of a particu~ar firm, it b.ecomes, to that extent, tl1<:
exclusive property <f the fi'rm and no one else has a right' to copy
it, o~ even to appropriate any part of it, if by such appropriation
unwary purchasers may be induced lo believe tbat they are getting
goods ~~hi h were mad~ by the firm to whom the Trade i\lark
belongs. homas Somerville ,., l'nolo S'Chcutbri, (18tt7J L.H. !2
A.C.45 at pp.456-457,applied; Wothersto(m v.Curric, L.R. 5 H.L.
50M: Johnston & Co. v. Orr Ewi1~i Co., 7 A.C. 219; Leaf he Cloth
Co. Ltd. v. America?& Leather Cloth Co., 11 H.L.t;. pp 53.;5.34.
followed. ~~D.U.h!t.f..E<I!aL9.Ed.e.!l~~nes Trade ~jark as a tpark
used for denoting that goods ;m: tfie manufacture or merchandise
of a p:irticnlar person. This implits that the mark must be
"di.stLil.~live" in the sens<:, of being'' adapted to dislingui~h the- .
goodS ofthe prqpnetor ora"ffadl:!-mark 'fr6m those of other
persons." II a mark merely describes the quality or the origin
of an article, or is :>ucll as is commonly used in the trade to denote
goods of a parti..:ular kind, su.;h a d~scriplive u;ark would
obviously no\ be a <listinctive mark.. Where therefore a m;~rk or
phrase. merely describes the quality or origin of an articl~such
as' 0ustard Powder!', 'tMalted.!9Jitk "or" Gripe Vfater," it is not:
capable of distingui.s hing the goods of or.e maker from those of
others : bnt a mark is distinctive where ft points to the goods of
a p:uticular person as for i:lstan::e ia the cases of 11 Lifebuoy
soap~ "'Vincarnis", or ' Three Nuns" tobacco. Loke Natlt Sc1t
v. Ashwi11i KunlfJr D l, ft 931!) I.L.R. 1 Cal. 665at pp. 667-668;
Gaw Ka1~ Lye v. Saw Ky.111.e Saing, (1939) R.L,R 488 at pp. 501,
502, followed. Tbe words : Moulana (M) Beedy" is a distinctive
mark a~ distin~uished from being: merely descriptive. A Trade
Marl. ueed not indicate to the public the actual ownership or tlie.
goods in question. A Trade Mark merely guarantees to fhe
pur~haser that the g~ods on which the mat;k is applied emanate
from the same source of trade as the goods that had h!therto.
borne .tQe s:\me Trade Mark. It is not necessary for the Public t()
kno\v' 'the specific soure;e .of the arlicl~ or the name of ttie:
manufacturer. The words 11 Moulana " is distinctive in .that it
distinguishes a beedy' manufactured l?Y the COmpany from other
beediell. It is therefore a Trade Mark witltin the nuniew of
xxxiv

PAGE

s. 478. The mere fact that a customer can gel Moulan<\ Beedy"
by askiu~ for it by name is not at all inconsistent with the !;~.tel
being a Trade Mark. T11e Yorksl1ire Relish case l'<>well v. Tl1e
Dirmi,gham Vinega Bre'iucry Co. Ltd., 14 RP.C. 720; Edge &
Sons. Ltcl. v. NiCitolls & S"us, Ltd., 28 R.P.C. 582; Du1111/l V>:
8Milctt & /Jickl~y, 39 l~. P .C. 426 ; Wothc:rspoo~J v. Curr;e, ( l870f
L.H.V. English & Irish Appeals 508 at p. 514, followed. 1. Pctlc:v
& SoiL 'v. S. A.h Kyun, 2 L.B.R. ~59, distinguish_ed.
T. C. MOHAMED'{). A. KUN1ALAM AND TWO OTHERS

UNION Juorl:IARY ACT, s. 6-il PPlicationfor Spccialleav~ 71JhCIJ to be

wtertni11ed. Held.: In the 4bsence of any special circumstance
such as want of jurisdiction or doing of a great and irreparable
injury or involving a question of great public or private
illl!10rtnnce, speci.tl leave should not as a rult" be ~ranted. In
this cas~ .the Trial Court eave an nd inter;m injunctic:>n which
was set asidc by the Appellate Court and it is clear that the order
was one which was P.assed during the pendency of a regular sl'it
and that what is invohed is whether discretion on sound judicial
principles has been exercised by tbe High Court in r.e versinl! the
order of the C:ty Civil Court. As the High Court was right in
thil1king th ll the tnjury cause<t t'annot be considered to be
irreparable, the application for Special Leave was refused.
J. Huu.; fl . L, K. AIYAVOO NAIUU A::-ID FOUR OTHEI!S :u
I
U::-!10)1 }UOIC!AHY ACT, S. ' 6-Ncw. c.tsc: i" sptcia~ npfe.tl-Tcnnuts
erecting termaueut structures tvitllout inlcrftrcllce by lessors-
F.stl)ppel. Htld: Where in the Trial Court and appeal the
Appllcaut did not plead that the Jan::! in qu.estion was primarily
us~d as a hnuse site. it is not optm' on an application for special
to
lc::ave to url{e :l uew grou n d or evade the lack oi success in the
Courts bP.luw by dev i sfn~ ~ new case never set up when it
shouln r.a,e been set up. Nt~fhu Pimii Marwndi v. Ut11edmal
EoJumol, 119091 I.L.R. 33 Bom. 35, referred to. Held fu rther.:
Thnt tho: law has been sdtled since 1899 that Lessors are not.
. estopped. in equity from bring in!{ ejectment by rea~on of tenants
h:IVing erected permanetit structures upon the land l eased to the
knowled~e at wit.out itite rfereuce by the kssors. La!a IJeni
mut another v. Krmdtw l.tJil a11d otlle1 s. 26 I. A. 58; referred to.
A buildlngpitt up five years ago with mere thatched roofing and
mat ",V~< lli ll" c.tnnot now be said to be a substantial structure.
Ko Tl~ SEIN AND T WO OTHE~S f . K'o "V\1A~ A H ... 193
UH:tu:-< HENT CoNTROL AcT, s. 11 (I ) (f) AND s. -Premiscs-
14 (a)
S. 2 (d)-Construttion of Statutes- Priucifles applicable
/lcltl: $. ll {1) tfl of the Urban 1~i:nl: Control Acf.'p rovides that
II) Ordtr Or'de<;ree for the recovery of p(isse-~, ion.of any premifeS
to which the Urba11 Rent Centro'! .Act app_lies sha)l be naoe
unless a building Qr part there~f is reasonably and bo11a fide
required hy the owner for oocupation by himself.: /'..~ a supple-
ment to this provi~ion !'. 14-A of the Act bars a suit for ejectment
or recovery o: possc:~sion on !ht- ~ro: nds specified In s. 11 11) 1/J
exc.-pt with the permissioQ of the Coutroll.!r of Rents in writin,:.
S. 11 ' 1) 1n rc'ad with the dtfinitiou of rremi~f'S ghen ins rz, (d)
clearly indiCilt .:\1 that such porlCOJl t~nly o the t-uildin& as is
:ll"Cessary for the bom1 fide residen ti;U lUfpOSeS of the Janr. Jord
mav be recovered by hi!D by "eje~lmeot -Of the ter.ant ...:r.he
Urban Rent Control Act was enacted t"rl -solve the.. housin~
.,roble:n cnnsequent upon the scarcitY of r.esid~ntial and other
 GENE~ , ~DEX XXXV '

PAGE

buildings after tho:: second \\'orlrl War. The normal rights of the
owners hav<: been restricted in various ways ; and to the
incidence of the cmtnu:tual relafi<'ll are superimposed many
terms never ill th e contemplati on of tilt parti~s. The integrity
of the contractual relationship i s consequently affected by the
Act. In interpreting Sl<>tutes such construction of a Statute shall
be made as shall suppress the mischief an'd advance the remedy.
The construction nn:st not be strained. So cons:ou<:d it was
open to the landhrd to break up the inte~rit y of !he tenancy by
givio g not!ce to quit wlth reference to a (>~rtion. of th~ entire
premises covered .by a single lease and the SUit was not !table to
be defeated on this ground. Hnrihar Banerft v. Ramashashi
Roy, (1919) I.l.,,R. 46 C:tl. 453 ; Ram Kanie Ma11dal a11d others v.
Gunesh Chunder Su1 a11d others, (1921) 33 Cal. L J. 275 :
Bodadoja and others v. Ajij11ddiu Sircar and otflers A.l.R.
(1929) Cal. 651, relied on. 1'. H. Khan v. Yusoof Abowath and
others, (19~7) RL.H. 354, applied. Mtuwell on lnterpretatioli
of Statutes, 8th Edn. 61.
MRS. CONSTANCE 1\:hNOO WRITER t ', A. M. KHAN 169
12_:._Bona fid~ occ:upation-Fillditi.g
URB,;N RF.;-:T Co:-:'I'II<L ACT-S.
of f.ut by Rent Cont.roller-APPlicatiOtL for unit of certiorari-
If l'an be queslion~cl. Where a person alread~ in possessior.
entered into an agreement with the applicant under whi.ch ~he
was permitted to occupy a portion of the pre.mis<.~ bra ;:eliod
and the said person applied to the Controller 0 ~~~nts, Rangc.on .
ford permit under s. 12 of the Urban Rei1t -Control Act and the
Controller after careful consideration of the evid~n::e adduced
before him granted a pe;mit to occtipy the premises as s1atutory
tenant under s.12 of the Urban Rent Control Act Held: That
the Contro.lhir h.tving found that the Znd, R~spondc:'nt was law-
fully in occupation prior to the agreeme!it, he was entitled to
grant her a permit.
CHu.NtL~L DAr.ABHAJJ t. THE AssisTANT CoNmou.ER oF
REN TS, R.~Nta>o:-.~ Al'm oTHF.IIS .. : 241
URBAN RF.NT CONTR9L A~T, 1946-Apf>lication . /-or rCSctllding
ej.:ctmcnt decree- Closecl-Srmil<tr fresh aPflica.tion.- l'rbatL
Rent Control Act. 1948 coming into /Qrce before tlistosal- Ss )1 (f)
~11d 13 (c)-Ap.jleal ugainst order to District:.court <ulu:ther.
comPetent-Leave under s. 14-A. The Hespo ndent obtained a
clec;ee for ejectment on 16th December 1946 wben the Urban
~ent C'ontrol Act, 1946 was -in force. He appli~d for ex'ecu.t ion
the n~xt day praying for ejectment and claiming p.tyment. o(
arrears of rent. The judgn!ent-debior paid arrears and a1 plied.
to have .ej~clment d~.cree resdndt:d . Both applkali(,f\S were
closed. A i esh a rrlication was r.ade for rescission of the
decree later. On, 17th January 1948 the Url:)an Rent Coptrol .
Ac~, 1948 came int" force ;i\nd the prcviot:s . '\c.t was repe:lled.
vn 15th Febn1ary 1948, the R~spondenf,claimed lc. reasonal)Jy~
and b->r~/i fide required the ('remises. for og:upation by himself:
This' contention \vasuphelll by the Distr~ct Colirt.of Mandalay ~n
appea,l... The Hi),!h Court on second appea~va~ied the. decree but
on spe<;ia,l appeal a Bench of .the High Co11rt .:t:esto~ed the
District Judg~'s Order.. Upoq appeal to the Sitpreme Court by
Sp~cial Leave, it was contended that the Controller's certifica.te
lliHler S. 14-A w';ts n~cessary to initiate a prOceeding by a Jan~liord
for re::overy of pnssession on any' 6i .the ground~ mentioned in
s. ~1 (/ ) . . Held.: . Tl)a.f..\mder s. 14 2) 'ot the Act the Court pn au
.. applic:.tion .' for. ~es~ission must dedd.e ~hetli~r . the o;-der .or
XXXV1 GENERAL INDEX

PAGE
decree sought to be rescinded would not have been made or
given if the provision ofs. l l were in force a~ the time. The
Act of 1948in S 11 ([l and (cJ allows the landlord. to sue for
t:jectment if the premises are reasonably and bon<1 fide reqoired
by him for occupation by .Jtimsetf. Consequently the decision of
the High Court was affirmed.
DAW HLA MA'lt v. U Ko YrN 63
URBAN REN1' CoNTRoL ~CT, 1948-APPltcation under- s. 14 {1)-
Appeal to District Court-J'utisdiction of Assistant Judge
in administering- Code. of. Civil Procedure, ss. 47, 104 and
Order tt3. Responde!)!, ag,~ins.t whom a deere~ for ejectmc;nt
had been passed by the l''irst Assistant Ju~~~ of. Bassein applit:d
under s, 14 {1) ~f the.UrJ:>an Rent Co.ntro! Act, 1948 to h~e the
decree djscb;~rge_ci or r:e~_cinded. The.application was dismissed.
An appeal WaS: pr_eferie1, t9: t.lte District Court of Bassein an~
was dismissed ort the ground that appeal lay to the High Court.
When appeal wa~ P.referred to the High Cour~. the High Court
allowed the appeal and directed the District Court to proceed to
hear the appeal. On appeal to the Supreme Court against this
order. Held: That the appeal lay to the District Court. The
Urban f<er.t Control Act, 1948 by s. 15 provides for an appeal on
law and on fact from auy decree or order made bY. ahy Judge of
the District Courts outside Rangoon. It cannot be dt:emed to
have excluded any rig~t of appeal from other courts. The
Ra-ngoon Botataung Co. Ltd. v. 1'/te Collector of Rangoot~,
6 L.B.R. 150 (P.C.), referred to. S. 15 of the Tlrban Rent Control
Act, 1948 must not be iuterpreted in ~n exclusive sense bnt ni.ust
be given a construction :;s supplementing the right of appeal.
A decree of a Civil Court is ordinarily appealable ; and an ordc~
would not be apr ealable uuless it falls within s. 47 or s. ! 104~ or
Order 43 of the Cl')de of Civil Procedure. The Urban Rent
Control Act, 1948 by s. 15 gives the right of appeal from all
orders. The test Jrt s.tch cases is whether the order will be
appealable under the provisions of the Code of Civil Procedure
or other relevant enactments. The order in question in this
case falls within s. 47 t1) of the Code of Civil Procedure as
relatin~ to the execution, discharge or satisfaction of a decree
and a determination of such a question is a decree t!nder s . 2 (2)
of the Co~e of Civil Procedure. The appeal to the District Cour t
was therefore competent.
HAW LlM ON v. MA AYE MAY 69
URBAN R&NT CONTROL Ac;'l', S. 1.4-B:._St;ope of Urban Rettf Co11trol
Act-Disputed tetr.ancy trJhether C{ln be decided by lite Rc11l
Controller. Hdd : That a displ)te as to whether a person is a
tenant for four tooms or whether he is a tenant for only one
taom and the tenants of other three rooms are tenants of the
l andlord can be decided only by a Civil Court ~nd the Rent
Controller has no jurisdiction to decide such a question. Wher~
an app1ication is made to the Rent Contrcller for leave to deposit
the rent of . all four rooms, tenancy of which ,is disputed, the
Rent Controller has no jurisdiction to determine_even for the
restricted purpose of s. 14-B o~ the Urban ,Rent Control Act
whether a pe,rson claiming. _to be a teQant is a t<nant or not.
S. 14-~ (1) an.d (2) authori.se tTt.e Rent. Controller . to receive
deposlUrom. a perspn who claiiJlS to be a teriant, and he will
t hen give notree . of the depqsit: io the limdlord. It is for the
landlorgto wl~hdraw or refrain from withdrawing the dep<'Sit.
No enquiry. is contemplatep. b.:Y. the Act. He has authority
 GENERAL INDBX xxxvii
PAGE

and is b()und to accept depostt of rent : but he may not .:all

upon th e owner of the premises or the alleged landlord to show
cause why deposit oi reut shoulci not be permitted.
DAW NGWE TIN v. THE CO~lTROLI.llR 01' HENTS AND 01\E 85
URBAN REN'r CoNTROL ACT, S. 16-A-Order "nder-Applicatiott f or
review by a co-leuattf of grau of permis.liQtl lo assign teua11cy-
Dismust.l by Controller-Certioruri aud mandamus if permis-
sible. Held: Under s. 21-A of the Urban Rent Control Act, 1948
the Controller of Rents may review any order made by him and
th e provisions of the Code of Civil Proceciure. Order 47 wol!ld
apply t0 such review. Any person considering himself aggrieved
by an order may apply for review under O;der 47, Rule 1 of the
Code of Civil Procedure ; but the Controller 's order is not
binding upon any person not a party to the x>roceediugs. As the
present applicant is not bound bv the said order, he is
not an aggrieved per~on who can apply for review thereof.
Kupparakutti Adammeera v. Esoof aud one, (l948) B.L.R. 421,
referred to_
M. R. 0AS v. C- R. DAS AND THRt:E OTHERS 211
URBAN REKT Co~TROL ACT, 194&-S. 16-AA (l) (b), 2 (b) t111d (3) and
s. 2 (c )-Pre,ises to te vacuted or likely to be vacated-
" lAndlord" Differmct betwee11 s. 16-A A {I) tb) and s. 16-A {2) -
16-AA (4) wlteu applicable. lleld: That s. 16-\A (I) (b) ofthe
Urban l~ent Control Act applies to a case 111 which a Landlord
receiYes any informat ion that any residential premises of which
he is the landlord are likely to be vacated or have been vacated.
The section has no application to a case where; the owner had
not let out the premises at a ll and the premises were occupied by
trespassers against whom he obtained an ejectment decree an d
owing to execution. of the decree the trespassers.j udgment-
debto~s vacated the premises and the owner received the
information about the vacating by trespassers. The owner in
this case was not a landlord within the meaning of s. 2 (-c) cf the
Act and he could not receive any information as landlord of such
vacating . The particulars which the landlord i$ required by
sub-s. 3 of s. 16-AA (1) (b) to sup~ly the C.ontroller of Rents are
the same as those which he is required by s. 16 A (Zl of the Act
to supply when the landlord proposes to let non-residential
premises to a ten'!-n t. In the present case the h ouse was not a
rented house at all and the applicant was not a landlord and
consequently the Controller or Rents had no jurisdiction to
direct that the premises should be let at all.
SOONtRAM R AMESHWAR 11. THE CONTROLLER OF RENTS,
RANGOO~ AND THRI-.E OTHERS 43
UMAN REN~ C ONTROL ACT, S. 16 -AA (4), 6. 16AA (Z)
- ' 225
- - - - -- - - - , s. 19 {2) (g)
--- - - - - - - - - - , s. 32
- 214
201
\VRIT OF._PROHIBlnON- WHEN LIP..S 28
 BURMA -LAW REPORTS.

SUPREME COURT

THE BURMA OI L Co. (BL'RMA CO~CESSION} ts.c.

1950.
LTD. AN IJ TWO OTH ERS (APPLICANTS)
Oct.ll.
v.
THE COURT OF IN DUSTRIAL ARBITRATION,
BURMA AND T W O OTHERS (ResPONDENTs).*
Tlte Trade Dzsjmtes Acf, s. 2 Ul. (k), s. 9, 7 (S:, 10 (1), 14 {b) a11d ZO-
]urisdiction of Industrial Court-Whether reinst atement of discharged,
workmen permissrble-Pri11ciples tmderlyin g writs of. f>1'olzibiUon and
certiorari-Jurisdiction of Courts- Sense in wlticlz the term is used
"trade dispute", "emyloyee ''- ComparisM of Burmese Act with Etzglisfl
ani I11dian Acts- Jurisdiction of lndtrstrial Cortrl to be exercised
judicia/ly~Frnmr11g of issrus by Industrial Court-Rnles of 11atural
justice if infringed by 1/0il-/ramiu.g of issuc-1'/uJ effect of re!eret1.:e to
l ndustri<ll Court 011 11otices to workmen.-Pri11cip/e of Lis Pendens
doct ritte applicable-Cotrtributiou lo ProtJiden/ Fund-Nat ure of-
Extraneous co11sidera!ions take~z into accorttet -Effect.
Applicant-Companirs operated Burma Oil Fields. Prior to 1942 the Oil
fields were connec;ted ,to Syriam by pipeline. The main pipelines were
wrecked or destroyed under the Denial Scheme. After re-occupation tho
Companies started rehabili tation and went on tlll rebellion broke' out. On
30th October 1948 the Applicants wrote to the Minister for Industry that they
proposed to make reduction of staff as a consequence of the rebellion. The Oil
fields were occupied in February 1949 by rebels and the occupation continued
till June 19t9. In July 1949 the Comp,anies closed their works in Yenan_~tyaung
and withdrew to Chauk. When it became clear that neither the British
Goveniment nor the Governmt'nt of Burma could ~uarantce rehabilitation
expenditure, the Applicants served notice on 2,432 employees at Chauk
terminating their servicE'S from lf:te 16th and 17th January 1950. The matter
\Vent'before the Industrial Tribunal who made an Award, The Companies
objected to the Award on five grounds, viz :-
{i) That the Industrial Court had no jurisdiction after. the termination
of service by notice ;
(iil That the Indu!l.trial Court acted illegally in holding that- the
Compa11ies acted illegally in discharging the workmen on the 16th and ,
17th January 1950;
(iii) The Court acted illegally in directing the Companies to mak~ it a
term of service so as to include discharge allowance; .
(i'v) The Court acted illegG~Iy ' in directing travelling allowance to be
paid for transporting tlte.workers.backto their h ome; .and
Civil Misc. Application No. 43 of 1950. .
u,.
t Present : Sn{ B,A. Chief Justice of the .Union of Burnia, liR. Jusrrclt
THEIN MAUNG and U AUNG THA.Gy~:W J. .
2 BURMA LAW REPORTS. [1951
S.C. (vl The Court acted illegally in directing the Award of discharge
1950. allowance and cost of li\'in~ allow<l!lce to the di~charged workmen of
THE SURMA
Yenangyaung.
OIL Co. 1-/cld: (lJ The principles o n 1\'hich directions in the nature of a writ
(BvHMA
CONCESSION)
of prohibition or certi orari \\'ill he issued by the Supreme Court are laid
LIMITED down in U Htwe's case ; these writs deal with question of jurisdiction.
AND TWO Jurisdiction is used in the said ruling in both senses-in the narrow sense, it
OTHERS means territorial or pecuniary jurisdiction and in the wider sense the
'V.
authority of a Court to do a certain thing ac~ording to law.
THl! COURT
OF U Htwe v. U Tuu. 0/t,, n,d 011e, (1948) B.L.R. 541, followed.
INDUSTRIAL
ARBI'I;RATION, U .fit v. Tltego1L Village at1d Agric,ltural Comnuttee Mtd two others,
BURMA (1948) B.L.R., 759, referred to.
AND TWO
OTHERS. Unless there is a Trade Dispute, the Industrial Court has no jmisdic-
tion to entertain a reference under s. 9. It is a condition precedent
to the assumption of jurisdiction. The terms Trade Dispute and
. \:Vorkmen are defined in s. 2 (J) and (k). The workmen paid off on
the 16th and 17th January 1950 are undoubtedly workmen und.er s. 2 (k)
of the Act. In dealing with the question of discharge b workmen, the
Court was not exceeding its jurisdiction or interrering with the running of
an industry. The <.:ourt of Industrial Arbitration has power to order
reinstatement. The Trade Disputes Act in l:lurma is more or less the
same as the Indian Act and different in certain respects from the En~lish
Act.
Crowther's Cnse, L.R. (1948) t K.B.D. 424, distinguished.
!V<'slern Iu.dta AuiOntObtle A~socialtou's Case, (1949} XI. F.C.R. l' 321,
f)llowed. . , _.
The jurisdiction regarcling reinstatement of workmen is to be
exercised judicially and not arbitrarily or capriciousry. lf the industry
affected is not in a po'sition to run as it is designed to run, and to
e1uploy labour to maximum capacity, the Industrial Court would not exercise
its jurisdiction judicially if i! directed reinstatement of discharged men. This
is tllie effect of s. 11 of the Trade Disputes Act.
i2J The Industrial Courts are not governed by the procedure prescribed
for ordinary Courts of Law, but only by rules prescribed by themselves as
provided il; s. l 5 of the Act. Such rules of procedure do not contain any
r~le relating to the framing of issues: The object of framing issues is to draw
the at~ention of disputants to the points in dispute. If the parties knew what
the dispute was and lead evidence thereon they cannot be prejudic-ed if no
issue. is framed. If neither party is . preju<\iced the trial is not vitiated.
Fi!iLure to frame an issue does not in any case affect the jurisdiction of the
Court.
The p;jnciples underlying, . The Quee.. v . The MaYcr nnd . Town couilcil
of Wigan,' (1885) H Q.B.D. 908; Fi11,ch , .. Oakes, (1896) 1 Ch. D. !109;
Glossop v.~ Glossop, (1907) 1 Ch. D. 370; Hafllfmry's. Lal!~ of E1lgl~ud, ~nd ed.,
Vol. 22, p.' 247-249, .
have no application when a disp.ute is taken out of the han.d s of the parti'es
by the State bel,ore ' the day fixed for the discharge andi~ refeue~ to. an
Industriat' Court. The notice did not ta~e effect on t,he dates therein ; on the
 1951] BURMA LAW REPORTS.

day reference was made it pat a ~tnp to the runui11g of the notice. The S.C.
object of the Act could uot be ttullificd by terminating the contract of senice 1950.
before a reference was ordered or before the Tribunal con~iclered it.
'l'HE Ht:R:UA
Crowther's Case, L 1<., (19+8) 1. K B.D. +24, distinguished. OIL Co.
Observalio11S of Lord Gorltlard, L.C.J., followed. ti:IURMA
Co~cJ::ssiON)
Further th e principle underlying the rule of Lis Petu:l~us is npplicable to the LIMITED
A~UT\\'0
case. When a Court of Law gets seized of a dispute nothing can be done in
OTHERS
respect thereof till the determination the reof by Court. v.
(3) What is awarded in the present case to the workmen is compensation 'THE COURT
o~
for hnving their career cut short in their prime of life. A provision for 11\DUSTRfAL
Provident Fund cannot be treated as a substitute for such compensation. In ARBIT RATION,
making this Award the Industr ial Court <lid n ot exceed it~ jurisdiction. BUHMA
Al\D TWO
(4) I n awarding travelling nllowance the lndustri:~l Court infringed rules OTHERS.
oi natural justice and failed to exercise its d iscretion judicially. They were
influenced more b y political and tlonomic consid~ rations than by justice of the
~!aim in arriving at the particular decision. The decision is also vitiated
by the fact th at t he Company's advocates were not given full hearing.
t5) The ~rant of discharge allowance to the Yenangyaung workmen was
also without jurisdiction. They were discharged in July 1949 and the dispute
.arose only after their dis<;har~e. The discharged wo rkm n are not workmen
within s. 2 Ck) of the Act. The discharge made in July 1949 had noth ing to do
with the a lleged dispute in Jan uary 19-111 relied t:pon in their beltali.

E. c. V. Foucar for the applicants.

Chan Htoon (Attorney-General) with U Ba Sei11

(Government Advocate) fo r the respondent No. 1.

Yan, Aung for the respondents ~o~. 2 and 3.-

The judgment of the Court was delivered by the

Chief justice of the Union.

SIR BA U .-This is an application for the issue of

a writ of certior~ri. It arises _out of a dispute between
t he three applicants and their employees. The three
applicants are three British Companies carrying on 6il
winning and refining industry in Burma for a good
number of y.ears. The . areas wh ere they operate are
known as the Burma Oilfields comprising mainly the
.a teas d(and around C.h~uk, Lanywa .a n4 Yenangyaung.
Prior."to 1942 the oilfields .w ere connected to Syri~th
 BURMA LAW REPORTS. [ 1951

S.C. near Rangoon by a pipeline, generally referred to as.

1950.
th e 11 Main Pipeline", through which natural petroleum
Bu~~2 OIL was pumped to the Oil Refinery at Syriam. But when
coMPANY the World War broke out in the East and when the
(BURM A
caNcEssJoN), Japanese were about to over-run Burma in 1942, the
~~~~;~~0 properties of the three applicant Companies in the
orl~~Rs oilfields and the Main Pipeline were wrecked or
THB destroyed so as to deny their use to the Japanese. On
COURT OF
INousrRLAL the re-occupation of Burma by His Britannic Majesty's.
AR~~~~~oN, Forces in 1945 and on the overthrow of the Japanese-
AND Two
OTHERS.
armies, the Oil Companies returned to Burma and on
the 1st January 1946 resumed possession of their
properties in the oilfields and elsewhere and started
the work of rehabilitation. A sum of Rs. 8,58,00,000'
or l. 6,434,000) according to the applicants was spent
on the work of tehabilitation from 1946 to September
1949. The work of rehabilitation to a large extent has.
been carried out in the oilfields during those years.
but the repair to the Main Pipeline could not be carried
out completely owing to the state of unrest prevailing~
especially in the areas through which the Pipeline
runs. The unrest started in or about. March or Aprif
1948 and it soon degenerated into an armed rebellion
against the lawfully constituted -g overnmen't. In these
circumstances the three Oil Companies wrpte a letter
on the 30th October 1948 to the Hon'ble Minister for-
Industry and Mines stating inter alia as follows:

" Conditions_in Central Burma have not improved, and it is

not possible to feel any reasonable certainty that conditions will
betome and remain satisfactory in the near future. We are at
present physical!~ unable due to these conditions -to repair, or
even to prevent further d<t;mage to the Main Pipeline, without
which' we could not transport crude oil in quantity from the .
Fields to .Syriam. My Directors have therefore reluctantly
decided that we . must- postpone the reconstruction of the main
refinery at Syriam, arid .confine our efforts meanwhile to-
 1951] BURMA LAW REPORTS.
producin~ at the Fields such quantity of crude oil a s c:n he relined S.C.
1950.
without using the pipeline to the extent that its products can be
d istributed to places of consumption by the means and routes THE
BuRMA OrL
that are open to us from time to time. CoMPA NY
!Bt:R~fA
This unfortunately m eans a lnrge reduction in the employ- Co!iCESsro~)
ment available for both Brili:.h all(! Asiali~; personnel. The LrMtT.eo
AND TWO
reduction in Asiatic employment at Syriam will initially be from oTHERS
.:5,200 to 2,100, with a further reduction to 1,400 to follow within v.
THE
12 months. At the Fields the exact reduction will depend upon couRT OF
the quantity of products which can be Lransportecl under present INovarruAL
. .
coneI1t1ons, . 11 we ares t"ll
wl 11c .
1 mves t1ga t"wg, b ut prov1S10na
. . II y we ARBITRATION,
BURMA
expect it t o be from 6,200 to 4,300. We very muc h regret this A~o Two
OTHERS.
unavoidable fall in employment, and hope that nt some future
date conditions may be such as to allow us to resume full
reconstruction.
We propose to make the initial reductions mentioned above
-on 30th Novembt>r 1948."

On receipt of the letter the Hon'ble Prime Minister

-asked the Oil Companies to communi cate to him as
.soon as possible the outline of a proposal by which the
Union Government could provide the remainder of
ihe finance required to complete the reconstruction of
:the Oilfields, the Main Pipeline and the Refinery at
Syriam without interrupt~on. In exchange fo/ such
contribution, the Uni~n Government was to acquire a
corresponding share in the Bur.m a oil winning and
refining industry. The Union Government requested
that while the proposal for a Joint Venture was under
consideration, the retrenchment of labour force should
be postponed. The retrenchment was accqrdingly
postponed .
. In order to finance their share in the Joint Venture
the Union Government applied to His Britannic
Majesty's Government for a loan. While the loan
~as under consideration, His Britannic Majesty's
.
Government guaranteed to the Oil. Companies t-heir
 B1JR1. .1A LA'vV REPORTS. [1951
S.C. continued rehabilitation expenditure including payment
1950.
of such labour as was then said to be surplus to their
THE
BuRMA OIL requirements.

~~~~~~; In the meanwhile the political situation became

CoNcEssiol") worse. The rebel forces began to occupy the Oilfields
LIMITED
AND Two in February 1949 and remained in occupation thereof
oTHv~Rs till June 1949 when they were driven out by the forces
co~:: oF of the Union Government. About a month later, that
INocsTRIAL is in July 1949, the Oil Companies closed down their
ARBlTRATION, .
BuRMA works in Yenangyaung, paid off their workmen
A:~~~~~ numbering over 2,000 and yvithdrew to Chauk. Tv.o
months later, that is on 25th September 1949, a meeting
of all 01lfields workers under the auspices of two
labour organiz;ations, namely, the respondents '2 and 3,
Oilfields All Employees Association, and United Labour
Front Actio~ Organization, was held .at Chauk. At
that meeting a number of resolutions relating to the
reduction of the labour force, payment 'of gratuity,
increased wages for night shift wqrkmen and increased
number of holidays was put forward. Copies of these
resolutions were sent to the Oil Companies and the
Union Government,; A& a Jesuit illereuf the Union
Government appointed a co~mittee called Oilfields
Enquiry Committee on the 25th November 1949 to
.hold an enquiry into conditions in the oil winning
industry and to make recommendations on or before " .
th_e 25th January 1950 for the ma?Cimum . volume of
. labour employable 'in that industry.
While the enquiry was . going on,. the Union
Governm~nt was informed by His Britannic Majesty's
Government that. it co uld not accommodate the Union
Government with a loan asked for acquiring an inter~s't
. -in,the oil. industry. At the same time ~is Britannic
Ma)es'ty' s Government informed the Oil :. C.odipanies
that it withdrew the guara~tee. _. give~':_. p:reviously ..
Whereupon tl1e Companies on ~he 5th January 1950
1951] BURMA LAVv REPORTS. 7

communicated to the \Vorkers' Union their intention 1 ~5~:

to effect retrenchment. On the 7th Januar~'J 1950 THI!
the Oil Companie~ ~etTe d notices on 2,432 of their BnnrA orr
C< )11 '.\:.; y
employees at Chauk terminating their services vYith IHuro !"
effect from the 16th and 17th January 1950. On the <;ot~~~~S.:1~:-)
following da,J, that is on the 8th Ja nuar~, a mass A:-o -r \\'o
OTHEI<S
meeting of the emiJloyees of the Oil Companies v.
Tu~
was held at which 11 demands \\ere put forv:ard. Cot'RT <w
Copies of these demands
'
were at once sent tu th e ARBITRATION,
INut:sTRr.\L

Union Government and the Oil Compan ies. On the ~l.iRM '~
11th January the Union Government in its Ministry ~~-~,i~~~
of Public vVorks and Labour, treating these demands
as being matters in trade dispute, forwarded them for
determination to the Court of Industrial Arbitrat ion.
On the 16th and 17th January the workmen who
had been served with notices of discharge on the
7th January ,,ere paid off. In spite of their discharge
some of the discharged workmen evidently attempted
to attend to work along with those who were still
retained by the Companies in their service, but
they were not allowed to. Leaving out what is not
essential for the purpose of this case 1 the demands
made by the workmen at their mass meeting held on
the 8th January are as follows: .
concerned should totally abstain from
"(1) The Compatties
taking the measures of retrenchment of which
~ .
notice was given
by them to the workers nn the 7th January 1950 on the ground
that the present conditions in the country are snch that they
could no longer continue to operate.
(2) The notice . of retrenchment issued by the Burma Oil
Company (Burma Concession) Limited on the 7th January 1950
sho~ld be withdrawn immediately without any conditions wh:.t
-soe~er for such withdrawal.
(3) * . .
(4) No further retrenchment.should be made by the Com-
panies while the question of retrenchment is under protest by the
workers. .
8 BURMA LAW REPORTS. [ 1951
S.C. (S) f n case Lhe Companies either dismiss, discharge,
1950.
retteach , or terminate the services of any of their workers, they
THJ: should pay every s uch worker a discharge allowance equivalent
B URMA OII.
CoMPANY
to three months' wage:> plus Cost of Li ving Allowance as compen-
(BURMA sation for the abrupt and premature terrninaflon of their services
CONCESSION)
L!MITEO and payment of such allowance should be included as one of the
AND TWO terms of employment by the Companies.
OTHERS
'IJ,
(6) * * *
THE (7) * * * *
CoURT OF
(NDUSTRIAL
(8) * ~ * *
ARBI TRATION, (9) * * * *
BURMA
A'NDTWO
(I 0} The Companies should p;ty the ,1ctual t ravelling .expenses
OTHERS. up to their respective native places and subsistence allowance at
the rate of Rs. 10 Per diem to those workers and their families
from foreign countries and distant areas, and payment of such
expenses and allowance should be included as oneof the terms of
employment by the Companies.
(11) The Companies should grant the following privileges to
those workers who are suddenly and unexpectedly dischargecl or
retrenched by the C ompanies due to closing 'down of their oil-
winning operations at Yenangyaung :-
(a) Payment of gratuity calc ulated at the rate of one
month's pay for each completed year of service to
? every workman ;

(b) Payment of discharge allowance equivalent to three

months' wages ptus Cost of Living AU owan~e to
every workman for the premature termination of
their services.'

To these d emands the Oil Companies replied that

their decision to discharge or retrench their workmen
and to decide the nature or the scope of th eir under-
taking and labour requirements thereof at any time was
'a inatter entirely for their determinatio,n and for nobody.
else and th at therefore the matter was not within th~
jurisdiction of the Industrial Court nor could .it give
rise to any disp1,1te within the meaning .of the Trad,e
Disputes Act. The Oil _Companies further: submitted
that their existing Rules.pf'Service relating to payme n~
to be made ,to workmen discharged wen~ fair and
 1951] BURMA LAW REPORTS. 9
reasonable and should not be intcrf~: rcd \\"ith by the S.C.
Industrial Court in the absence of any good grounds. 1950.

Dealing first \\"ith the question of jurisdiction the THE

BURMA OIL
Court of Industrial Arbitration obscrn:cl : CoMPANY
(BURMA
CoNCESSION)
"As we understand the position, it is 11ot open to an LIMITED
employer to act arbitrarily in c:ischargin~ his ""orkmen. The AND TWO
OTHERS
worke1s can raise a dispute about the matter ancl if such a v.
dispute arises and is referred to the Industrial Court, then this THE
CouRT OF
Court is competent to go into the merits of the Case.'' I I'OUSTRIAL
ARBITRATION,
BURMA
Dealing with the question of di'5charges el1.ected on AND TWO
the 16th and 17th January, the Court observed that the 01"Hl!!lS.

grounds given by the Oil Companies for reduction of

th eir labour force were reasonable and that therefore it
would not order reinstatement though it had ample
power to do so, if and when ne<;:essary. Though the
grounds for redu ction of the labour force, as given by
the Oil Companies, were held to be reasonable the
Court said:

''We feel it our duly to state that it is our view that (he
C ompany was \\Tong in discharging workers on 16th and 17th
january, despite the reference of the dispute to this Court.
Section 1.4-,B of the Trade Disputes Act is perfectly clear on the
point. . The fact that a notice of discharge had been issued does
not in our view mean that the men had in fact been discharged.
We are therefore of .the view that the discharges on 16th and
17th January were illegal. We, therefore, direct that the men
discharged on 16th and 17th should be treated as on duty until
the date of this Award ~nd should be paid their full wages and
Cosr. o Living Allowance ior this period."

Treating the men paid off by the Companies on t-he

16th and 17th January as being still in the employ of
their Companies till the date of the Award, the Cour!
said:
"So long as there is no social security scheme in the country,
and private inqus~ries , exist, the emploY.ers must, with~n
10 BURMA L AW REPORTS . [195 1
S.C. r~'lson:able limits, slionl(~er the responsibility for relief in cases of
1950.
involuntary unemployment. In deciding the measure of relid
THE consideration has undoubtedly to be given to the past services
i:ll.IRMA OIL
CoMPANY of th e.,. <:.mployees, the condition of the industry, the reasons for
(BURMA
CoNCESSION)
retrenchment, and tbe period of the resultant unemployment.
LIMITED We therefore hold that it be made a term of service of the
AND TWO Company's \\'Orlonen that if any worker, who has had at least
OTHF.RS
v. two years' service, is retrenched he should be paid a discharge
THE allc:wancelequivalent to t\\o months' wages plus Cost of L iving
CouRT OF
hmUSTRIAL Allcm:ance."
ARBITRATION,
BURMA
AND TWO
In addition to the discharge allowance the Court
OT!IERS. also awarded travelling allowance subject to the . rn~xi
mum amount equivalent to one month's pay plus Cost
of Living Allowance to those workmei,l whose homes.
are more than 50 miles away from Chauk and who have
at least two years' senr.ice.
In dealing with the case of the discharged wo rkmen
of Yenangyaung the Court said that they should be paid
discliarge allowance in the same way as the discharged
workers of Chauk .
. These are the circumstances under which the appli-
cation for the issue of a writ of Certiorari was filed,
I n U Htwe ~alias) A. E. Madari v. U Tun Ohn and
one (1) this Court nas laid down the principles on
wh ich directions in the nature of a writ of Prohibition
ai1d/or a ''Tit of Certiorari will be issued by .t his
Court. In laying dov,n the principles this Court
said:
" As these two ~ rif's (writ of Prohibition and writ of
Certiorari) deal with questio.ns cf jurisdiction, they ar.e frequ_e ntly
sought after together. They sometimes overlap. Prohibition is.
used as a preventive, \Vhereas Certiorari is used as a cure. The
f01~mer is.. asked for at an earlier stage of a proceeding; so as to.
prevent an ini"erior Court from uswping ~ juri~diction with wbicb
it is not entrl'lsted, or to prevent it from act_ing in excess of . the
jurisdiction entrusted therewith. Ce~1iora~f is 'aske~for ~he.n a_
. {1) (1948) B.L.R. p. 54~:.
1951] DURMA LAW REPORTS .

proceeding is concluC:ed. so ~h:ll a ny mi sch ief or injustice n:stdt

ing the rein may he reclrl:~,;td . "
Trn
BrR~t.\ O : r.
Rt!ading this portion of the judgment only, a ..; it Co~n.\ :-<Y
(H Uio: A
stands, it may cn.:at<.: an impression that the writ o f Co:-<cF,~!oN:

Prohibition and the \nit of Certiorari deal only \rith LD!i TI- 0
AND rwo
the questions of jmisdiction used in a narrO\\. or OTHERS
t .
limited sense, such as th e territorial or pecuniary TH E
COURT OF
jurisdiction of a Court. That this is not so is made !NOUSTIUAL
ARBITRATIO~.
plai n by what follows later in the case. The Court BUR )! A
observed : AND TWO
OTHERS.

" Uucle1 section 133 of the Constitution, jostice lhrou!!hout

the Union shall be aclm ii1istered in Cour ts established by ihP.
Cc-nstitution or by law ;;nc: by Judges appointed in accordance
there,,ith . The pr::>viso to this section is s ection 1SO of t he
Constitution. Under section 150, a ny person or a body of perso~s
thongh not a Judge or a Coutt in the strict sense of the term, can
be invested with power to exercise limited fuuctions of a judicial
natnre. When so invested, that person o1 body of persons, when
determining questions affecting the rights of the citizens of tbe
Union, must do so, as provided by section 16, nccohling to law.
If it did not, it would at once render itself ;unenable to the
jurisdiction of this Court, as provided in section 25. Therefore,
when Atkin L.J. used the phrase 'having the duty to act judicial-
ly ' we must in relati-on to the Constitution construe it as 'having
the duty to act according to law' ..................... Such being the
state of the law, if we pataphrase the text as laid clown by
Atlcin L.J. we get it as follows : There must be a person or a
body of persons (first! ' having legal authority ' , (secondly) ' to
determine questions affecting the rights of subjects ' and (thirdly)
'haviug the duty to act according to l~w ', !fourthly) ' act in
excess of his _or their legal authority '. ,

The word " jurisdiction ' is therefore used in both

tfie narrower and the wider. sense. When u~d in
t.he n.a.rrower:. sense it means territorial or pecuniary
jurisdiction of a Court. When u sed in the wider sense
it means the authority of a Court to do a certain thing
according. to iaw. That. this is so i~made qui~e pla.i n
12. BURMA LAW REPORTS. [1951
S.C.
1950. in U Pit-v. Thegon Village Agriculhmil Committee and
two others tl) wherein this Court said:
THE
BURMA OtL
Co)rPANY " Nor can they {qulsi-judicial bodies) act contrary to the
Co~~~~~~N) provisions of the statute or rules. In addition to this limitation
LtMrTEo on their powers there is also another iimitation within which
AND TWO
oTHERs
b
t . ese committees as quasi-judicial bodies must act. In a:U their
v. proceedings they must comply with the requirements of rules of
THE '
couRT OF natural justice ' .. ................ It is ;l rule of universal application
INousTRJAL and therefore of natural jnstice that no mao can be a judge in
:ARBITRATION
B uRMA '
h'ts own cause. A person w110 h as an mtcrest . . t h e matter
m
AND Two arising for decisiqn cannot constitute himself a judge at the
OTHERs. hearing. Natural justice also requires that those entrusted with
the power of adjudicatin~ upon any dispute must act in good faith
and give the parties an opportunity of being heard and statin~
their case and their view point. "

Now, turning to the submission made by the learned

counsel for the Oil Companies, we have the case
presented to us for our co.nsideration in five different
aspects, namely, (1) that the Industiial Court bad no
jurisdiction to entertain the reference anti give
adjudication thereon; (2) that, ev'e n if it had jurisdic-
tion to entertain the reference, it acted illegally in.
holding that the petitioners (Oil Companies) were
wrong in discharging the workmen on the 16th and
17th January and that therefore they (Oil Companies)
should pay. full wages and Cost of Living Allowance
until the date of the award ; (3) that the Industrial
Court acted illegally and without jurisdiction in
awarding that it be made a term of service of the
1st petitioner's workmen that any workmen who had at
least two years' service, if retrenched, .should be paid
disch~rge allowan ce equivalent to two months' wages
plus Cost of Living Allowance ; (4) that the Industrial
Court acted illegally and without jurisdictioH in dir~d
ing the Oil Companies to pay ~11 retrenched workme:n :
(1) (1948) B.L.R. 759.
1951] BURMA LAW REPORTS. 13

whose homes are more than 50 miles away from Chauk S.C.
1950
and who have had at least two years' service th eir
THE
travelling expenses to their homes by surface transport BuRMA OIL
equivalent to one month's wages plus Cost of Living ~~~~~Y
Allowance; and (5) that the Industrial Court acted Co~>cssio*)l
LIMI1'ED
illegally and without jurisdiction in awarding the pay- ANoTwo
ment of discharge al1owance eqmva 1ent to two months 1OTHERS
v.
wages plus Cost of Living Allowance to the discharged C<J/:rE oF
workmen of Yenangyaung. INDusTRIAL
ARBITRATION,.
In support of the first pomt the learned counsel BuRMA
for the Oil Companies submits that the main question A:;H~\~~
before the Industrial Court was whether or not large
scale retrenchment should be carried out and whether
it was necessary. Such a question, according to the
learned counsel, was one which the Industrial Court
had no jurisdidion to decide. By way of illustration
he gave the case of a lawyer and said : c, Here is a
lawyer who Cfi?.ploys several clerks and who after
several years of practice at the Bar wishes to retire.
His clerks cannot tell him not to retire but to work
on so that they may get their salaries 11 With due
respect to the learned counsel for the Oil Companies
we are of opinion that the question of jurisdiction to
entertain a reference made under section 9 of the
Trade Disputes Act and the question of jurisdiction
of the Industrial. Court to give the kind of relief asked
for .have been mixed up. Unless there is a trade
dispufe the Industrial Court has no jurisdiction to
ent~rtain a reference made under section 9 of the
Trade Disputes Act. The existence of a trade disiJute
is .a condition precedent to the assumption of juri~dic-
tion by the li).dustr~al Court.
What is meant by a trade dispute is explained in
section 2 (j); ~s a~end_ed l~p to date, in these terms :
"' Trad~ ,dispute' means any dispute or difference betweeri
. employers and e~ployees, or between employers and workmen~
14 BUR~-L-\ LAW REPORTS.
S.C. or bet\\'een workm e n an:l workmen, which is connected w itll th e
1950
employment or non-employment, or the terms of employment or
THE service, includin~ pension, grat11ity, bonus and allo\\':;nce, or
BUJmA OIL
Ct)~PANY with conditions of labour, of any person. "
(BUR~A
<CoNCESSION)
LIMIT') Now what is clear is that if there is dispute, the
AND TWO
OT HERS dispute must be between employers and employees or
v. workmen.
THE
COURT OF The term " employee" is not explained but the
INDUSTRIAL
ARBITRATION, term "workman " is explained in sec tion 2 (k) as
BURMA
ANOTWO
follows:
OTHERS.

''' Workman' means :tny person employed, whether for

\va~es or not, in any trade or industry to clo any skilled or un-
skilled manual or clel"ical work and includes, for the purpose of
proceedings under this act in relation to a trade dispute. a work-
man discharged or dismissed during the dispute but does not
include any per~on employed in the naval, milit:lry or air service
cf the Union of Burma."

Here in the present case nearly 2,500 workmen

were served at Chauk with notices on the 7th January
that their services would be terminated on the 16th
and 17th January. On the-8th January the workmen
called a meeting and protested against the proposed
retrenchment and on the 11th January the reference
under section 9 was made. The workmen served
with notices on the 7th January were paid off on the
16th and 17th January. The workmen thus paid off
were undouJ:?tedly workmen within the meaning o'f
section 2 (k). The question, as raised by the learned
counsel for the Oil Companies by giving an example of
a lawyer wishing to retire from practice, is in reality a
question whether the Industri:~.l Cotit:t has jurisdiction
to grant the kind of relief as'ked for. IP. dealing with
such.. a: question the Industrial Coitrt may in some
cases have t() go into the question of _run.n ing an
industry. By ,so doing the In C:Iustrial C-ourt cann~t be
19511 B U Rl'v1A LA \V REPORTS. 15

said to bt: iuterfering with th e running of an industry. !>.C.

1')50
Such ~ question has in a \Yay heen dealt with both in
England and India. In England in Croa;fhe1's case TH!t
Bl=!I ~IA OIL
{1) Lord Goddard L.C.J. and Humphreys J. held that COM l'.~)ly
(l.$URidA
the National Arbitratio n Tribunal bad no jurisdiction CoNC JtsSi o~)
LDI!TltD
to give an award directing reinstatement of discharg(.;d Al'iD'f\VO
or retrenched workers. On the other han d in India OTHE RS
'II.
the Federal Court held in Iesiern India Automobile THE
COURT OF
Association's Case (2) that the Court of Industrial I !'IDUSTRIAL
rtRBITRA'fiON,
Tribunal had jurisdiction to order reinstatement. . BURMA
Thus there appears to be a difference of judicial opinion AND TWO
OTHJWS.
but in reality it is not so. It must be remembered
that the decision of Lord Goddard and Humphreys J.
was given with reference to an English Act; whereas the
decision of the Federal Court was given with reference
to an Indian Act and the two Acts are different in some
essential matters. Our Act, the Trade Disputes Act,
is more or less the same as the Indian Act. In our view,
with due respect, the decision of the Federal Court
that the Cou~t of Industrial Arbitration has jurisdiction
to order .r einstatement, where necessary, is correct.
If the frame anq the scope of the Trade _Disputes Act
is examined, it will be found that the whole object .of
the Act is to prevent an outbreak of_ industrial unrest
by providing some machinery to effect settlement
of industrial disputes so that neither the peace of
the country shall. be in danger nor any portion of
the public shall suffer any unnecessary hardship.
Thi~ is quite plain from section 9 of the Trade
Disputes Act.
The machinery'~ provided for the settlement of trade
.d isputes is fourfold in nature, namely, (1) Board of
Conciliation, (2) Conciliation Officer, (3) Court of
~nquiry.a~d (4) Court of Industrial Ar})itration. For
. . .
!ll (1948) l K.B.D .. 4.H. (2) (1949). Voi.XI F.C:R. 321.
16 BURMA LAW REPORTS. [1951

S.C. the purpose of this case we need not consider the

1950
Court of Enquiry. The functions of the Board of
Bu'I~~E OJL Conciliation and the Conciliation Officer are in general
~~~~~:v to use their good offices with both the employer and
CoNcEssioN) the employees and bring about the settlement of dis-
~~~~;:, putes between them. If no settlement is arrived at
oT~~Rs amicably, they are to report to the appointing authority
THE with their views and recommendations on points of
COURT OF
INo u STRIAL disputes. In the case of the Court of Industrial
ARBITRATION,
BuRwA Ar b'1trahon
. 1t has t o se ttl e th e d'1spu t e m
. the b est
A:T~i:s~ manner as it thinks fit and proper : See section 10 of
the Act. What then is clear is that the dispute should
be first settled by consent, if possible ; if not, by an
independ ent and impartial body. If the dispute is in
respect of the reduction of labour force, the retrenched
workmen by consent of the parties to the dispute can
be reinstated ; similarly, if the dispute is in respect of
the employment of, say for instance, non-Union work-
men, the said non-Union workmen can by consent of
the parties be discharged. What can thus be done by
consent can similarly be done by a Court of Industrial
Arbitration. The agreement of the parties and the
award of the Court of Industrial Arbitrati on can be put
into effect, in the case of the former, under section
7 (5), and in the case of the latter, under section 20 of
the Trade DisputcsAct. We are therefore clearly of
opinion that the Industrial Court has jurisdjction to
give an award. directing either discharge or reinstate-
ment of . workmen. Such jurisdiction is not to be
extrcised arbitrarily or capriciously but judicially.
The machinery provided for the settlement of trade
disputes pr~-suppos~sthat theindustry affected is in a
position t.p .~e run as it is designed to be run, that is to.
say, the industry has such financial resources, materials .
and other necessa~y faci~ities.. as.to be abie to ernpl~y
l~bour to its niaximum cap~city: But, on the other
 19:ill BlJRl\IA LAW REPORTS. 17

han d, if the industry affect l:d is uot in ;1 pos:t ion t< be S.C.
b 50.
r un as it is designed to be run, ei t herfor want of financial
THE
reso urces or materials, or for some suffi cient reasons BUI<MA OIL
CO MPA ...'V
and that therefore it is not in <1 position to employ (BURMA
labour to its maximum capacity, then the Industrial Coxc LIMITED
essJ oN,

Court wouldnotb eexercising its jurisdiction judicially A"' O TWO

OTHERS
. if it were to direc t reinstatement of d isch arg<.:d or v.
TH E
retrenched workmen. Thi s is to be dedu ced from c ouRT oF
section 11 of the Trade D isputes Act. \Ve are there- l KousTRIAL
A RBITRA'rlON
fore clearly of opinion that by directing rein statement BuRa~A
ffi . At-: I> T\\'0
because the reasOnS fOr d lSCharges a re not S U Clent oTHERS,

or by accepting discharges as the reasons therefor

are sufficient, the Court of Industrial Arbitration does
not interfere with the running of an industry as
contended by the learned counsel for the Oil Compan ies.
This brings us to the second submission made by
the learned counsel for the Com panies. Th e submis-
sion is that the Industrial Court should have first
fr~med an issue as to whether the Company's discharge
of w0t=kmen on the 16th and 17th January was in
infringement of section 14-B of the Trade Disputes Act,
and, havin g framed an issue there0n, the Industrial
Court should have hear.d him. The Industri al Court,
according to the learned counsel, did n either and that
therefore the Industrial Co urt infringed the Rule of
Natural Justice. .
What must .be remembered is that Industrial
C9urts are nt governed by the rul~s of procedure
prescribed for ordinary Courts of Jaw. .Industrial
Courts are governed by such rules of . procedure a&
are prescribed. by themselves : Sec section 15 of the
Trade Disputes Act. . T he rules of procedure prescribed
b y the Industrial .Court,. a copy of which has been
shown to u~, do not contain ~my ~ule relating to tl;le
framing of .issues but we are given to ~nderstand by the
learned counsel for the Companies that the inva riable
'2 .
18 BU.R MA LAW REPORTS. [ 1051
S .C. practice of the Industrial Court is to frame issues in
1l)50.
every proceeding referred to it under section 9 of th e
TIH:
B URMA Oil. Trade Disputes Ac t. Be that as it may, what is to be
CoMPANY
( BUHMA remembered is that even in an ordinary Court of law
CoNCES~IoN)
L I MITED
the omission to frame an issue is not necessarily fatal
ANOT\\'0 to the trial of a suit. The object of framing issues is
OTHERS
v. to focus the points of dispute so as to draw the attention
THE
CouRT oF .of the disputants thereto, in order that they may be
lNDUSTHIAL
Al'IBITllATION
able to lead evidence and plead. vVhen the parties
B URMA know what the dispute between them is and lead
AND TWO
OTHERS. evidence thereon and plead thereto, neither party is
likely to be prejudiced if no issue is framed. If neither
party is prejudiced, the trial, as pointed out above, is
not vitiated. Here in the present case, not only the
parties knew what the main dispute behveen them was
but we find that issues were in fact framed and issue
No. 1 was wide. enough to cover the point now under
discussion. And the learned counsel fo~ the Companies
did, in fact, touch upon it though it is true, in con nec-
tion with another matter. In any case, the failure to
frame an issue in a proceeding such as this does not
affect the jurisdiction of the Industrial Court. The
learned counsel, however, contends that e.ve.n though
. this part of the award of the Industrial Cour may not
be vitiated for failure to frame a. necessary issue, it is
vitiated inasmuch as the Industrial Court acted illegally
iri holdi'ng that the workmen paid off on the 16th and
i7t~ January should sti.ll be held to be in the service of
the Companies up to the date of the a\ar~. According.
to th~ learned couns~l, if an ~mployer .gives notice to
his workmen that their services will be terminated on
a certain date, he ( em.ployer) can.not recall .<;>r withdraw -
Hie notice and Hie . employees . cannot'~Iso refuse to
acc~pt the {lotke and that therefore:the eriiployees cease
to be in the service of the employ"er on the .date fixed.
In :. supp~rt of this submiss~on the .lea_rned c'o\.mse.l
 19511 BURMA LAW REPORTS. 19

refers us to the cases of The "'Oueen v. The .11a..vor ::;.~; .

1950
Glll d I owa Cozt11cil of T.Vigaa ( 1); Finch v. Oa/w; (2)
THE
Glossop v. Glossop (3) and H alsbury's Lmcs of HUR~IA OIL
Co~rPA~Y
En.~lmul !4 1. ! SU MMA
CONCESSTON)
L rM rTEn
vVhat is overlooked by the learn ed cou nse l is that AND TWO
.there was no intervention by a third party between the OTHERS
v.
.employer aud the employees in those cases. Here Til E
C oURT OF
in the present case the dispute between the employers I~DUl>TRIAL
ARBITRATION,
.and the employees was taken out of th eir hand s b y BURMA
t he State before th e date fixed for the discharge of Al\0 TWO
OTH ERS.
the workmen and referred for determination to the
.In dustrial Court. Now, what was the effect of the
.reference to the Industri al Court on the noti ce given
by the Companies to their workmen ? Did th e notice
keep on running and take effect on the date fixed
therein or did th.e running of the notice stop on
the day the r eference was made and keep th e parties
in status quo ? No authority, having a direc t bearing
on this point, has been brought to our notice. But
.the observations of Lord Goddard L.C.J. in Crowther's
Case quoted abov~, are apposite to the matter m
hand. The learned Justice sai!'f :

1il it1185) 14.Q.B.D. 908. (3) (1907) 1 Ch. D . 370.

: :
.121. (.i896). 1 .Ch. D. -409.
.. . .
. (4) 2nd Ed., Vol;.2.2, ~. 2-47-2-49
20 BU RMA LAW REPORTS. [ 1 IJ51

S.t'. w0rkman , coulcluuilify the \Yhole pro,isions of the ord!>r .llld the
1950
object of the tegulation unckr which it was mac!e. h~ l<;rtllinating_
Tli F. the co11tract of service befooe a reference \\as or clen . nr even
Bu"RM" OtL
CoMI'A~v after the matter was referred, but before the tribut al con sidered
r:flUR~l.~ it."
CONCF.SSION)
LtMI'fE.D
ANDT\\'\) We respectfully agree with these observation s. As.
OTHEHS
v. pointed out by the Lord Chief Justice, if we were
THJ::
COURT OF
to accept the contention of the learned coun sel for
I ND USTRIAL
ARB! TRA" ION,
the Companies that the workmen ceased to be in
BURMA the employ of the Companies after the 16th and
ANOTWO
OTHERS. 17th January because of the notice and that therefore
there was no trade dispute within the meaning of
the Trade Disputes Act it would amount to nu llifying
th e whole Act. Besides, there is also the Rule of
Lis Pendens to consider. The rule may not be
applicable directly in this case but the principle
deducible t herefrom, is in our opinion apJJI icable.
It is of general application in that as soon as a Court of
law gets seizi n of a dispute nothing can be done
in respect thereof til1 the determination of the d ispute,
or, if anythi ng is to be done, it can only be done
with the leave of th e Court. Therefore, as soon as the
reference was made, it put a stop to the runni ng
of th e notice and kept the parties in status quo till the
date of the award.
The learned cou~sel for the Companies endeavours.
to meet this aspect of the case by submitting that
because of th e reference ~ade to the Industrial
Court, if the partie::s were. to be kept. in status quo
till the g~ving Qf the award, -it would "m ean not only
1sflicting great hardship to the Companies but would
also mean doing great injustice to them in that tbey
would have to. continue paying . the workmen till
'the date of th~ award though there was no work
for ttiein, and that the workmen would also be in
a happy poSition of-..aCC{fpting employment else_where.
 1951] BUR.\lA L-\ . RF= ' !

I :) St) :>ubmitting the lr:m,

:) ~her si d e of the questil 'll. fL
:,-~.
.l::-;c ilarges were made not h~.. ~.:!l! .'l.' tl 1e ... ' () f{,

>t because of victimi zat io n. '; r1 . _,: ,.; _ . : A XY

' :.{.'.!A
;;\e discharged \\'Orkn: <: n ; !)c r :. :,,ir ... :: . ;;ssw"')
i.:~liTED
tl;ey to be reinstated wi 1i: , _ , ,,.~ i t:< ..:, !JT\\'0
e T HERS
the discharge or from tl1e c!:t t<.: ot t il t: :t .. :. tht y 'V.

were to be reinstated H"itli tffecL fn ill i :H: :.. J ..-<trr~,_ (",f C o t:THE R'1' Of
the award, it would mea11 duing great t ll _t USUC<.; to IMo ~_s-rlHA L
ARBI JlATION,
them. I f the ch sc hargt:d \\'< lr :;m~::n \i't:re t.l accept
1
BvHMA

emp 1oyment e..1sew! :ere Clt!rng

: ill' i';:-ndtncy o f the .A(JTHRRs.
){O TWO

rderence , it \:<,.: ould utHkul'.c dly be tak;.:- ll iuto account

by the Industrial Cou rt \\'ll<.:ll din:cting reinstatemen t.
'Section 2 Cj) read with st.!c tion 10 (1) of the
'Trade Disputes Act is of such wide amplitude as
to embrace such mat te. s :lS are mentioned by the
learned counsel for the Companies within the
jurisdiction of the fndustrial Court. T he an-ard in so
far as it deals \\'ith this point mu.st therefore be
confirmed.
No~tY, dealing with that part of the award directing
that it be made a term of servic e that retrenched
workmen with two years' service should be paid
discharge allow ance equivalent t o two months' wages
pius Cost of Living Allowance , the l earned counsel for
ihe Companies points out the in consistency of the
Industrial Cour t in giving the award in this case on
this point and the awar~ given three days .e arli er
in the S);riam case. In the Sy riam case the Industrial
Court held that superannuated personnel who were .
-discharged sho~ld not be given gratuity. The learned
-counset further submits that the ground on which the
-dis"ci~arged ailowance was giv~n was also improper
inasrru~ch ~s the Jndustrial .Court saiq .that bee~ use the
. State h,ad made no provision b y way of soeial .service .
it" was the quty .
-o f the employers t o ~~lp the .e l1lployees.
..~. .
22 BUR\1A LA\\. RhPORTS. l'"lq. )-1
~.c.
1~~0
That, acco rding to the learned counsel, amounts to
fai lure on the p(lrt of the Industrial Court to ex ercise
T1u::
BuRMA OIL the discretion ve?ted in it judicially. Further, the

CoMPANY
( RUR>IA
learned counsel states that employees of the Company
CoNcEssi oNJ could have joined the Provident Fund if they wanted
LIMITE!)
ANDTwo to and that, in fact, 70 per cent of th e lowest paid
o-.r~~Rs workmen did join the Pro,ident Fund maintained by
co~~E oF the Companies.
l~~~~:;i~N, Now, what must be borne in mind is that this case
B uH)! A and the Syriam case are entirely different in so far
AND TWO
oTH F.Rs. as the payment of discharged allo\vance is concerned.
In the Syriam case, according to the leamed counsel
himself, what was awarded \< vas that the superannuated
n1en need not under the circumstances of t ~ case be
given any gratuity. In this case what is a,,ardecl is
what :we may call compensation for h aving their career
cut short in the prime of lift. It is true that t he
Industrial Court observed that the employers should
help their workmen as the State h ad not made any
provision by way of social service. If the payment
of discharge allowance was bas'e d only on this con side-
ration, the contention of the learned counsel for
the Companies must be accepte~ that the Industrial
Court failed to exercise its discretion judicially in that
it took extraneous matters into consideration. But
on reference to the award we find that the payment of
. Q.ischarge allowance \\as not based mainly on the
above consideration but also on the consideration that
the workmen should have compensation for having
their career cut short in the pr_irne of life. This,
ifi.our opinion is exercising discretion judi..cially. It is
true that there is the Provident ~und maintained by
the Companies but wh_a t has to be rernemqered is .that
the Provident Fund .is a fund by: joinin'g'- which the
.w9rkmen ~an effect a .saving .of their w~~ges for the.
purpose of making provisioii for fheir o14 age, sin.c e
 l:HJ 1{1\TA LAW REPORTS. 23
~.C.
they get n o p<.:usion whe n they are superannualcd. It i:~ l'50
not fo be treated as :t sab:-;titute for compensati<..n k r
TH"
having one's career cut short in the prime of one's lik. HuR~.~ on.
If discharl!e
,, alltl\:l.'ance i~ tv be paid, the learned co)IPAN
(Bt:r~~IA
Y

counsel for the Companies contend:; th at as according Co:-;~;Esstnol)

LBHTEn
to law a general hiring may be t erminated <~t any time ANn Two
, , OT HERS
by a month s notice or payment of a month s \X.'ages, v.
di~charge allowance should be made equivalent to one coJn~r:. or>
month's v.:ages an d not to two montl1:.,' \\ages. It :nust I1\01JSTRIIAL
be remembered that how and under what circumstances A"';~=~~roN,
A~DT \\'0
tbe services of <al employee can be terminated depend <'THF.RS.
upon the terms of the contract between him and the
employer. In the <lbsence of such a 1.:ontract it
depends upon the usage, of the !'lervice to \ihich the
employde be~ongs. lf there is no usage, then the
service is terminable by giving reasonable notice.
\Vhat is meant by reasonable notice depends ur on rhe
circumstances of each case. In the present case there
are no materials on the record for the determination of
this fact. But, in fact, no materials are necessary,
since, as we have pointed out abo\'e, p-ayment of
discharge allowance is to be treated as compensation
for having one's career cut short in the prime of life.
We are therefore satisfied on this point also that
the Industr.ial Court did not exceed its jurisdiction
by directing that it be made a term of service that
if workmen with two years' service are discharged
they should .get two months' wages plus Cost of
.Living Allewance. We may note that the learned
counsel for .the Companies has very frankly admitted
that if the workmen served with notices on the
7th January were to be treated as still in service of
. the Comp~nies at the ~ate of the award they would,
. along with those who are still in the service of
the. Companies, get the benefit of thiS. part of the
award. . .
24 BUI~l\IA LA \N REPORTS. 1.1 CJSl
J
S.C. Dea'iing with th e qu<:stion of the paynwn t c,f
J</50
travelling allowan<: e, we must at once say that this pa rt
THE
Bl HMA OIL
of the award cannot be supported.
C . >MPA:-IY In awarding travelling allowance the Industrial
(i-SURM4
CoNcF.sSJON) Court not only infringed the Rule of Nalurai Justice
LlMITF.D
ANDT\'.'0 but failed to exercise its discrefion judicially. fn
OTll.ERS
v.
U Htwe's Case (1) this Court observed:
THR
CouRT or- " If the tribunal h1s exercised a discretion entrusted tO
1:-:DUSTR:AL
A:RBtTRATION, it bona fitle, not inflnenced h\ ex traneous cr irrdevant consiclera-
BuR~J.\ tions, and no! arbitrarily or illegally, the Courts ca:1not interfere.
AXDTWO
OTHERS. In other words, a Tribunai entrusted with the exercise 0f quasi-
judicial functions, would not be acting accord in .!! to Ia w, if
it acted arbitrarily or illegally or was influenced by exhaneous or
irrelevant considerations.''

Iri awarding travelling allowance th,e Industrial

Court obsened :
" w~ are not nnawan! that this is not the norm1l pracuc<;!
in respect of men who are engaged at the place of \rork, and nut
at their homes. Where retrenchment is effected, th e circum-
stances generally are abnormal. From th e national point of view
it. would be helpful to the economy of tht' 'cc untry, it unemployed
workmen can be dispersed to their homes where they c ~n be
absorbed in the economic life of the country. In respect of
workers who are not Burma citizens, it is aclvis:tble that they
should be helped, if they so desire, to leave the country so that
they may avoid clishess in a foreign counby."

From these observations what is clear to our mind is

that the Jndustrial Court was influenced . in their
judgrnen.t more by political and economic considera-
tions than l;>y the justice of the claim. vVhat is worse
still is this. In the course of his address to the
Ind.ustrial Court the learned counsel for the Companies
first dealt with the q uesti~n ~f jurisdiction and then
with ihe q uestions of .fhe effect of the notice aJ1d the
terms and conditions. of service, and when h~ was
(1) !1948} B.L.R. p. 541.
1951 1 BU R MA LAW REPORTS. 25

about tu deal with the q u estio n tran: lling allrmance

11f
S.C.
1950
and the claims of the Yenanf!v.:t un ,l:!, ., \rnrkmen, he was
~ T HE
stopped by the Chairman of tile Trib;nal \\'ho said t h a~ buRMAOIL
it was !Or t he other sid . : (mc;u ling fltt: workm<:n ) to c;~~~~:v
satisfy the Tribun al of th~:: .iusli <.:e of their claims ; CoN~.:ESst o:-;)
L IMITED
whereupon the learn ed t:ounsel for the Companies Non\o
oTHERS
stopped his address. This was not Oiliy not givtn.~ a e.
THE
hearing but actually leadi ng the lea rn ed counsel for !he couilT oF
Companies into the beli ef that the T ribun al wr:uld INovsTRIAL
AR BlT ~ATJON,
rejt;ct the claim for travelling a llowann: and th e claim BuRMA
AND TWO
of the Yenangyaung workmen. In these circumstances oT HERs.

m : a re clearly of the opinion that the Indu s trial Court

acted not only in excess of its juri sdicti o n but illegally
in awarding travelling allowance::. This part of the
a\'.':lrd is accordingly quashed.
vVhat has been said above in t,;onnec tion with the
payment of travelling allo\.vance is t: qually applicable
tu that part of the am.rd which deals vrith the payment
of discharge allo wance to tht Ye nangyaung workmen.
Further, the most importan t question to consider in
their case is-were they workmen within the meaning
of section. 2-(k) of the Trade Disputes Act. As pointed
out above, they were discharged suddenly in July 1(149
after paying the 11;1 their wages a nd in addition one
month's wages in lieu of notice. The dispute w ith tbe
Company arose only after their discharge. The
ciischa.rged workmen could not in these circumstances,
in our opinion, be workmen within the meaning of
section 2 (k) of the Trade Disp utes Act even though a
trade dispute can be ra ised on their behalf by other
workmen who are still in the seryice of ihe Companie~.
T hey have not a lso been orde red by the Industrial
Court to he reinstated. On the contrary what the
Industrial Court saxs is that t he grounds for their
discharge, or to qse . the language of the Industrial
Courts,. for th.~ red.ucti~n of tl)e respondenfs labour
26 tiURMA LAW REPORTS. 11951
S.<;.
1950 f0rce , are reasonahh:. In these circumstances we are
'lHr: not satisfied that th~ Yenangyaung '''orkmcn an.:
BuR~rA 011. t:ntitled to have the payment of discha rge allowan ce
C OMPA:\Y
!RuR~, , made a term of their service. If they are not, then
CoNCESSI0:-1 )
LIMITED they are not entitled to payment of discharge
ANo Two allowance.
OTHERS
v The learned Attorney-General on behalf t>f the
THE
couiiT ol' Industrial Court, hmrever, contends that the Yenan-
INousrRIAL k
ARBITRATioN, gyaung wor men are wor men wlt un
k 1 th e meanmg
BuRMA
ANo1~o
of section 2 (k) in vie\'' of the fact that there was already
o-rH&Rs. a dispute between the Comr,anies and the workmen as
as far back as January 1948. In support thereof the
learned Attorney-Ge>neral clra\\'s our attention to the
evidence of Tbakin Khin Zaw and Mr. Maxwell Lefroy.
What their e\idence shows is tbat the main demand of
the Yenangyaung workmen was for payment of
gratuity. But nothing evidently came of the dama1~d
and the workmen also dropped the matter later. The
discharge that was made in July 1949 had nothing
whatsoever to do vvith the alleged dispute in January
194R. For all these re<1.sons we are of opinion that the
Industrial Court acted in excess of its jurisdiction ,
in directing the Companies to pay discharge allO'Ii\ance
t0 the retrenched Yenangyaung workmen. We accord-
ingly quasb that part of the award.
To sum up, we confirm that part of the award
dealing with the questions of jurisdiction, directing
payment of wages and Cost of Living Allowance up to
the date of the award to the workmen at Chauk ser.ved
with notices of discharge on the 7th January 1950,
al}d djrecting the payment of discharge aUow~nce
equivalent to two months' wages plus Cost of Living
Allowance being made a t~rm of service of those
-u;orkmen who are still in the servic~ of the Company
and those served with notices of discharge. But we
quash that part of the award dire~t.in~ payment of
1951] BURMA LA'vV REPORTS. /.7

travdling allowance and tltt.: payment of d i schar~e S.l..:

1950
allowanct.: to the Y cnangyau!lg workmt:n.
TliE
As hotl1 sides are each partially successful we mak e HU~)IA OIL
CO)II'A:-:Y
no nder as to costs. I Ul'~)lA
CoNCE:.SI\>N)
L!M!H!)
A ~'< II T\\'0
OTH E!lS
,,
THE
CoURT oF
l:.. OUSTHIAL
.t\RHITRATION,
UURMA
A~IO T\\'0
OTHERS.
28 BURMA LAW REPORTS . [ 1951

SUPRE ME C OURT
t S.C.
1950. SHYAM SUNDE!~ ANAN DA (APPLICANT)

Aug. 28. 'Z.'.

THE COLLECTOR OF CCSTOMS, RANGOON

(RESPOXDENT!. *
Acquit tal by M<l[!.tSirate-S r< bsequ~"t procccdi~tgs u11dcr ~- 1(>7 !8), Sea Cusi o1JIS
Acl for coufiscatmu l>ef,,re Ct>lledor of Customs - lurisdicliou of Collec{o1' -
Judicwl-Wheu wr 1t ,,f proltibiliotJ lics- Crimural Procedure Code,
s. 5 (2) n.ntt s. 182 !1), Sea Cttsfoms Act-No inconsist er.cy bct..aen - S. 403
(1), Crimi11al Pr~>ccdurt: Code.:_O_f/cucc-S . 26, Gmcrlfl Clauses Act a1td
s. 2 (42).
The applicant wns tried bdore the Subdhisional M::gistrate, Inseh1, for
an offtnce under s. 24 (1) of the Foreign Exchange Re~uht\icn Act for altetnp-
tiug to ex port money \\'ithout the req~tisite r-ermit front the Controller of
Foreign E xchange. .-\nd, during (he pe!ldency of !he trial the Collector of
Customs, Hnngoon, took proceedings under s. 167 (8} of the: .;ea Customs .\ct
against applicant for conlis.:ation and imposition of a petialty, f:out the procee-
dings were stayed by the Collector pending the dec.ision of the St.bdhision;ll
Magistrate. The Snbdivisional Magistrate acquitted the applicant. In !<pit'!
of such acquittal, the Collector decided to proceed with proceedings before
him. The a p plic:mt moved U1e Supreme Court.
Held: That the acquittal was a bar to the continuation of the pfoceedings
before the Collector of Customs.
Tbe Collector of Customs"\vhen he im poses fines a;td penalties under the
Sen Custnms Act exercises a judicial function. He is for the time bei n l! a
Jucl).!c bound to act in his individual juclgonent. In such proceedings it is not
Competent for him to take Jeg;1l ndYice nor lor d hcr~ to give lega l advice,
\Vhere there is anoth er remedy open to an applic<1nt he: is not entillerl to
.a writ of Mandamus ; but wh~rc an i nferior juc:ici;d tribuna l is iot-n d to be
usurping a jurisdictiqn not properly vested in it, a wr it ui prohibi tion ;:Jl."arly
Jies. .
Rrr1tehhoddas Je/hab/ut.i & Co. v. The Secretary to !he Uu.i01J Govemment,
Mini.<fry of Judicial Affairs aud two, B.L.R. 1(1950) S.C. 6F; referred to and
f ollowed.
. A Crimina l Court proce eds on allegations <>f fact in a comp!aint to. deter-
mine '"'hether such facts wou ld constitute an oFfence. \i\' hen the facts alleged
con'Stitute offence,botlJ under s . 24 II) of the Foreign Exchange Reg ulation Act
and s . 167 (8J o f the Sea. Custorits Act. then 011 proof of sucfi f.acts . the

* Civil Misc. ApplicaJion Ko. 37 of 1950.

t Before: SIR HA U, hi~f'Justice!of .the Union of Burma. MR. JuSTICE
E M AUNG AND MR. ]USTJCE THEIN M AUNG.
1951] L.URMA LAW REPORTS.

.'-i.t~i:)l ralc is h.n1 nd to convict the;: a\.c.:used lUH 1c r boti: th e .\t:t... e\-,:n t~~n~:gh 'i.('.
the cumpl.lint ulentions only Foreign Exchange .l{egt:la tirm Ad \\" hen th e t95v
:u.;cu~>ed wa~ ac4uitted by th e ~lagistrale, s:d: a<.:<( nitta! 1\'0\tld hl: a -:tll l!foldc SHY AM
a nswer under s. 403 tl : of Ute Codt of <.;riminal P~oced c re t> a tri a l fo r 0\n S liXOEit
vtfer1cc u nder s. t67 IS o the Sea C t:stOms Act. A:SANOA
v.
S. 1 of the ~ riminal PrQCedure Code in t:nacting ' nothing in the Co <lc TH E
aftecting any spec ial or local law or spec ia l jarisdiction or power conferred. " Col. LECTOR
etc., Ins <tua lilied the words b) the phrase ' in the absence of a ny specific OFCUSTO)IS,
provision to the contrary. There is specific rro,ision to the ~:ontrary i n RAN GOON .

s. 5 (2! of th e Code.
The proceedini!5 bt'fore U1e Magistrate and before the Collector of
Cus toms are not uitferent. There is no inconsistency between s. 5 (2) of
the Code of Criminal l rocedu re and s. 182 (1) of the Sea Customs Act as there
are no exprC$S word, in tne latte r abrogating the jurisdiction of the ordinary
criminal courts : consequently the conte ntion that the Cus toms Authority had
exclusiv(.; juri~diction to try the oftcn ce t;nder s. 182 (Ii o the Sea Custom~
Act is not tenable::. ;:.;or can the jurisdic tion , wh ich th e Magistrate had, come
to an end bec ause notice was given of proceedin l{s before the Collector of
Customs. The Criminal Court once seized of jurisdiction cannot have that
jurisdiction taken away lightly and there is no warrant for such taking away
in the Sea Cu~toms Act.
Both in India a nd in Burma the word'' offences is used and not" Crimes"
as i11 England. '. Offence. " is described in s. 2 (42) of the General Clauses
Act. In F.ngland it i ~ possible to defi'n t ''offence" as meaning a ny act which
is not a "crime in som e limited cases.
Madftowjz Thawor v. Ya r Hmsmn H)dor Dasli aud a 11oi1J er, (1926) A.I.R.
Sindh 40 ; Reg v. 1'yler, (1891! 2 Q .B.D. 588, referr ed to and disti nguished.
There is also no :.varrant for grouping offences nnder s. 167 of the Sea
Cu.s toms .~ct into criminal acts and non-criminal class.

Kyaw Min for the applicant.

. .
Chan Htoon (Attorney- 1
General) wit~1 I
~for the respondent.
Ba Sein (Government I .
Advocate) J
The judgment of the Court was delivered . by

MR. JusTICE E - MAU~G.---The applicant seeks.

diredibns in th.~ nature of prohibiti9n in respect of
proceedings iriiti~ted by t he col~ectpr of, Customs,.
Rangoon, purporting to- ac~ .under section 182 tl) offthe
Sea Customs Act.
30 BURMA LAW REPORTS. [1951

~~~0 On the 13th November 1949 a search was made on

SHYAM
the person of the applicant at Mingaladon Airport and
SuNotR in an attache case carried by him was found Burma
AN~~nA notes of the denomination of one hundred rupees to the
co~:~ToR total value of Rs. 1,12,000. The search was conducted
QF cusToMs, at about 11 a.m. and the applicant was, at the time of
HANGOON.
the search, at the airport for the purpose of travelling
that afternoon to India. On a report of the seizure
being made, U Than Ohn, Chief Inspector, Preventive
Service Customs, lodged a written complaint before the
District Magistrate, I nsein, on the 15th November 1949
charging the applicant with an offence under section
24 (1) of the Foreign Exchange Regulation Act " for
attempting to export out of the Union of Burma a sum
of Rs. 1,12,000 without the requisite export permit from
the Controller of Foreign Exchange, Union of Burma."
The complaint set out the facts as reported to
U Than Ohn by the Preventive Officers who made the
search. Cognisance was taken of the complaint by the
Subdivisional Magistrate of Insein who was then
exercising jurisdiction as the presiding officer of an
inferior Military court, Insein having been placed
under military adminis.t ration at the time. The learned
Subdivisional Magistrate ultimalely acquitted the
applicant, holding, that " the money seized was not
brought by the acc'use<:I: for the, purpose of smugglingit
.out of Burma. " The learn.ed Magistrate camt to ~he
.conclusion tb~t " the money ~eized belonged to
:accused's brother Chunnu Lal who had brought .it
to the Aerodrome for Customs formalities " i.n view of
his :eoJ;Jtemplated departure for Bangkok on the next
.day. This.order of acquittal was so.u ght to .~f! i<?viewed
. befo~e the . Superior Military Cqurt .of Insein in
Criminal Revision No. 170 of 1950 but the re~iew
appliCation ' dici . ~ot :suceed,. with . :u~~ . resu.it.. th~t
the acquittal of the applicant ~tands. .
!95 l] BU R MA LAW REPORTS. 31

In the complaint which U Than Ohn made before tl:<.: :;.c.

1\1.50
District Ma~istrate, Insein, on tiH~ 15th November 19-+9
" S! IY A)l
it was stated that " action for con liscation of the money s nwr:11
under Sea Customs Ad is being taken .. , This A~~~M
foreshadO\n !d the proccedin!!s ' -'
of the Collector of C,ol..LF.CTO
THE R

Customs, !:angoon, in res pect of which the present uf' cu,'ToMs,

application for~ prohibition is made. The proceedings I{Mwoo:-~.
begin with a notice dated the 21st i\ovem ber 1949
calling upon the applicant to show cause why under
section 167 (8) of the Sea Customs Act the notes to the
value of Rs. 1,12,000 seized from th e applicant should
n ot b e confiscated and a penalty imposed upon him.
Further ac~ion by the Collector of Customs under this
notice was stayed pending the trial before the criminal
Court. When ultimately the order of acquittal by the
Subdivisional Magistrate was confirmed on review by
the Superior Military Court of Insein, the Collector of
Customs d ecided to proceed further and pressed for
objections to the notice of the 21st November from the
applicant. On this lhe learned counsel for the
applicant, who acted also as his counsel before the
criminal Court, claimed before the Colrector that
his client having been tried and acquitted in respect of
the seizure from h~s possession of the Burma notes at
th e Mingaladon Airport is not liable to have action
taken against him in re~pect of the same not.e s by the
Collector of Customs under section 18.2 (1) of the Sea
Customs Act. The Collector of Customs refused to.
accept this contention with the result that the present
application was filed for directions in the nature of
pro.l iibition.
Before us .the proce.e dings of the Colle.c tor of
C~stoms; .who purported to act in exercise of the powers
granted to . him under section 182 (1) of th~ Sea Customs
Ac(: have . been challenged as being. in exces~ of his
jut:isdiction. It is contended
. . on
. behalf of the
.
applicant
. .
32 BURMA LAW R E PORTS. (1951
::>.C. t hat the provisions of sec tio n 403 of l he Cod e of
1950
Criminal Procedure apply and that tb c ap plicant having
SHY Alol
SUNDER been tried and acquitted b y the Subdivisio nal
ANANDA
)1. Magi strate of Insein in respect of the finding of these
THE
CoLLE CTOR
Burma notes from the attache ca se h e was carrying, a
O F CCSTOMS, further p roceeding of a criminal na ture on the same
R ANGOON .
facts is b.a rred.
The proceedings of the Collec tor of Customs are
before us and we find that in holding that the previous
acquittal . by a criminal Court d oes not oust the
Collector's jurisdiction lo take action for an offence
under section 167 (8) of the Sea Customs Act, the
Collector had the benefit of legal advice which, at
his seeking the Attorney -General's Office had given
him. We n otice that the Collector of Cus toms sought
legal opinion from the Attorney-General 's by a note of
the 6th April1950 and the Attorney-General's Depart-
ment tendered its opinion by a note of the 6th May
1950. That as late as the 6th April 1950 the Collector-
of Customs should have sought legal opinion from the
Office of the Attorney-General in a matter of t~is nature
is of some surprise to us , for as far back as the
30th January 1950 in Ranchhoddas ] ethabhai & Co.
v. The Secretary to the Union Government, Ministry of
judicial Affairs and two (1), where the Collector of
Customs was one of the respondents, this Court had in
the clearest terms stated :

'' It has ~lso to be borne in mind that the Collector of

Customs when he imposes fines and penalties under t~e rele,an t
p~ovisions of the Sea Customs Act is exercising a judicial functiori.
and the exercise of a judicial function is individual. . . .
He is for the time" being a judge bound to act in his-individua.L
judgment, subject,' .'C?f course~ to control by .o ther .. authorities: .
exerCising )udiciaUunctions to \yhoni lie may be subordinate." "
. I . . . .
..
(1} B.L R . (19~0} S.C. 6~:
i951] DURMA LAW REPORTS. 33
.More surprising it is that the Attorney-General's S.C.
1950
Department, in th~ face of this clear enunciation.. had
SHY~M
.seen fi t to give legal adYice to a person wI10 has to act Su~>oER
in a judicial capacity. Of the nature of the actual A~ANoA 1?
.advice given we shall have to say more later. CoLLECToR
. OF Cl"STOMS,
W e have I1eard t I1e I earned counse 1f or t h e app I tcant RA~GOoN.
:and the learned Attorney-General on behalf of the
.r espondent at length and we feel bound to say that
the Collector of Customs, Rangoon, had been badly
.advised both in initiating the proceedings sought to be
prohibited and in rejecting the cl"im on behalf of the
applicant that his acquittal by a competent criminal
Court is a bar to further action by the Collector of
Customs under sectiori 182 (1) of the Sea Customs Act.
T he learned Attorney-General, at the close of
his arguments, raised what really is a preliminary
>Objection to the application for directions in the nature
of prohibition ; and this objection should, in our
-opinion, he considered first. He says that the applica-
tion should be rejected as other remedies are open to
the applicant, who should have exhausted these
Temedies before coming to th is Court. It is suggested
that the applicant should have appealed under section
188 of the Sea Customs Act to the Chief Customs
:authority against the decision of the Collector of
Customs and that, if still aggrieved by the decision on
-appeal, he should seek to have that decision revised by
the President under section 192 of the Act. The
le~rned Att<;>rney-General's contention might have
greater cogen~y if the application here had been
for directions in the nature of mandamus, for mandamus .
-does not issue if there is another and more effective
Temedy available to the applicant. Ranchhoddas
]eflmbhai's Case (1) also does not assist the responden~ ;
therethe
.' . President's
. jurisdiction to act in revision was
. (1) C.L.Iq1950) S.C. 68.
3
34 UURMA LAW REPORTS. [1951
S.C.
1950
affirmed by the Court, and this Court refused to
anticipate the decision by the President in revision.
SIIYAM
SUNOI!.R Here, the jurisdiction of the Collector of Customs
ANAND.\
.,. is being challenged, and where an inferior judicial
THE tribunal is found to be usurping a jurisdiction not
COLLECTOR
OF CUSTOMS, properly vested in it, prohibition clea'rly lies.
RANGOON.
It has been strenuously contended by the learned
Attorney-General that by the complaint in writing
before the District Nlagistrate, I nsein, of the 15th
November 1949, the Magistrate of the Inferior Military
Court was invited to take cognisance only under section
24 (1) of the Foreign Exchange Regulation Act and
that that Court's jurisdiction would extend no furth er
than had been circumscribed by the referenc~ to that
particular provision in the complaint. For this.
statement ex-cathedra, the learned Attorney-General
has not been able to adduce support either on first
principles or by authority. \ Ve can find no warrant for
the p roposition that a complainant can restrict the-
Court's jurisdiction in the manner suggested by the
learned Attorney-General.
Except where the P resident's sanction or the
sanction of sort:Ie other authority is a condition precedent:
to the exercise of jurisd iction by a criminal Cour t such
Court may take cognisance, in the wor ds of section 190
(1) (a) of the Code of Criminal P rocedure, 11 of any
offence upon receiving a complaint of facts which.
constitute such offence " . ' T he complaint states facts.
and to such facts stated in the complaint the Court
applies its mind to the suspected commission of a11t
offence, that is to say, the Court proceeds on the-
allegation of fact to determine whether the facts are as.
alleged and wJ:lether these facts would C0~1Stitute an ast.
(which of course includes a series of acts) wh ich is.
made punishable by any law for the time being in force_
Clearly on the complaint, the acts . attributed to the.
 1951] BURMA LAW REPORTS. 35
S.C.
applicant would constitute an offence under s~ct ion 1950
1()7 (8) of the Sea Customs Act. But the Subdivisional
SHYA~f
Magistrate has held that the facts alleged in the SUi'DER
ANA~DA
complaint had not been established. If the learned ~.
THE
l\hgistrate had found the facts alleged in the complaint COLLECTOR
to be established it would have been his duty, OF CUSTOMS,
RANGOON.
unless there is any legal bar to his so cluing, to convict
the applicant of an offence under section 167 (8) of the
Sea Customs Act. In the absence of such a legal bar it
wo ld appear that section 403 (1) of the Code of
Criminal Procedure would be a complete answer in the
proceedings of the nature contemplated by ~he Collector
of Customs.
The learned Attorney-General sought to surmount
this difficulty by contesting the competency of the
criminal Cpurt to try such o~ ences as are specified
in section 182 of the Sea Customs Act as cognizable by
the Custom authorities. He claims that section 182
should be read together with section 187 and that, if
so read, two mutually exclusive jurisdictions, one
jurisdiction in respect of certain offences and the other
in respe_ct of the remaining o.ffences . under the Sea
Customs Act, would become apparent. He has asked
the Court to read the two sections together as in either
section the permissive " may " is used. There may be
a certain amount of cogency in th~ learned Attorney-
General's argument if in section 1,")7 of. the Act the
word "summarily " does not appear. As the two
. sections now stand, the contrast is not between two
jurisdictions, that of the Custom authorities and that of
the ordinary criminal Courts, but between two classes of
offences, one triable summarily and the other cognizable
indifferently by a Magistrate conducting his trial in
a regular manner and the Custom authorities.
._ . .. There can be no inconsistency betw.e~n section. 5 {2)
of the Code of Criminal Procedure ~nd s ection-182 (1)
36 BURMA LAW REPORTS. [1951
S.C. of the Sea Customs Act. The following principle
1950
enunciated in The King v. Carltle (1} appears to be
SuYAM
SUN DEl<
apposite in this case :
ANANDA
fl. " Where the offence was antecedently punishable by a
TilE
COLLECTOR
common law proceeding, and a statute prescribes a particular
OF CUSTOMS, remedy by a summary proceeding then either method may be
RANGOON,
pursued, and the prosecutor is at liberty to proceed either at
common Jaw or in the method prescribe'cl by the statute ; because
there the sanction is cumulativ~, and does not exclude the
common law punishment. The present case seems to me clearly
to fall within the rule laid down by L.ord Mansfield, and the
distinction there laid down is, I apprehend, well -founded, and
grounded, too, on good authority. If a statute makes that felony
which was a misdemeanor al the common law, we know that the
misdemean?r is merged in the felony ; and it cannot be
proceeded as a !J1isdemeanor afterwards ; but I believe
many instances will be found in which prosecutions at
the common law are constantly carried on against cert."lin offences,
although there are statutes enacting particular punishment for those
offences, and providing that a particular course of proceeding shall
be aciopted, in order to bring them within their o~eration. I take
the principle to be perfectly clear, and to have been long
established ; anc1 1 therefore, I am of opinion, that the argt1ment
now addres!led to us-ought not to pr~vail, and that there is no
ground for arresting th1s judgment. "

I n O'Flaherty v. M'Dowell (1) Lo~d Brougham said

' ' I entirely go along wilh Lord Ciare in the case of H ayde"
v. Carroll (3 Ridgw. Pari.' Cas. SolS), when he says that if there be
t wo affirmative statutes, and ' the provisions in the subsequent
affirmative statute are not contrariant, ' as he t~rms it, to those of
the prior affirmative statute (those provisions in the prior statute)
not so contradicted by the subsequent statute must stand. But it
is equally clear that, without the provisions of the subsequent
stat"ute being in direct positive conh'<ldiction, or as he would call
it, ' contrariant ' to the prior statute, they may be so entirely
inconsistent and incompatible with its provisions that they will
>perate just as entirely against the subsistence of th~t prior statute
LS if they h ad been what his l~rdship ealls contraria nt." '

(li ,,llls!Vt 106 E.R. 621 at 622. , (2) -.(1857) 10 E.R., H.L., 1248. at 1257.
 1951] BURMA LAW REPORT S. 37

In the absence of express words in the Sea Customs S.C.

1950
Act abrogating the jurisdiction of the ordir> ary criminal SHYAM
Courts to try all offences except such as are specifically SuNDER
exduded from their cogn isance, we must reject AN;,t\na
the learned Attorney-General's contention that section coii.~~roR
182 (1) and 187 of the Sea Customs A~t can be regarde d oF cusToMs,
as authority for granting exclusive jurisdiction to RANGooN.
the Custom authprities to try offences coming within the
provisions of section 182 (1) of the Act.
But the -learned Attorney-General has ~not her string
to his bow. H~ says that even if the jurisdiction of the
Custom authorities be not exclusive it ia they who
must set the law in motion and that they can choo se
whether action in ~espect of offences covered by sectiori
182 {1) of the Act shall be taken before the
ordinary criminal Courts or befo'r"e themselves and
that . accordingly, when in the complaint of the
15th November 1949 the Chief Inspector indicated
to the District Magistrate, Insein, that the Custom_
authorities were . contemplating action in respect ~f
offences under the Sea Custorris Act, the moment
the Collector of Customs on the 27th November 1949
directed notice to issue to th~- applicant to show caus~ .
against action und~t sectioh 182 (1) or' the Act; the
jurisdiction, which till then !lie Mag1;trate had, came t~
an end. . This contention is more ingenio.!-1-s _than
convincing. An initial jurisdiction defeasible in certain
contingencies is not we deem beyond conte!Jlplatio~ ;
bu't we would need mote than a mere ipse dixit even of
the learned Attorney-General . !o be satisfied that
legal positio~ here is as he . contends it to be. Tile
criminal Court Oiice seized of jurisdiction cannot have
the jurisdrction taken away Iigh.tly 'and w~ are Satisfied
to
that th~re is not~lng in the Act justify the viewthat
th.e.jurisdidiori was defeasible at .t.he.will .of the Custom
. authorities.
38 BURMA LAVv REPORTS. [lYSl
S.C. The Office of the learned Attorney-General in
1950
advising the Collector of Customs by its note, earlier
~~;;:R referred to in our judgment, relied on the case of
AN..\NDA
v.
Madhowji Thawor v. Yar Hussain Hydor Dasti and
THE another (1) as authority for the proposition that tbe use
COLLECTOR .
oF cusToMs, of the expressiOns "offences " and " penalty " in
RuGooN. section 167 of the Sea Customs Act in respect of acts or
omissions as specified in that section . is not itself
sufficient to- show that such acts oromis'sions are crimes
and whether they are crimes or not would depend on
the ordinary criminal law of the land. The learned
Additional Judicial Commissioner gave as his authority
for this, the dictum of Bowen L.J. in Reg v. Tyler (2}.
With great respect to the Additional Judicial
Commissioner of Sindh . and the learned Attorney-
General before us following him, we must say they fail
to appreciate that both in India and in this country \Ve
do not speak of " crimes " but of 11 offences. " A
11
crime '' is nowhere defined in our statutes but an
" offence '' has been defined in several places. The
General Clauses Act in section 2 (42) defines an offence
as ''. an act oromissio.n made punishable by any law for
the time being in forc'e. " The Code of Criminal
'Prvcedure in section ' 4 (1) (0) after repeating the. same
definition goes on to state that" it also includes any act
in respect' of which a complain~ may be made un_der
section 20 of the Cattle-trespass Act. " The English
case on. which the learned Add~tional Judicial
Commissioner and .t he learned Attorney-General have
so strongly leaned relates to the interpretation of
t~~ words.11 criminal cause or tnatter " appearing in the
Judicature Act, '1925, section 31 (1) {a). It is a matter
of sorp~ intert~~t that . in _England it. bas qeen found
possible, tho_u gh for limited pu_rppses of a_partic.ul:ar
Act,)o define '' offence " as meanit~g any act ~.fiich is
(1) (19.26) A.I.R. Sindh 40, !21 {ltt9l) 2 Q.B.D. '588.
 1951] BURMA LA\V REPORTS. 39
~.c .
n ot a "crime " and yet is punishable on indictment or 1950
summary conviction : See the Prevention of Crimes SH Y A M
Act, 1871, section 5. Sv:->J;r.R
A=' A ~DA
On the slender foundations of the Sindh case and v.
TnE
the dictum of B owen L.J. relied upon in that case, the cor.LECToR
lean1 ed Attorne.y-General has elaborated a distinction ~-'RA~
CuSToMs,
GOON.
between two classes of offences created by section
167 of the Sea Customs Act ; one class in vvhich he
would include the offences defined in section 167 (8)
which he claims to be non-criminal and therefore not
cognizable by the criminal Courts ; the other group he
claims to be criminal and therefore within the
cognisance of the ordinary criminal Courts of the land.
But even the Sindh decision at page 41 of the
report says :

" Whether the export of goods in contravention of

section 167, clause (8), is a crime or not would, therefore, depend
on the ordinary criminal law of the land. It is not necessary to
PUI:SUe this point any further as the goods have been exported
under permits. "

In seeking to group the offence created by

section 167 .of the Sea Customs Act into criminal
arid non -criminal classes, the learned Attorney-General
at fir st placed all the offences defined by section 167
except those appearing in sub-numbers 26, 72, 74/
75 and 76 within the non-criminal group and the
rest in the criminal group. But when it was pointed out
to him that offences bearing sub-numbers ~3, 26 and 77
are clearly intended to be tried before a magistrate and
not triable otherwise, he attempted another method of
grouping which, though very ingenious, is devoid
entirely of a'\}thority and ldt it to the arbitrary- exercise
of discretion of- whoeyer has to inte_rpret . the Act. He
says ~here the punishment bears soi;ne relation ~o the
. property in respect of which a Cu~toms _offence has been
40 BURMA LAW REPORTS. [1951
S.C. committed, that offence would be non-crimi-na:l and
1950
cognisable solely by the Custom authorities. Other
8
8
~~y~~ offences he is prepared to concede as cognisable by
ANANDA
II.
criminal Courts. This test cannot however but
THE make absolute nonsense of section 182 (1) of the Act in
COLLECTOR
oF cusToMs, view of offences defined m sub-numbers 21, 22, 23, 24,.
RANGooN. 25 and 30. What the learned Attorney-General is
attempting to do-here is not to seek to interpret an Act
of tb:e Legislature as it stands but to torture the words.
of the Act into -certain preconceived notions of what the
Legislatme should, in his opinion, have intended.
-The Collector of Customs was also advised by
~be Attorne,y,.General's Office, relying on a de~ision of
1922' of the Bombay High Court, that Customs officers
in exercising their powers under section 18Z of {he Se~
Customs Act " must proceed according to general
principles which are not ~ecessarily legal for the
purpose of arriving at a conclusiofl when enquiries are
instit-uted under the Sea Custorn.s Act." We cannot
understand why the Attorney-General 1s .Office found
it necessary to travel so far afield when they have
or should have-before them the decision of th.is Court
i'n Ranchhoddas feth,abh(J_i . & . Co.'s Case (1) which
subsequent to . the -tender of the said advice has
been re-affirmed in Abdul Gaffar v. UKyaw Nyun and.
om (2) . But in view of the conclusiops ~:e have
arrived at in this case it- is pot necessary to pursue thi~
point more c:tosely. .
. We find then that on the 15th Nove.m ber 1949 the_
Subdivi~ional Magistrate :of Insein having taken.
eogpisance on a wiitten complaint. of' the f<!-cts would be,
competent , to convict or acquit the applicant of
any -.offence such fa9tS. w'ould .constitu.te. un4er the Sea,.
Customs Act-9 r-J,inder the Foreign .-Excha:ng~. Regul~tion
Ad ; th~t-:f;h~: seiiiil .which the Magistrate
.
had
.. . was
. not
.
 1951] BURMA LAW REPORTS. 41

taken away from him by the Custom authorities S.C.

1950
initiating proceedings wh ich are sought before us to be
SHY,>.:.;
prohibited ; and that whilst it would have been Sl:Nfi~:J(
competent for th e Custom au thorities to have taken AX.\~!>.\ v.
action under section 182 (1) of the Sea Customs Act COLLECTOR T 1-H;

in respect of an offence under section 167 (8) of the OF CUS'fMiS ,

RAKGoo N.
Act if the matter had not been made the subject of
a criminal prosecution, the provisions of section 403 (1)
of the Code of Criminal Procedure effecti vely operates
to bar the proceedings before the Custom authorities
once th e applicant had been tr ied and acqu it ted on the
same facts by the SubdiYisional Magistrate. The
contention on behalf of the respondent that by
section 1 of the Code of Criminal Procedure " nothing
herein contained shall effect any special or local law now
in force, or any special jurisdiction or.power conferred,
or any special form of procedure prescribed, by
any other law for the time in force " overlooks the
qualification " in the absence of any specifir. provision
to th~ contrary. " There is a specific provision to the
contrary in section 5 (2) of the Code and as we
have already said there is no inconsistency between
section 5 (2) and section 182l1) of the Sea Customs Act.
Section ~.86 of the Sea Custo~s Act cJearly does
not support the learned Attorney-General's thesis that
the Act intended to set up a special jurisdiction so as to
.exclude the application of section 403 of the Code
of Criminal Procedure. The express enactment of a
provision barring the operation of. section 403 of the
Code of Criminal .Procedure or of section 26 of the
General Clauses Act in the special case of a previous
award by an officer of.Customs of confiscation, penalty .
or increased r4te of duty is not without signitlcanc.e :
'To argue from this spec.i al .pt.ovision, as the learned
Attor~ey-General does, ~hat-the operation of section 403 .
of .the Code of Criminal Procedure is e qualli e)\gu$:led _
42 BURMA LAW REPORTS. [ t 951
s.c. where a criminal Court has previously recorded an
1950
acquittal is to commit an ignoratio elenchi.
SHYAM
su!'oR In the result we direct the Collector of Customs,
ANANDA
'II.
Hangoon, to refrain from proceeding further in the
THE
COLLECTOR
matter of action against the applicant under
oF cusToMs, section 167 (8) of the Sea Customs Act in respect of
RANGooN. Burma notes of the denomination of one hundred
rupees to the value of Rs. 1,12,000 seized from the
attache case which the applicant was carrying at the
Mingaladon Airport at or about 11 a.m. on the
13th November 1949. There will be no order for costs.
1951] BURMA LAVv REPORTS . 43

SUPREME COURT.

SOONIRAM RAMESHWAR IAPPLIC.:\~T) t S.C.

1950
v. July 27.
THE CONTROLLER OF RENTS, RANGOON
AND THREE OTHERS (RESPONDENTS).';;:

Urb<111 Ren/ Coulrol Act, 1948-S. 16-AA (1) (b), 2 (b) aurl (3) aut{ s. 2 (ci-
Pumise5 to be tacatecl or likcty to be vact~tcd -" L,lntf/f)rd .. Di[f,rcucc
between s. 16-AA Ill lb) aud s. 16-A {2)-~6-AA 14) 7c!Jcu applicable.
Held: That s. 16-AA (I) \b) of the Urban Rent Control Act applies to a
case 'in which a Lanct:ord receives any information that any residential
premises of which he is the landlord are likely to be vacated or have been
vacated. The section ha~ no application to a case where the owner 11;-~d not
Jet out the premises at all. and the premises were occupied by trespassers
against whom he obtained an ejectment decree and owi.1g to execution of the
decree the trespassers-judgment-debtors vacated the permises :~nd the owner
received the information about the vacati]lg by tresrassers. The vwner in this
case was not a landlord within the meaning of s. 2 (c) of the Act and he could
not receiv'e any information as landlord of such vacating.
The particulars which the landlord is required by sub-section 3 of s. 16 A~.
(l) (b) to supply to the Controller of Rents are the ~arne as t ho~e which
he is required by s. 16-A (2) of the Act to supply when thP. landlord proposes
to let non-re:sidential premises to a tenant. In the present case the house was
not a.re,1.1~ed house at alia~~ the applfcant was not a landlord and consequently
the Cont oiler of Rents had no j:1risdicti.vn to direct that the premi$es should
be let at all.

Kyaw Myint a,-zd G. N. Banerji for the applicant.

Ba Sein ( Governme.nt Ad vocate) for the respondents.

The judg~ent of the Court was delivered by

~R. JuSTICE THEIN MAUNG.-This ~ .an application

to quash the proceedings of the Controller of Rents,
Rangoon culminating in an order dated the 30th May,
1950 by which the applicant was directed under section
16-AA (4) of the Urban Rent Control Act, 1948 to let
:. Civil Mlsc. Applicati9n No. 39 of 1950.
MAUNG,' Chief Justice of. the U~ion of Burma, MR.]tlSTICE .
t J'r"eSitd: U E
THEIN MAUNG and U THA.UitG SEIN, J. .
44 BURMA LAW REPORTS. [1951
S.C. House No. 109, Morton Street, Rangoon to the
1950
respondents Nos. 2, 3 and 4 jointly.
SOON! RAM
RAMESHWAI< The applicant who is the owner of the said house
v.
THE got a decree in the High Court, Rangoon for ejectment
CONTROLLP.R therefrom of all trespassers, including the 4th
OF
RENTS, respondent; and he was given possession thereof by
RAI'\GOON
ANO the Bailiff of the High Court in execution of the said
THREE
OTHERS. decree on the 29th April1950.
The 4th respondent gave notice on th e 1Oth April
1950 to the Controller of Rents that the house was a
rented house and that he and his family would vacate
" the half portion of the southern upper flat thc::reof on
t he 18th April 1950." Thereupon the Controller of
Rents sent a notice to the applicant drawing his
attention to section 16-AA {l)(b), 2 (b) and t3) of the
Urban Rent Control Act, !948. T he applicant replied
that the premises were requirc::d for his own use and
that no action und~r the said section was necessary.
The Controller. of Rents.issued another notice to the
applicant on t.he 28th April 1950 insisting upon intima-
tion required by the said enactmenf'being sent to him;
and the applicant filed with him an application dated
the 9th May 1950 repeating that he did not propose
to let out the house and.lhat he wanted to occupy the
h ouse for his own use as his bungalow, where he u-sed
to live, had been requisitioned by Government.
The learned Advocate for the .applicant requested
the Controller of Rents to treat the application as
intimation under the Said enactment i but the iatter
refused to do so for want of .particulars and the
applicant had to . furnish further particulars in
what is described as his Written Objection on the
25th May 1950.
The. . Controller
. of .~ents then . overruled,.
.. ' the
,obljection. that the . said e~a(!tl11ent was .not applicable
. and proceeded to hold an.. inqtiir}'; as to whether ~tie
1951] BURMA LAW REPORTS. 45

applicant wanted to occupy the house for his own use !950
and occupation in good faith. The applicant and his
Soo~mA~i
advocate did not take part in the inquiry as in their [~ .-\>1 ES!i W .Ut
v.
opinion the enactment was not applicable and the TilE
Co~TROLLER
question of good fai th did not arise. OF
Ultimately the Controller of Rents held that the H~:~TS,
RA~GooN
applicant did not require the house for his ovm U3e A:-<0
THR F.
and occupation and directed him to let the house to OTHERS.
the said respondents. H ence the present application.
The principal, if not the sole, qu estion for dec i~ion
in this case is \Yhcther section 16-AA (l) (b} and (4) of
the Urban Rent Control Act, 1948 are app licable or
not. Section 16-AA (1) (b) applies to a case in which
a landlord receives information thal any residential
premises, of which he is the landlord, are likely to be
vacated or have been vacated. In the present case the
applicant, who is the owner of the premises, has not let
them out at all ; they were occupied by the 4th
r espondent and other trespassers during his absen ce
.from Burma on account of the last war and he has
regained possession in execution of a decree for their
e je-ctment therefrom. So he was not a landlord who
received information with in the m eani ng of the said
<:1ause. He might have been a landlord if. the said
trespassers had o btained the permission of the
Controller of Rents to continue in occ upation of the
pre~ise.s under section 12 (1) of the _(Jrban Rent
Control Act, 1948 ; but . they never obtained such
permission at all. He may be a landlord ?lso if and
when he proposes to let the premises to a tenant, as
"' landlo.r d" according to section 2 (c) of the hct
includes any person who would receive rent or be
entitled to receive rent if the premises were let to a
.te nant; bt,t he has inforin:ed the Controller. of Rents
that he diq not propose:. to 'let the premises to any
ienarit and that . he wanted . -the.m for his own . l,lse
46 BURM A LA\V REPORTS . [1951
s.c. and occupation as the honse ; which used to be his
1950
residence before th e war, had been requisitioned
Soo:>JRA:-J
RAME~HWAR by Government. He has also stated that he put three
T~E durwans in charge of the premises on the 29th April
Co:nRoLLFR 1950 immediately after he had obtai ned de livery
OF
RE:>Ts, of possession in execution of the decree for ejectmen t
RAl\GOON
A:>;o of the 4th respondent and oilier trespassers therefrom ~
THREE
OTHERS.
that he be.!lan
'-'
the paintin!l and repai rs on the very
<.J

next day to make the premises suitable for his own

use and occupation, and that by the time be filed
his objection with t he Controller of Rents he had
spent R5. 5,000 for a part of the necessary repairs and
painting ; and these allegations of fact have not bten
challenged by the respondents at all.
In interpreting section 16-AA (1) (b) of tht Act we
cannot but take into consideration the fact th at the
particulars which the landlord is required by
sub-section (3) th ereof to supply in his intimation to
the Controller of Rents are the same as those which
are required by section 16-A (2) of the Act, i.e., the
same as those yo.hich must be supplied by -the landlord
who proposes to let his non-residential premises to
a tenant.
We accordingly hold that the ~pplicant is not a.
landlord in respe ct of the premises in question and
that section 16-AA \1) (b) of the Act is not applicable.
With reference to section 16-AA ( 4) of the Act it
is applicable only to the case in which the Controller
of Rents has received information otherwise than by
intimatiot? under sub-section (1) and it will enable him
iri such a case to direct the landlord to let the premises:
to .a person or persons specified ' in his direction .
In ~be pres.e~t c~se ' the Controller of Rents did receive
of
:iofot:mation from the 4th responde!lt ihat a .portion
the . premises was .about to be .v acant ; and he must
:have issued the first notice to the applicant as the_..
195{] BJJRMA LAW REPORTS. 47
4th respondent had informed him that the house wa:s ~~0
"a rented house". However, the house was not a -
SOONIRAid
rented house at all and the applicant, as we have stated RAMEslfwAR

above, is not a landlord in respect thereof. r~E

We accordingly hold that section 16-AA (1) (b) and CoNTRoLLER
OF
{4) of the Act. do not apply and that tl~e Controller of RENTs,
HANGOON
Rents . has no jurisdiction to direct that the said ANo

premises should be let at all. ~~=::s.

The proceedings before the Cootroller of Rents
culminating in the said order are quashed. There
will however b~ no order as to costs as the applicant
himself is not free from blame for failure to appear
before the Controller of ReQts.
48 BURMA LAW REPORTS. [1951

SUPREM~ .COURT
\~~ THE BURMA OIL COMPANY LTD. (APPLICANT)
Oct. 18.
v.
THE COURT OF INDUSTRIAL ARBITRATION,
~URMA- AND ANOTHER (RESPONDENTS).*

AppticatiOtl for direction intfte n :rlmc of cerfiorari:-Tite Court of l11dtts~rial

A-rbitration passing an award direclit1g the B.O.C. to invesli.gate tlze
possibilitie~ of rivertransPori-Witether according to law.
Where the President referred to t he <?ourt of Industrial Arbitriltion 3,
dispute between the Burma Oil Company Ltd. and the Oil Refinery V\[0rkers,
Syriam and the Court by its award directed the Company to investigate the
possibilities of river transport of crude oil to Syriam within three months and
mentioned that the arbitration court would reconsider the question of
retrenchment of employees thereafter.
Held: That the court acted arbitrarily and without jurisdiction in directing
such investigation and tht:y allowed their judgment regarding reasonableness
or otherwise of the proposed retrenchment to be influenced by extraneous and
irrelevant considerations.
In the ordinary course the Company for many years before the war used
to get crude oil for refinement at Syriam through their pipe-line and their
present plan for rehabilitation is in accordance with the said course. The
operation of the pipe-line is the essential link in that plan. The directior. to
investigate the possibilities of river transport implies that the ordinary course
of such business should be altered for the time being and the court of .
Industrial Arbitration bad n<? authority to direCt such a!teration o; to decide
in what manner the Company should carry on their bnsiness ..

.E. C. lt. FQucar for the applicant.

Chan Htaon (Attorney~General) for the 1st

respondent.
. .
T. P. Wan for the 2nd respondent.
The j~dgxpe.nt . of the Court was delivered by

MR. JusTICE THE.IN . MAu~~.-This is an

a pplication f~r a writ .-of ..:~ertiorari t~. quash th~ ..
Civ'il Mise: App)ication No. 44.of 195~. .
t Present : StR BA U, Chief Jusll~;e of.. tile "Qnion of Burma,, MR. JuSTICE
THJUN MAtiNG AND U AUNGTHA GYAW, J; .
1951] BURMA LAW REPORTS. ' 49

award made by the first respondents m their S.C.

1950
-case No . .4-of 1950.
THE BURMA
The dispute which has been referred by the OIL COM-
PANY LTD.
President to the first respondents arose as the
petitioners proposed to suspend rehabilitation of their THE "
Cou~tr
OF
refinery at Syriarp and to retrench the labour force I NDVSTRIAL
ARBITRA-
employed thereon and the second respondent made TlON, BURMA
4NO
certain demands in connection with their proposal to ANOTK:R.
<do so.

The demands are as follow:-

(1) That the Company should totally abstain from
taking measures of retrenchment of over
3,000 out' of over 4,0'00 workpeople who
ar~ at present in the Company's employ.
{2) That in case the Company either dismiss,
discharge, retrench or otherwise terminate
the services of any qf their workpeople,
. they should pay every such worker a
discharge allowance equivalent to three
months' . wages plus Cost of .Living
Allowance as compe?sation for the abrupt
and premature terrrination of their services
and payment of such allowance should be
included as one of the terms ofemployment
by the Company.
{3) That the Company shQuld pay to every
worker who resigns or is discharged before
a completion of one year's service or'before
he could enjoy his 'earned. leave a sum of
.~oney in lieu .of sue~ leave earn~4 by him;
and s~ch payment should be included as
one of the . ternis: of employment by_the
Company;... . .
'(4) Th~(the CoJI:lpa.ny ,should.?-ot deduct the
. follo\Ying . h.olidays from . tlie : 17- an~ual.
50 BURMA LAW REPORTS. [1951.
S.C. holidays at present granted to the work-
1930
people and such holidays should be granted
TfiE HURHA
OIL CoM- as paid holidays to the workers : -
PANY LTD.
v. Independence Day.
TH,E CoURT
eF Resistence Day.
INDUSTRIAL
'ARBITRA- May Day.
TION, Bmu.u
AJJ:D
Martyrs' Day.
ANOTf,iER. National Day.
Thal in case the Company discharge or
retrench any of the workers who have tome-
to work under t~em. _ from foreign countries.
or d~stant plac?s, the Com.pany should
pay ~ctual travelling expenses up t~ their
resp~ctive native places and subsistence
allowance
.. , .
at the rate of Rs. 10 oer diem
. to
such wor~ers and th~ir families, and pay-
ment of such expenses and allowance should
b.e included as on~ of the terms of employ-
. ment.by the C9mpany~ /
The first respondents have by their award, dated.
the 3lst May 1950- ...
(a) r~jec.ted the de mands Nos. {3) and (4) ;:
and .
(b) directed with reference to the demands
Nos.. (2) and (5)- . .
(i) tha~ i~ t~~ case ~f r~trenchm~nt ~orkers,.
who have had at least two years' service,
should b~ paid two. t:n.ot:tths' wages pluS:
cos~ . of living allo.\van~e as disGharge
allowapce in.addit~on to notice pay, if any ;:
. (ii). th.a t re~r.enched wor~ers, who ha~e had a(
.least two years' service and whose home.s .:
-~t~.~ore t~~ri .59:m1\es -~~~y- fro~, ~yr.iatn .
.shq.;u~d be.paid tr~v<rl~ing: ~Jlo:wance by
 BURMA LAW REPORTS. 51
surface transport to their homes, subject S.C.
1950
to a maximum amount of equivalent to
THE BURl!A
one month's \vage plus cost of living OIL CoM-
PANY LTD.
allowance ; and v.
(iii) that these snonld be made terms of service THE COURT
OF
of the petitioners' workmen. INDUSTRIAL
ARBITRA-
TION, BUI<MA.
The directions in respect of the discharge allowance A.ltu
ANOTHER
must be upheld and the direction for payment of
travelling allowance must be quashed for the reasons
which we have given in our j~dgment in The Burma
Oil Company (Burma Cot/cession) Ltd. and two others
v. The Court of Industrial Arbitration, Burma and two
others (Civil Misc. Application.No. 43 of 1950 which
was heard together with this case).
With reference to the deman~ No. (1 ), the first
respondents have held that the propos~d reduction of
the labour force is not reasonable as the petit ioners
have made no attempt to investigate an alternative
method of supplying the refinery with cmde oil and
directed that the present labour fore~ should be kept
employed on rehabilitation work for at least . three
months more. They have also added :

" During that period the Company . c ln . m v.~stigate the

possibilities of rive.r transpo:t. If at the. end .of tha<t
period, there does not appe1r to be any prospect
eithe~ of repairing the pipe-line or of arranging . for
river transport, we shall be prepared to reconsider. the
question cf retrenchment at Syriam."

The learned Advo~ate for the petitioners-has urged

that th~s part of the awa.r d should be quashed as the. first
respondents w~re influenced by extra11eous and irrele-
vant considerations in holding that-the. pt:oposedredqc.-
tioh Of th~ labour force W(lS not reaSOnclb}e aQd. have
act~4 arpiti'arily and.wi~hout jurisdiGtion in directing
them to inv.~stigate th.e possibili~ies of .riv.e.r transport.
52 BURMA LAW REPORTS. [1951
S.C. Their case as stated by their general manager,
19SQ
Mr. R. S. Carey, 'in his affidavit before the first respon -
T~~L B~::;_A dents is as follows : For many years before the last
PANY L:ro.
v.
W ar they used to get crude oil for their refinery at
THE couRT Syriam from the oilfields at Y enangyaung arid Chauk

INou~~RtAL through their pipe-line. The refinery was destroyed

~~~:~~~~~A and completely denied to the enemy in February, 1CJ42.
AND
ANOTHER. The pipe-fine also was demolished
or
otherwise
. wreck-
ed in places by the petitioners about the same time for
the purpose of denial to the enemy: j and it suffered
furt her damage during the peri,od of the War and the ..
ensuing period of unrest. Th,e work of rehabilitating
the refinery and the work of repairing the pipe-line
were taken in hand together in the year ' 1946 as the
usefulness of the refinery depends entirely upon the
production of crude oil at the oilfields and its reception
at Syriam through the pipe-line ; ~nd from 1946 up
to the end of September, 1949 they have spe~t a sum
of Rs. 5,15,02,000 in rehabilitating the refinery and
installations connected therewith. In 1948 fu rther
repair of the pipe-line became impossible on account
of what' is generally referred to as a - rebellion ;
and working conditio~s on the oilfields them-
selves we.re such that the work of rehabilitating
there had ceased. Under these. c ircumstances th ey
decided to postpone the reconstruction of th e main
refinery: at Syriam and to confine their efforts in the
meanwhile to producing at the oilfields only such
quantity of crude oil as can be refined without using
the. pipe-~ine.
It also appears from the same affidavit and the
evidence of Mr.T. G. C. Murray, Manager, that although
the petitioners' originaf plan was to .P ut up a 19,000-
barrel refinery they mayultimately have to put up only
a 3 000-barrel .one under
) . what is described
- . as the
Modified Joint Ven~e.
 1951] BURMA LAW REPORTS. 53

vVith reference to the pipe-line, the first respondents S.C.

1!)5G
tnemsehre.s have stated in their award :
THE BURMA
OIL Co.w-
,, As at present, the refinery at Syriam would be entirely PANY LTo.

dependent on the pipe-line. The pipe-line p;~sses through areas TH~ ~outtt
which are at places as iar away as about 20 miles from road or OF
"I E h h . d . . I 1 NDUSTRIAL
rat way. vent oug orgamse msurgence may come to an enc ARarTRA-
it is not unlikely that anti-social elements may operale in areas TtoN, HURltA
. . 1 means o commumca
away f rom . prmctpa t'ron f or some time
. AND
ANOTHER.
more."

. T~e above extract indicates that the first respondents

themselves would have decided that the proposal io
postpone rehabilitation of the .refinery and t0 retrench
the labour force employed thereon was reasonable, if
they had confined themselves to consideration of the
ordinary course of the petitioners' business. They
have decided that it.was not reasonable simply be~ause
" the Company had made no attempt to investigate
an alt~rnative methoq of supplying the refinery with
.crude oil ",i.e., "The possibilities of river transport."
Their award itself contains an extract in which,
Mr. Carey has explained \vhy the petitioners diq no~
in.vestigate the possibilities of river traJlsport. He
s~ated :
. - .
,, If the interest engaged .-in riv~r haulage foresees probable
busi~ess in providing the capital cost of flotilla, then it must be
presumed they would of t:Qeir own initiative contemplate such
expenaiture and initiate enqu_iries for patronage/business.
Accordingly tlle Oil companies themselves do not propose to
investiga-te . river transt:ort of crude oil. I re-peat it would
be prerila~ure seriously to c;:onsider capital_ e;xp~nditdre
at this tim~. !~

Besides, it is. fair]y clear froni the _evidence of

Mr. J.-.. Macmiughten tha~ the:_'.lnlarid Waterways
J'ransport Board .ha~ not got the. neces~ary fiats and
 BURMA LAW REPORTS. [1951

f9~o special towing crafts and that it would take the Board
- from two to three years to have them made.
TH R BURHA
OIL CoM- .
u nd er t.Oe Circumstances
. of the case t. t would
PA~!_L:ro. appear that the Board has not made "inquiries for
THE ;ouRT patronage/business " as they have not got the
0
Ji'fot~sTRrAL necessary flotilla and are not prepared to provide the
Tio~~B:U~~A capital cost of a flotilla which will be very costly and
.AN~~~Ba. which will b~ required only so long as. the petitioners ,
have not repaired their pipe-line. There is a good
deal of force in the -contention of thelearned Advocate
for the petitioners -that the first respondents themselves
should, if they had any doubt in the mafter at all,
h~we examined a witness from the Board under
section 16 of, the Act,
Be that as it may, the ordinary course of the
petitioners' business for many years before the \var
was to get etude oil for -refinement at Sydam through
their pipe-line from the oilfields. Their pre.sent plan
for rehabilitation is in accordance with the said course
of business; and according to Mr. Murray t~e - opera'-
tion of the pi-pe~line is the most essential link in that.
plan.- -The direction to inves.figate the -possibilities of
river transport' contains the implication that they nil1st
alter the ordinary course of their business for the time
b~ing and use fiver transport if it be found feasible ;
' and_ we are of the opinion that the: first respondents
have no authority to direct alter~tio_n of the ordin~ry
of
. ~o~rse_ t_~e petitioners'" business or t'o 'deciqe in
what
..
manner they sh9u~d carf.y on their bus~ness.
' .
We a.c.~o_r~Uri-~~Y 'hold-
. -~

(1) that the . first respondents have not ~cted

accordipg to law _inasniuc4: as they have .
alto~-~d'tbeir jbdgment regatding_ reaso~
ablenss . c;>~ - otherwise o( the p~oposed
r~ttciichment 't o be influenced by extraneous-
1951] BURMA LAW REPORTS. ss
and irrelevant considerations regarding the S.C.
1950
possibilities of river transport ; and
THE BURMA
(2) that they have acted arbitrarily and without Ou. Cow--
PANY LTD.
juris~iction in directing the petitioner to . v.
investigate the possibilities of river tran THE OFCoURT

sport. I NDUSTRIAL
ARBITRA- .
The award is quashed so far as it decides that the TlON, BURMA
A'l1)
propqsed retrenchment is unreasonable, requires the ANOTHER.
petitioners to investigate the possibilities of river
transport and directs that payment of tnivelling
.allowance ori retrenchment should be made a term of
service. However, the rest of the award will stand ;
and there will be no order for costs.
56 BURMA LAW REPORTS. (1951.

SUPREME COURT
~S.C.
1950 STEEL BROTHERS & Co. LTD. (APPLICANT)
Oct. 18. v.
THE COURT OF INDUSTRIAL ARBITRATION,.
BURMA AND ONE (RESPONDENTS).*
APPiicaticm for writ of certiorari-Trade dispttfe-Award of gratuity-
Whether a trade dis;Pafe-Jud.cial discrelio,.-No f!ratuity in Standing'
Order fo r the State and" Slate-partnered mill$ if conclusive.
V\Then the applicant publi~hed a notice to dose in Apri119~9 their business.
as Saw Millers and in anticipation of such threatened closing-down tbe
Workers' Union made demands for gratuities which were met in part an~ orr
a reference to the Industrial Court :an award was passed raising the scale of
such gratuities and this was challenged by an app.lication to the Supreme Court
for a writ of certiorari and pr~hibition.
Held: T!Jat an Industrial Court rnud necessarily. substitute its discreliou
for. that of the employers or the employees or both whenever occasion arises.
in all matters within its jurisdiction. Ind ustrial Arbitration may involve the
extension of an existing a_greement or the making of a new one, 'o r in generat
!he creation of nPw obligation or modification of old ones.
Western l11dia Automobile Association v. I1ldnstrial Tribunal, Bombay
a11d others,l1949) F.f;,R. 3?.1 at 345, refcr~ed to._
The fi!C.t that in the Standing Order for the Stale and State-partnered Mills.
thereis no provision for I?ayment of gratuity had been taken into ac-co\mt by .
the court and it considered and concluded tl1at the Standing Orders cannot be-
regardei:l as final on the subject. It had jurisdiction to direct such payments:
and in making the award it did not exceed its jurisdiction.

E;. C. V. '!oucar for the applicant.

Chan fftoon (Atforney:General) for the respon-
dents 1 and 3~
Yan Aung for the respondent 2.
>,

The judgment of the Co~rt was delivered by .

. .
MR'.- JusTICE THEiN MAUNG.- . This is ari t;tpplication .
. fot a writ of ~ertiorari to quash the award ..<4tt~d . the
Civil Mi~c. Application No. 46 of 1950.
. . t f't:ese~tt :SIR BA u, ChicfJuS'tice.. ofthe Union. of Burm;~,. M;R. J~ST(~It
'fJian( MAUNG AND U.AUNG THA GYA~, J..
 1951] BURMA LAW REPORTS. 57

29th May, 1950, made by th e first respondents in their S.C.

1950
Case No. 3 of 1949.
STEEL
The dispute which has been referred by the BROTHERS &
Co.L'l'IJ.
President to them under section 9 of the Trade v.
Disputes Act, 1929, arose as the petitioners published THE
COURT OF
a warning notice that their business as saw millers I NDUSTI!IAL
ARBITRA-
would have to be closed early in April, 1949 and the TION, BeRM.\.
A~D ONE.
Worke::rs' l1nion, which is the second respondent, has
made certain demands in anticipation of the threatened
closing down o( the mill.
The demands are for:-
"(1) Grant of a compassionate allowance equivalent to three
months' wages plus Cost of. Living Allowance to all
employees who are paid on monthly basis, irrespective
of the lengtl} of service, in case the mill is to be closed
te~porarily dne to shortag~ of logs.
(2) Gr~nt of a gratuity equivalent to a month's wages Plus
Cost of Livin~ Allowance for each year of service, in
addition to the compassionate allowance referred to
in de~and (J) above, in case the undertaking is to be
closed d?wn indefinitely. "
The . p~tifioners raised a preliminary objection
before .the first respondents that the demands did not
constitute a trade dispute within t.h e purview of the
Trade Disputes Ad; and on th e said objectjon being
overr.uled by the first respondents th ey applied to this
Court for writs of Certiorari and Prohibition prohibiting
the first respondents from proceeding any further in
the matter. (See Civil Misc. . Application No. 72
of 1919 in this Court.)
The said ~pplication was dismissed as Mr. Foucar,
the learned Advocate for the petitioner$., (1) frankly
conceded that all the workers could not be said to have
had their employment terminated before the deman ds
were presented and that there were I 80 workers in 't ne
saw mills. and in the office stiJI in employ~ent when
 58 BURMA LAW REPORTS. [1951
S.C.
1950 the demands were presented, (2) did not contend that
claims made on behalf of such workers for payments
STEI'>L
BROTHERS & contingent on later termination of their services would
Co. LTD.
v. not amount to a trade dispu.te and (3) agreed that they
THE
CouRT OF
could be terms of e.mploy'ment in respect of such
INDUSTRIAL workers. (See the judgment of this Court on the said
ARi3ITRA-
'I'lON, BURMA application.)
AND ONII:.
Af the further hearing of the dispute before the first
respondents Mr. Foucar informed them . t~at he did. not
wish to raise any tech11ical issue as to whether the
discharge notice had been issued to some of the
workmen prior to the presentation of the demands ;
and the first respondeqts have t;;und as a matter of fact
that the demands were presented to the petitioners
before the issue of the discharge notice.
rhe first respondents have ultimately made an
~ward d.i recting-

(1) that retrenched employees who have had at least two

years' service and who haye not :been , absorbe~ . in .
other departments of ilie petitioner company should
be paid a compassionate'atfowance equivalent to two .
months' wages and cost of living allowance aild th~il
any payment n}ade in lieu of notice should not be
adjusted against such allO\\'ance ;
(2) (a) that those with over 30 years' service should be paid
gratuity at the rate of one month's' basic pay for each
'year of service ;
(b) that those witn serviCes between '10 and 2fi year's and
also those with undel' 10 years' service but wi:th some
pre-war service, should be paid half month's basic pay
for each year of service ; and
(c) that payments of gr:atuity already made (to some of the
' emplOyees arid on a smaller s~ale) could be adjusted
against what is ditected to Be paid as gratuify ; and .
, UJ t:h.a t pay.ine'nts under a"vard be macfe directly by the
p et.i tioners to allworkers who apply lO'r such. payment
in
. withi'n one .m_ontp . of s~ch .aPP'licatio.n order that-
;there might. not .be any del.ay pending . ne(Zotiations .

- '
1~51] BURMA LAW REPORTS. 59

between the petition~-rs ~nd the third responden t (the S.C.

1950
State Timber BoardJ in regard to the respective
shares of their liability for the period during ,,hich STEEL
B ROTHI'.RS &
they were partners under the terms of the Waight Co. LTD.
Agreement. v.
THE
COURT OJ;'
The learned Advocate for the petitioners has I~ousTRIAL
1y TioN,
contend ed t h at t he fi rst respon d ents acted entire ARBITRA~
HuR!ifA
without jurisdiction in awarding to retrenched AimoNa.'
employees a Compassionate Allowance equivalent to
two months' wages and Cost of Living Allowance
inasmuch as the first respondents entirely disregarded
the ordinary law applicable to the discharge of an
employee by an employer a_rid to the payment of wages
in such case in . lieu of notice. However, t~is
cohtention fails for the reasons' set out in our judgment
in the Burma Oil Company (Burma Concession) Ltd.
and two othe.rs v. The Court of Ind14strial Arbitration,
Bu.r.ma and two others, . Civil Misc. Application
No. 43 o"'1950, which was heard together with this
application .
.. The learned Advocate for . the . petiti9ners has
_conceded that the claim for gratuity may be a trade
dispute; . but he has contended at the same time that
the petitioners having amiounced their willingness to
pay gratuities to ~orne workmen on certain scales, the
first respondents should not have interfered with their"
<;liscretion in the -matter.' However, it appears from
the-affidavit of Mr. H. W. Grey of the petitioners
company in Civil Mise; Applicati<_:>n No. 72. of
1949 that the announcement wa.s made only after.
receipt of the demands and that the gratuities offered
by them were not acceptable to the Union. He.st.a ted
the rein:
I ~ , ' '

"The Petitioners had always, although the Rules of Service.

a~recci with th~ 2nd Respori'dents sox:ecently as july/August 1948
includ~d
. no
such: provision;
. paid ~enerous
. . . to its lo~g
.iratultie$
60 BURMA LAW REPORTS.- [1951

S.C'. service employees and on receipt of the demands, the Petitioner-

1950 Company announced (with~ut admission of liability) certain
STEEL gratuities ba~ed upon the length of service and varying from one-
BllOTHERS &
Co. LTD.
eighth month's basic pay to half month's basic pay for each year
v of service. These gratuities were not accepted by the Union
THE .
CouRT OF
althougl1 all employees have since been paid and have drawn
INDUSTRIAL gratuities on the above scale."
.ARBITRA-
TION, BURMA
ANDOJq. Since the Union cUd not accept the gratuities and
had the dispute referred to the first respondents,
workmen must have. received payment thereof
subsequently ~nder protest and without .prejudice as
stated by Maung Ohn Sein, the Secretary of the Union
in his affidavit in the said qse.
The first respondents have actually taken into
consideration the fact that the _petitioners ha~e paid
gratuities on the following scale:-
. .
(1) Over 30 years' ser~ice t month's basic pay for
each .year of service
(2) 20 to 29 years' service 1 . 'basic
month's "" pay ' for
. each year ofservice:
(3)' 10 to 19 years' s~rvice
. . i month's basic pay for
each rear of service

They have come to the conclusion that the gratuity

paid by the petitioners is not adequate, after due '
consid~ration. They have actually rejeCted . the
demand for gratuities i!l respect of postwar recruits on
the ground t}lat gratuity necessarily implies long
service. They have also graduated the scales of
g~.,.tuities .for oth.e r employe~s carefully . with due
r~gard to the length of fheir service; and there is
nothing to show -.that they .haye not e.xercised t~eir:,
discretio~ in the matter judicially. _'With i:~fere~c~ : to.
the .c ontention that they :should not have s ubstituted
the~r dis.crection for 'th_at' of the petitioners,- . a.IJ.
Iriqustrial Court must necessarily s~ll~stitute its
 1951] BURMA LAW REPORTS. 61

,discretion for that of the empJoyers or the employees S.C.

1950
Or both, whenever occasion arises in connection with
STREL
matters vvithin its jurisdiction inasmuch as industrial BRorHERs &
-arbitration IT1ay involve the extension of an existing co.vLTo.
agreement or the making of a new one, or in general coJ;~~E oF
ihe creation of new obligation or modification of old INt~ uSTRJAL
.
ones. [See I.-ab our D1sputes an d c o11ecbve
. B argammg
. . A~BlTRA-
TJON, R u RMA
by .Ludwig Teller, Volume 1, cited with approval in ANu oNE.
!-Vestern India Automobile Association v. Industrial
Tribunal, Bombay and others, (1 Y49) F.C.R. 321
at ~45J
The first respondents had their attention drawn
to the fact that the Standing Order for the State
:and ''State-partnered" mills do not contain any
provision for payment of gratuity ; after due considera-
-tion thereof they have come to the conclusion that
the Standing- Orders cannot be regarded' as the last
word on the subject ;. and we ar~ of the opinion that
-their conclusi<:m is right inasmuch as the petitioners
have always pa:id gratuities to their long service
-employees although the rules of service contain no
provision for payment thereof and their learned
.Ad~ocate has admitted that the Standing Orders cannot
be conclusive even in a trade dispute raised by_
.employee~ in the State and ,,, State-partnered" mills ..
_The lear.ned Advocate for the petitioners has
-contended that the first respondents have no jl,lrisdic-
:tion to direc:::t that paygients to the employees should,
: in the first iilstan~e, be made by the petitioners ..
Howe:ver, (1) the employees were recruited and are.
to be discharged by the petitioners, (2) the third
lespondent (The State Timber Board) has to share the
. ~iability only for the .period during which it was. their
,par~uer~ (3) the s~i~ period is defi4ite and the lea:z.ned
.J\tf<:>rQ~y~Qeneral . has admitted .the 'liability . Qf . his
..client~ : t~~ thrrd respondent, and l4)' the. Iearn~d
62 BURMA LAW REPORTS. [1951
S.C. Advocate for the petitioners has to admit that there
1950
really is nothing to be fought out between them. So
BR;;r~;~s & the matter is one 'Yhic.h can be adjusted easily between
Co.;TD. them ; and we are of the opinion that ~he first
THE respondents have not exceeded their jurisdiction in
COl1RT OF d'trectmg
. the fi rst mstance,.

INuuSTRrAL t h at payments s hou ld, m
ARBJTRA-
TroN; BuRMA
b e rnad e 1)y t l1e .Pebhoners.
.
ANJloN. The application is d ismissed. The second respot?--
dent is entitled to its costs. Advocate's f~e ten gold
mohurs.
1951] BURMA L AW REPORTS. 63

SUPREME COUR 'l .

D A \V H LA MAY (APPELLANT) t ~.c.

I CJ50
v. No: . 29.
u KO YIN {RESPONDENT).*

Urban Rent'Cufrol Act. 194/i-AI .Pliclltion jor rescinrliug ejeclmcnl tlecrce-

Clo~etl-Simila r fres iJ aptficaliotl-Urban Rent Cvnlrol Ac/,1948 cor~!iug
info force before rfi.~tol ,ll.-Ss.Jl (f) and 13 (<:)-Appeal agai11$t order to
District Collrt whether comf.eletzf- Le(tve under s. 14-A .
The [{esponden! obtained a decree for ejectment on 16th December 1946
wl1cn the Urban Rent ContrQ] ,Act, 1946 was in force. He applied for e:tecution
the next day praying for ejectment and c laimin~ payment of arrears of rent.
The judgment-debtor raid arrears and applied to have ejectment decree
rescinded. Both applicaticns were closed A fresh :tpplication- was made for
rescission or the decree later. On 17th January 1948 the Urban Rent Control
Act, L948 came into force and the previous Act was repealed. On 15th Febru-
ary !94!\, the Respon-:lent claimed he reasonably a nd bona fide required the
premises for occupati n by himself. Thi~ contention was upheld by the
Distric-t Court of \landalay on appeal. The High Court on second appeal
varied the decree but on spt'Cial appeal a !knell of the High Court restored
the District Judge's Order. Upon appeal to the Supreme C urt by Special
Leave, it was contendecl that the Controller's certificate under s. 14-A
w:ts necessary to initiate a proceeding by a landlord for recovery of possession
on any of the grounds mentioned in s.Il (f).
Hdd : That under s. 14 '2) of the Act the Court on an application for
rescission must decide whether the order or decree so1ght to be rescinded
~vould not have been made or given if the provisio n of s. 1L wen! in
force at the time. The Act of 1948 ins. 11 (f) and (c) allows the landlord
to sue for ejc:ctment if the. premises are reasouably and 6ottn fiae required by
him for occupation by hi,nself. Consequently the decision of the High Court
was affirmed, .

D1. Ba ~an tor the appellant.

Messrs. Basu and Venkatram fqr the resp~:mdent.

The judgment of. ihe Court was delivered by

Ciyil Appeal No. 4 of 1930 being appe:U against lhe, decree and
judgm.ent of the High Court in Civil 1st Appeal No. 1/49, dated t~e 25th
Acgust 1949.
t Prt$e,(: SJ.R 11A U, Chief Justice of lhe Union of Burma, MR; Ju~T!Cit
E MAU~G al!d. u THAU!(~ SEJN, J..
 6 4 BURMA LAW REPORTS. [1951
S.C. MR. JusTICE E MAuNG.-The two issues of import-
195@

DAW HLA
ance which the learned counsel for the parties desire
MAY to canvass before us do not arise for consid.eration as
u K~ YIN. the appeal must be dismissed on a short point. The
essential facts are that the respondent obtained a decree
for ejectment and arrears of rent against the appellant
on the 16th December 1946 in Civil Suit 'No. 16 of
1946 of the l~t Assistant Judge, Mandalay. At the time,'
the Urban Rent Control Act of 1946 was i"n force. On
the day following the making of the decree the resp on-
dent applied for execution in Civil Execution No. 15 :
of 1946, the remedies sought in execution being for
ejectment and payment of the arrears of rent decreed
in the suit. Tbe appellant paid into Court the arrears
of rent decreed and made an applica~ion- under
section 14 of the Urban Rent Control Ad of 1946 to
have the decree for ejectment rescinded. Neither the
respondent nor the appellant proceeded with their
applications for execuHori of the decree of ejectmentor
for rescission of the decree, with the result that the
proceedings in both applications were closed. On the
3rd May 1947 the appellant made a fresh applicatio'n
for rescission of the decree, again under s.e ction. 14 of
the Urban Rent Control. Act of 1946. O)?jedions were
filed on beha.lf of the respondent and for one reason or
another the case dragged on till: 1948. On the 17th
January 1948 the Urban: Rent coritrol'Act of 1946 was ,
repealed and replaced by the Urban Rent Control
Act of 1948. The 1\ct of 1948 in seCtions . 11 {f) and
13 tc) allows the landlord to sue for ejectment if ~he
premises'' are reasonably and bJna fide required by-the
landlo:J;"d for occupation by hirriself or by any member
of 'his f~miiy or for the occupation of an'y persoti fo~
whos~ benefit the premises are held."
..Obvi9usly in view of this new enactment the .
. respondeht on.the 25th february 1948 filed a document
~~~ ~.~~:,~--..:,-._/. . .': . .~ .. .. : ..:.
~

.
. ..
:~_;. n.~.~.r~f*-i>.: . ..
} .;,...1>dr..- _-......._....::.._ ,
'Ia
t .... . . .. r~~~\ ~1: ~
1951] BURMA LAW REPORTS. 65

before the Assistant Judge of Mandalay which may S.C.

1950
::aea.sonably be read either as an application for ejectment
D AW HLA
Of the respondent in execution of the decree of the MAY
.16th December 1946 or as additional objections to the v.
U KQ YIN.
_granting of the appellant's petition of the 3rd of May
1947 for rescission of that decree. The Assistant
Judge on this took evidence and holding that the
respondent reasonably and bona fide required the
premises ior occupation by himself rejected the
.appellant's application for rescission.
-An appeal was preferred against this order of the
.Assistant Judge but the District Court of Mandalay
-dismissed the appeal affirming the trial Court's findings
.that the respondent reasonably and bona {z.te required
the premises for his own residence. A single Judge of
the High Court having varied the decree on appeal to
the High Court, a.Bench of the High Court before
-which, by leave of the learned Judge, Special Civil
Appeal No. 1 of 1949 was heard directed "that the
...order of the District Court of Mandalay upholding that of
the 1st Assistant Judge's Court of Mandalay dismissing
the respondent Daw Hla May's appl~cation to rescind
:the dec~ee for ejectment passed in Civil Suit No. 16 of
1946ofthe said 1st Assistant Judge's Court on the
:16th December 1946 be restored." It is against this
-decree of t~e High Court that an appeal with the special
]eave of this Court has been preferred. . .
Before us Dr. Ba Han forth~ appellant contended
-that the document exhibited by the respo'ndent, before
ihe 1st Assistant Judge of Mandalay on the 2Sth
F.e bruary.1948 could not be acted upon _b y the Court
i~ the abse~e of a certificate from the Controller
.under-section 14-A of the Rent Control Act of 1948.
I:le _says that this document was intended to iqitiat~ ~
.iJ,r9ceeding by a landlord for recovery of possession of
~he.premises. against a !enant 6ri the groun~s_sp_eci~ed
. 5 .. -
66 BURMA LAW. REPORTS. [19Si
S.C. in clause tfl of s~ction 11 of the A-ct and that in the
1950
absence of a certificate from the Controller the Cour.t
D:\w"HLA
MAY had no jurisdiction to determine the issue whether the
v.
U KoYIN. premises are reasonably and bona fide required by the
landlord for his residence. But when it was poin ted
out to him that the document is also reasonably
capable of being treated as an objection made to the
appellant's application for rescission of the de cree, th at
the Courts below had in fact treated the document in
t hat sense and that section 14 {21 of the Act clearly
indicates that the Court on an application for rescissiono
must decide whether the order or decree sought to be
resci nded ''would not have l;>een made or given if the
provisions of section 11 were in force or applicable
thereto at the time when the order or decree was:
made ", the learned counsel frankly admitted tha t he
could.not contest the competence of th e 1st Assistant
Judge to reject the appellant's application for rescission
OJ) the grounds taken by that learned Judge. The
decision of this Court in Tai Chaun & Co. v. ChanSeng
Cheong (1) is clearly in .point. But Dr. Ba Han
informs us that his client apprehends that the order 'o
the Assistant Judge, which has been restored orr
appeal by a Bench of the High Court, may be inter-
preted as meaning more than it. had decided. We see
no grounds, however, for this apprehension. 'I:he:
decree of the High Court which we. have reproduced
earlier is quite sp~cific.
In this -view of th~ case the appeal must
be dismissed. The point which the learned counset
for the respond ent desires to take before us, namely,.
that an order to rescind the . decree .on an application
under s~ction 14 of . the urban Rent Contr-ol Act of
1946 or 1948, other thanby a Judge o( "the Rangoon
City Civil Court or by .a District Judge is not
(1) (1949) B.L.R.IS.C.I S6.
195'1] BUR !\1A LAVv REPORTS. 6?

appealable does not arise here for consid eration as in s.c.

l 'J: o
any event we must uphold the decision of the Assistant
OA\\' HI.\
Judge of Mandalay. Similarly also, of the point taken ~lAY
v.
by the learned counsel for the appellant that an U Ko YHI.
application for execution of a decree for ejectment in
th e circumstances of this case would not be competent
under section 14-A of the Urban Rent Control Act of
1948.
The appeal is dismissed with costs. Advocate's
fee ten gold mohurs.
os BURMA LA\V REPORTS. [1951

SUPREME COPRT.
t S.C. HAW LIM ON (APPELLANT)
J<JSO

Nov. 29.
v
MA AYE MAY (RESPONDENT) . *

Urbfm Re11f Control Act, 1948-Applicafio" U1trler s. 14 (1)-Appeal to

District Co r~ri -Jurisdict io1L of AssistLLnt Judge. i11 adminisferi11g-Code
of Civil Proceclnre, ss. 47, 104 ancl Order 43.
Respondent against whom a decree for ejectment had been passed by the
First Assistant Judge of Bassc:in applied undt:r s. 14 (1) of the Urban
Rent Control Act, 1948 to have the decree discbar~ed or rescinded. The
application was dismissed. An appeal was preferred to the District Court of
Bassein and was dismi:;sed on the ground that appeal lay to the High Court
When appeal was preferred to the High Court, the High Court allowed the
appeal and directed the District Court to proceed to hear the appeal. On
appeal to the Supreme Court against this order.
Held: That the appeal lay to the District Court. The Urban Rent
Control Act, 1948 by s. JS provides for an appeal on law and on fact from any
decree or order tr.ade by any Judge of the District Courts outside Rangoon.
Il cauuut be deemed to have excluded any right o appeal .from other cvu r ts.
The Ran.goo~J Botafautlk Co. Ltd. v. The Collector of Raugoon, 6.L.B.R. 150
(P.C.), refern:d to. '
s. 15 of the Urban Rent Controi Act; 1948 must not be inlerpr<:ted in
an exclusive :ense but must be gh"en a cvnstruction as supplt:menting the right
of appeal~ A decree of a Civil Court is ordinarily appealable : and an order
would not be appealable unle~s it falls within s. 47 or s. 104 or Order 43
of lhe Code of Civil Procedure. The Urban Rent Control ~ct, 1948
by s. 1!'\ give~ the r;ght of appeal from all orders. The test in such cases
is whether the order will be appealable under tt.e provisions of tl\e Code of
Civil Procedure or other relevant enactments. The order in question in this
case falls within s. 47 (1) oHhe Code of Civil Procedure as re1ating to the
execution, discharge or satisfacti@n of a decree and a determination of such
a question is a deree under s. 2 (2) of the Code of Civil Procedure. The
appeal to the District Court was therefore competent.

Chaung fo for the appellant.

N. C. Sen for the r~~ponden~:

" Civil Appeal No. 8 of 1950 bein g appeal against decree and judgme.nt of
the High Court, dated 25th JanuaTy 1950 in Chi)' Revision No. 64 'of 1949 . .
+ Present, SIR HA U, Chif.Justj.ce o{ the Union of Burma, MR. JusTICE.
E MAUNG and U THAUNG SEIN.:J. .
1951] BURMA LAW REPORTS. 69
The judgment of the Court was delivered by S.C.
1958

MR. JUSTICE E MAUNG.-The short point that HAw Lm ON

~.
arises for determination in this appeal is of general MA AYE
importance but does not appear to us to offer any l\IAY.

difficulty in its solution.

The respondent against whom a decree for
ejectment had been passed in Civil Suit No. 14 of
1948 of the Court of the 1st Assistant Judge of Bassein
made an application under section 14 {1) of the Urban
Rent Control Act of 1948 to have that decree either
discharged or rescinded. The application was rejected
and the respondent preferred an appeal to the District
Court of Bassein. The District Court dismissed the
appeal holding that an appeal from tht order of the
1st Assistant Judge of Bassein will lie, if at all, to the
High Court. On the respondent applying to the High
Court in revision against the rejection of her appeal by
the District Court, the High Court in Civil Rtvision
No. 64 of 1949, following an earlier decision of the
High. Court in .U Ko Yin v. Daw Hla May (1),
directed the District Court of Bassein to proceed with
the appeal before it according to law. It is against
this order of the High Court that the present appeal
has been preferred to this Court by the appellant.
The . learned counsel for the appellant relies on the
decision of the Privy Council in The Rt:mgoon
Botataung Co. Ltd. v. The Collector of Rangoon t2) and
contends that the Urban Rent Control Act having in
section 15 thereof made a specific provision for an
appeal on law and on fact from ''any decree or order
made by any Judge of the Rangoon City Civil Court
or any Judge of t!'le District Courts O':Jtside Rangoon"
must be deemed to havc.excluded any right of appeal
(rom . ~ , d~cree or o:rd~rs . of Courts other thaa the
(lj "SpJ. Civil Appcill No.1 of 194? . (2) 6 L.B.R. 150.
70 BURMA LAW REPORTS. [1951

r9~o Cuurts therein mentioned. But we are clearly of

- opinion that the Privy Council's decision does not
HAw Ln ON
" : support the learned counsel's case, for at page 152 of
M~A~~E the report appears the following passage:-

''Their L ordships cannot accept the agument or suggestion

that \.vhen once the claimant is admitted to the High Court he has
all the rights of an ordinary suitor, including the right to carry
an award made in an arbitration as to the value of land t~tken for
public purposes up to this Board as if it were a decree of the
Aigh Court made in the course of its ordinary jurisdiction."

It must be remembered -that an Assistant Judge in

administering the Urban Rent Control Act, does so in
the course of his ordinary jurisdiction a~ a Judge. To
accept the learned counsel's. contention would lead to
this absurd result that whereas a decree for ejectment
made by an Assist~nt Judge or a Subordinate Judge
will not be appealable, a si?Yilar derce~ made by a
District Judge will be appealable.
In . our . opinion section 15 of the Urban Rent
Control Act must not be interpreted in an exclusive
sense but must ~e given a construction as supplement~
ing the right of appeal. A decree of a Ci'!il c;ourt is
ordinarily appealable but an order. made by a Civil
Court unless it falls within section 4 7 or section 104
or Order 43 of the Civil Procedure Code, would not
be appealable. Section 15 of the Urban Rent Contr61
Act gives t he right of appeal from all orders whatsoever
inade i~1 a suit or p'roceedirtg coming within its provi-
sion. This section must not, as we have said earlier,
. be . :read as taking away the ordina~y .right of appeal
given by the 'Civil Procedure Code or other relevant.
enact~rH~nt t.n respect of decre~s or .orders Qf a Civil
Coutt." The test then. for the ptirpo ses of this ~ase is
whet~er .~l~e order whfch was _ passed qy t_he
. 1st Assistant judge in the_proceedings ou.t of which the .
1'951] BUHMA LAvV REPORTS. 71
S.C.
appeal to this Court arises, \\ill be appealable nncler. 1950
the provisions of the Civil Procedu re Cod e or ot he r HAW LIM ON
relevant enactments. v.
MA AYB
In the present case the d ecree made in Ci\il Suit MAY.

No. 14 of 1948 was so ught to be executed b y the

<lppellant who was the dt::cree-holder therein, in C.E.
No.1+ of 1948, by delivery of possession to him. The
respondent against whom the decree was made applied
to the same Court, as she had the right to do, under
section 14 (1) of the Act. Under the provisions of the
Act on such an application by the judgment debtor to
stay or suspend execution of such order or decree or
postpone the date of delivery of possession for such
period or periods and subject to such conditions, as
the Court thinks fit, in regard to payment by the
tenant, the Court can discharge or rescind the order
or decree. It was this relief which the respondent
sought and which she was denied by the trial Court.
Clearly questions of this nature fall within the meaning
o{ "relating to the execution or discharge or satisfac-
tion of the decree" in section 47 t1 J of the Civil
Proc edure Code. That being so, the rejection of the
respondent's application will fall within the meaning
of " a determination of any qut:stion within section 47
of .the Civil Procedure Code" for the purposes of
~ection 2 ( 2) of the .Code.
We hold therefore that the appeal to the District
Court was competent and that the High Court was
right in remanding the proceedings to the District
Court for disposal in accordance with law.
. The .appeal is accordi'ngly dismissed with co~ts .
Adv.o cate's fees ten goldmohurs.
72 BURMA LAW REPORTS. [1951

SUPREME COURT.

ts.c. AJAM MOHAMED LOOVA vVALLA (APPLICANT~

1950
Dec. 18. v.
EBRAHIM DAWJEE JEEWA (RESPONDENT).*

Sufwem.; Cottrf Bench co~Jsfituted with two Judges {rom the High Court-
S. 146, Burma Constituli.oJL-11tcrprctation of-Prindple_s grlidiug-
Get1~rat Clauses Act, s. 12 (2)-Cons/i/utioJz Act, s. 222 (31-Revicw of
Sufweme Court judgment-01der 10, Rule 3, Ordvr 28, Rule 4, Supreme-
Court Rules-Grormds fc,r 1eview.
Civil Appeal No. I 1 of 1949 was first heard by the Supreme Court on
25th September 1950. The Chief Justice was absent owing to illness. The-
other Judge of the Supreme Court on duty was disqualified having dealt with
the: matter as a Judge on the Original Side in the High Court. The Acting
Chief Justice applying s. 146 of the Constitution invited two Judges from the-
High <..:ourt to form a Bench. The Chief Justice resumed office on 1st August
1950 but was not well enough to hear the appeal. The Court was constituted'
later' with the same three Judges who passed judgment. Upe>n an objectioll'
that a Bench of the Supreme Court cannot in law be constituted with two-
Judges im-ited from the High Court or in the alternative that such a Bench
could not be constituted when the Chief Justice had resumed charye.
Held: That the objections were untenable. In interpreting the Constitution
the provision3 must not be cut down by a narrow and technical construction:
but must be given a large, liberal and comprehensive spirit, considering;
the magnitude of the subjects involved. The construction most beneficial to
the widest possible amplitude of its powers must be adopte'l and changing
circumstances must also be taken into account.
Eclwmds v. Aflorney-Genernl for Ca11ada, (1930} A.C. 124 at 136 ~
St. Catl1erine's !litllmg and Lumber Co. v. Tile Quem, (1868} 14 A. C. 46 at SO;.
British Coal Co,Poratiol v. Tlte King., (1935) A. C. 500 at 518 ; lame~ v _
Commonweallh of Austral1a, (1936) A.C. 578 at 614, referred to and
approved.
A Constitution of a Government is a living and organic thing, which of
all instruments has the greatest cl'aim to be construed 11f res mag;s valcat
quam Pereat. ~

Re. Tile Cetttral P1ovi~tces aud Berar Act No. XIV of 1938 (1939) F.C.R..
Vol..!, -18 at 37, referred to.

Civil Misc. Appli9ation No. 82 of 1950 being -application for review

_of Jl1dgment passed in Civil Appeal No. 1~ j>f 1949 of th~ Court.
t Prestnt ; SIR BA U, Chief Justice o{ the Union ~f Burma, MR. JusT!CE-
E MAUNG ~~d U"THA_IJNG SEIN, J.
 1951 ~ BVRMA LAW REPORTS. 7J

Such construction ought to avoid absurdity or inconsistency. bt fmu~t !Je s <.:.

interpreted in su.:h a w :ly :ts to 111ake it most beneficial to the "id ~s t \'ossible 1950
amplitude of its po wc"' AlA~(
i\lOH.-Uli!O
ll Hlwe v. (J Tmt Olm, !194$) B.L.R. 541 at 553, referred to. Loo~~~.

S. 1-16 (1) of th<: Constitution n)t merely reiers to " a vacan.:y but also of \\'AI. LA
fl.
Vacaucies" in order to enable Judges from the High Court bein;! requested
EnruHm
to attend to constitute a quon :m. It also cont~mplates the possibility of the DAW! EE
Chief Justice and the Actin;.: Chi ~ Justic.: being absent from the Court . The jEEWA.
Constitution does not pro\ide for appointment of acting Judges to the Court.
The result of accepting the :~ppcllant's contention would lead to hearing of
appeals being kept pending indefinitely in cases of two vacancie~. till the
President with the approval of the Parliament appoints additional members of
the Supreme Court. This would lead to an impossible situation and the
maxim lex no11 cogit r.rt it~~Possibilia becomes appropriate and applicab!e.
Even though the Chief Justice may not have been on leave s. 146
of the Coustitut.ion contemplates absence through illness from a session of
the Court.
A right of review should be stricily construed. Doubt should not be
thrown upon the finality of the decision of the Supr eme Tribunal of the
country. These principles ate covered by Order 10, Rule 3 and Order 26,
Rule 4 of the Supreme Court Rules.
Vetd:ala Nmasimha Appa RLto v. The Court of Awards, 13 J.A. lSS
at 158-59, referred to.
The grot nds taken for re~iew were either fully :~rgued previously or
could have been so argued. the parties being represented by very scnicr
counsel. A new point imol\'ing mixed questions o( law and fact not taken
before the court could not be a foundation for a review.

] . B. Sanyal for the ~pplicant.

The judgment of the Court was deliver.ed by

MR. J usTICE E M AU~G .-.This is an application ior

review of judgrn~nt in the appeal preferred by the
respondent to thiR Court in Civil Appeal No. 11 of
194.9. That appeal was heard in three stages and three
judgments \\:ere delivered . following the different
hea:i-i ngs. When the appeal was first heard resulting
in th.e judgment of th e 25th .July 1950 the Chief Justice
of the Union was absent from the Court on leave
owing to his illness and the Coutt.'was presided ~ver
:by the Acting Chief JustiCe . M.r . Jil:Stice Thein Maung,
 BUH:\IA L:\ W REPOI<TS. [ 1lJS1
S.C. tl1e only othe r Judge of ihis Court then on duty,
1950
having, as a J nd ge on the Original Sid e of t h e High
AJA~f
MOHAMED Court of Judicature at Rangoon, h eard the suit out of
L OOVA
WA L LA
which the appeal arose, was disqualified from hearing
v. the appeal and the Acting Chief Justice, applying
E BRAHIM
DAWJEE the provision s o f section 146 of the Constitution,
}E!::WA.
invited Mr. Justice On Pe and Mr. Justice Thaung
Sein of the High Court to sit with him to hear
the appeal
Following th e judgment of the 25th .July 1950 it
became necessary to hear counsel further and the
subsequent hearings took place on the 2nd and 16th
August 1950. The Chief Justice of the Union resumed
office on the fo renoon of the 1st August 1950 but he
was not suffici ently recovered yet to undertake the
arduous hearing involved in the appeal and the Court
was constituted under his directions with the saine
three Judges who heard the appeal. in the first i nstance.
In th.e result the judgment of the Original Side of the
High Court of Judicature was restored.
At the hearing of the appeal the parties were
represented by very senior counsel and no suggestion
whatsoever was made that the bene~ bearing
the appeal had been improperly constituted. How-
evel', the applicant, now advised by another learned
counsel,. has challenged the constitution ot the bench
which had determined the appeal. It is claimed on
behalf of the applicant that a bench of the supreme
Court carinot in law b~ constituted, in any circum-
stance, with two Judges invited from the High Court.
Iq the alternative it is claimed that when. the Chief
J ustic.e , of the Union has resumed charge o the
Court, ev~n if he happens then to be unab(e from .
iliness to -sit . on th benc.h; a bench .of .this Court
cannot . be c0nstituted u'rider . sedion 146.. ' of the
C~r1stit~tion.
1951] BURMA LA~; I~EPORTS. 75
vVe tlave heard l\Ir. J. B. Sanyal at kngt.it~1t: !~ is :::;.c. .
1950
challenge of the constitution of the bench !Jcari!' ;..: t tl(.!
AJAM
appeal out of which t hi s application has ar ise1: ;:ncl we MO HAMED
see no substance in thi s co'ntention. .-\s the mat~er. LOOVA
WALL.A
bo,:~.ever, is one of general importance we are giv i n ~ our v.
i!:llRAHllii
reasons at some length for rejecting the applicalion. DA\I:JEE
JEEWA.
Cerbin principles \Yhich b;we been l.ticl dO\.\'n by
the Privy Council in England and other Judicial
tribunals on the interpretation of the Constitution are
worthy of notice. We are in full accord with these
principles which \Ve no<.>v proceed to state.
In Edwards v. Attorney-General for Canada ( 1)
the Privy said :

"Their Lordships do not conceive it to be the duty of this

Board-it is certainly not their desire-to cut down the provisions
of the Act by a narrow and technical construction, but rather to
gjve it a large and liberal interpretation so that the Dominion to
~ great extent, but \vithin certain fixed limits, may be mistress in
her Ov\'n house, as the Provinces to a great exte~1t, but \\ithin
certain fixed limits, are mistresses in theirs. 'The Privy Ce:uncil,
indeed, has laid down that Courts ot Jaw must treat the provisions
of this British. North America Act by the s.lme methods of
construction and exposition which they apply to other statutes,
But there are !'btutes and statutes ; and the strict cc:r.struction
deemed proper in the case, for example, of a penal or taxing
statute or one passed to regul~ te the affairs cf an English parish,
would be often subversive of Parliament's real intent i applied
to an Act passed to ensure the pe:~ce, order and good government
of a British Coiony' : see Clement's Canadian Constitution,
3rd eel., p. 347.
The learned autflOr of that treatise quotes from the argument
ot Mr. Mowat and Mr. Edward Blake before the Privy Co.uncii
in St. Calhert~e's Mzllitzg and Lumber Co. v. The Quecm (2).
'That Acf should be on ,all occasions interpreted in a
lal'ge, libenl an:l comprehensive spirit, con!?iclering the
magnitude o[ .the subjects \\lith which it pmports to . deal in..
very .few wor9s;.'!

.. Ill _(i930)..A:..C. f24at 136. (2) '(188~) 14 A.C: 46at SO.

76 BURMA LAW REPORTS. [1951
S.C. In British Coal Corpo1atio11 v. The KiHg (1) the
1950
Privy Council said :
AJAM
llfOHAMF.D
LOO\'A " I ndeecl, in interpreting lhe constituent or organic statute
WAT.I, A snch as the Act, that construction most beneficial to the widest
v.
EBRAHI 11f possible amplitude of its povvers mnst be adopted."
DAWJEE
JF.EWA. In ] ames v. Co11UTiOnuealth of Australia ( 2) the
Privy Council said :
'' It is true that a Constitution must not be construed in
any narrow and pedantic sense. The words used are necessarily
general, and their full import and true meaning can often only
be appreciated when considered, as the years go on, in relation
to the vicissitudes of fact which from time to time emerge. It
is not that the meaning of the words changes, but the changing
circumstances illustrate and illuminate the full import of that
mea.ning."

In R e. The Cmtral Provinces and Berar Act

No. XIV of 1938 (3) of the Federal Court in Ind ia,
Gwyer C.J. said in respect of the Indian Constitution
of 1935:
" I conceive that a broad and liberal ::.pirit should inspire
those whose _d uty it is to interpret it ; but I do not imply by this
that they are free to stretch or pervert the language of the enact-
ment in the interest of any legal or constitutional theory, or even
fol' the purpose of supplying omissions or of correcting supposed
errors. A Federal Court will not strengthen, but only derogate
from, its position, if it seeks to _9._? anything but declare the law ;
but it may rightly reflect tbat a constitution of Government is a
living and organic thing, which of all in~truments has the
greatest claim to be construed ut res maf!.is tialeal quam Pereat."

This Court in U Htwe v. U Tun ~hn (4} summarised

th~ principles thus :

''In the c;;ase of the.intel'pretation of a Constitution, we must -

.interpret it not only to avoid absurdity or inconsistency, but we
, . "' . . ,

.(1) (19351 A.C. 500 at SI S. (3) (1939) F.C.R. Vol. I, 18 at 37.

. (Z) !19~6) A.c:. 578 at 6~4~ (4) j1948) B.L.R. 541 a~ :55.3.
1951] BURMA LA \V REPORTS.

must inte1pret it in such a \\'ay as to make it most beneficial to S.C.

1950
t he \\'idest possible amplitude of its powers.''
AI All
It is then in the light of these principles that MoHAMED
LoovA
section 146 of the Constitution should, in our \.VALLA
v.
Opinion, be interpreted. Mr. Sanyal contends that EBRAHIM
section 146 (1) of the Constitution clearly conternpiates DAWJF.F.
jEEWA.
only one Judge of the High Court being requested to
attend at the sittings of the Supreme Court. He
.says that there is no room for the application of
section 222 {3) of the Constitution which would attract
in other circumstances the provisions of section 12 (2)
of the General Clauses Act. He claims that from the
context the contrary intention appears for the exclusion
.of that provision of the General Clauses Act. \Ve are
not satisfied that a contrary intention is apparent as
claimed by the learned counsel. In the first place
section 146 (1) of the Constitution speaks not merely
.of "a vacancy" but also of ' 'vacancies'' in the
Supreme Court which can giye rise to quorum not
being possible of the Judges of the Court available to
hold a session of the Court. It a.lso contemplates the
possibility of not merely the Chief Justice but also the
Acting Chief Justice of the Union being absent from
the Court at any one time. The Constitution also
does not provide for the appointment of Acting Judges
-to the Court as in the case of the High Court.
' It has happened here more than once in the past
that out of the three Judges of this Court two Judges,
-because of the part they had taken as Judges of the
, High Court of Judicature at Rangoon at an earrier
stage of the proceedings which resulted in an appeal
to this Court, became disqualified to hear . and
.determine the appeal. To accept the. learned cou~sel's :
<;:ontenti.on before us that .i n such circumstan<;:es .orily
. one Judge o.f the High Court may be requested to
.attend at the sittih:e:s of the Court to bea~ and de termine
78 BURMA LAW RErORTS. [1951

s.c. such appeal would lead to the absurd result that the
1950
AJAM
appeal would have to be kept pending indefin itely til!
M O .H AM 1> snch time as the President with the approval of the
L OOV;\
'VVALLA Parliament appoints additional members of the
v. Supreme Court or nntilihe present Judges are re placed
EllllA I IIM
DAW.I EF: by new Judges appointed in consonance with th e
]F.E\\',1.
Constitution. Th e maxim L ex 11011 cogiL ad impo::;si -
bilia is not inappro priate to th~ relevant provisions of
the Constitution.
The alternative plea that the Chief Justice not being
on leave after 1st Au~-us.t 1950 the Court held without
him as a member thereof would be incompetent, is
clearly without substance. Section 146 of the Consti-
tution refers to th e "absence through illness or on
leave or in the di scharge of other duties assigned by
statute or otherwise" in relation to any Judge of the
Court. The Chief Justice may not have been ot;~. leave
but he was absent through illness from 1' a session of
the Court~ within the meaning of section 146 of the
Constitution.
We hold therdore that the C0urt vvas duly consti-
tuted to bear and determine the appeal out of which
the present application has arisen.
Mr. Sanyal further contends that assuming the
Court to have been validly convened, this Cour t can
in proper cases review its own judgment. He has
cited several cases before us relating to the practice of
the Privy CounciL' None of these go further than the
cas~ of Venkata Narasimha .dppa Row v. The Court of
A ~.va rds (1) where the following passage appears ;- -

" No autb.ority has been cited to their Lordships which can

wa~ratit them in granting a rihear ing under such .circumstance.s
~s. tliese. It .is .quite true that there may be exceptional ci.rc~m- ..
stances which will war.r:lnt this Board, even after 'fh.eu advi ce
. . . . . .

: tl) t3 I.A.J55att5Rand 159.

1931] BURMA LA\tV HEPORTS.

has been acted upon by Her :\Iaj:!:.: y in Ct.nncil, in allo'' in~~.

case to b<! re-heard at the instance of c t:e ol the parties. T he
cases in \\hich that m:ty be competc1 tiy done arc explaincd hy :\ '.1 )(
i\!Ol!Al!l!l)
Lcrd Brongh:un in the case of Rajunda Xnra.in Rae \', Hi}cu Lop\..:\
Goz1i/Ui Si11g (lJ. _His Lordship properiy dt~cribes this privilege, \\.Ai.!.A
; .
when a!Jowecl, not as a right, but as an inc.nlgence. At pa1-:<.: 13-4 EBRA Hnl
of the first volume o( Mome's Heport~ , his L-:>rdship says : ' It DAWJI::
Jr-;1; \\'i\ ,
is imr;os:;ible to doubt that the indulgence extfndecl in such c:1~es
is main!~ owin14 to tbe natural desire ptev:tiling to pren:nt
inem~Ji.Lble injustice being done by a Court of the last resort,
\\'here, by some accicknt. without :my blame, the party has not
been heard, and an order l1as hecn inadvertently made as if ihe
party had been beard. Even before report, ,,hilst the decision
of the board is not r~> t res j /l(ticala, great caution has been
observed in .permitting the rehearing of appeals. In the lasL
case to which we were referred, that of H ebbert v. Purchas (2),
where a litigant alleged, bdore report and approval, that he had
been dis~bled by want of means from appearing and maintaining
his cas~>, the Lord Chancellor said : ' HaYing carefully weighed
the arguments, and considering the great public mischief "hich
would arise on any doubt beilig thro\\'n on the finality of the
decisions of the Judicial Commit tee , theit Lordships are of
opinion that expedjency requires that the prnyer of the petitions
should not be acceded to, and that they should be refused.'
There is a salutary maxim which ought (o be obse1vecl by
all Courts of last resol"l-l11terest rci.Pubh'cae ut srt jit1is liti11m.
Its strict obse1vance m:ty oc.,:asion:llly ent:til hardship upon
indivi:Jual litigants but the mischief arising from that source
must be small in ccmparison with the great mischief which
\NOl1ld necessaril y result from doubt Qeing thrown upon the
finality of t~e decisions of such a tribun 11 as this."

These are principles similar to those in Order X,

Rule 3 and Order 28, Rule 4 of the Rules of this
Court.
The grounds taken in the present application for
a rehearing have been either fully argued at tht:
prev_ioQs hearing of the appeal or could have then
been pressed before -the Court J;>y c~:>unsel appearing
. '

, l1) 2 Moore'~ Ind. Ap. Ca. ; S.~.l Moo. f'.C . .117. (2) 7 Mo(,>. P.C. 458:
-so BU t-<MA LAW. REPORTS. [1951

S.C. for the applicant. It was alleged in the application

1950
before us that the Court assumed certain facts to be
AIAM
MoHAMJs:D established without sufficient examination of the
LOOVA
WALLA
evidence on record. It is also contended that from
v. certain facts found established the Court was not
EBRAHIM
DAWJEE justified in drawing certain inferen ces or that certain
JEF.WA.
facts had not been given such weight as the learned
counsel for the applicant thinks shou ld have been
given by the Court which disposed of the appeal.
Further, a new point of mixed law and fact which
never was taken before the Court is sought to be taken
now in support of the application for the rehearing of
the appeal.
Obviously such matters as these cannot form a
foundation for a review application even und er the
Civil Procedure Code. It follows therefore that where
the applicant, to succeed in his application f,1r
rehearing, has to bring his case within the principles
stated in Order 10, Rule 3 or Order 28, Rule 4 be
cannot possibly succeed. T he present application for
a rehearing is clearly without merits <tnd is dismissed.
1951] l3U RM A LA\V REPORTS. 81

SUPREME COURT.

J. HUIE (A PPLICANT) ts.c.

1950
v.
Dte. 18.
L. K. AIYAVOO NAIOC AXD FOUR OTHERS
{HESPONDENTS).*

UuiiJu Judiciary del, s. 6-Afplicatiou for SJoecinl len,e :dum t o be

entertained.
Held: In the absc:nce oi any special circumstance such as want of
jurisdiction or doing of a great and irreparable injury or involdng a question
-of great public or pr i\'ate importanct:, special leave should not as a rule be
' granted.
In t his case the Trial Court gave an nd iuterim injunction which was set
.aside by the Appellate Court, ancl it is clear that the order was oroe which
was passed during the p1mdency of a regular suit and that what is involved is
whether discretion on sound judicial prin-:-iples bas been exercised by the
High Court in reversing the order of the City Civil Court. As the High
<:ourt was right in thinking that the injury caused cannot be considered to be
irreparable, the application for Special Leave was refused.

Chan H toon for the applicant.

I .
Dr. BaHan
NyunHanand
Tin Th eirz,
J for the respondent 4.

V. S. Vmkatram
Burjorjee
} for the respondent 5.

The judgment of the Cour t was delivered by

the. Chief Justice of the Union
SIR BA U.-This is an application for special leave
~o appeal from an order passed by the H igh Court in.
exercise of its appellate jurisdiction. It arises in this
~ay. T he applicant, J. Hui~, is the proprietor of a
. Civii Misc. Applicatiqn No. 65 of,1950.
' t Present :SxR BA U, Chief Justice of .' the Union of Burma,
MR. }l!STH::E E MAUNG and MR. }USTIC. THEI N MJlUNG.
.6
82 BURMA LAW REPORTS. [19
S .C. picture hall known as the ''Gaiety Cinema" situated.
JQ50
in Phayre Street, Rangoon. On the 20th April 195(};
J. Hun~
v. be filed a suit, Ci\'il Regular No. 451 of 1950, in the-
L.K. Raugoon City Civil Court against the five respondents.
AJYAVOC)
NA!Ot!
AND FOUH
in resptct of a Tamil tall-de picture called "Mohini " ..
OTHEI(~ . His c:.tse is as follows :. The 1st respondent I:'. K .
Aiyavoo Naidu carries on business as a hlm distributor
in Madras in the name of '' Jayalakshmi Pictures"~
On the 11th November 1949 be secured a lease in the
name of his manager, the 2nd respondent A. V.
Nataraja ~ludaliar, of the right of. exhibiting, distri-
buting or othenvise exploitiPg fot1r Tamil talkie
pictures known as "Valaikkari ", '' Abimanyu
"Mohini" and ''Kanjan ", in Rangoon and in other
places in the Union of Burma from their producers
"Jupiter Pictures Ltd.", Madras, for three years from the
date of handing over the picture prints to him. On the:
folio\\'ing day, that is the 12th November 1949, the 1st.
respondent sub-leased the right of exhibiting the said
four pictures in Rangoon ancl other place in the Union
of Burma to the applicant. But when the 2nd respon-
dent received the aforesaid four pictures f\j:om the
distributors, instead of handing them . over to t.he
applicant. he sub-leased them to the 3rd respondent
A.H.S. Kaliappa Chettyar who is a distributor of films
in Madras. The 3rd respondent in turn sub-leased
the pictures to the 4th respondentS. Kadesan Pillay
who carries on film distributing business in. Rangoon
under the name and style of tb e "General Film Service".
'II) pursuance of such sub-lease the 4th respondent
.obtained possession of the print of the picture
"'Mohini '' at . Rangoon on the 2nd April 1950 and
when he wa:~ : about to exhibit it at the cinema of the:
5th respo nde nt, .the applicant filt:d 'the su.it, Civil
.Regular No. 4'_51 of 1950, . in the Rangoon City Civir
Court asking for declaration . of his right to - th~
.1951 J .BURMA LAW REPORTS. 83

picture, for possession t hereof and for perpdual S.<.;.

1950
injunction restraining the defendarits (now n:spon -
J. HUll~
d ents) from exhibiting it either in Rango<n or t .
L.K.
elsewh ere in the Union of Burma. AIYAVOO
The :snit was instituted on the 20th April 1950. NAl lJU
ANI> tOUR
On the same day the applicant filed an application O'THERS.

supported by an affidavit praying for an ad inltritll

InJunction. Ad interim. injun ction was granted
ex P<~ r te against the 4th and 5th respondents an4
n oti ces both in respect of the suit and the applic<lt!on
for injunction ~,.,ere directed to be issued to the o tber
three respondents who were and a.re reside nts of
Madras. T h~ 5th of June 19:>0 was fixed for the
r eturn of the nolices. .Five days later the 4th and 5th
respondents filed an application praying for the
di scharge of the order of ad i11ferim injun ction passed
ex parte against them. The hearing of the said
applic:1tion was fixed on the same date as the hearing
of the application filed by the appliccmt, that is, the
5th June 1950.
In the meantime the re maining three pictures
arrived in Burma and in respect of these three pictures
two separate suits similar to th e fi1:st suit vvere filed
by the applicant and simiJar relie.fs as in the first . suit
were asked for; The applica'Jt also applied for ad
interim injunction in both the cases and this was
duly granted.
The 4th and 5th respondents appealed to tbe High
Court against the order of ad tnferm injunction
granted in the aforesaid suits in three separate appeals.
T he three appeals were hear_d together and one or&.r
was passed in respect there~ r.1.g aside the order of
a d i11terim injunction passed }:ry-the Rangoon City
Civil Court: The present application is for speci1.l
l eave . t c;> ap_p~al from the said ord~r of the High
C0uri:.
84 B\JRMA LAW REPORTS. [l <JSt

S.C. Whether the order in question is a final order or

1950
not v:ithin the meaning of section 6 of the Union
J. HUIF.
Judiciary Act was not canvassed before us. Nor was
v.
L. K. this question canvassed in Civil Appeal 1\: o. 15" of 1<J48
r AlYAvoo
. NAIOU of this Court, which was cited in the course of the
AND FOUR
OTH ERS. hearing of this case. We do not, therefore, propose to
go into it. Whatever the nature of the order may
be, what is clear is that it was passed during the
pendency of a regular suit. The question is whether
special leave should be granted in a case of this kind.
In the absence of special circumstances, such as
the want of jurisdiction or doing of a great and irre-
parable injury or involving a question of great public
or private importance, special leaYe should r.ot as a
rule be granted. In the present case no special
circumstances such as those mentioned above arise.
What is involved is whether discretion on sou nd
judicial principles has been exercised by the High
Court in reversing the order of the City Civil Court.
We have no doubt in our minds 'that it has. On
going through the proceedings as. presented in the
Trial Court, we agree with the High Court in thinking
that the "injury, if there be any, likely to be occa-
sioned to the applicant cannot be considered to be
irreparable.
The application is dismissed with costs, ten gold
mohurs. The temporary injunction issued by this
Court is discharged.
 1951] BURl\1A LAvV REPORTS. 85

SUPREME COURT .

D AvV KGWE TIN (APPLi cANT) t S.C.

1950
~.
Dec. 18.
THE CONTROLLER OF RENTS AND ONE
(RESPONDENTS}.*

Urban Reu/ Control Act , s.14-8- Scape of Urbau Red Cvu/r!)/ .{ct- Distutcd
lenc1n..y whether can be decided by t he Rent C"u/r!)/lcr .
H cld : That a dispute as to whether a person is a tenant for four rooms or
whether he is a t~nant for only one room a nd the tenants of othe r three
r ooms are tenants of the landiC'rd can be decided only b}' a civil court and
the Rent Controller has no jurisdiction to decide such a question.
W'h::re an application is m:tde to the Rent CoJ:llroller for ieave to depos ,t
the rent of all four rooms, tenancy of which is disputed, the Rent Co:1troller has
no jurisdiction to determine e ven for the restricted purpose of s. HB of
the Urban Rent Control Act whether a person claiming to .be a ten ant is a
tenant or not.
S. 14-n {1) and (2) authorise the He1;t Controller to r~tein: c<'rcsit hom a
p~rfon who claim3 to ~e a tenant, and be .viii then give notice of thE; deposit
tl) the landlord. It is for the landlord to withdra w or refrain from with-
drawin~ th e deposit. :\o ertquiry is con templated by the Act. He has
autho~ ity llnd is bound to ac-cept depOsit o rent ; bvt be may not call upon the
owner o the premises or the alleged landlord to show cause'' hy deposit of
rent should not be permitted.

Dr~ BaHan for the. applicant.

Ba Sein (Government . Advocate) for the 1st
re's pondent.
Kyaw Min for the 2nd .respon~ent.
The judgment of the Court Wj S delivered by
Mr. 'jus;ICE .E MAUNG.-T~is appli~atio~ is the
out<;o.me of a qispute. over the tenancy of four rooms
c omprising House No. S3/~51n 53rd Str~et, R~mgGon.,
is
The ~ppliCant' admittedly the owner of that house.
The . i'nd respon~ent c~aim_s tha.t h:e has be~_n aJ?-d still
" Civii Misc. Applicatiqn):\o. 72 ,of 1950 being applicaJion fo~ i:Ji_r~tions
of
in the .natur,e cedio~ari. . . .. . . . . .
. . t Present : SiR BA U, Chief Justice of the Union o Burma; MR. JusTiCE
-E lit~ousaand 'MR~ Jys:ncs--THEIN MAtiNG. '
86 BURMA LAW REPORTS. [ 1951

a.c. is a t enant of all the four rooms in th e house, a claim

1~50
which the applicant disputes. The applicant\ case
DAW NGWE
'tt~ is lhat she is in occupation of one room herself, that
v.
THE the 2nd respondent is a tenant in respect of only one
CONTTWLLE!l
oF Hn:-o~rs
room and that the other h1.o rooms are occtl pi<.-d by
AKD OXF.. her own tenants.
These are matters which on ly a Court of civil
judicature bas jurisdiction lo determine. Th e Crban
Rent Control Act of 19-t8 provides no machinery
whe-reby the Controller of R ent or any authority other
than a Civil Court may determine the points of di spnte
in this case.
On the 22nd February 1950 the 2nd r espondent
applied to the Controller of Rents, Rangoon , in his
proceedings No. 49D of 1949-50 praying ''that th e
above money amounting to Rs. 2,000 may be accepted
as deposit of rent at Rs. 200 per mensem for th e ten
months April194-9 to January 1'150 " . The amouDt of
Rs. 200 per mensem was arriYed at on the __basis of the
2nd respondent's claim of being a tenant of all four
rooms, the standard rent in resp-e ct of each room being
Rs. SO per mensem. On this application being filed
tJ1e Controller directed the issue of notice to the
~-pplicant before us ''to show cause why lhe deposit
of rent should -n ot b~ permitted."
It is clear td us that it was the issue of this notice,
not contemplated u~de_r ~ectio~ 14-B of the Urban
Rent Co~trol Act or in the scheme of the Act, that
:has been the cause of all this trouble r~~ultjng in the
:appiicat,i<:> n to us. ~ -N~tu_r~Jiy the applicant before us
o n 'being <:all~d trpon to shqw~cause_ challenged the
~<;:~aim of the 2nd re~-pofl;dent to be a tenant of the four
~ooms. -~a_tuta:ily,; aga~.n, when . there were these
-conflicting-claims .b.efore the. Conttolle~ he . tho~ght it
- ~~cessary to .c.ow.e :to s<'>ll!e . finding o n t.he .m.~tt.ers iiJ
issue:' _Brit It is cle~i from.the cirde~:-:Wh1ch i~ : .so.ught
 1951 ] BURMA LAW REPORTS 87

b be quashed in th ese proceed ings that the Contl oller S.C.

l<J50
did realise that his decision 011 the disputed issues
wou ld not be 111 any way l)lllC l'In.'S on <: It !1cr party. DA\\'Tr:-:N GWE
Unfortunately, however, th e ord er \Ya s not so clear as ."
1 HF.
-could be expected. In one place thc.: learned Cml'rRor.Lr.R
C on t ro IIer sat. d : " 1' I1e cl'1spute as t o t I1e te nancy 1s . a A~o
0 1' HENTS
oNE.

matter to be properly d ecided by a competent CiYil

Court. But for the purposes of secti on l4B of the
Urban Ren t Control Act without prc.:judice to the
'proper decision of the Civil Court I mu st deem t he
applicant to be a tenant in resped of the \\'hole house
in the circumstances explain ed above." The learned
-counsel for the applicant before us claims, and rightly
too in our opinion, that the Controller has no jurisdic-
tion to determine even for th e restricted purpose of
section 14-B of the Urban Rent Control Act whether a
person claiming to be a tenant is a tenant or not.
Section 14-B of the Rent Control Act is quite clear.
Remembering that it is not for the Rent Controller to
<lecide the question of a disputed tenancy when a
<leposit is sought to be made by a person who claims
to be a tenant all that should be done under section.
14-B (1) and (2) is to receive the deposit and then to
.cause a notice of the receipt of the deposit to be
served on the landlord. It is then for the landlord to
withdraw or to refrain from withdrawing th~ deposit.
No enquiry is contemplated by the Act. An enquiry,
as the Controller of Rents realised in this case, would
:~ot be fruitful in determining the rights of the parties.
in these circumstances we uphold the action o( the
Controller qf Rents in accepting the depcsitof Rs. 2,000
made by the 2nd respondent but we qtiash that
part of his proceedings in No. 49D of 1949-50 relating
to is~ue oJ no tice to tlie appHcant to show caus.e why..
the deposit of rent should not .be permitted. . There .
will be no or4er as to costs.
88 BURMA LAW REPORTS. [195 t

SUPREME COURT.

tS.C.
1950
u PO KY A w (APPLICAXT)
(..' .
Dec. 2Z.
THE DISTRICT LA~D COMMLTTEE, PEGU
AND ONE (RESPONDENTS).*

Tenancy Disposal 1Ict, R11les 3 (a), 8 nnd 9-Dc:cision by V!llage Com111iltee-

APPcal beyond time to the lilistrict Laud Com millee-Decisivn of t he.
District Laud Cnmmilfte 111odijyiug Villa ge Commi ttee's decisi011-Rtview-
nllowed by District Land Comtmtter .
H eltt: That a Dis tr ict Land Committee can not entertain an appea l under
Hule 8 (ll beyond the 15 days pm,ided by Ruh: S (I) of the Tena ncy Disposa&
Rl1Ies, 1949.
The District Land Com mittee has no jurisdiction lo c:ntertatn au :tpplication.
for reYiew, r eview being excluded by Rule 8 (3) of the Disposal of Tenancy
Rules. 1949.
A District Land Committee has no original jurisdiction. Accordingl y if ciT
appeal to it from-an order of .what purported to be a Vill.age Land Committee-
it iouncl that the Cum1nittee was not lawfully constih;ted, it should refer th e
dispute to th e Viliage Land Con1mittee cmslilut.ed in accordance with law for
disposal.
Where an owner of the lan;l not exceeding SO acres in area has bee!l!
cullivating the same with his own hands he cannot.he Ot!Sted from the posse-s-
sion o.f that land-proviso tal to s . 3. of The Tenancy Disposal Act, 1948:
operl\t...s to exclude the jurisd iction of any Tenancies Oispo~al .'\uthority.

Ba Gyan for the applicant.

B(, ~ein (Government Advocate) for the respondents.

The judgment of the Conrt was delivered by .

MR. JusT ICE E MAUNG.-Theapplicant is the ovv.ner
of two holdings of paddy land measuring altogether
~15:2.1 acres, situate in Payagale village jurisdiction ~
. Pegu Dis~rict . These holdings appear .to have been
allotted for the year J949-SO by the Land Committee
. : ~. Ci~il Misc. Application No.' 86 of 19Si1being applicati~n f~r dire~tlous i'n:.
. the nature of certiorari. . . ' .
t Preseut ; SIR BA U, Chief Ju~tice. of the Union .of ~urma . ML j USTIC&
E ~AUN.G and Mr.JuSTICE THEIN MA'l>!:"G ..
 1~)51] BURMA LAW REPORTS. 89

concerned acting under the Disposal of Tenanct es Act, s.e.

1950
1948, to the 2nd respondent.
U Po !{YAW
Some time in Jun e 1950 the applicant appl ied to t .
THE DIS-
the Payagale Village Land Committee for permission TRICT LAK[)
to cultivate these holdings as an owner-cultivator as CoMMl'I'TEE.
PE-G !! ANI>
his . principal means of sub!>istence. Tbe meetir,g of ONE.

the Board held on the 18th June 1950, \\hen the

applicant's request came up for consideration, was
attended by four members out of t en and was presided
over by the Chairman U Tt m Sein. It is not quite
clear how the discussions at that meeti1~g went but the
result was that the Chairman informed the applicant
and th e 2nd respondent Maung Hla Maung that for
the year 1950-51 these two holdings \\'c:re to be
cultivated by the applicant.
This decision was not acceptable to the 2nd respon-
dent and he applied to the Township . Officer, Pegu,
requesting for relief. The Townsl)ip Officer referred
the application back to the Village Committee for
further co nsideration. One of the grounds taken by
the 2nd .respondent in objection to the Village Com-
mittee's decision of tbe 18th June 1950 was that only
four membe-rs OLlt of ten were present on the day the
allotment of the two holdings for cultivati on for the
agricultural season of 1950-51 was consider~d and that
the C::ommittee should have def~rred the consideration
O fthe matter till the Other memberS COtlld have attended.
On the reference by the Township Officer the Board
met again on the 19th July 1950 whe.n all ten members
attended and after the examination of the parties the
Committee decided to affirm the decision made earlier
at the meeting of the Committee on the 18th June 1950.
Th.e decision was a majority decision, seven members
bej~g_:"in fa:Vour of ~llo\ving the applicant to cultivate
the two hotdings .on the ground.that an owner who is
an agri_c ulturist has a right under the Disposal- .of
'90 BUR~ 1 A LAW REPORTS. (195 1
~.<.;. Tenancies Act to cu ltivate with his O\\n hand s and as
19 ~0
his principal means of subsistence an area not in excess
U 1'0 KYA\\"
'V. of 50 acres. Three members who were for alloting th e
TH I! DiS
THJCT LA:-:0
holdings to the 2nd respondent took th e view that as
C<>MM ll'"l'!H!, an old tenant the 2nd respondent is entitled under th e
PIWU ANI/
ON~~ . instructions issued by the l'vfin istry of Agriculture to
have the:: tenancy of the holdings for the year 1950-51.
The 2nd respondent appealed to the D istrict Land
Commi ttee, Pegu. The appeal was preferred o n tlte
11th August 1950 and was ~"<:t down for hearing on the
28th August 1950. Apparently th e fact t hat the appeal
was preferred out of time was not n oticed in tile office
of the District Land Commil tee. Under Rule 8 ( 1) of
the Disposal of T enancies Rules, 1949, an appeal to
the District Land Committee must be mad e within
15 days of the making of the order complaint-d of,
provided also notice of the intention to appeal has
been given within three days of the makin g of the
said order to the Committee exercising original
juri!)dictio n. The appeal in the present case was
preferr ed on the 24th day after the making of th e order
'complained of.
There is no provision in the Rules und er which
the appellate authority may exfend th e period provided
for an appeal. This is only to be expected as the
agricultural season is a short one and expedition in the
sP.ttlement of disputes relating to the allo1ment of
tenancies is essent~al if h?ldings are to be effecti\ely
cultivated by the perso:n or persons to whom they are
allotted.
'The appeal, therefore, to the District Land Com-
mittee made beyond the lS. days provided by Rule 8 ( 1)
above ref erred to could not have been acted upon by
that Committee and on that ground alo~e the proceed-
ings ot the District Land Committee, Pegu, are liable
:.to he quashed as being in exc'e ss of its powers.
1951] BURI\[A LAW REPORTS. 91

On the day ll:"e cl fo r th e hearing of th t: <lp pe;d , it !:>.C.

1950
.appears from th t: procetdin gs placed before us , th at tile
U Po KYA W
full committee did not meet; instead a sub-committee
<>f the District Land Committee met and the appeal was
''
TH E Dis-
TIUt:T LAND
heard by this Sub-C0mmittee which decided to a llow Co~mttTEE,
Pt::G U A~D
ihe applicant to continu e cultivattng 10.21 <~cre s and to o:-:E
.allo t to the 2nd respondent 5 acres. It is not quite
<:lear from the proceedin gs but from th e diary e ntr ie s
<>f the 1st September 1950 it would appear that the
-decision of the Sub-Committee W 'IS ad opted by the full
Committee and the parties were given nJtice of the
decision thus adopt ed by the full Committee. The
wording of th e subsequent resolution of th e 9th
Qctober 1950 of the District Land Committee, to
which we shall refer later, also supports the vitw that
the Sub-Committee's decision was adopted by the full
Committee before announcing the same to the parties.
On the 26th September 1950 the 2nd respondent
filed an application before the. District L~md Com-
mittee, Pegu, for review of the decision of that
Committee. On this application the Distric.t L 1nd
Committee on the 9th October 19::-0 decided to revoke
its previous decision and to allot to the 2nd respondent
.all tS 21 acres. Apart from ti1e legality or otherwise
-of entert<.ining a review application the District Land
Committee apparently did. not realise that V\hat it was
doing was not to allot a tenancy of an agricultural
holdirig for <!- person to cultivate but was granting the
2nd respondent the holdings with the fruit of the
Jabour by the applicant in r espect of 1011 acres for
t he major. portion of the agricultural season. By
'9th October 1950-the applicant woul4 i n the normal
<;ourse; have completed the ploughiri,c and planting
aild.transplanting of paddy on these ho.l dings and all
that -remains t9 be done the_reafter w:o utd be to collect
the .fruits. We .can see. . no~here .in the Disposal oJ
92 BU R!\'IA LA'vV REPORTS . [1951

S.C. Tenancies Act <1 po\:~.: er in this sense invested 1n

1950
Tenancies Disposal Committees.
U Po KYAW
v. It is also clear to us that a power of r ev1ew is:
THE DIS-
TRICT LAKD
excluded by Rule 8 (3) of the Disposal of Tenancies.
COMMI TTEE, Hules, 1949. As we have already said, it is also clear
PEGU A:-ID
ONE. to us tl1at the District Land Committee had no
jurisdiction to entertain an appeal preferred beyond
15 days of the making of the order complained of..
The 2nd respondent, apparently realising that if his:
petition of th e 11th August 1950 to the District Land'
Committee is treated as an appeal it is out of time, has:
claimed in thi:=; affidavit before us that the Village
Committee which allotted the holdings to the applicant
in June and July 1950 was not a body duly constituted
in accordance with the instructions issued by the
Government of the Union and that he was therefore
not challenging its orders by way of an appeal when
he a<idres:;ed himself to the District Land Committee
on the 11th August 1950.
On the materials on record it does not appear that
the 2nd respondent challenged the tonstitu. tion of the
Village. Committee before the District Land Committee.
Moreover, in trying to get over the time bar the
2nd respondent is faced with the bar under Rule 9 of
the Oisp'osal of Tenancies Rules, 1949. If the original
allotments . of June and July 1950 were by a bo.dy not
competent to make them, then : the .District Land
Committee's. duty under Rule 9 was clearly.to refer the
matter t6 a duly constituted Village Committee and
not to deal .:with it by exercise of original jurisdi~tion~
Further; if on the 11th August 1950 there h<)d been no;
adji.1dication .by any authority competent to allot
~ena~cies the ~p.plicant on that date, having alr.eady
been inpossess:i on of 15'21 acres .of his owh land which
he was. actualLy. working with. his. own hands as .his.
principal' rnea~s of subsistence,, could not be.<>.u.sted a$
1951] BURMA LAW REPORTS. 93
proviso (a) to section 3 of the Disposal uf Tenancies S.C.
1950
Act would operate to exclude the jurisd iction of any
T enancies Disposal Authority. U Po KYAW
v.
In these circumst<lnces the proceedings of the THE DIS
TR!CT LAND
District Lan d Comm ittee allotting to the 2nd respon- Co~f)I ITTJ!E,
9ent, in the first instance 5 acres and later 1 szt acres, P EGU ANt>
O NE.
of the applicant's land mu si be and are hereby quashed
with costs. Advocate's fees five gold mohurs.
94 BuRMA LAW REPORTS. [1951

SUPR EME COURT.

t S.C. NOOR MOHAME D (APPLICANT)
. 1950

Dt:c. 18. v.
TH E F I NANCI AL COMMISSI ON E R (COM-
ME RCE ), BURMA AND ONE (RESPONDF:NTS).i!.'
Direction ht tlte nature of cerliornri- Quasfliu g of tlu order of lite Col/eclor
impo.~ing a Stamp Duty-DireciiMt 111 the natmc of lofamlamus to-
direct Fi11annal Commissioner to send n case lo tltc High Cot"t tt1tdc.r
s. 57 (I) of tlte Stamp Act.
A deed of sale was executed in favour of Ma Khin Pu on the Hth Ma rch
1947; on the 29th June 1950 she executed a Deed described as a Deed of
Disclaimer and Helinquishment in respect of the s<~me property in favour of
the Applicant. \Vhen the document was presented for regist ration the Sub-
Registrar sent it to the Collector under ss. 33 and 36 of the Stamp Act and th e-
Collector orde red payment of deficit st;~mp fee under s. 40 of the Stamp Act.
Applicant filed a Revision to the Financial Commissioner under s. 56 of the
Act and the Applic:~tion was !:ejected. Thereafter the Applicant filed an
application to the Financial Commissioner a~king him to state a case and refer
it to the High CouJ:t under s. 57 of the Act and the application \\' lis rejected.
The Applic:lnt then filed an application for oirection in the nature of certiorari
.Held :That the Collector and the Financial Commissioner had jani~diction
to decide under what articl~ of the Stamp 1\t the document ~hould have been
stamped and in passin!:( the orders in qne liou they have n::~l exceeded thei>
jurisdiction in <tlly way,
A writ of certiorari will no t lie if. the authority whose order is impu.ned
by means of the writ has j nrisdiction to deal with the m;~tter and dealt w ith it.
even though the Supreme Court might not agret: with lh~ said anthority on
q11estions either of law or fact or of both.
Mr. Gwan Kee v. Tile Uuidtl of Burma, (1949) B. L. l~. 15 1 (S.C.), followed.
The writ of mandamus cannot be demanded Ex Debito lttslitiae. It is
issited only in the discretion of the Court and the Co;~rt will not issue it unless,
unde r any Jaw ior the time being in force it is clearly incumbent on a person
holding a public. office t0 do or to forebear from doiug a specific act. Sec!ion
57 of the Stamp Ad J!iv ~s discretifln to the f:<'i nancial Commissioner in the
matter. It is not i~cum hent on him to ;;tate a case and refer it to the
High Cour't. Therefore application for writ of mandamus does not Jie.
Ttte Queen v. Gn.rla1~d, (18i.O) L.R. 5 Q.B. 272 ; The Quet tt v. Church
Wardens of All Saints, Wigan, (1~76) 1 A. C. 62~, referred to.

"' Civil Mise. Application No. 92 or L950 bei n!! applica tion n;der section 25
of the Consti t<~tiOn for directions.in. the natu~e of certiorari and mandamus. .
t Present: SIR RA U, CJ>ief Justice. of the l'ni.on. of Bur~ua, MR. JUSTICE
E MAUNG and MR. JUSTICE THEIN M AUl\ G.
1951] BU~MA LAW REPORTS.

P. 13. Sen for the applicant.

The juclgmtnt of the Court ,,as ckli\erccl by ?\OOi<
.>IO IIA\If.!J
t .
MR JusTICE T HEIX ?\IAUJ:\G.-This is an application 'fHE
l'o:A:-; t:I .H,
for a writ of certi vrari and/or a \Hit of mandamus. Til e Co~D!IS
SIO~F.R
writ of certiorari is to quad1 the order of the Collector {CoM~lF.l!CE).
of Hangoo n imposing a ddicit duty on a document, HL.I<Of\ MA..\:-10
F..
calling upon the prL'sent applicant to pay the deficit
dt,ty and a penalty and calling upon one l\Ja Khin Pu
to sho\\ c:-tnse why she should not be prosecuted und e r
section 62 of the Burma Stamp Act. Th e \\'r it of
mandamus is to . direct tb e Finan cial Commi ssion~r
{Commerce), Burn~a, to state a case and refer it to the
High Court und er section 57, sub-section {1) of the
Stamp Act.
The circumstances under which the applic<tti< n is
made are as follows: Ma Khin Pu, who bought
some immO\eable property in Rangoon by a registered
d~: ed dated the 18th March 1949, executed what
purports to b e a deed of disclaimer and relinquish-
ffil:nt, dated the 29t h June 1950, in respect?,ef the same
property whereby she disclaimed and relinquished
whatever r ight, title or interest she had therein in
favour of the applicant. When this document was
presented for registration th e Sub-Registra r of De.e ds,
Rangoon, impounded it and sent it to the Collector
under sections 33 ~Fld 38 of the Stamp Act; and the
latter passed the said order under sectionf40 of the
Stamp Act. The applicant then applied ~)oEth e
Financial Commissioner (Cqmmerce), Burma; for
revi"sion of the said order under section 56' of the .A"ct
.
and somet ime after. t he latter h.ad rejected his
'
applicatjon. and confirmed the order of the CoHector
the applicant filed an application a.s k!ng . him to. ~tat-e
a case and refer iUo the High Court under .sec.tion. 57
of the Act: Tha'.t appiicatiOI1 also 'has been 1:ejected
96 BURMA LAW REPORTS. [1951
S.C . on the ground that there is no nec es5ity to make
1<.150
a reference as the case is clear.
NO OH
J\! OHA~IIW The applicant's case is that he had to purchase the
v. said immoveable property in the name of Ma Khin Pu
TH E
FINANCIAl. to get over the Transfer of Immoveable Property
CO~IMIS
sro:-<F.T{ (Restriction) Act, 1947, which prohibits tran sfer of
(Co~mERCE),
BURMA AND immoveable property to foreigners, that Ma Khin Pu
ONE.
never had any right, title or interest in the property in
spite of the sale deed having been in her favour, that
the Collector and the Financial Commissioner are
wrong in holding that the deed of disclaimer and
relinquishment is really a deed of conveyance by
which Ma Kbin Pu's right, title and interest in the
property are transferred to the applicant and that the
Financial Commissioner should have stated the case
and referred it to the High Court inasmuch as a
difficult question of law is involved.
However the Collector and the Financial Commis-
sioner have jurisdiction to decide und er. what article
of the Stamp Act the document should have been
stamped and to pass the orders in question, and they
have not exceeded their jurisdiction in any way at au: .
So the applicationl,for a writ of certiorari must be
dismissed in accordance with the following observation
of this Court m Gwan Kee v. The Union of .
Burma (lt:
"As bas been pointed out by this Court on several occasions,
the writ of certiorari deals with the quest~on of want of jurisdi~
tion or e~cess of jurisdiction. If the authority, whose order is
impugned by means o the writ of cettiorari, had jurisdiction to
deal with a certain matter and dealt w.ith it, this Court would not
inte.rfere even though it might oot agtee with the said authorit'y
.on .questions eit.her of law or fact or of both."

The application for'a writ of mandamus als<? m.ust be ,

disrriisse~.The writcani).Qt be demanded Ex Debito
(ll (l949) B.L.R. 151 (S.C.),
1951] BURMA LAW REPORTS. 97

justitiae. It is issued only in the discretion of the S.C.

l950
Court [See the observations of Cockburn C.J., in The
NOOR
Queen v. Garland (1) and also of Lord Chelmsford MOHAMED.
in The Queen v. Church Warde11s of .-J.ll SaiHfs, v.
THE
Wigan (2)] ; and the Court will not issue it unless, FINANCIAL
COMMIS-
under any law for the time being in force it is clearly SIONER
(COMMERCE),
incumbent on a person holding a public office to do BURMA AND
or to forbear from doing a specific act. [Compare ONE.

Proviso (b) to section 45 of the Specific Relief Act.]

tn the present case section 57, sub-section (1) merely
provides "The Financial Commissioner may state any
case referred to him under section 56, sub-section (2)
or otherwise coming to his notice and refer such case
with his own opmion thereon to the High Court."
The sub-section gives him a discretion in the ma.tter
and it is not incumbent on him thereunder to state a
case and refer it to the High Court. Moreover, the
application to state the case ana refer it to the High
Cou.rt was belated inasmuch as it was filed only after
the Financial Commissioner bad passed final orders
confirming the order of the Collector.

~~--~--~
- ~-~------~----~~-------------
m.'ll870i r;.R 5 c;f.B. 2?2 . (2) (H!76) .1 A.C. 620.

7
9$ B llRM A LAW REPORT S. [ 1:951

SUPRE ME COURT.

.t S.C. T . C. MOHAME D (APP LICANT)

1930
Dec.' 19. v.
A . KUNJALAM AND T WO OTH ERS (R ESPONDENTS) .* .
. .
Spccial /eave-Tradc-mark-Distlllcfi~e (eat urc_s-:-S. 478, P~nal <;ot;te.
The principle on which special lea\e. in criminai matter Vfill. be giv en by
the Supreme Court is laid down iu U Saw a11i four olhrrs \r. Tile U ttion o f

-
Burti!E,., (!9.!ID.Ji~ at 232, !!'llo~~
Held: That in Burma there is no Law or Statute establi'shing Regislra~
lion of Trade Marks and no authorities exist from which an exclusive right to
"

a. particular Trade Mark could be obtained; The right to Trnde Marks in

Burma are tberefo.-e dependent upon the general principles of Commercial
Law.
The right which a manufacturer has in his Trade Mark is the exclusive
right to use it for the purpose of indicating where, or by whom or at what
manufactory, the article to which it is affixed was manufactured As soon,
thertfore, as a Trade Mark bas been so em ployed in the market :IS to indicate
to purchasers that the goods to which it is attached are the manufacture of a
particular firm, it becomes, to that extent, the exclusive property of the firm
and no one else has a right to copy it, or even to appropriate any part of it,
if by such appropriation unwary purChasers may be induced to believe tllat
they :~re gc.>tting I{Oods which werP. m;~nP. hy the linn to whom the Trade Mark
belon~s.
Thomas Somerville v. Paolc Scltembri, (1887) L.:R. 12 A.C. 453 at 456-457,
:applied.
WotllerspoOtl v. Cttrrie, L.R 5 H.L. 5~8 ; lolwsto/1 & Co v. Orr Ewing
.& Co., 7 A.C. 219; Leat lter Clot h Co., L td. v. Americatz Leather Cl~/11 Co., 11
H.L.C. pp. 533-534, followed.
S. 478 of the Penal Code de fi nes Trade Mark as a mark u~ed for denoting
that goods are the man ufacture for merchandise of a particular person. 'fbis
implies tliat t):le mark must be 'distinctive ' in U1e sense of being '' adapted to
d istinguish the goods of the proprietor of a trade-mark {rom those of other
persons." 1 a mitl'k merely describes the quality'or the origin of an article,
or is such as is commonly used in tbe trade to denote goods of a particular
kind, such a descriptive mark would obviously not be a distinctive mark.
y.rnc:re therefore a mark or phrase merely describes the quality or origin
of an article such as "Custard Powder"," Malted Milk " or" Gripe Water", it
is not capable of distinguishing the goods of one mat,ce~ from t hose of ot hers ;
Criminal Appeal No. 1 of 1950 being . ilppeal a~ainst th~ judgment of the
-~PJ:cllate Side ,H!gh Court, in Crimina! Revision No. 45:B of 1949, dated the
11th November i 94-9.
. t .Present ; U .E MAtiNG, Chief Justice.of the Union of But'ma, Mr. J,usTxca
TH&IN M~V.~G a!ld U;THAUN~ SIUN, J.
1951] BURMA LAW REPORTS. 99

but a mark is distinctive where it points to the goods or a particula:r person as S.C.
for instance in the cases of" Lifebuoy'' soap," Wincarnis . or" Three Nuns" 1950
'tobacco,
T.C.
Loke Nafh Se1t v. Ashwini Kumar De, (1938 l.L.R. 1 Cal. 665 at pp. 667- MoHAMED
668, distinguished. v.
Gaw Kan Lye v. Saw Kyo11e Saiug. 11939 f~.L.R. 488 at pp. 501-502. A. KUNJALAH
AND TWO
'followed. OTHERS.
The words" Moulana (i\1) Beedy" is a distinctive mark as distinguished
from being merely descriptive.
A T~ade Mark need not indicate to the public tt.e actual OII'Oership of the
goods in question. A Trade Mark merely guarantees to the Pu rchaser that
tile goods on which the mark is applied emanate fron1 the same source of
trade as the goods that had hitherto borne the same Trade Mark. It is
not necessary for the public to know the specific source of the article or the
'!lame of the manufacturer.
The word "Moulana" is distinctive in that it distinguishes a beedy
manufactured by the Company from other beedies. It is therefore a Trade.
Mark within the purview of s. 478. TJ1e mere fact that a customer can get
"Moulana 8r::edy" by asking for it by name is not at all inconsistent with !he
label being a Trade Mark.
The Yorkshire Relish Case. Powell v. Tile Birmingham Vi11egar Brewery
Co., Ltt/., 14 RP.C. 720; Edge & So11s, Ltd. v. Nicholls ~orts, Ltd., 28 R.P.C.,
582; Duuhill v. Bar/lett & Bic.~lry. 39 R.P.C. 426 ; Wollterspoou v. Currie,
L.R. 5 H.L. 508; l. Pdl,;y & Son v. S. Ah Kyun, 2 L.B.R. 159, distingui~hed.

Dr. BaH an for the applicant.

]. R. Chowdhury for the respondents.

The judgment of the Court was delivered by

. '
MR. JusTICE THEIN MAUNG.-Moulana Beedy Com-
pany, of which the appellant T. C. Mohamed is the
Manager, has been carrying on the business of mar-m
facturing and selling beedies for a considerable number
of years. Labels .with the words "Moulana (M)
Beedy ,; p'rinte~ in English on them have appeare1 on
.all the' beedies manufactured for sale by the Compa:ny.
In or about the year 1934 the Company registered the
label as its trade-mark for beedies manufactured by it.
J'he Company registered it again as its trade-mark for
Beedies qn the l$f No.v ember i 944, i.e., durjng . Jh.e .
period of Japanese occupation, and again on the
tOO BURMA LAW REPORTS. [1951
.S.c. 26th February 1946, i.e., after the liberation of Burma
~950
by the British Forces; and it has been admitted by the
'f :c.
:,;)h>HA:l<I1>D first two respondents that the Company's Beetl'ies have
. ..,. v: been fairly popular in the market as Moula.na Beedies .
A.KUNJALAM
AND TWO The firs,t two respondents were employed as Beedy
OTHERS.
rollers by the Company some time in 1947-48 ; and a
few months after they ceased to be employed by the
Compan-y they together with the 3rd respondent
.started manufacturing beedies _a nd selling them with
labels whi.:4 : ~re of the same size as those of the
C0mpany and wliich have the words " Moulavi (M}
Beedy " printed on them.
Thereupon T. C.-Mohamed prosecuted them as well
as -the 3rd respondent for counterfeiting the trade-mark
of the Company and for selling their beedies with the
counterfeit trade-mark. The learned Eastern Sub-
divisional Magistrate of Rangoon cQnvicted them of
an offence under section 483 .o f the Penal Code and
fined them Rs. 100 each. However, the High Court
.in Criminal Revision No. 45-B of 1949 set" aside their
conviction and sentences on the ground that the label
with the ~ords "Mouiana (M) Beedy" printed on. it
is not a trade-mark but only a part of the 11 get up" of
the Company's Beedies . .
T. C. Mohamed has asked for special leave under
13ection ~ of the Union Judiciary Act~ _ 1948 to appeal
from the s~id order of acquittal and he has been
granted specic.t~ leave to 'do so i.n. view of the following
observ~tions of this <;ourt in .U Saw and four ofhe1'S
v. rlze U~flJ<;tt of B~rma _(1) : - . .
'' !t -..~~uld perhaps be sufficient for the pmposes of the
present case., to, say th~t if the applicatioh fot sp_eci::tl leave raises
qu~stio~~- c( great and g~neral importance which az:e likely to
occur often and: which qu.estions, if not rightly answered, would
interrupt the 'due and' orderj'y administra~ion of j~~tice 01' pivert
(1) 119tSJ B._L.~ 249 ~t p.252.
 1951] BURMA LAW REPORTS. i01

the administra tion of justice into a nt:\\" :tnd erroneous .;ourse, S.C.
-cr e:~ti ng a wro ng precedent for the futl :te, thi,; Court would 1950
interfere h y way of an appeal by spec ial leaYe in criminal T.C.
MOHAMED
ma]tc::rs.'' v.
A. KtJNJA~!Il
In Burma we han.. not got any Act like the English AND TWO
OTHERS.
Trade Marks R~gistration Act, 1875, th e English Trade
Marks Act, 1905 or the Indian Trade Marks Act, 1940.
So there is no system for registration of trade-marks
.and there is no provision for any statutory title to trade-
marks. . The following remarks of their Lordships of
the Privy Council in Thnmas ~omerville v. Paolo
Schembri t t) in connection with trade-marks in ~1alta
apply \Vith equal force to trade-marks in Burma:-
In Malta there is no law or statute est~blishing the registra-
tion of trade-marks, and no authority exists from whom an
exclusive right to a particular trade-mark can be obtained. The
rights of the parties to this' cause are therefore clePe!'lclent upon
the general principles ot the commercial iaw, some of which arc
referred to in the judgment' of the Court of Commerce. These
principles have been very fully illustrated and explair.ed by the
House of Lords in the Leather Cloth Co., Ltd. v. Ameriam
Leather Cloth Co. (2); Wotherspoon v. Currie (3); johnston &
Co. v. Orr EwinJ!. & Co. (4), all of which were cases which arose
before the pa~sing of tbe fi rst British Trades Mark Registration
Act in the year 1875:
In the first of these cases, the interest which a merchant or
manufacturer has in the trade-mark which he uses was thus
defined by Lord Cranwoth (5) : 'The right which a manufacturer
has in his trade-mark is the exclusive right to use it for the
purpose of indicating where, or by whom, or at what
manUfactory, the article to which it is affixed was manufactured.'
As soon, therefore, as a trade-mark has been so employed in the
market as to inclic;"lte to ,P.urchasers tliat the go9ds to _w hicp it is
attached are the manufacture of a plrticular firm, it becomes, to
,t hat. extent, the exclusive property of the firm ; arid no one else
has a right. to copy it, or even to appropriate any part of it, if by
' . .
.- (1\ (1887) L.R.12A.C. 45$ at p. 456-457. (3) L.R. 5 H .L. SOt!.
.ai u 1-i:L.~. 538. 14> 7 A.c. 219.
. , . (5J' 11 H.L.C. pp. 533-534.
l02 BURMA LAW REPORTS. [ 19Sll

S.C. such appropriation unwary purchasers may be induced to believe

19$0 that they are getting goods which \~ere made by the firm to
T. C. whom the trade-mark belongs."
MOHAMED
'l/;
A. KUNJALAM Unlike the corresponding section in the Indian
AND TWO
OTHERS.
Penal Code, section 478 of our Penal Code defines a.
trade-mark only as a mark used for denoting that
goods are the manufacture for merchandise of a
particular person. In the words of Biswas J., in Loke
Nath Sen v. AsJm;i11.i Kumar De (1):

"This implies that the mar,k must be ' distinctive ' in the-
sense of being ' adapted to distinguish the goods of the
proprietor of a trade-mark from t!-lose of other persons.' If a
mark inere1y describes the quality or origin of an article, or is
such as is commonly used in the trade to denote goods of a
particular kind, such a clescriptiv~ mark wpulcl obviously not:
be a distinctive mark."

As regards the difference between a ma~k which is

distinctive and one which is merely <;lescriptive, a Full
. Bench of the late High CO'\.lft of Judicature at Rangoon
has held in G aw Kan Lye v. Saw Kyone Sai11g (2):
. .
"Whe're a .mark or phrase merely describes the quality or
origin of an article such as 'Custard Powder', ' Malted Milk' .or
'Gripe Water', it is not capable of distinguishing the goods of
one .maker from those of others ; but a mark is distinctive where
it points to the goods of a particular person as for instance in the-
. cases of ' Lifebuoy' soap, 'Win.carnis '; or 'Three Nuns"
'tobaceo/'
. .
'fhe question as to whether the Company's labels with
. the words "Moulana (M) B-eedy" printed on it is.
distin~tive or merely descriptive,. i.e., as to whetherit
is a mark used for denoting that beedies are. .~he
manufacture or merchanaise of the Company, must be
dc~~e4::_ i,n - the. lig~t of the - ~above r ulings and
observations.-.
 1951] BURMA LAW REPORTS . 103

The words "Moulana (]\'I ) Beedy" cannot merely S.C.

1950
desc-r ibe the quality or origin of the article like the
words "Painkiller", "Malted l\'Iilk" a nd "Madras MoJ.A.McEo
Curry Powder." Far from con tend ing tl1at the word A. Ku~;A[.;AM
"Moulana '' denotes a particular quality, the first ANo Two
OTHERS.
respondent has actually stated in th e course of his
evidence that Kunjamon and Mohamed Kutty (pro-
prietors of ~he Moulana Beedy Co.) are the proprietor:s
of Moulana beedies, that the labels bear the names of
the mal~ers, that retailers would mention the name of
the brand when they bought and that th ey could read
the labels if they wanted " to know the name ". The
second respondent also has stated in th e cou rse of his
evidence "The customers asked for beedies by names
of the brands. . They can recognize the
beedies by seeing the labels."
C. H. P oker( D.W.l), says 11 The customer menti'ons
the name when he buys beedy. T he customer reads
the label when he buys it. . . I have known
the proprietor of Moulana Beedy for the last six -years."
The second respondent and C. H. Poker have further
stated that Mqulana Beedy is the only beedy which
has been advertised in the cinemas and on advertising
motor vans.
It is .fairly obvious from the above that the label
with the word" Moulana "has been generally regarded
as a .brand, which is indicative of the beedy having
been manufactured by the Moulana Beedy Company;
and this must have been so, having regard to the
number of years for which the Company has used the
label;_ to the manner in which it has advertised its
beedies a~d to the names of the proprietors having- .
been p.romin~nt .'.o n .the bigger labels for packets of 25
and 500 beedies. :
As a m~tter of la~~ it will not make 4ny diffeJ;en.ce
ev~n if CUSt~merS: rli.d D0t( aotually: kn0W the rrame of.
104 BURMA LAv\' REPORTS. [1951
:..c. the Company. Venb.teswaran has pointed out at page
,:950

T. C.
81 of his Trade and Merchandise Marks in India :
foHAMED
v. "It is well-settled law that a trade-mark need not indicate
A. KUNJALAM. to the public the actual owner&hip of the goods in question.
AND TWO
oTHERs. A trade-mark merely guarantees to th'e purchaser that the goc cis
on which the mark i<> applied emanate from the same source of
trade as the goods that had hitherto borne the same trade-mark.
The public need not, therefore, know the specific source of the
articles bearing the trade-mark in question, and ind.e ed. do not
often 9-:re to know the name of the. particular manufacturer of
the goods. It is sufficient if they identify the goods on which
the mark is applied with a single source. and are able by means
of the mark, to clistinguish the goods emanating from this source
from goods emanating from other sources. This principle
of Ja\v is \veil illustrated by the Yorkshire Relish. case (1) ; Edge &
So11s, Ltd. v. Nich.olls & Sons, Ltd. (2) and Dunhill v. Bartlett
& Bickley (3):' . .
His statement of the law is supported also by the
following . observation of the Lord Chancellor . in
Wotherspoon v. Currie (4):
"Theref~re the name 'Currie' ought to be distinct, as
. I believe it is;
and the name of the article again, if it has acquired
a name, should not, by any honest m::inufacturer, be put upon his'
goods if a previous manufacturer has. by applying it to his goods,
acquired the sole use of the name. I mean the use in this sense,
that .his goods have acquired by that description. a name in . the
market, so that whenever that designation is used he is understood
to be the maker. where people know who the maker is at all-{)r
if people have been pleased with an article, it should be recognized
at once by the designation of the article, althoug11 the customers
may not know the name of the manufacturer."

0
Since fhe label with the .word '' Moulana '' is

distinctive in th<:: sense that it distin.g uishes a beedy

manufactured by the Company . from: other beedies, it
{I) Powell v. The BirminghamVinegar Brewery Co,, Ltd.,l4 R.P:c. 120: ,.
(:?) 28 R.P.C.'582.. . ' . .
. (3)' 39 .R P ,C. 426. .
(4) (1.17%) L.R. 5 English and Irish .Appeals 508 at.p. 514.
 1951] BURMA LAW RE.PORTS. 105.

is a trade-mark within the purview of section 47~ of S.C.

1950
the Penal Code ; the mere fact that a customer can get
T. C.
Moulana Beedy by asking for it by name is not at all MoH.u u::n
inconsistent with the labeL being a trade-mark. v.
A.KU!OALAM
T he present case is disti11guishable from Loke Natlt AND TWO
OTHERS
.SeH v. Ashwini I\"u111ar De (1) \\'here Biswas J., held that
there \.vas no trade-mark in the picture of a swan
holding . a dosed umbrella bci\\'ten its beaks, as the
article j.tself was known in the market as Ashwini
Chhata and not by the name of the picture. There
the learped Judge obsen-ed 1 ' Ali' this evidence may be
good evi<,ience of a trade-mark in the name Ash wini
Chhata but not in the design." Here in the present
case the article is labelled Moulana Beedy and it is
admittedly known in the market by that name.
It is more like the case of Caw Ka11 Lye v. Saw
Kyone Saing 12) where the trade-mark on rice bags was
the outline of a small sailing vessel described as a
paddy boat and customers bought the rice by the name
or description of'' Boat Mark Rice."
.... It is also distinguishable from ]. Pelley & Son v.
S. Ah Kyun (3). There the complainant, who was a
vendor of ground coffee, affixed on each of his tin boxes
a paper label 'with a picture of a railway engine and
carriages. He also pasted an orange coloured paper
band over the lid and round-each box verticaUy; and
on this, on the portion crossing the lid a facsimile of
his signature was printed. The accused sold ground
coffee in similar tin boxes with labels on which . a
picture of a steamer was printed. . He
also pasted on
])is boxes pinkish bands with facsimiles of his signature
-in the same position as that in which the complainant's
,facsimile signature appeared on his boxes. The
Ill (1938) l.L.R. 1 Gal. 665 at pp. 667. 668.
(2) (1939l R.L:R. 488 at pp. 501-502.
(3) 2.L.BfR. -159: ..
106 BURMA LAW .REPORTS. [1951
s.c. complaint was of the use of the pinkish band with the
1950
T. C.
facsimile of . the accused's signature. Fox O.C.J.,.
MOHAMED observed in that case :
v.
A.KUNJALAM
AND TWO "O:t the complainan t's boxes tbe chief trade-mark is the
OTHERS. picture of a railway train. They may also have a trade-mark in
the facsimi le signature of the e"!der complainant, but that
trade-mark could not reasonably be held to be infringed by the
u!';e of a signature of another person of a very different name :
consequently a prosecution baserl on the use of \.\'hat purports to
be a facsimile of the accused's name could not succeed.
The matter resolves itse~f into whether the band rou nd the
boxes vertically can constih1te a trade-mark as defined in the
Indian Penal Code. In my opi.nion it cannc- t. The l>and is
merely a part of the ' ge~ up' of the boxes, and although in a
civil suit a trader who imitates the 'get up' of the packages in
which another trader sells his goods .mav be re-straine-d by
injunction from. so doing, the 'get up; d;es not constitute a
trade-mark. The Indian Penal Code deals only with trade-ma.rks
proper, and not with cases of the descriptio~ refe rred to ' in
Chapter VIII of Mr. Seb;tstian's work on Trade-marks under 'the
beading' Cases analogous to those of Trade-mark.';

The present case is distinguishable, inasmuch as

the complaint is not of the use of any label at all btit
of the use of :.J. label with the words " Moulavi (M)
8ee d;r~intert:o? it, on the ground that it is. a
co!-.otff~~:~.~it.~~~~ . J. the Co~~pany'_s lable with the
wor,<;Js.
.. .. ) ' .. Moulana .. ~ Beedy on It. Fox O.C.J .,

.~'im~lf has obse~v.e4. in bat case ''they may also have a
~tra.de-rnark in ,the ~~mile signature" ; .and in the
piesent case we have f0iind that the Company has a
tr~de-mark in the words" Mou1ana (M) Beedy."
\ . Some manufacturers of beedies might. have recently
got .~he not~o.~, ,~s st ated ~Y the learned Judge of the
Higl1 Court,',that-a beedy is ~ot complete without a,
wrapper or paper band which with cetfain letteri.n g'
arid :colouring, i; called 'tabei ; b.ut the .Company h;as
been using the label with the words -"-Moufana: (M)
1951] BUR MA LAW REPORTS. 107

Beed y" for many years and the recent practice of S.C.
1950
'Jther manufacturers cannot by any mea l'S have the
T. C.
effect of reducing what was the Company's trade-mark ?.fOHAMEO
to a mere part of t he "get up ." !1.
A. KUNJALA M
Incidentally the first respondent himself has stated .AND T \VO
OTHERS.
in the course of his eYidence c: some bccdies have
lab els, some have no labels. Almost all
the beedies with {M) (on their labels) started after I left
Moulana Beedy Company."
The judgment of the Hig h Court in Criminal
Revision No. 45 -B of 1949 which was passed on the
preliminary gr ound that the Company's label was not
a trade-mark is set aside and t he case is remand ed to
the Hi gh Court for disposal on the merits, on the ba~is
of the Company h;ning a trade-mark in the label.
.108 HURMA LAW REPORTS . [1951

SUPREME COURT.

t S.C. DR. THA MYA (APPELLANT)

1951
Jfar. 19. 'll.

DA\V "KHIN PU (RESPONDENT).*

Buddhist Lnw-S. 13. FJurma La71JS A c/,18<;8-!tfeauing of Buddhist Law-

Dcsr.rlion by couple- Whether divorce nuloma/ic after a specified
Period- Authority ojManugye.
. Held: That Buddhist Law within thd meaning of s. 13 of the Burma Laws
Act means the Dltnmwa/hats and collection of precedents.
~r Pe v. U Matmg Matmg Kha, (1932) I.L.R. 10 nan. 261 (P.C.J, foll owed.
The view expressed in the Full Btnch case of Ma Nyu~d v. Maung San
Thein reporterl in I.L.R., (1927} 5 !~an. 537 that where a Bnrmtse Huddhist
husband dt:>e,ts his wife and for three "ears neither contributes to her
maintenance nor has any commoo nicalion with her the marriage is automa-
tically dissoll ed is incorrect. Suc11 con!=luct on the part of the husband
evidences his desirt for dissolutibn of the marriage bond ; and caDnot in
itself suffice to dissolve the bond created by mutual consent'of th e husband and
wif'e. For that bond to be dissolved it is necessar y that the wife reciprocates
the desire ; and the reciorocatioo may be express or by conduct clearly
pointing in that direction .. ,
Thtin Pt v. U Pet, (1906) 3 L.B.R. 75; Ma Saw Kin v. Maung Tun A.rmg
Gyaw, (1928) 6 R:1n. 79 ; Ci::il 1st Af>Ptal No. 37 of 1940, (1940) R.L.R. 807;
Jfa Ka U v. Po Saw. 4 B.L.R. 340; Daw Kyit: lfm n v. Daw Mya G<~le, A.J.R.
(1936) Ran. 247; Matmg Titcit~ Marmg v. Ma f(ywe . (19:151 13 Ran 412 ;
Ma Hniti Zan v. Ma Myai11g, (1935) 13 !?an. 487; T,m M<t Shwe Zin v. Koo Soo
Cho11g, (1939} R.L.R. 548 at 563; Ma Yn Mya v. Tau Yauk Pu, (1927) 5
Ran. 406; Selections froin the records of the Hluttaw, p. 24 and Civil Re~ular
No. 12 of the Judicial Commissioner, Upper Burma, dated 25th September
1892; ( Pe v. U Matwg Maung Kha, (1?.32) 10 Ran. 261, referred to.
Ma Nyun v. !tfaune Sau Thci11, (1927} 5 Ran. 537; (l Thein v. Ma K.hi1:
Nyu~tt, (1948} B,LR. 108, ov,er-~uleo.,_.

.
Remarks in !> L.B.R., dissented from.
.
The Manugye B hammathat is not the paraznount-authority in the body of
-DhammatJ~ats as euunciated by the Privy Co.uncil in Ma Hni1: Bwit: v.a Shwe
Gon, (1914) 8 L.B.R. 1, followed by the High Co~rt of Judicature at Rangoon
in Ma Nyu'! v. Marlng San T~em, (1927) 5 Ran. 537. J' .
Civil Arpeal No. 1 of 1950 against the decree of the High Court,:
<\ppellate Side inCivillst Appeal No.-7.6 of 1948..
t Prese~d: The Hon'ble SiR BA 'U, Chfef _Justice of tb.e Uniqn of Burma,
MR. J usTICE E M AUliG and U TH~!'-l.ffi SEJN, J.
1951] BURMA LAW REPORTS. 109

P. K. Bast~ for the appellant. S.C.

1951
D. N. Dull for the respondent. DR. THA
llfYA
v.
Chan Htoon {Attorney-General l Amicus Curae. DAW KHJN
Pu.
Tbe judgment of the Court was delivered by

MR. JusTICE E MAU~G.-Th is appeal raises

directly a problem of major importance in Buddhist Law
on which a Full Bench of the Chid Court of Lower
Burma in Tlzeiu Pe v. r.: Pet ( 1 ) and a Full Bench of the
High Court of Judicature at Rangoon in Ma Nytm v.
Maung San Theiu (l) had been at issue. T he Privy
Council in M a Sow Kin v. M aung Tun A ung Gymc: (3)
noted the conflict but did not then find it n ecessary to
attempt a solution.
~The essential facts in the case are not in dispute.
The appellant, then q widower with children, married
the respondent; a spi nster, on the 2 1st July 1937. A
child was born to them on the 27.th April 1938, the
parties then being resident at Irisein, "here the appel-
lant was a Civil Surgeon in the service of the Govern.:.
ment; on th e 2?thJune 1938, the wife went away to
Thonze to her paren.ts taking her child with her; and
on the 27th April 1939, she appl-ied for leave to sue her
husband in forma pauperis for her maintenance and
that of her child. Leave to sue '"'as granted to her on
the 6th July 1939 .i and in August -1939, the husband
took another wife, ~ ith whom he has been living since_.,
T here is a slight conflict of testimony on. how and
why tbe wif~ failed to rejoin her husband. It ha!>
bee.n admitted that she went to her parents with her
husband's consent and approval and' th-ere was no
question then ~f her leavipg her h.usqartd for good .
.(1) (1906) 3 L.B.R. 75. {Z) (1927) 5 Ran, 537,
(3) .(19~s> 6 R~n. 79 .. ..

7~A
110 BURMA LAW RE PORT.S. [ 195 1

! l$.C. But while th e husband claims that his wife wilfully and
8 1951
without excust refused to .rejoin him in spite of
DR. THA
MYA
repeated requests so to do, the wife's case is that she
:.:.:;....,.;
DAW KH!N
'II.
"sent a letter that if he really wanted m.e tu take as a
Po. wife bona fide, I was pr epared to come back an d
to send a <;:ar, " and that there was no respo~se to
this letter. On this point, the wife was not cross
examined at all.
T he wife's suit for maintenance was registered as
Civil Suit No. 8 of 1939 in the District Court of lnsein
and a decree in favour of the wife was made by that
Court. The High Court of Judicature at Rangoon in
Civil 1st Appeal No. 37 of 1940 (1) affirmed the
decree with a variation, of the nature of which it is not
necessary to enter into here. T his decree the wife
succeeded in enforcing till the 1st of March 1942;
thereafter the occupation of Burma by Japanese
Military Forces supervened; and clearly under the
impression that a pre-occupation decree c~uld not be
euforced in the Courts fu nctioning during the military
occupation, the wife did not seek enforcement of the
decree till August 1946, when in Civil Execution Case
3 of 1946 of the District Court of Jnsein, she so ught to
recover the arrears of maintenance.
In parenthesis, it may be stated that it was not the
wife alone who harboured the delusion that p re-
occupation decrees C<?uld not be enforced during
military occupation of the country ; for, the husband
by a letter of the 16th November 1943, sent to the
wife through his advocate, sought to impress u pon h er
tQ.~t a pre-occupation decr ee was' ab rogated b y the
cou,ntry coming un der hostil e occu pation. .
. The p~oceedin'gs i~ execu tion qf 1947 were con tested
by. the appellant without success i and on the ~5th
March 1947, t hea ppellant instituted the suit . out of
(1) (19'\0) R.L.R. 807.
1951] BURMA LAW REPORTS. 111
which this appeal has arisen. In the :;uit, the appellant S.C.
1951
sought to have it declared that the respondent had
DR. TKA
-ceased to be t he appellant's wife and that, with the MYA
v.
cessation of her status as his wife, $he had lost the right 0Aw .KHIN
to maintenance. As a consequential relief, he claimed Pu.

a n injunction to restrain th e respondent from seeking

to take J.dvantagc of the decree granted to her in 1939.
The appellant's suit was d<::creed by the Court of first
instance ; but the High Court on appeal by the
res!-'ondent set a~ide the decree and dismissed the suit.
It is from this decree on appeal of the High Court that
this appeal was laid in this Court.
The appellant's suit has as its vtry root and
foundation the rule e nunciated in Ma Nyun v. Mau-ng
San Tlwn (1) of the "automatic" nature of the
-dissolution of marital status consequent on desertion
for the prescribed period coupled with lack of main-
tenance by the husband of the wife during that period ;
but the appellant and the learned counsel, who in the
.Court of first instance settled his pleadings, appeared
unable to decide for themselves whether it was the
appellant who deserted the respondent or vice versa
:and also when the desertion by whomsoever it was
committed took place. H ence, the Court was
indxffer.ently offered a choice of th_ree cases.
Two of these cases based on desertion alleged
:against the respondent may be dismissed shortly.
The first is that the respondent must be deemed to
~have deserted the appellant as from 26th June 193-8,
-when she went away to Thonze ; and the second is
that the respondent deserted the appellant as from
16th November 1943, when she, ignoring the offer
made by the appellant through his advocate, failed
-to resume ~ohabitation wit-h the appellan t. Both
:.alternatives have ~.een r ejected ~y ...the High Court ;
s
, (1) t1927) ~. 537.
112 BURMA LAW REPORT S. [1951
S.C. and though, before us! the appellant's learned counsel
1951
has said all that can be possibly said in support of
DR. T.HA
'MYA these alternative cases, we can see no justification tO>
~.
D AW KHlN differ from the H igh Court.
Pu. As has been noticed earlier, the wife went to her
parents with the consent and approval of the ap p ellant
and it does not appear that the relations betwe ~ n the
husband and wife then, though not too cordial, c,ln be
said to b e inimical. In April 1939 the wife initiated
proceedings in maintenance and in August 193Y the
husband took to himself another wife. Buddhist Law
dllows a wife to refuse to cohabit with a husband who
without her consent takes a second wife: SeeM a [(a U
v. PoSmc.; ( 1) and Daze Kyi11 Hm on v. Dnw !lfya Gale(2).
The wife's failure to accept the offer of a borne with the
appellant coupled as it was with a warning, as already
no ticed, that the pre-occupation decree in her favour
had bctn abrogated by hostile occupation clearly
cann ot place h er in dehult.
T be third line of attack in the plaint has more
sub.s tance. The appellant claims in this behalf that he
must be tak en to have destrrted his wife when ~he
initiated the proceedings in maintenance, which she
pursued wiith success. This would put the date of his
desertion at the 27th April 1939; and it is not in
dispute that between .1st March 1942 and 25th March
1947, the aJ.>iJtllaul tliu put con tribute at all f.o the
maintenaJ!ce of the respondent or her child. W hile it
may be that the lett.er of 16th November 1943 wdtten
under instructions from the a ppellant effected a break
irl the period of absence of ~ommunication betwee n
husband and wife, there can b~ no doubt that for at
least three continuous years pri()r to the institu tion of.
the suit underappeal;Jhere had b een no communication
at all b etween the parties .
..
Ill 4 B.L.R. 340. (21 A.'I.R. !19361 Ran. 247.
1951] BURMA LAW REPO RTS .

Tl1e trial Court accepted the appdl ant's claim that S.C.
1951
he must be deemed to have deserted the respondent as
DR. TH.t.
from the 27th April 1939, when the respondent found MYA
it necessary to resort to action at law to enforce her 11.
DAW I<11>1
right to maintenance. Applying, then, the dictum of Pu.
Gledhill J ., in U Tlzein v. Ma Khin Nyunt (1) that if
the husband is compelled under the order of a Court
to put the wife in funds for her maintenance, he does
not 14 contribute towards her maintenance in the sense
in which that word is used" in Manugye, Book V,
section 17, the trial Court ignored the payments to the
1st March 19-tZ under the decree of 1939 ; and, bound
as it is by the Full Bench d ecision in M a Nyun v.
M aung San T!tein (2), the trial Court, on these fi ndings,
declared the marnage dissolved as from the 27th April
11:142. I n the event, a d ecree was granted to the
appellant.
Th e vali dity of the rule enunciated in ilt/rz Nyun v.
Maun~t San Thein (2) as also of the dicta of Gledhill J.,
in U Thein" Ma Khin Nyunt (1) b eing doubled by the
Divisional Bench of the High Court before which the
respondent's appeal was heard, a r eference was made
to a Full B ench composed of T hein Maung C.J.,
Tun Byu, San Maung, Aung Tha Gyaw and Bo Gyi
JJ., and th e Full B ench ruled, infer alia, that money
r eceived by the wife for her maintenance, whether the
h usband was constrained t o pay the same by reason of
a decree or an order of a Court or whether the funds
were real.!sed by execution of a decreei~or order for
paymen t of maintenance, is contribution by!the husband
within the meaning of Man ugye, Bonk V, section 17.
This ruling ~as not se riously canvassed( at t~1e
hearing of the appeal. Clearly, learned counsel
considered the question to be Que of acaq~mic interest
?n_ly; -~-n~- ~e _a~: s~_~i~fie~ t.hat a decision on t:bis issue
(1) (194.81 B: L:R.108~ (iJ (1927) 5. Ran. 537.
8 .
114 BURMA LAW REPORTS. l1951
S.C. will not affect the result in the appeal. Tl1e decision
1951
of the High Court on the major issue, however, has
D.R. THA
MYA been thoroughly discussed before us b y learned counsel
'II.
DA\V. KH.!N
on both'~s ides ; and the le<:Lrned Attorney-General, at
Po. our invitation, has attended the hearing and has given
us the benefit of his learning.

On the major issue, the High Cour t has said :

'' In the case of desP.rtion and failure to give maintenance or
to have any communication for the prescribed period, the marriage
is not dissolved automatically. Desertion i:>y either party for the
prescribed period merely renders the marri:Jge voidable at the will
of the deserted spou~e. The marriage tie is not dissolved "vithout
an act of volition on the patt of the deserted spouse sbo\dng his
or her intention to determine the marriage relation, or in the
words of U May Oung, without conduct revealing a desire for a
divorce on the part of the deserted pady. "

With this may be contrasted the answer propou nded

by the Full Bench of th e High Court of Judicature at
Rangoon in Ma Nyun v. Maung San Thein (1), where
the question referred was :
11
Where a Burmese Buddhist husband deserts his wife and.
for three years neither contributes to her m1inlenance nor has any
communication with her, is the marriage automatically dissolved
on the expiration of three years from the d 1te of desertion or is
some further and exprc~sed act of volition on the part of one
party to the ~rriage necessar:y to effect such dissolution ? "

Maung BaJ., with whom R~tledge ~.J., Carr, Mya Bu

and Brown JJ ., concurred, answered the reference
"that the marriage is automatically dissolved on the
expiration of three years fr.o m th.e date of d~sertion and
no further expressed .act" o .vo~ition is _nec~s~ary. "
..The F~ll Bench of t~.e. fligh Cou~t in its judgment
under .revi~w in this ap~eal appears fully" _alive theto
(1) tl927) 5 Rah. 537. .
1951] BURMA LAW REPORTS. 115

danger inherent in the principle of " <m act of volition ., S.C.

1951
<>f it contemplating "the idea of a woman \rhilst
DR. TH.&
married to one man having the right to marry another." MYA
v.
Hence, in propounding its answer, ~he High Court DAW KHlN'
sought to eq11ate "an act of \clition \\ith conduct Pu.
reveali ng a desire for a divorce <111 lhe part of the
<leserted party." With this amplification the High
Court was in general concurrence with the majority
view in T~ein Pe's case.
In arr ~virg at t hese opposing views, the Chief
Court nf Lower Burma and the High Court of
Judic ature at Rangoon start from a common point,
namely section 13 (1) of the Burma Laws Act, 1898.
T his statutory provision, a re-enactment of sin1ilar
provisions in earlier Acts of 1872, 1875 and 1889, reads :
" Where in any suit or proceeding, it is necessary for any
;,
Court to decide any question re~ard ing succession, inheritance,
marriage or caste, or any religious usage or institution, the
Buddhist Law in c1ses where the parties are Buddhist, shall form
the rules of decision, except in so far as such l3w has, by
legislative enactmei1t, been altered or abolished or is opposed to
any custom having the force of law. "

Adamson C.J., in Thein Pe's case expressed

himself as:

"In dt::termining questions that come ,-~,ithin the purview of

section 1'3 o the Burma Laws Act, 1898, it should never be
forgotten that the texts of the Dhammatllats are. not the sole
guide. Those form the rule of decision only in so far as they are
not opposed to any custom sharing the force of law."

.Irwin J~ , fol~owed the learned Chief Justice anci

said :

. " I thinkI h:ve .s~own enpug~ authority ~~r holding th~q.he .

Buddhist Law for which we have to seek is not the Dllammathats
pure and s~mple, .qut..on the eontra~- that it is a customary l.a w,
116 BURMA LAW REPORTS. [1951
S .C. or in other worcb it is the body of customs obset-ved by the
1951' Burmese Buddhists and that the Dlwmmathats form one of !he
DR. TBA most impotiant sources of information about that b c dy of
.M YA
v. customs."
D~\V KHJN
Pu. Hanged against them was Fox J ., who expressed
the view that :
"The general rules of Buddhist Law applicable to Burmese
Buddhists are, I understand, those lnicl clown in the Dhammathats.
By these Jaws Burmese Buddhists profess lo be and desire to be
govemed in matters of marri:lge, inheritance and succession.
I cannot call to my mind any ins tance of any Burmese Bnddhist
claiming any right in such matters based on any custom opposed
to the laws contained in Lhe Dhatnmc:thals. The latter are
regarded, as far as I can judge, as the fountains of tbe laws
govP.rning them."

The learned ~udge later in the same ju~gment said:

"There being no custom relating to the matter in question
proved, LlJe decision rilunt, in my oph1ion, rest .npc n the p1oper
constmction of the texts in the Dhammathafs connected with
the matter involved in the refe1ence.''

The strongest exponent of the theory of living usage

predominating over the directions in the Dhamrnathats
in the corpus of Buddhist Law, pe!haps, has been
Page C.J. Thus, the learn ed Chief Justice in Maung
Thein M.aung v. Ma I<y?JJe (1) said :
"But thevalu~ and the sanction of the common orQustqmary
law is that it can be moulded to c0nform to the ever changing
habits ancl circumstances of a people as one gener:ttion succeeds
anDther ; and it has become necessary for the Courts in B-urma
from lime to time in re cen~ years to restate the common law of
But;ma in the ii~ht of new conditions of life that have come into
beinf:!, discarding -as obsolete. ancient rules that no longer accord .
with t .he outiook or the habits of the people, and remodelling the
arieienUa-.v-to meet th~ cxl~~ncies b mod~rn life. " .

Ul (193.51 lu;Rait. 412.

..
 1951] BURMA LAW REPORTS. 117

This view was reflected in the statement of Mya Bu S.C.

1-951
J., in the same case that :
DR. THI\
MYA
"It would be dangerous to give weight to the \VLitlen texts
in the Dhannnatllals \Vhere they are opposed to the prevailing
"p
DAW KHIN
custom." Pu.

Again, in Mr:t Hnin Zan v. Ma Myaing (1), we find

Page C.J., stating:
"Now the Dhammalltats ;1.1e not the sole repository of
Burmese customary Jaw, which is also to be ascertained from
<lecided cases and the prevailing customs and practice of Burma ."

And also, later iq. t11e same case :

''The Court is not only :1t liberty but is bound to decide the
-case in accordance with the Burmese customary l.a~ as it obtains
to-chy, rather than to perpetuate the outworn shibbolettis of
"bygone ages, notwithstanding th~t som~ sanction for their
:Continuance may be found in extracts rom tb.e M anugye
Dlzammatlzat. Burmans are not to be doomed to live for ever
under the rulings and customs by which they were governed in
the days of King Alaungpra."

F.or .a eorrect <1-ppr.e ciation of the true nature of

'-l.'Buddhist Law" within the meaning of section 13 of
the .Burma Law$ Act, 1898, it is necessary to bear in
mind the history of and the avowed poliey underlying
th,e line of legislation ending in Burma with the Burma
Laws Act of 1898. The provisions niade by Warren
Hastings in 1772 and later incorporated in sedion 15
-of Regulation IV of 1793 disclose the germs of the rule
in section 13 of the Burma Laws Act. Referring to
sub-section (1) of . that section, the Privy Council. in
Tan Ma Shwe Zin v. Koo Soo Chong (2) said:
" It is doubtless true of the p~ovisions made for Buddhists,
Hin~us and Mahomedans by the sub-s~ction, its it w~s of the
.parallel provisions for Hindus . ~nd Mahomedans previously in
(1) 11935) 13 Ran. 487. i2)" (1939J Uan. 5~8 at 563.
 BURMA LAW REPORTs. [1951

S.C. force in Bengal, that the general intention of tht! Legislature is

1951 that persons coming within these classes sboi.tld be governed by
,_
DR. THA their own law. That is the intention which has al~vays been
MYA attributed to Hegulation IV of l 793 and to the Civil Courts Act
:t:
DAW KHIN which took its place. It was never, perhaps, better stated than
Pu. by Sir William Jones advocating the passing of such a R~gulation~
' Nothing could be more obviously just than to determine p1:ivate
contests according to those iaws, \:\'hich the parties : the~ selves-
has ever considered as the rules of their :conduct and engage-
ments in civil life. ' "

In Burma, when a Civil Code of the J?rovince of

Pegu (then a Commissioner's Province) was sanctioned.
in two . parts by resolutions of " His Honou~ ; the
P resident in Council" ofthe 4th NovemBer 1859. and
17th January 1860, Civil Code of tile Province of
Pegu, Part II, section 1 stated : /
.. : ''The Courts of Pegu have always/profess~d to. administet
-B1,1_rmese Law, when the litigants b~1'6ng to that 1ace in all cases:"
of marriage, seduction . and adpltery,. . divor<;e, adoption,.
itlhei:i.tance, immoveable property:''

It was out of thisscheme. of adrni~ish~tion of Civil

justice that Act VII of 1S7Z, Act XVT I of:1875; Ad XJ
of 1889 and 'the Burma Laws :Act, ' 18(.i8 developed
. enunciating the rule th~t the Buddhist . Law shalt
form the rule of .decision on ahy question regarding
succession, . inherital).ce, marriag~ or caste any or
religious . usage. o r institution where the. parties are
Buddhists, . with a saving . in favour of -atiy enactment
altering or abolishing any rule of Buddhist Law and 0f
any custom =having theforce of htw.

Maung Ba J., in M a Yin Mya v. Tan. Yauk Pu (1.)

: has put it:
'' .We have, . however, a. num:ber. _of :-.J~"' books entitled .
]jh'a-;,mittli.q.ts which ar~ .prirri:a~ily
.
intended.-to
. .
apply to
-:
Burmaus.
.

(1} (t927) 5 !<an: 4o6. :

 1951] BURMA LAW REPORTS. 119

The religion -.>f that race is Bll(lclhism which ,..,as also the State: S.C.
1951
religion when the Bnrmese f..fon<1rch \\aS on the throne. So the
Dha111mallzals intended for the Burmc!'.e Buddhists have come to DR. TH
MYA
be lmown as the Burmese Buclclhisl L:l\v o r the Buddhist La\\'." v.
DAW KHIN
Pu .
.For the matter in hand, it would be idle to speculate
with the Learned Judge hO'vY far the term "Buddhist
Law" is a misnomer. Suffice it to record that in the
same case, Rutledge C. J., said :

'Though its remote origin is the Hindu Law of Manu, the.

connect.cn betwee~ the Buddhist religion and Burmese Buddhist
L:~w is very apparent. "

It is clear, then, that when the Act of 1898 and its

predecessors speak of '' the Buddhist Law'', it is such
bod)r of laws, a$,. but for Burma coming under British
ruie, would have continued to guide the decision of
questions SJ.-iecified in the Acts. .
\Vhat, then, was this pody of laws? Light is thrown
on this problem by LettPrs Patent appointing a Judge
in the days of the Burmese Kings, which may, with
advantage, be reproduced in its translations :

"The Royal command of His Most Glorious ancl Excelle.<'lt

Majesty, Ruler of Land and Water. Lord of the Royal Saddar)
.Elephant, Master of numerous othf'r white elephants, .Possessor
of the Set~ya Weapons, Lord of Life a!ld Deat~, and Mighty
Fountain of.Justice.
Whereas we are graciously pleased her~by to appoint and
ordain Mahatb~hathu a Jud~e , and whereas the said appointment
~s due to his having heretofore carried out the duties . entrusted
"to him with loyally and true allegiance combined with rectih!de
and uprightness, now we have confidP.nce that he ,\ill always; to
whatever post he may be appointed, carry out his duti~~ with th.e
~a~e integrity at1d. diligence, and therefore we d~ hereby or"dain
.;lnd appoir:t our said trusty servant to be a Judge. .
Now, with respect to the office of a Jud~eit is on this wise: ln. .
. the kingdom of which we are the Sovereign Rulet~, o~r ~umerous
s ubjects mustnot be .permitted one to.oppress ano.ther, and .the
120 BURMA LAW REPORTS. [1951
S.C. Judges must admonish and chastise, 1epress and judge. In case
1951
of dispute they must, in accordance \\ith the Dhamm afha ts,
DR. THA inquire into the cause of the pe ople and decide between them,
MYA
v. and fo r this purpose they are appoiu ted to the Courts o f J udges.
D AW KHIN If in a law s uit or dispute any o f onr subjects apply to a Jud ge, the
Po.
Judge shall decide the matter with the Manu Dhnmmatliat in h is
hands ; if the required rule is not to be found therein, then let
him take in h:md the fqur volumes of the M.ano Sara Shwe-1\Iin ;
and if he cannot fi nd the poin t there, let him follow iq his
decision the precedents of the decisi0 ns of Kaingza Manuraja in
the reign of our royal ancestor. If the case be of a !r ivi<l nature
and not of sufficieqt imporl;mce fot judicial cletern1ii1atio11,
although a complaint be la id by the parties in their ignorance or
folly, he should not inquire into or decide the case, but should
mere!y !:!)~plain the m11-tte r and instruct theip.
Be; ring these t)ljqgs in tpind the ]J.Idge must refrai11 frctp
follo\ving in th~ way of the thr~e kinds of cotrupt gifts, and t)1~
fom ~inds of f<J.lsehoods, and he !T\Ust ~iv~ judgm~nt in accordanCE!
with the rules and precedents of the ~ncient Dhammatha/s and
with justice and equity (1)."

With the Let.t~rs

Patent m<J.y ~e pseh.tllY ~o mp<~-req
a n~lcvant pa~~age from the Roy:iJ ~d~ct$ of i 14(> B.;E..
(1784 A.D,) :

' ' GOJ-.:>t~00.?-.:>60-)'3:1 OJ"f:l:1~ com-.:>:ftt '-loSt oo~:~G['' ~;~ ~:Sit oo~o
OOC)St oo~Eilt~03Jtr ~~~G-;>? ~"l!:Geo.)oSt "f:l.e'O-)oSu @oSa?:n @oS;;;::n ~qS~.:
OOGCD'.:>C OOGCD'JtOO'J~o:>t~GcoJc~1 ~~~'t~t11 ~OO~E;)t~G)~e}n robGS
rotooo5 ~Gro?t:~0to G~?t~com?:oo~:aaGp@So:>tu OO~E;)t~')Gt~GJ@tlll"

"If the unlettered pea!:ant, th rough ~gnorance of law , should ,

in relation to hereditary office or appanag~ _or theft or rapine or
in respect of other legal claims, raise inapprot:ri:> te :rleas,
in8fruct him wh?t to plead, how to present his petition a1~ d to
support them by appr opriate argument, having. dt:e reg;;rsl to the
.Manf:t Dhammathat, . lhe Mana Dham1nathat, the Shwe Myin
Dhammathat, . Royal edicts, anCient precedetits and judie-ial
decision. " :

(ll Selection~ .from the records of th_e Hlu Uaw, p. 24 and Ci.vi.l Ci~l}lar
Ne.
.
1l
.
of. ll).e'
)lldicial Comm~sioneF,:
'
Upper
. B:urma, q.f
'
the 25th Sept~rn her nwr '
1951] BURMA LAW REPORTS . . 121

It would appear, then, th:lt tbe Dharmnatliats ancl S.C.

1951
collet tion of precedents (@oSq: @oS;>t:1 ~&leo:?:) contain
DR. THA
in re~pect of matters speci fiecl in section 13 ( 1) of the M YA
fl.
Burma Laws Act, 1898, the body of lav..s de:-cribccl as DAW KHIN
''the Buddhist Law. " Custom, where it forms the Pu.

rule of decision, does so not as a part of the Bucl dhi~ t

Law but in spite of and over-riding the rules of
Buddhist Law.
The relation between the Buddhist Law and Custom
having the force of law and over-riding the rules of the
Buddhist Law has a parallel in the rdation bct~een the
original concept of English Common Law, as the
general and common custom of the realm and parti-
cular customs--legem et cJnsuetudi1'lem 1~egni of the
early royal writs.
What the Privy Council has saiq in U Pe v.
U Maung Ma.ung Kha fl) Il}ay be repeated here with
pr~fit:

"The Dha nmt~lh{tls are a body of <ll1thority, consi!'ting of

mafly texts, sometime& contradictory but yet in their entirety
formjng what may be called the in~titutional Buddhist Law."

Now, of this boc;ly of autlwrity, the History of

Pitakq,s record 175 texts as having been at on~ time i'n
existence in palm leaf manuscripts ; but at th~ present
c1ay, OI11Y .36 of thern are ext~nt and e~tracts from
them have been collected in the two .volumes of
Kinwun Mingyi's Digest of the Burmese Buddhist
L~. .
0

These 36 texts qf J)hammathats still extant, the

Courts in this country had, prior to the decision of the
Privy Council ~n Ma !fnin Bwi~ v. U"Shwe Gon (2.),
felt themselves not .o nly free but bound to collate iq
order that judgment 6n . any subject . cov~red by them
~ay be d.e termined by toe l?~st balance which can be
til 11932\10 Ran. 261. IZl (1914) 8 L.B.R. 1.
122 BURMA LAW REPORTS. [1<)51
S.C. fl amed as a result. M anugye, though the best known
1951
of th e texts, it being th e only text existing in print in its.
DR. THA
MYA entirety in both the Burmese and the English langu ages,
fl.
'DAWKHI N
and ever regarded as of high authori ty \\'as till
Pu. Ma Hnin Bwin's case not regarded dS of paramount
rank in the body of Dhammatlzats.

Sir John Jardin e, writing late in 1882, said :

"Ti1e Manu Kyay appears to me fuller than most ~f the

Dhammathals . But in the present dearth of learning, it is as.
d ifficult to appraise its authority as to dete1 miue its age or the
name of the author. Manng Tel Too, after ins.tituting inquiries
at Mandalay, discovered no clue to those secrets. Dr. Richardsorr.
~pention ~ none. N o Pali edition. is known and it is . probably a
compilation made from other D!Jamm(lllzals. Several Burmese
Judges have spoken to me of tj1e Manoa W~mtana, the Manoo
'Thara Shwe Myin and the Ma1w0 Thaya ]'aka Thani as being.
authorities superior to the M a11u K~ay. "

In the History of Pi falws, Mainkaing Myosa, who

was the Royal librarian 'in t.hP- reigns of the last
two Kings of Burma states of the Maitugye that it is the
worl{ of Bhummazeya Mahathiri Uttamazeya Thinkyan,.
Minister of the Moat at Shw.ebo in the reign of
Alaungpra, the founder of the capital city of Shwebo in
1115 B.E., and is an expansion in plain Burmese prose
of the ten volumes of 'the . Manu. Dhammathat into
. eighteen volumes of the text.
Kinwun Mingyi's Digest follows the History, of
Pitakas ~pecifically citing that authority in regard
to the authorship of the Manugye, not~cing also
thoat neither the name of the author nor the year of the
cQ~pletion of the work ofthe ;Dhammathat is..mentioned .
in the work itself. . .' .
. :A little over. a yeat after Sir John Jardine . .had
piofes~ed . inability, in spite of researches at Mandalay, .
to.: trac~: .t li:e autlwrsllip and <;late. . pf.. the . M a.nugye,
 1951] B.U RMA LAVV REPORTS. 123
Dr. Forchammcr in the Jard ine Prize Essay en the S.C.
19.)1
sources and development of Burmese La\:\' stated :
DR. Tf!A
" In the year 1756 Alo<npra requested Mahasiriut w.m aj ~; ya, MYA
v.
the lVlinister of Military wod;:s , to compile a code comprisii'~ the DAvY KHIN
customary law and usaf!es in force in his dominions ; he \\Tote the Pu.
weli known i'J.la11u Kyay, which has been translated irto English
by Dr. Richardson ; this law book is written in plain Burmese
'INith very little Pali intermixed."

The. learned Professor did not state his authority

for the claim that the compilation of the Manugye was
at the request of the King ; instead he let the validity
of the claim to be inferred fr<?m ,what he considered to
.be the practice of the Burmese and Talaing Kings:
'' A Burmese or T .t.Iaing ..r.uler, aft~r having abolished all
e X1sting hereditary institutions; would proceed to compile a new
code: of law and. be.stow his benefits upon . iiiclividuals of his own
choosing. In ri)inor matters he would allow the different
~;~.tionali ties and religious bodies of =his dominion. tc be govemed
. .by t:heir
( . . O\\'n la\\'s .: . customs."
. .:1nd .

It was apparently on the. authority of Dr:Forchammer

that in Ma Hnin Bwin's case (l) the Privy Council
said :
'' There can be little clo'~bt that in the middle of'the 18th
century of the Christian Era, the Conquest and subjugation of the
country by Alaungpra was acc~mpanied by a serious attempt by
him and his high functionades of State to place the jurisprudence
of his co.untty in a position of fresh and settled authority. One
of his Ministers; suppo~ed to be a Judge, i:;~uecl' under the Royal .
<J,uthor.ity one Dhm11111athat in prose, known brieAy as the
Dhalllma. Another, 'in . charge of. the .Mo:l.t of the City of
Shwebol (?), ' and taken by D r. F orch,a,mm.er to have been.
Alaungpra's Minister of war, compiied inprose t.h e Manugye or
itanu Kyay Dhammalhat, and it is .this document l:lst mentioned
. which was issued by Royal authority in 1756, and wi1ich obtained
the ccmmancling position which it seems to have occupied for a .
succeeding peri.oEl of J 7.0 :years.'' ' .
. (1((191~) 8 .L.B.R 1. .:
124 BURMA LAW REPORTS. ~ 1951
S.C. On this \'iew the Privy Council held that where
1951
the Manugye is clear on any point in dispute, "the
DR. THA
I\-1YA olh_er Dhammathafs do not require to be appealed to
v. to clear up any ambiguity. "
DAW KHIN
Pu. It is diffitult to find in Dr. Forchammer's Essay
definite indications of marerials on which lo found the
conclusion that a new ruler would proceed to compile
a new code of law. Indeed, so far as relate to what
may be shortly described as <..:ivil law, materials extant
point in the contrary direction. The innate
conse-rvatism of the people and the high respect if!
which. Kings and common people held ancient
traditions would not favour r.evolutionary innovations.
Copies of the Royal edicts of Thalunmintara who came
to the throne at Ava jn 991 B.E. (1629 A.D.) and
pf Bodawpaya, earlier referred to it? this judgment, are
still available; and thes.e edicts enjoined Judges and th.e
,cpmmon people to .enfo-r ce and respect the dictates of
ancient Dhammathats. Dr. Forcbammer himself at
p.a ge 91 of his Essay .q.oti.ced this :

.. Every ~reat Burmese or Taling monarch endeavoure.Q t<?

presetvc existing laws(but not hereditary institutions) and to enact
and enfor'c e new ones suitable to ~he_ customs and usages of the
people for whom they were intended."

The Man.usara Dhammathat, also known as

kaingza Shwe Myin, which Dr. Forchammer it page_!?
90 and 105 of his Essay confounded with Mahayazath
(cited as Yazathat in Kinwun Mingyi's Digest) was
p_repared in 991 B.E. (1629 A.P.)
The text is in Pali and two passag.es .from the text
may _,be quoted here. The opening passage of the text
which. is divideq intO'. 10 volumes or chapters reads : .

. " . ~':>8Q:igt,~G~f'c.&nenG~f 8<:~ro'::>l<:~o:>':>o.:lGO"XpGe;.oo~GO:l') Goo':>

8~& G(),):')l . COOOO':>~C!'? ~CY:>G~fl 0~~(),2':> G<.8oo~ I tlJD~S~ m':>ax1
1951] BURMA LAW REPORTS . 125

S.C.
oouqG 8, e9'tJG8G:::D~Q)G!JO 1 <j>SG~':JQ)!O')'JUGO.)':Q)I())Go:Y.leplOXill:l.?l{tt>gpw 1951
o.:>GCIU :l{g1101?09'JI ())GC0'Jtipi01e3 G8:::DQ)I D'il~I{GOO 8~GO)I o:;:m oti{(J)ffi':l
DR.THA
OJ~' O')G~?'JOO':lG~ f> g8GO')')U O')GC0'JGp'-le3 ::r.J')O)O) 8Ut;pGef> O)')~GO')'JI MYA
v.
G::DO') f>':llifj::Yj?<mGCO O')G::ill~G:::D'J ;;oSIOIO')')! g~:::ug3 8Q)'JG~:)3 <{gGro') DAW KHUt
P U,
Go.:>'Jd;3 f>'J'-lGO)')II J3oog?Gm'3GOO'JGC0Gtipll ''

'' In the begin1:in!.!, King Ma hnsamata, who ruled over the

original inhabitants of the world and who \\ns possessed of
wisdom enablin~ him to :tccomplish all that he undertook, longed
for laws to regulate the settlement of all disputes. To him was
accorded these laws ; and in the reigns of his decenc\ants, these
laws spread over the iacP of the earth. L1ter when Byumancli
ruled over Pagan, three eminent persons namely, King Byumandi,
the king of Davas and 1be Rishi prepared, for the bendit of
posterity who could thereby ascertain the laws, a Dhammalhat in
Pali concisely recording these lnws. \1\.'hen later this Dhammaihat
reached the country of Mons, the holy priest who resided in the
Royal Monastery, fo r the better understanding of the c0ntents of
the Dhamul(lthat, translated it into the Men language. Later, in
the reign of the Glorious Ruler, the Lord of White Elephants
(Dh'lmmacet:, cir. 1473 A.D.), Methatbero Buclclhaghcsa, at the
request of the Crown Prince, replete with all desirable qualities
mental and physical, and having in view he good of the
community prepared from the Mon text a new version of the
Dhammatlzal."

The third volume or chapter of tbis text ends with,

8Df>8,[g?~<(Ge:!f G008,6peo3~f>'J Go:J') ::DG8,'J G())')J3oj G<j>d3p;o

II

fO{))O 1:)3~!J<l')00')200 O~G8,f> Go:>"JC::f3ro?g'J<j' 0 1::Bm ::Bmro~'Jo;?8Go.J.)<j>

:::uG<no G~G"f?g;o Go:J?Soo g~oogpn '-lm?~co1'=lo.:>'=>Sf>'JII"

" The tzreat and glorious mon_arch, wiH? has bestowed on h-is
people living in divers towns and villages the blessings of
prosperity and whose power is limitless, having entreated the
revered Royal Mentor, residing in Tauqgpila, I, Manuraja~ J udge
.~ncl Lord of Kling Villa.ge, under the guidance of the revered
~oya~. Me.ntot have herein revised Lhe._Dh4mmat.hlit translated bv
Buddbagl~os. ''
126 D U RivA LAW REPORTS. [1951
S.C.
1951
It may be -remarked here that the manuscript of this
text, then in the library of Kinwun Mingyi at fhe
DR. THA
MYA Court of the Burmese King, was not available to
v. Dr. Forcbammer, wl1e n he wrote his Essay and he was
'DAW KHIN
RO:! led into error at page 10"5 t!lat Vannadhamma Shwemyin
of Woona Dhamma Kyaw Din, cited in Kinwun
Mingyi's Digest as Vannadhamma, is only the Wagaru
and the Maharaja D!Jammathat {or the I\hhayazathat of
the Digest) more fully developed with additional
materials from the Manugye. Havingthuserroneously.
attributed to the M anugye the materials in W oon~
Phama Kyaw Din's works which Dr. Forchammer
failed to trace in the Wagaru or the Mahayazatha.t, the
learned Professor was led to magnify the influence of
the M amigye on the legal literature of Burma and its
authority. A close comparison of tbe text of Manusara
Dhammathti~ of Kaingza with Woona Dhamma
Kyaw Din's Vannanadharnma reveals that the latter
f(l.ithfully follows and is a commentary on the former.
Vannadhamma is in the direct line of descent from the
original Wagaru, thol;lgh the translation of Buddhaghosa,
from which Kaingza Manuraja, under the direction of
Taungpila Sayadaw and at the request of King Thalun
Mintara prepared the P ali t~xt in 991 B.E. (1629 A.D.)
of the Manusara or Kaingza Shwemyin Dhamnwthat.
Enough has bee_Tl said to establish that the Mar:ugye
is not of the par.amount authority~.in the body of
Dhamnxathats, to w.hich position, fo.llowing the Privy
Council in Ma Hnin Bwin's case (1), the learned
Judges composing the Full Bench he~ring the appeal
of Ma Nyun v. Maung San Thein (2) have elevated it.
An examination of all the relevant texts from
the Dhammathats must therdore be undertaken be.f ore
the -J)o"i~t: ~ri~sue can b~ ~.<?rxeotly ~eterinined. :. A :,o.rd
of ~-~tio~, here, seems necessary. .D hammathats a.r.e_.
(lJ (19141 s L.n:R. 1. (2) (1927) 5 Ran. 537>
1951] BURMA LAW RE PORTS. 127

n ot statutory enactment-; and i he principle of cqui tah l..:: S.C.

1951
construction, which is d i:-ct~un tt nancc d in interpreting
DR. THA
legislati ve enactment:; ca1~1~0t b\." exclud:.:d when seeking MYA
tile meaning of the tt.xts in 1. llc: Dliamma/hats. v.
AW KHIN
Coming, now, to t:1...: specific question arising n this l'u.
appeal, it cannot be d oubted that the Dhammatl:nt ru1cs
.relating to de5ertion have their origin in the Hindu
Law.
Manu Samhita, in Chapt ~r IX, has :
"Section 76.- For eight years a wife shall wait for a husband,
absent in <' distant country for prosecuting an ObJect of virtue ;
for six year;; shall she abide her time for a husband, absent in a
distant coudry for study or for achieving fame ; ;md three years
for a husb:tnd absent on a visit to :l co-wife in a distant country. .
Seciion 77.- A husb<llld shall wait one year for a hostile
wife ; fte; the hpse of a year, if her hostile feelings still
continue. he shall take back what he might have given her and
m:trry a second wife. "

Hindu Law, not recognising the right of the wife to

take another husband, commentators add that, at the
lapse of the periods prescribed in section 75, "the wife
shall go to laer husband. " The Burmese law givers
saw no obstacle to the wife marrying again and
logically provided that the wife shall be free to marry
.again at the end of the periods prescribed.
The close resemblance between th e Dhammathat
texts. collected at sections 245, 246, 247 and 249 of the
.second volume of the Digest and section 76 of the
Manu Samhita cannot be accidental. Equally so is the
dose similarity between section 77 of th e Manu Samhi1:a
.and the Vilasa, the Dhammathat Kyaw and the Vartnana
texts at section 312 of the Digest.
The $onda text at section 312 of the Digest makes
it 9bligatory. for the husband to have the wife who
d.~~erle9. ,hi.~ . ~o be req"ested by several persons to
128 BURM A L AW REPORTS [1951
s.o. change her mind before he can take advantage of her
1951
default ~mm&) 1 <:->~~uo5~tu cB~O(' ootGID~:n does not mean
DR. THA
MYA " let him continue to cohabit with her for a year " as
11.
DAW KBIN
rendered in the official translations. It is more
Pu. correctly " let her retain her status as a wife for a year. "
The Wagaru text at section 312 of the Digest has
been more correctly rendered at section 46, Chapter III
of Dr. Forchammer's translation of the Dhammat hat:

" If a husband and wife through anger live in separate

quarters of the same ,place, the matrimonial tie is cut between
them after the e~piration of three years "

In a s~nse similar to this are text from the Myingun,

the Manuyin , the Rasi, the Vic~hedani, the Panam,
the Kungyalinga, the Warulinga, the Kyetyo and
th e Kyannet Dhanzmathats collected a t section 395 of
t he Digest.
Clearly, these texts do not imply an automatic
d issolution of the marriae;e relation, regardless of the
volition of the parties thereto. Of the husba1:1d and
wife, who ih angel separated and thougi1 living within
reach of each other in the same. place remained hostile
for three years, a fair inference arises that both parties
do not desire the continuance of the marriage relation.
The' D hammavinicchaya (or Dh amma as cited in the
Digest), coeval with the .M awtgye, h~s in its text
at section 312 of the Digest a provision not consistent
with the vie\v of automatic dissolution of marriage . . If
the husband, after a quarrel, ieaves the wife and fails i~
his duty of maintaining the wife for three years, it is the
wrfc who may exercise to option to treat the marr.i age
. dissolved ; where the wHe leaves the husband and the
hu sband thereafter for a year' falls to maintain the wife;
1he dear irtf~t~nce to be drawn again is t.hat both partl.es
aue fir.tilly d:titennined to o~t the ue; In ~it her case it
is: n:~t :th~ l!inilateral aetrett Of ~ither . speuse but:
1951] BUR1\IA LA\V REPORTS. 129

the consensus of both spousts that determines tlle S.C.

1951
marital relation. In the same sense is the lbj;:lpla
Dl~. THA
text and the Manucittara text. MYA
The second Rasi text, the first Manuvanna text
DAW KRrN
and the Kyannet text refuse to make the dissoluti on of Po.
marriage depend upon the husband or the wife, in anger
or after a quarrel or from loss of affection for the other
spouse, leaving the other. They make the mutual
consent of parties (evidenced, it maybe, by partition of
their assets and liabilities or otherwise) a sine qua no11
for the dissolution of marriage.
Even Manu text makes the dissolution dependent,
not on th e unilateral action of either spouse but,
on both spouses co'i11:inuing to act for three years as if
they mutually desire the marriage to be dissolved.
This text is of interest, for the author of the
Dhammathat, who described himself as ::SO'J"o.i:o16) Groote!'
GtG::D-:> c1cra~oo:>~:x>t (I, Ketuja, a junior thera of three
was) said, aft~r a reference to the Manugye which
is mainly in plain Burmese prose with very little Pali
intermixed :

:J:l!):x>~q OC!'J302!)IOOO!?GQ oo~comJSco:x>~8qS:moo~? o:>-:>~86')~~

11

OoJ:SGOOfl OJ'J(!!{I? ~CO::r.>')OJ'J :;8{l')GO)~ ~QI.l'JGCO'J8f~l.l~O)~~.Gt:i10~I 11

,, ~
Abandoniwg, then, the vernacular of unlettered peasants,
which like w1to the boundary post sunk in sand lacks stability,
1 shall in theinterest of perspicuity.prepare this Manu Dhammathat
in the original language of Magadha, esteemed of all righteous
persons."

It is a matter for conjecture, in those circumstances,

if corrupt texts have not crept into the ma~uscripts
from which are reprQduced ._the Mantigye in section 312
of the .Digest and Dr. Richardson's edition of the
Dhat~nn~tliat. Except on . this . hypo.thes is, . the
con chiding provisions. of . the pa's sage, interdictin~
9
130 .B URMA LAW REPORTS. [ 145 1

S.C. J.:cnsation of adultery against a wife who marries <~gain

1951
before the expiration of the period prescribed fer 1l 1e
DR. THA
MYA eli ssolution of marriage is difficult to appreciate.
v. It is, however, not necessary to pursue this inquiry
DAW h:IIIN
PU. further for the purpose of this appeal. Mallli!;Y<
stands alone in the body of Dhamm.athats rend ering
unnecessary the volition of the deserted spouse to effect
dissolution of marital ti e. It is against all principles of
equity and good sense that the wrong-doer should be
enabled to found on his ovvn wrongful act a Jight
against an innocent party. The Royal Rescript of the
first King of Amarapura ( 1146 B. E. 1784 A.D.j
reproduce@: at sections 255 and 303 of the Digest
discloses clearly the attitude of the King and his people ~
some thirty years after the production of lv! a nugyc, on
marital ret:tions. Said the King :
" the bond of union between husband and wife is very sa cted
and it should not .be lightly severed, and
if either the husband or the wife desires to separate from the
other against whom no fault can be imputed, l>ul simply l>t!cause
there is no love bel ween them. decision shall l;>e made against the
party wishing the separation, who shall also undergo corporeal
punishmen l."
Appeal was made in Ma Nyun v. Mau11gSan Thein (1)
to the texts at section 301 of the Digest in support of
tbe theory that Buddhist Law countenances automatic
dissolution of marrjage. Tf?.e text from the Kaingza
Shwemyin, specificaJly r-elied upon, and the other texts
in the section are not apposite to tht problem. The
incorrect translation in the official publication and the
reading of the texts isolated for their context have, if
we may say so, led Maung Ba J., into the error of
thinking. that tho~e :texts are rele.vant. .
These texts r~la.te to an entirely different situation
and _deal with the:case.of _a d<i;ughter, whose parent~ hav~
. (1) (1927) sRan. 537.
1951] BURMA L A'vV REPORTS. 131

en ~agcdto give her in marriage to oqGo:)5 a strangc:r who S.C.

1951
comes !rom a distant place to trade.
DR. TH~
The relevant passage in its en tiret) r: ads : i\lYA
'1/.
OAW KHr~:
'' m8tuqGoo3x>t ~Cij[O~O?t:~~~~ ac.~f:m"fj-:>:GUi ~x~d~Gf> Pu.
~-:>:;;o:>$)1 ~O&)Goo3o:>t~:>:~Go:>S)I o:>~:~s~~tGCD~II ~~~O~rot:~~9
G011:061~8i??Uf?t~ G6)0Q~I!lo:>t~~ ~o:>~:~S~q1G5l?o5cx:>:>:~~~?:GCOGo:>S)
m'J: ~~)~:~g~~COGCOOj?cflill ~oG1 Goo3~o?:~SG~G~'JCC~Gf>6pGCij~!l o?:~S
C'S~~gG6pcbGo:>5cm:l ~o:>~:o.:>tCOCGf>~CGcocfliu o::C:~~O(o5CJ? 1 ~Ob)GO~
0

o:>;f, o?~~bmQ,2C!02CGo:>~~ I ~UG)GD:tiiito:>t GGJ?cbcoO~ ~rf3~~0?d3co5

o:>t~Go:>5m?; l ~o:>~:~O?CGX'J Grn:~ei?'J~~ C:OO~:c:oo 51 rocbGf>6p~O(
~cflir. ,

\\'here a stranger-tra(er on payment of brida}4prtsents to

th.: bt:t ,,ithout making clelinile engagement c0habitecl with
jJ<~rcnt ~
tht : :wgn~er ;nd la:er !!O ~~ aw.ly, the daughter comes ag-~in at
the di;;po.;;;1! oi the paren:s :hut ii he I.!Ocs ;\\ray, h:nin~ made a
defit~ite e ngagement to e:u:n <t!Hl ha,ing placed beio;c the
parents property, sla~e,:, foo.!. c;~ . i~f the dau ~hte: , maimcliancc,
the parents :ue not entitied to rcSlllll\.. her. She !>l:ali \\;tit his
retura fo r three years. If he fails then to come back site is
at liberty to take a husband. But if t~at stranger dies within these
three years and his younger brother shall come to 1 he house of
the daughter, he can have her to wife only if :mel when he has
disch1rgecl all her debts and liabilities."

It is not pertinent to investigate here how far, within

historical times, this and .similar provisions v>ere
live law ; but they point clearly to the influence of
Hindu legal literatu re. Manu Samhita, Chapter IX~
section 79 has :
'' If the bethrothed husband of a gid happen to die after be
has paid the marriage duty to her ~uardian, :,he should he
married to a younger brother of the deceased."

: To conclude th~ examin~tion of Burmese legal

literature, it rimst be stated t~at the At_tasankhepa
nowhere giv~s. recognition
- to the rule of automatic
dissolution ofm~rriage.
132 BURMA LAW REPORTS. [1951
S.C.
1951
From what preceded, it is clear to us that it is
in correct to say with tbe Full Bench in Ma Nyun's case
DR. TNA
MYA (1) that, where a Buddhist husband deserts his -...vife and
'1/.
DAW KHIN
for three years neither contributes to her maintena nee
Pu . nor has any communication with her, the marriage
is automatically dissolved. Such conduct on the part
of 1.he husband evidences his desire for dissolution of
the marriage bond ; and cannot in itself suffice to
dissolve the bond created by mutual consent of
the husband and the wife. For that bond to be
dissolved, it is necessary that the wife reciprocates the
desire ; and the reciprocation may be express or by
co~uct c_fearly pointi~1g _in that direction.
Applymg these pnnc1ples to the appeal before us,
we must and do hold that the appellant's claim that the
respondent was no longer his wife at the date of the suit
fails. It has not b een pleaded by him that the
respondent either by word or conduct evinced any
desire to have the marriag~ bond dissolved. On the
contrary, the respondent has taken every 9pportunity
to assert the subsistence of the bond.,
The appeal therefore fails and is ,dismissed with
costs; Advocate's fees thirty gold mohurs.

--- ----------------'------:-----'--
(1) (1927) S_Ran. 537 . . .
 1951] B URMA LAW REPORTS. 133

SUPREME COURT.

D AW THIKE {a) \YO~G !\L-\ THIKE (A PPELLANT) t S.C.

1951
May3.

CYOCNG AH LIN (RESPOXDEXT).*

Si11o-Bu rmes~ Btttfd!Jisi-Law govern iug-CII i11ese Cu.~lvmary La;;- Cttsf<,;;-

Power to muke will by Sino-Burmese Budd/tis/- Evidence Act.
Held : Prima facie a Bt:c!dhist in Burma, irrespecti,e of what his nationa-
lity is, and irrespecthe or whfnce he came is J!O'erned by the Burm(se
Buddhist L:lw, i.e., by !he Dltammatlurts and the: pn:cedets i n the matter of
marriage, inheril<~nce and succeEsion unles~ he r :m prove that he is go,erned
by a costom which has the force of law in Burn . :~ and which is opposed to the
Burmese Buddhist Law.
Tan Ma Shwe Zitz v. Koo Soo Chong, tl939) R.L.R. 548 tP.C.): Dr. Tlla Mya
v. Daw Khin Ptt, B.L.R. (1951) (S.C.) 108, followed.
If a Chinese Buddhist is Prima' fa cie governed by the Burn:ese Buddhist
Law there is all the more reason why a Sino-Burmese Huddhist should
be go.verned by the Burmese Buddhist Law . His ways, manners and modes
of life are the> same <IS the Burmese and he is a citizen .of the Gnion of
Burma by birth. Therefore unless and until he can prove that h< is subject
to a custom which h;;~s the force of law in Burma and that custcm is oppos~:d
to the provisions of Burmese Buddhist Law, he is governe~ by Burmese
Buddhist Law. The custom alleged must be ancient, ceria in and rea$onable.
Ma Yin Mya v. Tat~ Yauk P11 , (192.i) 5 Ran. 406 (l' .B.); Abdttra/;im H11ji
I~mail Milht~ v. Halimabat, 43 I.A. 35, followed.
Fo11e Lan v. Ma Gyi, 2 L.B. R. 95 at 97, over-ruled.
Chinese Customary Law being foreign law shollld be proved according to
ss. 38 and 45 of Evicence Act.
.Maung Po Ma11ng v. Ma Pyit Ya, 1 Ran. 161 at 169, followed .

r~ K. f!oon for the appellant.

Saw Hla P1:u {pr the respondent.

* Civif . ~ppeal 'No. 19 of 1 ~49 against \ he decree and order of the
AppdJah_l side,' H jgh Court in Civil 1st App~al. No. 42 of 194~.
t Pra'et1t: 'PJe Hon 'ble S I N BA U, Chief Justice of the Union. of Hurma,
MR. JUSTICE E :MAVNG and U ."I:HAt'NG $EtN, J.
134 BURlVlA LAW REPORTS. lJ<JS l

S.C. The judgment of the Court was d eii verecl hy th<!

l951
Chief Justice of the "Cnion.
D A\\' THIKI::
(n )
'WoNG :\1 ,\ SIR BA e.-The question involved in this ca ~e
THIK F.
1J
is of great importance to the Sino-Burmese community.
cvou :o~G AH A Sino- Burman is the issue of a marriage b e tw e~:: n
LJ N . a Ch'maman an d a B urmc5e woman, or e1sean 1ssu . <: o f
a marriage between th e children of Chinamen and
Burmese women. T he question is wh eth er a
Sino- Burmese Buddhist has testamentary power. It
is submitted that be has-. A long serjes of d ecisions
of the late Chief Cour t of Lower Burma and the
late High Court of Judicature is quoted to show
that s uccession to the estate of a Chinese Buddhist
who was domiciled and died in Burma is gqyern ed by
Chinest Customary Law, and that u nder the said
law a Chinest Buddhist has testamentary po\\'er. It
th erefore follows therefrom, according to the learned
counsel for the appellant, that a Sino-Burmese
Buddhi~t also has testamentary power inasmuch as he
conforms to the manners and customs of his paternal
ancestors, and that in accordance with the custom
of their paternal ancestors the Sino-Burmese Budd hists
have been d isposing of their estate b y will.
T he controversy as to wbat law should be applied
in the matter of marriage or inheritan9e or succession
to the estate of Chinese Bu.ddhists raged for over
SO years in this country. The controversy was
set at rest~ if it could be said to be set at rest at all, by
a decision of the P r ivy Council in Tan Ma Shwe Zin
v. Koo Soo Chong ( 1), the head-note of which is in
the following terms:- _
"Pr11~ facie, inheritance to the e~~e
of a Chinaman who
was oomicil~d in Burma ari9 was a BuddhJst is gove.rned by the
B .ddhist law of Burma .
and
. the. bnrden of prel{ing
..., any spe cial
(l) 11939) R. L.R 548 at 563,
.
 1951] BUR 1\L.<\ LA \V REPORTS. 13.)

custom 0 1 usa.t!c nryi ng t he: or 1i na1y Buddhist rules of inlll'rit.tncc S.C.

is on t he person asserting the , ;u i :-~n ce." 1951

D A\\' T II JKE
{a)
\\Te respectfully agre e \\"itb this interpretatio n of \Vo:->G l\IA
section 13 of the Burma L~ .Ys Act, which, i11fer alia, THtKF:
v.
runs as follows : C Yor;KG AH
LIN.

"\.Vhere in any suit or other proceeding in Burma it is

necessary for the Court to decide any question regarding s ucces-
sion, inheritance, marriage or caste, or any religious usage or
institution : -

(a) the Buddhist L'lw in cases where the parties are

Buddhists,
(b) the Mohameclan Law in cases where the parties
a1e Mohameclans, and
(c) the Hindu L<Jw in cJses where the parties are Hindus,

shall form the rule o decision, except in so far a :> such law
~1as . by enactment been altered or abolished, or is o~posed
.to any Cpl?tom having the force of law."

The contrqversy wac; with regard to the words

' Buddhist law', as used therein. The Judges who
held . that succession to the estate of a Chinese
J;.~uddhist should be governed by Chinese Customary
Law said, to use the words of Sir Charles Fox, as used in
Pone Lan v. Ma Gyi (1), 11 in the case of Hindus and
Mohamedans the Courts of India in questions of
marriage, succession and inheritance administer the
personal law applicable to the parties. . On such
matters there is no such thing as a general Hindu Law
or a general Mohamedan Law applicable univer~ally
to every Hindu or Mohamedan. There ~re different
schools of law and different commentaries by wh!.'ch
Hindus and Mohamedans are governed, and there are
also customary laws often divergent from the laws laid
<lown m corri~entaries : * * * .. * * ,!rt India, as
1) 2 L.B.R..95 at 97. .
136 BURI\IA LAW REPORTS. [195!

S.C. iri this province, each individual of the Hindu or

195 1
Mohamedan faith is accofded the personal law appli-
DAW1' HJKE
(a) cable to him in matters of marriage, succession or
WONG~!.-\
THlKE
inheritance. * '~ * * * In regard to Mohamedans.
v. of the Sunni sect, the H a nifeea Code is applied ,.
Cvom:G AH
LIN. whilst in the case of Mohamedans of Shia sect,.
the Imameera Code is follov;:ed. * * * * On.
consideration of what t he Hindu and Mohamedan
L aws are composed of, I take it that when in section
13 of the Burma Lms Act, 1898, the Legislature
uses the v..ords 'Mohamedan Law 1 a11d 'Hindu Law 1 ,
it means the laws applicable to such Mohamedan and'
Hindu parties, whencesoever su ch la,:~.:s may be
derived. * * *' * If the terms 'Hindu L a w '
and 'Mobamedan Law' in section 13 of the Act must
be read as above, I think the terms ' Buddhist L a w
in the section must be read in the same way, namely,.
as meaning the law of succession, inheritance, marriage,.
etc., applicable to the Buddhist parties in the case. "
The Chinese Customary Law was thus according:
to those learned Judges the Buddhist law within
the meaning of section 13 of the Burma Laws Act as:
applicable to the Chinese Buddhists in this country.
They gathered the said Chinese Customary Law from
such books as "Notes and Commentaries on .Chinese
Criminal Law" l:?y Alabaster, ''Comparative Chinese
Family. Law" by Parker, "China i-n Law and
Commerce" by Jernigan, and Broadbent's "Mollen-
d~rpt ". In one case the learned Judges even sought
the opinion of the Judges of the Supreme Court of
Hongkong as to what law was appli.c able in the case
of .a Chinese Buddhist in th~ matter of. marriage,.
0

succession or in~eritance. . . ~. .
In doing what, they did the learned Judges entirely
overlooked: the use of the definite article ''the" before
the wo~d-:5 '' Bu.ddhist Law'', '' Moh~medan Law" ~nd>
1951] BURMA LAW REPORTS . 137

'Hindu Law 1 ' . And, furlher, they cn t in: ly i.~ norc d S.C.
1951
the Law of Evid ence. By using tht: dd1n ik article
DAW TH!K E
' the", what the object of th e Legis bture is is quite (a)
vVO)IG MA
clear, and the object is that the Courts should apply TH!I{E.
only such Hindu Law to the Hindus, such :\Iohame- v.
CvoUNG Aft
dan Law to th e Mohamedam, and suc h Buddhist LIN .

Law to the Buddhists, as is well-known to the Courts

and to .the people in the country in the matter of
marri~ge, inheritance, succession, etc. The Legislature
never intended that the Courts should go ro\'ing about
all over the world in search of Jaw that would be
applicable to parties in proceedings before them. But
that is exactly, \Yith due respect we say it, what the
learned Judges \\ho applied Chinese Customary Law
to the Chinese Buddhist of Burma did.
We agree that there js no such thing as the " Hindu
Law " which applies universally to all Hindus, and~
similarly, there is no such thing as the Mohamedan
Law which applies universally to all Mohamedans.
Both the " Hindu Law " and the '' Mohamedan Law.,
have different schools of thought. All these different
')Chools of thought, whether in "Hindu Law" or in
'' Mohamedan Law" are well-known to the Courts and
the people of the country. They are of indigenous
growth .a nd not imported from outside. They were
in existence not only at the time when the Burma
Lawl? Act was enacted, but in 1772 when the first
enactment dealing with the subject in question was
passed hy Warren Hastings. Therefore, when the
Legislature said that in the case of the Hindus the
Hindu Law, and. in the case.of the Mohamedans tl}e
Mohamedan Law should apply, it meant that the
Courts should apply such branch of the Hindu Law or
sue~ branch of the Mohamedan Law as was already in
existence In th.e country and as would be appli<:;able to
the p.artie~ iri proceedingsbefore them. . .
138 BURi\-lA LAW REPORTS . [ 1951
S.C.
1951
In th e c;1se of the Buddhist Law it has n o different
schools of la\\' as in the case of Hindu Law or
D.nv Tll!KE
{:l) Mohamedan La\V. There is only one Buddhist Law
WoNG MA
'IHIKE.
that is known to the Courts and the people of the
'II.
CYOUNG AH
country, and tlle law that is known to them, as
LIN. explained by this Court in the case of Dr. T/Ja Mya v.
Da1.u Khir1. Pu (1), is contained in the Dha1mnathat:>
and the Collection of Precedents. Therefore, p1'imli-
jacie a Buddhist in Burma, irrespective of w hat his
nationality is and irrespective of whence he came, is
governed by the Dhamrnathats and the Precedents in
th e matter of marriage, inheritance and succession
unless he can prove that he is governed by a custom
which has the force of law and vvhich is opposed to
the Burmese Buddhist Law.
Besides, the alleged Chinese Customary Law
relied on by some of the Judges of the late Chief Court
and the late High Court of Judicature, being a foreign
law, should have been proved in accordance with the
provisions of sections 38 and 45 of the Evidence -k'-ct ;
but it was not so proved. This is quite obvious
from the observations of Heald J., in the case
Mazmg Po Matmg v. Ma Pyit Ya (2\.
The foundation on which the case for the applica-
tion of Chinese Customary Law to Chinese Buddhists
in Burma has been so elaborately built up is thus
<;me.
The next question is whether the said <?hinese
Customary Law is: now in force in China. We can
take judicial notice of the change of Government in.
China, and under the new Government almost all the
old laws have been. replaced by n~w ones . . If it is no
1onger in force in China, we cannot see how it can
be applied here.

{1) B.L.R. (~951) .(S.C.) 108_. (2) 1 f<aJJ. 1M at 16~.

1951] BURMA LAW REPORTS. 139

T he last point that requir\.:S \ery careful consick ra- S.C.

1951
tion is ,,hetber a foreig n Bnddhist can bring his
DAw THI KE
pc.:rsonal law into this country and, if he can, w hether (a
\VO!\(; iVlA
it should be allowed to prc\ail to the detr iment of THI!CE.
the people of this country if it is in conflict with t be v.
C\'OUNG Al-l
la.;v of the land. LI N .

All these points were noticed by Sir Guy Rutledge

in his judgment given in Ma Yin M:ya v. Tan Yauk
Pu (1) where the learned Chief Justice said:

"The only Buddhist Law, ho,,ever, in my Oj.iinion, of ~vbich

-the Courts of this province have ever taken ccg11i~ance is Burmese
B,lcldhist La\,.. And for a foreign Bt'dclhist to escape from the
application of Burmese Buddhist Law, he must show that he is
subject to a custom having the force of law in this ~ountry and that
tha; custom is opposed to the provisions of Burmese Buddhist
L:m- applicable to the case. "

And the learned Chief Justice further added :

"The effect of our Courts applying Chinese Customary Law

to a Chino-Bmman marriage is to deprive a Burmese woman of
practically all rights and in most cases bnncl her children as
illegitimate. China has for a good many years been in a state of
revolution, but when order and unity are once more established,
I do not think that any publicist would pruphesy that t}).e ancient
customs which used to govern the inheritance and marriage
among the Chinese will be re-established. Again, it must not be
lost sight of that Chinamen have come and settled in Burma in
growing numbers since the first occupati-on ot the country. And
more than any other race, they have inter-married and joined in
the social a.nd religious life of the people of the country, so that
the third g~neration so far as belief and manner of life are
conceri).e[ are much more Burmese than Chinese. To apply
without enquiry the ancient Customarr Law of China to these
j)eople seems to be unwise and impolitic unless we. a~e forced to
do. so of necessity_.

(1) U927) s Ran. 406.

140 BURMA LAW REPORTS. [ 1951
S.C In my opinion, not only are \\e not forced to do so, but the
195 1
principles of international Law and the words of the Burma Laws
DAw TH I KP. Act forbid us to do so. "
(a)
WONG MA
THIKE.

CYOUNG
v.
AH
These observations of the learned Chief Justice
Ll N. are in line with what was observed by the Privy
Council in Abdurahim Haji Ismail Mifhu v. Halimabai
(1), where in dealing with the case of the Memans,
who are Mohamedans by religion but subject to
Hindu Law in the matter of inheritance and succc::ssion,
their Lordships said :

"Where a Hindu family migrate from one part of India to

another, prima facit: they carry with them their I?ersonallaw, and
if they are alleged to have become subject to a new local custom,
this new custom. must be affirmatively proved to have been adopt-
ed, but when such a family emigrate to another country, and,
being M0hamedans, settle among Mohameclans, the presumption
that they have accepted the law of the people whom they h::n-e
joined seems to their Lordships to be one that should be rnm:h
more readily m1de. ''

We accept these observations as laying down the

correct principle of law. Therefore, if a Chinese
Buddhist is (,rima facie governed by the Burmese
Buddhist Law, th ere is all the more reason why a.
Sino-Burmese Buddhist shou ld be governed by ' the
Burmese Buddhist Law. His ways, mann~rs and
mode of life are the same as the Burmese and he is a
citizen of the Union of Burma by birth. Therefore,
until and unless he can prove that he is subject to a
custom which has the force of law in this country, and
th~tt that .. custom is opposed to the provisions 0f
Burmese ,Suddhist Law, he is governed by the
. Eun;nese Buddhist L~w. The custom which has Jhe
force of law must be, as pointed out by the learned
. -------~
-
----------------------~--
!ll 43 r.A.. 35.
1951 ] BURMA LA\l'l REPORTS. 141
S.C.
Chief Justice of the High Court, ancient, certain and 1951
reasonable. In the prese nt case there is not only no
DAW THIKR
evidence to prove such a custom, but in fact the (a)
WONG 1\'(A
appellant has not even pleaded it. THIKE.
The appeal therefore fai ls and is dismissed with 'V.
CYOUNG Ail
.costs ; twenty gold mohurs as Advocate's fees. LIN.
142 BURMA LAW REPORTS . [ 1951

SUPREME COURT.

t S.C. CHIT T I N (o) SU THI AND ONE (APPELLANTS)

1951
May 9.
THE UN ION OF BUR~IA tRESPONDENT\. 'xc

Penni Codt- Offwc,: ttt~dfr ss. 121, 122 (l! as amet:dcd by Act 20 oj 1950-
Hig/r Treason - Exmlp.rtion of o(ft11ce- S. 94- excl udes offence ngaiu sf
Sl<~te f>u nrslu:Uc wrth tftatl.
H cltl: No statement that contai n seli-exculpatory matter can amount to a
to kssion, if the exculpah,ry st:ueme nt is of some fact which if tr~ce \\Ould
ne~ative the offence alh ge!l to t:-e ..:onies~c:d. :\loreover a confession must
eilht-r admit in terms til..- oficnc<, r at any rate substantiall y all the facts
which comtitute the offence. An admission of a gravely incriminating fact,
evr.n a concl:r~hety incrimit:aiing fact is not of itself a confession.
Pa.k<tltr .Var.tyan Swami v. The !:i,.g-Emp~tor, (19~1) R .L.R. 78v at 798,
a pprovtd and followed.
The claim in ex.:ulpation made by the accused in his confession that he did
not willingly join the insnrgents, bot was forced to become or their company
by threats uf dc:ath, even if it be true. is nof sustainable in relation lo an
orfence against the State pr111isbable with death ; s. 94 of the Penal Coce
excludo:s t.he plea of cornpulsicn by apprehension of instant death in excuse
o th e offence against State punishable with death .

Ba Cyan for the appellants.

L. Choon Foung (Government Advocate) for the

respondent.

The judgment of the Court was delivered by

MR. JusTICE E MAU!'G.-The joint trial before the

1st Special Judge, Tavoy, in Criminal Regular Trial
Nc,. 5 of 1950, of Chit Tin (a) Su Thi and Kyaw Win,
appellants respectively in Criminal Appeals 2 and 3 of
Criminal Appeals Nos. 2 <L"ld 3 of 1951 against the jud~ment , dated
31st January 1951 in Criminal Appeal No. '22 of 195J passed by the High Court
on tile Appellate Side.
t Preseut : The Hon'ble SIR BA U, Chie i)ustit:e of the Union of Bnrma.
1\tR. J USTICE E 'MA UNG and MR. J OSTICE THEIN MAUNO.

- .
1951] BURMA LAW REPORTS. 145

Had the matter re~t ed there, it is clear that there is S.C.

,.J~Sl
no legal evidence on \Yhich to found the conviction of
CIIIT T tN (41}
Kyaw Win und er section 121 of the Penal Code. Su THI
But, does the so-called conf ession of Kyaw v\"in take AND ON8
v.
the case against him any fur ther ? THl! UNION
OF BURMA.
We are satisfied that it does not. In the so-called
confession, Kyaw \iVin claimed, inter alia, that he did
not accompany the attacking party, when it proceeded
to Yange-Kamyaing \illages and that he, toge ther with
10 other persons, kept behind at Kanbyin village,
whence after the figh t at Yange-Kamyaing, he having
no heart to be with the insurgents at all, went towards
Kamyaing and was arrested on the way.
We are in fu ll agreement with their Lordshi ps of
the Privy Council, where in Pakala Narayan Swami v.
The King-Emperor ll) they said :
'' No statement that contains self-exculpatory matter can
amount to a confession, if the exculpatory statement is of some
fact which if true would negative the offence alleged to be
confessed. Moreover a confession must either admit in terms
the offence, or at any rate substantially all the facts which
constitute the offence. An admission of a ~ravely incriminating
fact, even a conclusively incriminating fact is not of itself a
confession, e.g. an admission. that the accused is the owner of
and was in recent possession of the knife or r.evolver which
caused a death with no explanation of any other man's
possession."
The so-called confession should never have been
admitted. in evidence. Exduding, then, this docu-
ment, there is no .legal eviden.ce on which to base the
.conviction of Kyaw Win, whose conviction and the
sentence passed on him must be and are hereby set
aside.
, We .d\rect that .Ky~w- W in, as far as this cas~ . is
~oncern~d., be set at liberty .forthwith.
: . (1) (1941) R.'L.R. 789 at 798.
. 10
146 .
BURMA LAW REPORTS. [ 19~1

S.C. Chit Tin's case, h<?wever, is different ; and hi s ow n

-
1951
C HlT TlN 1a)
I:'U THI
ANIJ ON E
confession (Exhibit J) justifi es his conviction. . In that
confession he ad mits that he together with 70 other
persons armed wi.th tw.o brens, 3 tommy guns,
v.
THE UNION 5 sten gu ns, 2 mortars and the rest with a rifle each
OF BURMA.
came fro m Sonsin village in the evening of the
9th May 1950 to attac~ Yange-Kamyaing village:5.
They left Sonsin at about 6 p.m. arrivin g n~:tr Yange-
Kamyaing ab.out 1 a.m. the next morning. At dawn,
an attack on th ese villages was launched with h eavy
arms fro m an adjacent jungle, to which the defenders
of the village r eplied. \V~e -9- the attacking party
broke up , the appellant lost his way and got into
Yange village by mistake, where he was captured.
This is a clear admission of the offence of waging
war against t he State ; and when examined at the
trial under section 342 of the Code of Criminal Proce-
dure, he affirmed the substantial correctness of the
record of confession. H e, then, merely desired to
amend that ~tatement by claiming that he was not
armed with a rifle in the course of ttte attack on. t~e
villages.
Th e claim, in exculpation made by Chit Tin in his
confession, that he did not willingly join the insurgents
but was for ced to become of their company by threats
of death may b e true; but in relation to an offence
against the State punishable with death, section 94 of
th e Penal Code excludes the plea of compulsion by
a pprehension of instant death in excuse of the offe n ce
W e, therefore, hold that Chit T in {a) Su Thi has
been rightly convicted of the offence of High Treason
punishable u~der section 122 (1) of th e Penal Code.
W e agree with th~ High Court and the trial
Court that.the part taken by the appe1lant Chin Tin (a)
Su Thi was not a maj~r one. The evidence of
Maung Ave (P.W. 4) .' who to.ok the appe,l lani into
1951] BURMA LAW REPORTS . 147

-c ustody, lends support to the claim of the appellant S.C.

1951
that he was not a willing participant in the attack on
C HIT TPI ( a )
the village. vVhen Maung Aye first saw the appellant, Su THI
A :-10 ONE
the latter with the butt of his rifle grounded was v.
standing immobile, and when told to surrender, he THE UI'ION
OF BURMA.
made no attempt to resist or evade arrest. It is to be
hoped that these circumstances will be taken into
-consideration in proper quarters.
As a Court of Justice, our duty is plain. We
dismiss the appeal of the Appellant Chit Tin (a)
Su Thi.
148 BURMA LAW REPORTS. [1951

SUPREME COURT.

ts.c. TUN BIN tAPPELLANT)

1951
v.
May 22.
THE UNION OF BURMA (RESPONDENT).*
Code of Crinzi11al Procedttre- S. 423 (I), s. 439 (ll-Couviction 1tt1det' s. 4 (1),.
High Treason Act-Conviction and sentence of death pnssed by the High
Court under s. 3 (l l of the High Treaso~t Act- Procedttre to be followed.
Under s. 423 (l) {b) in an appeal from a conviction th.: Appellate Court
can do any of the following things : -
(1) Alter the finding ::~nd maintain the sentence.
(2J Alter the finding and reduce the sentence.
(3) Reduce the sentence without altering the finding .

But this does not mean that the Court can alter the finding and retain the
sentence passed which would be illegal according to the finding. \Yha t the
section provides for is maintenance of a sentence which can le~a!ly be passed
for the offence for which the finding is altered.
When the accused is tried on a charge for a major offence but is convicted.
for a minor offence, and there is an appeal, the High Court can open a
Revision proceeding and call upon the accused to show cause why the
acquittal of the rna ior charge should not be set aside and a re-trial ordered.
If the explanation is not satisfactory, the High Court then in exercise ot
its appellate jurisdiction must get rid of the order of conviction for a
minor offtuce by setting it aside. The High Court then in exercise of its
revisionary jurisdiction must set aside the order or acquittal and under sub-s. 4
of s. 439 of the Criminal Procedure Code order the re-trinl of the case, but the
High Court in its revisional power cannot convert an acquittal into one of
conviction.
Kishan Singh v. The Ki11g-Emperor, SO All. 722, (P.C.), followed.
Bawa Singh v. The Crown, 23 Lah. 129, dissented.from.
l tl Re. Bali Reddi, 37 Mad. 119, referred to.

Ba Gyan for the appellant.

Kyaw .(Government Advocate) for the respondenL
. . '

*Criminal Appeal No. l of L'951 against the sentel'\ce of death passed by

the ffigh Court, Rangoon, in its Criminal Revision No. 148 _{A) of 1950 on the
' 22nd January 1951.
1' Pt:esenf :. T~e Hon'ble SIR BA U, Chief Justice of the Union of Burma.,.
~R; JUSTICE. E. MAUN~ and MR. JUSTICE THEIN MAUNG. . .
 1951] BURMA LAW REPORTS. 149

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

1951
Chief Justice of the Union.
TuN BfN
v.
SIR BA U.-By our order dated th e 12th :rv1arch we THa UNioN
. . . d OF BURMA,
set as1de the conv1chon and sentence of deat h passe
by the High Court under section 3 {1) of the High
Treason Act, and restored the conviction and sentence
of transportation for life passed under section 4 (1) of
the aforesaid Act by the Trial Court. We said that
we would give our reasons in full later. \iVe now
proceed to do so.
The Appeal is by special leave. The facts which
give rise to the grant ot special leave to appeal are
t hese. On the morning of the 28th May 1949 a force
of about 1,000 insurgents attacked the village of
Nyaunglun in the Yamethin District. The village
was defended by the Village Defence Force consisting
of about 30 or 40 men. The Defence Force put up a
stout and valiant defence, but in view of the smallness
of their numbers they had to give way and retreat to
Tatkon. The appellant was seen among the insurgents
with a gun and setting fire to a liquor shop. About
8 months later he was captured at a detention Camp of
the insurgents.
On these facts he was sent up for trial under the
High Treason Act and charged under section 3 (1) of
the said Act but was found guilty under section 4 (1)
of .the same Act and sentenced to transportation
for life.
On appeal the High Court opened a revision
p"roceeding and called upon the appell~nt to show
cause why the conviction should not be altered to oQe
u,nder section 3 (1) of the High Treason Act and the
sentence enhanced to one of death.
The appellant showed cause, but his explanation
was not accepted. The finding was altered to one
150 BURMA LAW REPORTS. [1951

S.C. under section 3 {1) of the High Treason Act and the
1951
sentence was enhanced to one of death.
To:.~ BIN
v. The question that calls for determination is whether
Tr;E UNl OX
OF BUR:\IA.
the High Court is competent to convert a finding
of acquittal into one of conviction and enhance the
sentence in exercise of its revisionary power.
. This question was mooted from time to time for
several years by' various High Courts in India and
Burma before the Second World War. And the
opinions given thereon were often divergent until the
decision of the Privy Council in Kishan Si11gh v. The
King-Emperor (1).
In that case the accused was tried on a charge
of murder under section 302 of the P enal Code but.
he was found guilty under section 30+ and sentenced
to five years' rigorous imprisonment. The accused.
did not appear but the Local Government filed an
application for revision in the High Court, praying for
the conviction af the accused under section 302 and:.
enhancement of the sentence. The High Court
allowed the application, convicting the accused under
section 302 and enhancing the sentence 'to death.
On these facts the Privy Counc11 said :
1
'Their Lordsl;ips are of opinion that in view of the
provision contained in section 439. snb-section 4-that nothing:
in lhat section shall be deemed to a,uthorise a High Court to
convert a finding of acquittal into one of convictio.n-the learned
lunges of the J::Iigh Court, who were deali~g only with the-
application for revision, had no jurisdiction to convert the
learned trial judge's find ing of acquittal on a charge of murder
into one0f conviction of murder." .

Relying on th~e observations what is now

. submitted is that if the .High Court sits a s .a Court.
of Revision only, it has .no power to _alter ~ finding
';{1) 50 All. 722.
 1951] BURMA LAW REPORTS. 151

of acquittal into one of conviction and enhance a S.C.

1951
Selltence, but if th ere is an appeal by a convicted
TUN BIN
person against his conviction and sentence, the High v.
THE UNION
Court, sitting first as a Court of Appeal, can alter the OF BURMA.
conviction for a minor offence to a conviction for
a. major offence in exercise of the power given by
section 423 {1) (b) (2) of the Criminal P rocedure Code
and then, sitting later as a Court of Revision, can
enhance the sentence under the provisions of
section 439, Clause (1) of the Criminal Procedure
Code.
In support of the subll).ission the decision of a Full
Bench of the Lahore High Court given in Bawa Singh
v. The Crow11. {l),.is cited.
The judgment of Dalip :Singh J., which is the
leading judgment delivered in that case, if read just
casually, will be found to be attractive and plausible
but, when examined closely, it ,,ill be found, we say it
with respect, to be full of fallacies. The learned
Judge made great play with the word "alter" used in
Clause {1) (b) (2) o, section 423 of the Criminal
Prbcedure Code. According to the learned Judge,
if an accused person appeals from ' his conviction for
one offence, the . High Court can alter the c _onviction
into one for another of(ence if on the finding of facts
the High Court comes to the conclusion that the
accused is guilty of the other offence. The learned
Judge said:
1
' It would thus seem ihat if a man is CO'JVictecl under
section 32~ and appeals therefrom,_the Court should be able to
change the finding from section 3.25 to section 326 or section 3~4,
Part I, or Part II."

Now,what is meant by the use of the .words '.1 the

Court
. should. be able.''
. . It looks as -.if
. the
'
learned
152 BURMA LAW REPORTS. [1951
S.C. Judge was not sure whether the High Court had
1951
power to alter a finding. and if the High Court did not
TuN BIN
'II. have such a power, the learned Judge thought that the
THE UNION
OF BURMA.
ends of Justice would be defeated. That this is what
was in the mind of the learned Judge would become
quite apparent from what he said in the latter part of
his judgment. There the learned Judge said :
"Under sections 236, 237 and 238 it is possible for a man in
the trial Court to be charged alternatively \"\ith theft and criminal
misappropriation. If the trial Court finds that the man was in
possession, it would acquit him of theft and find him guilty for
criminal misappropriation only. If now the c.onvict appeals and
the appellate Court comes to the conclusion that the convict was
not in possession, it could not convict him of criminal mis-
appropriation on its finding that he was not in possession of the
property misappropriated. But it could not convict him of theft
on the g1ound that dghtly or wrongly he had been acquitted of
theft and therefore section 423 gave the appellate Court no power
to alter the finding of criminal misappropriation into one of theft,
because such an alteration would involve a re:versal of the acquittal
of the charge of theft. Similarly if a man were charged under
section 325 and the trial Court held that he was guilty under
section 325 because of grave and sudden provocation, then there
would -be an acqqiltal of the ch!lrge t1;pder section '325. If now
the convict appealed and the ~ppellate Cour~ came to the
conclusion that in law the facts found did not amount to grave
and sudden provocation, it could not convic't the accused under
se-ction 335, nor could it convi~t him under secti9n 325, for this
would involve a reversal of the verdict of acquittal of the charge
under sectiOI).' 325. In both these cases it would see-trt th'!lt.the
appellate Court would have to acquit the man altogether, thougli
a~tually it found him guilty of having committed all the acts
necessary for the purpose of finding him guilty either for theft or
fo~ causing grevious hurt. It is impossible to think that the
Legislatur-e seriously contemplated such a contingency .in its
~nxiety to avoid the reversal of an acquittal." ,.
. . . .
.Jn . his_~pxie(y to prevent the ends of ju_stice from
bei.ng d efeated, ashe thought it: would be, 1f the words
of sectibn 423 (1) (lr) (Z) ...:were giv:en their natural
 1951] BURMA LAW REPORTS. 153
S.C.
meaning, the learned Judge put a strained construction 1951
thereon without realising that by so doin g he fi rst TUN BIN
broke the Canon of Interpretation of Statutes and, v.
THE UNION
secondly, he disregarded some of the provisions of the OF BURMA.
Code of Criminal Procedure. The cardinal rule for
the construction of Acts is that where the language of
an Act is clear and explidt, we must give effect to
it whatever may be the consequences, for in that case
the words of the statute speak the intention of the
Legislature.
Now, section 423 (1) (b) (2) says:
'' fhe Court may in an appeal from a convi(:tion alter the
fi nding, mnintainin'g the sentence, or with or without altering the
ncling, reduce the sentence."

What it means is that the High Court in an appeal

from a conviction can do one of the following three
things:-
(!) Alter the finding and maintain the sentence.
(2) Alter the finding and reduce the sentence.
(3) Reduce the sentence without altering the
finding.
If, for instance, as in the Lahore case cited above,
a man was tried on a charge of murder under
section 302 but foun? guilty unde~ section 304 ( 1) an,d
sentenced to six years' rigorous imprisonr'ne~t .and in
an appeal the High Court .alters the finding from one
under section ,304 (i) to one under section 302 and
maintains the sentence of six years' rigorous imprison-
ment, which it must do or else it must r~duce it, the
sentence so maintained becomes an illegal sentence
from the moment it is. maintained inasmuch as the
~entence prescribed for sec~ion 302 is. death or
. tr:ansportation . for, .life. What. section.423 .(1} (b) (2)
provides for i~ the m~iqj~na~c~ of a sentence whiCh
154 BU RMA LAW REPORTS. [ 1951

S.C. can legally be passed for the offence for whic h the
1951 finding is altered.
TuN SIN This aspect of the case was evidently not noticed by
v.
THE UNION Dalip Singh J. There is also another point not noticed
OF BUR~r.~.
by the same learned Judge and the point is tb is.
is
When a charge framed against an accused, a finding
either of acquittal or conviction must be recorded.
This is an elementary principle of law. If it however
sometimes happens that a finding is not expressly
recorded, it has to be inferred from the circumstances
of the case. Take, for instance, the same Lahore case
mentioned above. No express finding was recorded in
resp~ct of the murder charge, but, in view of his
conviction for a minor offence the inference is that the
accused was acquitted of the murder charge. This is
a view in accord with those of the High Courts in
India and Burma and also of the Privy Council.
See Kishan Singh's case ( 1):
Therefo!e,.. without first getting rid of the order of
acquittal in respect of the murder charge it would not
be competent tor the High Court to alter a finding to
one of guilty in respect thereof. If the High Court
did that,it would mean tw? orders, one of acquittal
passed by the trial Court' and the other passed by ~he
Hig!1 Court, existing side by side.
This woi.1ld reduce the administration of Criminal
Justice to a farce. The learned Judge, Dalip Singh J.,
evidently saw this point for he observed :
"In ~the case .con.templated in s~ction 423 (b.) it is obvious
.. that there is no. question of a complete acquittal, for the appeal is
ag;1inst a 'conviction and in thi's case, therefore,. 'there is n<>
fl:ecessi,ty to annul or set aside any finding that the .man is
innocent ot not guilty of an'y thing ~tall," . '
This,:w'esay. if with respect, is a cas.~.. bf pute sophistry. .
There is no such thing- as complete:.ac~:(ilittal or partial
ur so A.u. 122.
 1()51] BURMA LAW REPORTS. 15 5

acq uittal in the Code of Criminal Procedure. What S.C.

195!
is there is ''acquit, discharge or convict." On the
Tu~ H I:<
facts found an accused person must either be guilty or t'.
THf. C:->ltl~
not guilty of a particular offence. If not guilty he OF Bl.'R)iA.
must be acquitted of that particular offence. If guilty
lte must ~e convicted of that offence. T his is exactly
what the Privy Council said in [(ishan Singh's
case (1).
There the Privy Council said:

"Their Lordships, however, do think it necessary to say that

if the learned Judges of the High Court of Madras intended to
ho.ld that the prohibition in section 439, sub-section (4), refers only
to a case \\here the trial has endeel in a complete acquit tal of the
accused in respect of all charges or offences, and not to .a case
such as the present, where the accused has been acquitted of the
charge of murder, and convicted of the minor offence of culpable
homicide not amounting to murder, th ~ir Lordships are unable to
agree with that part of their decision. The words of the
sub-section are clear, and there can be no doubt as to their
meaning. Thete'is no justification for the qualification which the
lear~ed Judges in the cited case [In Re. Bali Reddi (2)] attached
to the sllb-section."

As regards the argument that if the High Court has

no powed- to alter a finding of conviction for one
offence to one . of conviction for another offence in
respect of which there has been an acquittal, recorded
either expressly or impliedly by the trial Court, there
wm be a failure of justi~e, all we can say is that there
is no .substance in it. T-ake the illustration given by
Dalip ~ipgh J., himself: An accused is charged with
theft and, in the alternative, with criminal mis-
appropriatfon. H~ is fou~d .guilty of criminal mis-
appropriation and acquitted of tQ.eft. On appeat' the
High Court finds that the accused is guilty of theft and
n~i- p. criminal misappropriation; .The conviction o{
. .(i) SO All. 722. : ... . (2) 37 Mad. ti9: -
156 BURMA LAW REPORTS. [ 1951
S.C. U;e accused for criminal misappropriation must in th ese
1951
Tt:NBIN
circumstances .be set aside. But the High Court
v. cannot convict hi~ of theft because the accused has
'THil UNION
OF B U I<MA. been acquitted of that offence by the trial Court. The
accused must therefore be let off, according to Dalip
Singh J., although he is guilty of an offence, if the
High Court cannot make use of section 423 (b) in the
way indicated by the said learned Judge. If the
question is pondered over more deeply than this, it will
be noticed that the accused cannot get off easily
like this. The Government can appeal against the
order of acquittal for theft. If the Governmen t does
not appeal, the High Court itself in exercise of its
revisionary power may set the order of acquittal aside
and send the case back for re-trial. This will of course
involve some delay and expense but there will be no
failure of justice involved.
To sum up, in cases such as the one now under
appeal, the correct procedure to adopt is in our
opinion _this. When the accused tried on a charge for
a major offence sqch as murder under section 302 but
convicted fora minor offence such as culpable homicide
not amounting to murder under section 304, appeals,
the High Court can open a revision proceeding, calling
upon the accused to show cause why the acquittal of
the major charge should not be set aside and a re-trial
<?rdered. If the explanation is not satisfactory; the
High Court then first in exercise . of its appellate
juiisaictio~ must get rid. of the order of co.n viction for
a minor offen.ce by setti~g it 'asid~. The -High Court
then in exercise of its revisionary jurisdiction must set
asideth~_order o(acquittal and under sub-section (4).of
~~ction 439 of .t he Criminal Procedu~e Code order the
re:.trial of the .case.
The ~~~~ecfure adoptedhr the Ji;igll ~ourt in this
case was n:ot .t_he. saiD e. as the procedure adopted by_the
1951] BURMA LAW REPORTS. 157

Lahore High Court but, in fact, was the very procedure s.c
1951
which the Privy Council said was not warranted by
TUN Bt:o~
law. The High Court first dismissed t he appeal by ;~.

THE UNION
the appellant from a conviction for a min or offence in CF BURMA .
exercise of its appellate jurisdiction and then in
exercise of its revisionary jurisdiction altered the
conviction for a major offence and enhanced the
sentence. We had in these circumstances no other
alternative than to pass the order which we did.
158 BURMA LA\V REPORTS. [ 1951

SUPREME COURT .

tS.C. DAvV CHO (APPELLANT)

1951
Jan. 9.
v.
u GANNI AND OTHERS (RESPONDENTS).*

Admissioll-S. 31 of Evidence A. c/-Prcswnf>t ion a gai11sf pe rso1t 110t gn:tug

evidence i1t support.-Deczsio11 of Court auld tzot rest on suspicio11-
Alfcstation !tow fa r creafts e,toppel.
Held: S. 31 of Evidence Act provides that admissions are not conclusive
of the matter admitted. Where a pen.on is not a party to a deed there is no
estoppel by that deed. The party making an admission ma:v give evidence to
rebut the- presumption that aris.:s against him owing to the admission ; but
unless and until that is sati~factorily done, the fact admitted must be taken to
te established.
Raui Cluuzdrtl Kumn11a r v. Ch.wdltJ'i Narpet Siugh alld others. ( 1907) L. R.
34 I.A. 27, foll owed.
Presumptions are necessarily made against a person who will not s:.bject
himself to exan'lination, when a primli facie case is established ag:~inst him and
by his own evidence he might have to answer it. The true object to be
acnieved can Only be fmthered with propriety by the testimony of the party
who, personally knowing the whole circumstances of the case, can dispel .
the suspicions attaching to it.
Nawab.Syud Allee Shah v. Mussamut Amanee Begum, 19 Vl.R. 149;
Sardar Gurbakksh Si~tgll v . Grlrdial Singh and an ctlte r A.I.R. (1927) {P.C.)
230, followed.
It is essential to take care that a decision of the Court rests not upon
suspicion but upon legal grounds established by legal testimony.
Sreema" Cflunder Day v . Gopau~clttmder Chuck.'rbutly au4 others, 11
Moore's I.A. 28.
Mere attestation of a deed by itself does not estop a man from denying
anything exceptingJhat he ha:> witnessed the execution of the deed. It
confesses neither directly n 'r by implication any kr.owledge of the contents
of. the document. Attestation nray take place in such circumstances a:; would
show that the witness did in fact know the contents of the document ; but no
su~h knowledge ought to be inferred from the mere fact of attestation.
Pa11d"rtmg Krishattaj~ v. Markandeya Ttlkaram., (1922) l.L.R. 49 Cal.
334; Ba1tga Clrmtdrn. Dhur Brswas v. Jagat Ktsltore Clzowdhur i, 11916) I.L.R.
44 C:il\. 186; L:R. 43 I:A. 249, followed: .....

....Civii Appeai No. 16 or 19~9 being appeal against the d~cree of-;e-~
Court in Civil 1st Appear No. 43 of 1948, dated 2nd Febril"ary 194"8.
. t Present : MR. J USTICE E MAUNGr .MR. JUSTICE. T~{ETN MAUNG . and
U T HAUNG SEIN, J. . .
 1951] BURM,A LAW REPORTS. 159
S.C.
P. K. Basu for the ~ppellant. 1951
DAW CHO
Zeya for the respondents. v.
U GANNI
AND OTHERS.
The judgment of the Court was delivered by
MR. JusTICE TH EIN MAUNG.- This is an appeal,
with a certificate . under section . . 5 of the Union
Judiciary Act, 1948, fr<?m the decree of the High
Co.u rt reversing a part of the de_cree of the District
Court of Myaungmya.
The District Court decreed the plaintiff-appellant's
suit for recovery of possession of a house (together
with it's site), a Bioscope Hall (witho';Jt its. site) and . a
piece of . leasehold land together with the latrine
standing thereon, ordered that an enquiry be made. ~s
to the amount of mesne profits for the said px:operties
from the 2nd March, 1944 and dismissed her claim
for recovery _of possession of the site of the Bioscope
Hall, " the filmprojector machine, engine, accessories
and other properties in the Bioscope Hall " . On
appeal the High Court has set the decree aside in so
far as the. Bioscope _H all, the leasehold land, the.
latrin~ and niesne pn;>fits for t~em are concerned and
dismissed . the plaint~ff-appellant's cross-objection
regarding the site qf the Bioscope Hall, the fil'm
proJector machine, . engine, ac~essories and other
properties therein.
It ~as also .granted a certificate under section 5 of
the Union. Judiciary Act, 194S on the grounds that
although the value . of the properties in respect (lf
which it has reversed .the decree of the District Court
is Rs. 6,SOO qnly, the 'a mount o_f mesne proqts wh~ch
it.has denied .to. thf? _plaintiff-appellant would approxi-
mately J:?e Rs. 5,90o.an~ that the ~llJ.oupt or value. of
the subj~ct-matt~r still In_dispute i~ this . appeal is not
less t~~ ten thousand rupees.
160 BURMA LAW REPORTS. [1951
S.C. The learned Advocate for the plaintiff-appellant
1951
has not pressed the appeal so far as her claim to
DAW CHO
v. recover possession of the site of the Bioscope Hall.
U GANNI
ANo oTHERS.
the film proJeC
. tor mae h"me, engme, .
accessones an d
other properties in the Bioscope Hall is concerned as
there are concurrent findings of fact against her.
However, he has strenuously contended that the
decision of the High Court in respect of the Bioscqpe
Hall, the leasehold land and the latrine thereon is
erroneous ; and in support of this contention he has
relied tnainly on (1) Maung Maung Gale having
obtained the municipal permit to build the Bioscope
Hall on a joint application with the owner of the land,
(2) Exhibit G which is a certified copy of the first
respondent's own evidence in 111oy Wa K)''U. and one v.
t.TGa.nni(thefirst respondent), Civil Suit No.19of 1941
in the Township Court of Myaungmya, (3) the first
respondent's failure to give evidence in the present
case and (4) Exhibit S which is a certified copy
of the lease of the land on which the latrine has
been built.
Exhibit G contains an admission by the first
..re.spondent of Maung Maung Gale, the deceased
husband of the plaintiff-appellant having beeri the
owner of the Bioscope Hall ; there is no express
explanation of the first respondent's. failure. to give
evidence and Exhibit S shows that the then
Governor of Burma gran.ted a ten-year lease
of the land to Mating Maung Gale on the- 25th
);'ebruary, 1938. '
With. reference to the said admission the learned
Advoca te has invited our atte~tion to. Rani Chandra
Kunnwar ~. Cha?44.h1i Narpet. &ngh ~tid others (1).
As .seCtion ~1 <;>f the Evidence
. .
Act 'merely provides
~ .
(1) (1907) L.R. 34 I.A. 27.
 1951] BURMA LAW REP ORT S. 161

that admissions are not conclusive proof of the matters S.C.

1951
admitted and as there is no q uesti on of es topp el at all
DAwCHo
in this appeal. At page 35 of the said rulin g their v.
Lordships of the Privy Council observed : U GANNI
ANn OTH!RS.

" No doubt, in a case such as this, where the defendant is

not a pa rty to the deeds, a nd there is therefore no estoppel, the
party making the admission may give evidence to rebut this
presumption, but unless and until that is satisfac torily done, the
fa~t admitted must be taken to be estaqlished. The law upon the
point is clear.''

vVith reference to the first respondent's failure to

give evidence, he has inv_ited our attention to Nawab
Syud Allee Shah v. Mussamut Ama11ee Begum (1) and
Sardar Gurbakhsh Singh v. Gurdial Si11gh and apo/her
~2}. In the first case their Lordships observed :
" Presumptions -are necessarily made against persons who
will not StJbjecl themselves to examination when a jrima facie
case .is made agaipst. tbe.m, and when by their own evidence they
might have answered it."

They also qJ:,served in the second case :

'}:
" The true object to be achieved by a Court of justice can
only be fur.th~red with propriety by the testimony of the party
'whq personally knowing the whole circumstances of the case
can dispel the suspicions attaching to it.''

With regard to . the respon~ent's case . that

_Maung Maurig Gale _was ~ o'n ly a benamid~r, he 4as
:invited .our attention to Sreeman . Chunder Day v.
Go_p~ulchunder Chuckerbulty and- _ others (3) at 44 of
whi-Gh
. . . their Lordsh!.p;
. .
of the Privy.
- .....
Council observed :
: " In matters of this cles-crlpticin it is essential to take care
that t_h e. decision of the Court' re~ts not upon suspici~n, but upon
. lel-{ril g_rom~ds , established by legal te~timony . "
{l) 19 W ,R.149. : (2J :ii.~-;-(1-92_7_)(-P-:c-.)-2-3-0.----- .
.. . .. (3J 11 ~oore~s I:A. 28.:.
ll
 ,.
162 BURMA LAW REPORTS.
S.C. So the evidence in this case and the facts and
!951
circumstances established th~reby must be examined
DAW CHO
. v. in the light of the ab<;>ve con~e~tions and observations to
b
tJ GANNJ
ANo o THERs. see if the presnmphon raised y the said ad mi. ssion has
been rebutted in spife of the first respondent's failure
to give evidence ~n."d ~f the decison that Maun~ Maung
Gal'e really had no proprietary interest in the properties
"rests not upon suspicion but upon legal gro,mds
established by legal testimony. ''
Maung Maung Gale's father U Tin, was a clerk
first in the Sub'Ciivisional Office ariCl then under a
lot:al pleader ; but he was an invalid for about
15 years before .h'i.s death. A few years after he
becarrte an invalid, he and His family consistin g of
his wife Daw Mya Ywet (the third respondent) and
his sons Maung Mat1 ng Gyi and Maung Maung Ga le
moved into the house of, and liv~d with, . the first
respondent, whose 'wife, since deceased, was Daw Mya
Ywet's own sister. At-that time Maung Maurig 'Gale
was about ten years old and his mother Daw Mya Ywet
was a bazaar seli~r. U Tin died in the .firs't r~spon
dent;s hou'se withoU't leav~ng an y pr~p~fl'y' ~'t all ~hen
, . t . . ' '
~ ' .
~1aung Jvlal.\ng qa.le was apout e1ghtee~..'Y~ars. plq ; arid
after U Tin's death the first responqent li~~. t~ ma~ht.ai!J
Maung Maung Gale and his mother who had no
work and to pay :Cdr ,his "education till he p'a ssed
:th.e ~nglo-Verna2ular Tehth 'Stahdard 'Ext~mination.
'Sor;;;'e fime 'after p'as'iitrig 'the 'said examinition
I

Ma~ng Ma4rig ;Q!ale tec-~rrie a t eacher ih the local

Nation'a1 Scho'ol orit h~ continu'ed 'lo live in the same
house with his . moth~r, _ .t he fir~t re~pondent and .
the first r~spondent's daughther (Ma Bi Bi, the second
respondent) till h_e .filarrie-d th~ pJaintiff-appelJant.
H e marr.i'~d, her o~ . th~e .3ht 9d.9oej-t J~39 ~lien he
was about 31 years pf.age ;and .after the marri.age he
lived with her separ~tely from hi:> mother 'and the
 1951] BURMA L AVI/ REPORTS. 163
other respondents till his death, i.e., till the 2nd S.C,
1951
1\farch, 1944.
DAW CHO
H e was first elected to b e a member of the local v.
1viunicipal Committee in 1936-37 and he retained l1is u GANlfl
A.N'O OTHERS.
seat thereon tlfl his death.
On the 29th November, 1937 he and Ah Hton
Shoke, the then owner of th e site for the Bioscope
Hall applied to the local Municipal Committee for
permission to er ect a theafre h<lll thereon. T he
Public vVorks Sub-Committee thereof actually rejected
the application and permission was granted only at
ihe full meeting of the Mun icipal Committee on ihe
15th December, 1937 by a majority of 7 to 4. (Se'"
Exhibits ~1, J?2 and T.) T he building was completed
on the 16th May, 1938 a nd it has been assessed to
Municipal Taxes with effect from the 1st July 1938 in
the names of Wa Tan, W a Kyu ;:tnd Maung Maung
G ale. (See Exhibit T, M and U.) Wa .Tan anCl
Wa Kyu are. Ah Hton Shoke's sons and ~ccording to
the registered dee~ Exhibit 73 Ah Hton Shoke, who
wasa co-owner of th~ said land transferred his right,
.title a nd rnterest lher ein to them.
On the 25th F~bruary 19:3'8, i.e., while t te Theatle
. Hall was 'being constiucfed Mating M'auiig Gale
obtained a ten-year leas'e C!f the Jarid . on which
:the l<ifrine now starids. (See Exhibit S.) Wah Hein
~P.W. 13), who is a br~ther of Wa 'fan and wa Kyit,
. has deposed that at . first his father Ah Hton Shok.e
.a nd MaU:~g Maung ' Gale agreed. 'to .build a bioscQ.pe
hall as parfners a nd 'th'at Ah Rton Shoke haCi to
as
retir~ his childr.en would not agree to the t>artrier-
ship j arid the s~'cond - responde nt has 'produced
Exbi'b it Jl, dated .the ~2rid May '193ts as 't he d-r~ft
-of a~ agreem~nt of . ~art~ei~hip' for -~he saine purpose
. 'b eMeen Wa ran a.na Wa 'K)ruoh 'the ' one parr arid
~the . firS.f-respondcint on{~e ~ther.. part. . . . .
J.64 BURMA LAW REPORTS. [19St

s.c. On .the 24th September 1938, i.e., shortly after the

1951
alleged agreements of partnership had fallen through
DAW'V~HO and shortly after the completion of the' building the
u GA~Nl first respondent took a ten-year lease of the site of the
ANo oTHERs. Bioscope Hall from Wa Kyu and Wa Tan by the

registered de~d Exhibit 72 covenanting therein ( 1) to

demolish the Hall and take away the materiais if he
could not pay the ground ren.ts and (2) to make the
first offer to the lessors if he wan ted to lease or sell the
Hall before the expiry of the lease ; and this document
appears to have been attested by Maung Maung Gale,
Ah Hton Shoke and others: .
In . Civil Regular Sua No. 19 of 1941 in the
Township Co11rt of Myaungmya, Wa Kyu and Wa Tan
sued the first respo.ndent for re~qvery of rents for the
land. The first respondent theti to~fessed judgment1
applied for permission to .pay the decretal amount by
instalments and mad.e the statement in Exhibit G in
s~pp01:t of\he said. apP.licatiot). ..
Maung M;aung Gale having obtained . per.mission
to build the Hall jointly with Ah Hton. Shoke, his
having obtained :i lease of 'the Ian.!=l for the latrine jn
his own name and the first responden:t having. deposed
'th~t h~ (Maung M;aung Gale) was t.he owner of'
the Hall are strong pieces of .evidence against the
respondents. . H owever they ha;ve produced evidence
' '~ofonif to 'pro~e .:the speCiai. relationship. betweeh
~ M_aurig M~u~g Gale and themselyes and th6 circum-
. stance~ 1~nde~. whi:ch the properties were acquired but
: ~1sb to "prgve t}f.a t he never had a.nY proprietary interest
.in.them at alL . . . .. . . '.
- -.'it; i.~ ..,9~~ojl ground, ti1at U T4an :was the
.'~~q:f~ri.tbr. )~n<LBal)~ . )vleaq.. :Wa.~. t.b~. r:nason:~ whb. .-con-
,:~tr.~~:t.q .. ~h~)fa.n~; : and ' .u ..~ P,o Hnyiri,'.~ Pe-r~sioner
.(.Q".W,::, ~~~) .h~~ ~tated . t~at~e ef).gase~ :b?th ~~ t~e,~ ~at .
..the iris'taitce of tl?~. first rsp9,n~.en~ -~nd. t~af ~~ -~~ri).s,~lf
 1951] BURMA LAW REPORTS. 165

laid the founda tion stone of th e Hall for the first S.C.
1951
respondent. U Than (P.\\.'. 4) says that he \.\as
, DAW C!lo
engaged by Maung Maung Gale ; but he bas add ed v.
" I was paid partly by Maung Gale and partly by AN~ ~;~~~s
Ganni ,;., ':~ * I do not know for whom Maung Gale
engaged me. I cannot say if Maung Gale made
.payments for himself or for Ganni (the first respon-
dent)" . Basa Meah also says he was engaged by
.Maung Maung Gale ; but he also has added " I was
given advances in Po Hnyin's house. I do not know
jf Maung Gale engaged me for himself or for others.
Ganni sometimes gave me money when I was given
.chits by Maung Gale. Besides, S. A. Khan (P.vV. 9),
has deposed (( from the time of erection till now
1 used to see Ganni (the first respondent) at the Hall
.together with Ma Bi Bi (the second respondent)."
As regards building materials there is no evidence
whatsoever of Maung Maung Gale having purchased
or paid for any .part thereof. On the other han.d then~
i.s oven~helming evidence-both 'oral and documentary
-of the first respondent having purchased aod paid
:for them. (See the evidence of U Po Mya (D.W. s);
Maung Nyun (D.W. 10), M. A. Khan (D.W. 12), Esoof-
Mamsa (D.W. 17), U Po Hnyin (D.W. 13) and
Exhibits 1. to 11, 74 and 92.)
. As regards the film projector . machine, engine,
:accessories., furniture . arid other properties in the Hall
both the District Court arid the High Court have
found that the first respondent i's their owner and that
Maung Mau.n g Gale never had any proprietary interest
-in thein i the_ learned .. Advocate for the pl<!-intiff-
.appellant has not press,ed ~he ,a ppeal ahdut them and
there is no reason whatsoever for in'terference with the
-,conc\l:rrent finding of fac.t. ._ ,: ',;. . :
A~ i~gard~ 'the municipa:l tax~~ on the building and
l~mti"tax {or. the s'ite ohhe 'latrine there is 'nO" evidence
166 BURMA LAW REPORTS. [195!
S .C. \\" h a t soev~r
of, Maung l\faung Gale having paid th e m at
1951
all. On th e other band U Tin (D.W. 6), who has
DAW CH O
v.
b een ward Headm an of the locality since 1936 has
.! ~~~~~s. deposed that he had collected them from th e first two
respondents before Maung Maung Gale's death, that
the appellant h(1.s paid the lan.d tax for the site for the
latrine only ~fte:r his death ; and his evidenc e is.
supported by Exhibits 87 and 88 which are tax receipts
for 1942-43.
As r~gards re11:ts and pro~ts of the. H;aV also, there
is n o ~,iden ce whatsoever, apart fron:t the appellant's.
bare assertion o{ Maung M_aung Gale h,avin.g ever
enjoyed tl;l ~m at all ; and the aJ?pellant ~s admitted ..
that she het=sel did not take part in the business.
conn ected w~th ~ioscope ~al~, a~though she had.
married hiw ~lpOt\t (our and a half y.c;ars before his
death. She h,as ~~s.9 stat~d that ~he s~co~d respond ent.
used to p~i11g hlws f~om R~mgoon aft~r t~e eyacua tion
of the J?r.itish, t~at bills f~r such films used to be
~s.su~q in h.~r t:l~W~ ~.nd ~l;lat ~on:te of H~~s~ bil~s ha~e
b~en p,~pduc~q qy ~h~ f~~ponq~nts. ~~e ~~s ~ot given
the r.efer~n~~ ~Q th~s~ b~ll~ ; 3;pd a~ a ~~tter of fact
~~h\bJts 18 ~~ 67 3:7;1.~ 79 to 86 show th(\t ~he second
r~sponqent l;lji~ ~1ired ~~rn$ frP.n:t R,~ggoon and.
exhibited them in the Biqsccuw Hf!-11 sine~ Iy1a::y, 1940,
i.e., about q~e y~~r and ri!f!e .~c:mths bef~r~ the said
~vacut~:tion. B~~\4~~~ K() ~~~ M:ya (J!.W~ 16) h::>s.
d~pos~q tqat h~ hir~fl th.e H~~! ten or ~..yetve t~mes.
before th~ J~paJ1~~~ ~nv~s~<m ~f Bur~~ frq~ Maung
G~le .and tlw ~rst t~o ~~&p<?n~e~ts ~nd P~!~ ~P.e hire to
~h~ t}rst two r~~pqq~?nts. M~ ~n );"~q (J?.W. 14)
also h~s giv~n evi4en~e of her h~v~n& hired the
Hall from the second resP.ondent by Exhibit 91 dated
the 3rd No~~~b~r - i94i .... , .,.
. J\~ r~g~r.ds jq~om~-:tf\~ ~~0 the!~ is ~0 ~yidence
~bflt~~~yer of M~~qg ~f~~& G~~ ~avi~g_ <:ver been
 1951] BURMA LAW
. . REPORTS . 16i

assessed to income-tax in respect of the Bioscope Hall. S.C.

19SJ
In fact the appellant herself has admitted that he \\as D AW CHO
not assessed to income-tax in respect th ereof and that v.
u G AN:!II
she had heard of the second respondent having been AND OTHI!RS.
assessed thereto; and Exhibit 89 shows that the second
respondent was assessed to income-tax in respect of
the B_ioscope Hall for th~ year '943-44 by an orde~
dated the 26th December 1943, i.e., ~efore the death
of 1\tfaung Maung Gale.
Moreover the facts that the first respondent got
a lease of the site of the Bioscope Hall shortly after
the agreement for a partnership with the owners thereof
fell through and shortly aftc~ the Bioscope Hall had
been built and that Maung Maun g Gale himself attested
the lease, Exhibit' 72, with A.h t{ton Shoke and others
are highly significant. The learned 'Advocate for the
appellant does not dispute Maung Maung Gare's
signature on the said Exhibit ; b'ut he has invited our
t

attention to Pandurdllg KiishatJa'l i v. !11arka11de;-a

Tukaram (1) whe~e their .. Lorasbips of the Privy
Comicil obse~ved :. . ' . 11

" Before their Lordships consider the circumstances in

which ''that atiest3tion took pl~ce .. they think it' is desirablf? to
1
e'mphasize once m'ore that attes'ta'ti'on of a deed by itsElf estops
a mah from . 'ciebying ' n'o thinf '\vhatevJ r excepting that b'e' has
witnessed the execution of the deed. ' n conv~ys, neith~r directly
nor by implication, any kho\\'led~e of 'the contents of tbe
qocument; ~ntl it O!Jgtlt J10t to pe pu~ fo~ward alon~ k :r ~4e
purpose of <;stabl\shing that a m"ln CQnsented to the transaction
, _. .~ . - ~'.I ..of ( - ;_

whicp th~ d<;>cument

1
effects. It is. of course, possj!Jle, ':\s was
1 1
pointed \)-qt by their to'rdships in tlle case o(BdnitJ Chandra
lJh~r hisw"Us v: ]~g'di K:siio;e Ch~Judlt~ri t'i ) ~that' an 'attestati'on
1

may tak'e place ih . ci~cu~stances w~ich ~ould show that the

witness d_id in fact know of the cO'ntents of the 'document, but :no
such' troowlec}ge .Qught td be inferrecl-. Txom the ~t;re . fact of
the attestation."
I , t( : . ~ - p
-
(1} (l9~Zl I.L.R. 49 Cal. 3j4. .
{21 i1?{6l i.L.R. 44 caf. is6' ; L.R. 43 I.A. 2-19:
168 BURMA LAW REPORTS. [1951
S.C. However, the circumstances were such that Maung
1951
Maung Gale must have known at least that the first
D.-\w CHo
v. respondent was getting a lease of the land on which
U GANNl , '
.&No oTHERs. the Bwscope Hall had been butlt. In fact the
appellant's own case which she bas failed to establish,
is that the first respond~nt got_ the lease for Maung
Maung Gale. If Mapng Maung Gale had built the .
Bioscope Hall at his o'w~- expense imd if he had been
the owner thereof he would have obtained or at least
tried to obtain the lease himself especially in vi~w of
the fact that the rent was only Rs. 60 per mensem.
All the. above facts indi'cate that Maung Maun g Gale
nev~r had any proprietary interest in the Bioscope
Hall ; and that the first respondent made a false
statement in Exhibit ' G just to gain an 'immediate
. . . - ' .
advantage o~ having t~ pay the decretal amount in that
suit by instalments:; and_they. become conClusive when
t'hey are taken coliectively against, the background of
the ..special relation-s hip between M~mng Maung Gale
on the one part and the firs't two respondents on the
other part.
We are satisfied 011- the ~vidence~before us (1). that
applications for the municipal permit ai1d' for ~ lease
9f the site of the latrin'e were made in the na~e of
~bung Maung .G~ie just to ~psure their success as he
then was . a member of the :Municipal Committee and
therefqre a man of some - influence iil the : locality
and (2)-thafthe presumption raised by' the first respon:.
dent adm~ssion in ExhibH G has be~n rebytted qy
legal evidence, inter a:lia, of the conduct of all the
parties _c~ncerned in resp-e ct of the Bio~<:ope Hall both
before and ,after .the. admission.
The -' appeal is. 'disinfssed. - However, there wilt be
no ord._er-.for. costs.in. thi~. -CQprt as the first r:esponden.t
has not only made a false statement in Exhibit G but
. also f ail'ed t~ .gi've 'evia~nce in 'the present' case. ~ .
 1951] BURMA LAW REPORTS. 169

SUPREME COURT

MRS. CONSTANCE Ml?\00 WRITER (APPELLAKT) ts.c.

1951.
v. Jan, I S.
A. M. KHA~ (RESPONDENT).*

U.-ban Rent Control del, s. 11 (1) ({) a"tl s. 14 (a !-Premises-S. 2 {d)-

Coustructiou of Statutes-Principles applicable.
Held : S. 11 (1) (J) of the Urban Rent CJntrol Act provides that no order
or decree for the recovery of possession of any premises to which the Urban
Rent Gontr ol Act applies shall be made unless a building or part thereof is
r easonably and boua fide reqttired by the owner for occupation by him!>elf.
As a Stlppletnent to this provisions. 14.A of the Act bars a snit for ejecltneut or
r ecovery of possession on the grounds specified ins. 11 (1) (j) except wi th the
pennission of the Controller of Rents in writing.
S. 11 11) Ul read with the definition of pre'tlises l{iven ins. (2) (d) clearly
indicates that such portion only of the building as is necessary for the l1o11~ fide
residential purposes of the landlord may be recovered by him by ejectment of
t he tenant.
The Urban Rent Control Act was enacted to solve the housing problem
consequent ~pon the scarcity of residential and other buildings after th e
second \Va;ld W ar. The normal r ight s of the owners have been restricted in
various ways; . and to the incidence of the .:ontractual relation are super-
i mposed many terms never in the contemplafion of the parties. Thi integrity
of the contractual relationship is consequen tly affected by the Act.
In interpreting Statutes such conatruction ot a Statute shall be made as
3hall suppiess the mischie. and advance the remedy. The construction must
n ot be strained. So construed it was open to the landloJd to break up the
integrity o( the tenancy by giving notice to quit with reference to a portion
of the entire.premises covered by a single leaae and the auit was not liable
. to be d,efe~t~d on this ground;.
Hari/1ar Bm,erji v. Ramashaslli Roy, (1919) I.L.R: 46 Cal. .458 ; Ram Kam'e
!Jfandai a11d pllters v. Gunesh CfllliJder Sen and otl1ers, (t921J 33 Cal. L .J. 275;
Bodardoja and otllers v. Ajijuddi11 Sirca.- a11d otlle.-s A.I.R. (1929) Cal. 651,
relied on.
T. H. }{_fum v. Yus.xJf Abowath and others, (1947.) R.L.R. 354, at_>plied.
Ma.a;tll~lloll
l11 lerp.-etation oj Sla(t~/es, 8th Edn. 61. .
. . .
V. $. V-e!Jka-tram for the appellant.
K .R. Venkatram for the respondent.
Cii't Appeal No. 9 6f 1950 being appe2t against the j udgment and decree
passed ikCivil l st Appeal No: 17 of 1949.
tlnsetl.t :}$t.8 B_A lJ, Cbr.e, Justi~ of.lh~ !Jn:iQ.n of Bu.rnia.' l>fR, }QSTJC.E
E MAUNG and MR. J USTICE THE!N MAUNG. .
170 BURMA LAW REPORTS. [ 1951

s.c . T he judgment of the Court was delivered by

1951

co~~~!NCE MR. J usTICE E MAUNG.-The relevant facts of the

MINoo case lie within a narrow compass and are not itt
WR,ITER
v. dispute. The appellant i~ the owner of a house
A. !'f. KHAN. COmprised Of ~WO f1a_t,s, eac;h Of which ~aS intended to
be occupied ind ependently' of the other, and there are
two motor garages attached to th e h.ouse. Pr.ior to
1942 the appellaht occupied the uppei flat and t he
lower flat was let t9 ~ teri~nt. Late~ the respo~dent
became the tenant of the upper fl<\~ on a rent of
Rs. 230 per mensem. In D ecember 1945 he took a.
lease of the lower fl~t as w~~f, the ~ynt (<?r P.<?th flats
being agreed at Rs. 450 per mensem. Later by
consent of the parties the ren't wa~ reduced to Rs. 250
-: " t

. per r.ne11:sem .
In 1948 the appellant, who had been livin,g with
her husb(\nd and children in her mother-iii-l aw's
to
house, de,$ire~ ~~l?l,.llll~ o~cup,~~io~ 0~ her ow,n' house
and applied to the Controller of Rents. Rangoon, for a
certifkat~ uo.d:~r ~~ctio,p ;4-A o~ th~ Ur~~q Rt:J1t
(::ontr.o l J\.~~ ~D; ~c,~p_e~t ~f the t;I*re ' b.~i\~ing a~ a
preliminary to an action for ejectment of the respon-
Clent. ~h e C~ntrp.l{H, h~w7~er, ~f~~r a~ ~~qujry,
coQsi9ered that one. fl~t should suffice th~ n e~c{s of th e
appellant and granted her permission to institute a: suit
fo:' ~j~c!~en\ o,f .~n~ re~p,~~~~pt ~~~~ " rit~~t' ~h e
upper. floor . O.f th ~ groqnd :flogr'' of th~ ho~se in
question. A notice on behalf of the appellant calling
upon the respondent ~~'to quit arid deliver up possessi on
I~ t . ~, .. J ... , ' . ' \u . J .\;. , '

of the upper floor of the house K:nown as .No. 172,

Blgandet Street, Rangoon, together wifh !'f he western
garage and the . a~jo~ping ~tor~-CQQ11\ Q~ th~ ground
floor" followed the
' . t 's.
...
grant
t~.... ,
#
o.f the
, J;
P.ermission bf.
l 1: . .
{
the . # : : '

Controller of Rents arid i~ qqe .c9~t:~~ th~ ap,pellant

instituted a suit for ejectme.nt in the City Civil Court,
 1951] BURMA LAW REPORTS. 171
Rangoon. The learned 2nd Judge of the Court S.C.
1951
gr~mted the appella_ nt a decree for ejectment in resp<: d
MRS.
of the upper floor only of the house, rejectin g her co:-:sTANCE
claim for th~ garag~ and the store-room on the ground ~~~ToEoR
floor o~ the ground t~at these buildings \Yere not A. M~KHAN.
included :in the per~it granted to her by the Rent
Controller
. . ... under
. . sectio.n. 14-A (3) of the Urban Rent
Control. Act.
Aga~nst this ~l(~~ee the res~~mdent '\J?.Peale<f and a
Bench of the High Court allowed the appeal an~
dismissed the appellant's suit. . .
The appellant was granted by ~his. Court special
leave to appeal under the provisions of section 6 of the
Un.ion JU,d~ciary Act as t~e dispute b~tween the
part~es involves questions of general importance on the
effect of the tfrban Rent. Con't~ol Act on the contrac-
tual relatio.n ship between iimdiord ~nd. t~n~~t supple-
mented. by the 'pro:visions cl . the Tiansfer of Property
A~t r~~ul~~\~i, ~uch ~-elc~~i~,nsh~r~ '
The hearing, bot~l bef9.re tl;l'e Ju~g~ of fi~st instan.ce
.aJ!d th~ APP~~l~te Be~.c~ o(t~~ iii~h ~ourt, p'r9c~e~~~
on the fQoting that the lease o.f the house, comprising
of fwo fl~ts, was c~eated by a s~~.iie ~o~tr~ct. fhe
facts as disclosed on t~e 'record and summar.ised
earli'er ~n t~i& j'!d&~~~t flo nq~ appe~r 'to s~tppo~t thi~
view of the transaction. Huwever, it is only bt{ote
' .-, \~~, , . ~ ~ \ 0 'C \ ; \. t~ f , !

us and in the concise statement of facts subrri~tted by

the' respondent th'at the f~il ~tor.y
o ,
1
t o,
'of th~ ' t~nancy
0 , I o
s~-t
, o , , 0 o ( ~ 'l , : l
was
0

011t ~?r ~~~ ~rs~ tit;1~ an~ set ~ut by the ~e~po~qent ~~9~~~
In th~ !ower <?.<:>urts U~~ apppll~nt and -~!l~ r~~p~~d~p~
proceeded as if .the lease of the two flats was by a
single transaction in December 1945. We 's hall,; {fi
disposing of this appeal, .. therefore, proceed on the
basis that the two flats came into the -occupation of the
0 t J ,

r~~p,pn4ent 4.~ the f~!.dt pf a singl ~~~s~ made .in

Decembe~: - 1945. . .
172 BURMA LAW REPORTS. [1951
S.C. Chi ef Justice U Thein l\iaung (as he then was) of tl1e
1951
High Cou rt, with whom Mr. Justice San Maung agreed ,
co~~!NCE took the view that the notice to quit preliminary to the
"~~::ro:R suit for ejectment is ineffective in law. Relian ce was
. Mv.I{
A . l liAN.
placed on the decision of the Privy Council in Harihar
Banerji v. Ramashashi .Roy ( 1) and on the decisions of
the Calcutta. High Court in Ram Kanie llfandal and
others v. Gunesh Chunder Sen and others (2) .and
Bodardoja and others v. Ajijuddin Sircar and
otlzers (3) for the proposition that a l andlord cannot
break up a tenure and that a notice for a fra ctio n of
t he holding is ineffective.
To the abstract principle that a landlord m ay not
break up the tenure rio exception can be taken. The
principle is the natural corollary to t he fact that a lease
is a grant arising out of a contract and the contractual
relatio nship between the landlord and the tenant m ust
be r egulated by the Transfer of Property Act read
together with such relevant portions of the Co ntract
Act : See seclion 4 of _the Tran ~fer of Property Act.
But a contract which was entire in its inception may
have jts integrity broken either by a subsequent
agreement of the parti<.:s or by operation of law.
The Bench of the High Court, applying a de cision .
of the High Court of Judicature a~ . Rangoon in
T. H. Khan v. Dawood Yusoof Abowath and others (4),
came to the conclusion that nothing in the Urban
Re.n t C.o ntrol Act has affected the integrity of the lease
granted by the appellant to the respondent in
I;>ecember 1945. The , Hon'ble Judges in their judg-
me.nt under appeal said :
" It wili thus be seen (1} . that section 11 (1} requirt:i-the
landlord to have complied with the reqniremeqts of the Transfer
of Property Act and (2) tl1at se~ion 14 ~A (If prescrib~s a f urther
(1) (1919) I.L.R. 46 Cal. 458. (3J A.I.R .. (192.9~ Cal. 651.
(2) (1921) J3 Cal. L.J. 275. t4) (1947) R.L. R. 354 . .
1951] JJ URMA LAW R E PO RT S . 173

condition that the landlord must have obtaiaed the Controller's S.C.
1951
permission in writing. There is no provision in th e Act authoris-
ing the Controller to break up a tenancy; nor is there any l\IRS.
CO!\STAI\CB
provbion in the Act declaring that the Transfer of Property Act l\1fNOO
shall not apply to a tenancy which has been broken up by him." \ .VRJTF.R
t '.
A.M. KHAN
The argument in the judgment wind s up thus :
''So the fact that the Controller has granted his permission
in respect of one fiat only cannot affect section 106 of the
Transfer of Property Act according to which a tenancy must be
terminated, if at all, as a whole."

In T. H. Khan's case it was conceded at page 358

of the report that though Acts must be construed so
as to avoid unnecessary repugnancy " where there is
an inevitable conflict, . the pro\'isions of the Urban
Rent Control Act, 1946, must prevail." (The Urban
Rent Contrel Act, 1946 has since been replaced by the
Urban Rent Control Act, 1948). Section 11 (1) {f) of the
Urban Rent Control Act, leaving out words redundant
for our purpose, ~e1Cis: :
"Notwithstanding anything contained in the Transfer of
Prpperty Act or the Contract Act or the Rangoon City Civ:il
Court _Act no <_?rder or decree for the recovery of possession of ~ny
premises to which this Act applies or for the ejectment of a
tenant tperefrom shall be made- or given unless the building or a
.part tbe1~eof to 'which the Act applies is reasonably and botra fide
r~quire.d by the pwner fo~ .occupation by .himself exclusively .f or
residential pu~pose, etot 1
As (!. Sl,lpplement to this provision sectiqn 14-A-,bars a
suit. "."for ejectm_~nt OJ.:: recP.v.~ ry of poss~sion on t}le
_grou~,~s - specified im sec.tion 11 (1) {/) exc~pt with-the
permission of :the Controller of R~fits: ~n writingto
. institute such sui.t or proceeding. .. . : ~ -~ .. . ~-
. The .: woid .. '.' {:>ren:ti~es ', has be.en. _',-~d)in~<;l .k
sec:tioti 2 {d)' of. 'the Act as meanii)g, _a~9~g._.p.t~ef~,
'':any building or pa~t of ~ building let or oc-~npi~d or
174 BURMA 'LAW REPORTS. [1951

S.C. intended to be let or occupied separate.Iy for any

1951
purpose whatever, etc."
MR_s.
.CONSTANCE
Taking the Urban Rent Control Act as a whole
MINCO
WRITER
what emerges clearly is that it was enacted to solve the
v. housing problem consequent on the scarcity of residen-
A.M. KHAN.
tial and other buildings after the ravages of the Second
World War. The normal rights of the owner to eject
his tenant from the premises in the latter's occupation
have been restricted ; the landlord may not sue for/or
recover anything more than the standard rent fixed by
the Controller of Rents, whatever the terms of the
agreement may have been ; and to the incidence of
the contractual relation are superimposed many terms
never In the contemplation of the parties when making
the contract of lease. It is idle to insist that the
'integrity of the contractual relationship between the
landlord anq the tenant remains unaffecte by the
Urban ':Rent ..Control Act. . . .
As we have said, section 11 (1) '1) clearly indicates
that such portion only of the building as is necessary
for the bJna fide re'sidential purpbses of the landlord
ma'y be recovered by him in ejectment of.the tenant.
The d~finition of the term " prerrli'ses ;' ~!early
indicates that for the purpose's of this Act, the unit is
'such part of the tenancy as may be let or occupied or
intended to be let or occupied separately. As'Maxu:ell
in his_Jnterpretationoj Statutes (1) states :
" It i's iaiO ,.to t)e )tile ifuty 6 tfie Judge to niike suc1t
cpnstructi<Yn '6f ~a s tatute 'as 'sh<dl s'rippte'ss tne misCli.lef ana
. adva'rice th_e rem~dy Eve'n '\vhere the uSlfal meaning of the
language falls short of the whole- object of tlie Legislature, a
more .~tended meanin~ m1r ~e attri.buted to the. u:<?.r~s, if they
are fairly susceptible of it. . The.cQm.tructipn must not, of course,
'lk U?:ir~a >to in.tru'4e .tase~r pl~triry 6iP1tted ' l~oin t1:ie natural
me!lWii'ig''<WfHe ~woPds."

- '
1951] BURMA LAW REPORTS. 175
The present is a much stronger case. To accept the S.C.
1951
construction sought to be placed on the Act on behalf
MRs.
of the respondent, and "hich found favour with the C ONST AI'(CE
MINOO
Appellate Bench of the High Court, would be to WRITER
nullify the intention of the Legislature clearly indicated v.
A.M. KHAN,
throughout the whole of the Act.
Certain further technical objections to the form of
the notice, which were taken in the pleadings, \'\'ere
not pressed b~fore us and we need not consider them.
In the result we set aside the judgment and decree
of the Appellate Bench of the High Co urt and restore
the decree of the City Civil Court with costs through-
out. Advocate's fees ten gold mohurs.
176 BURMA LAW REPORTS. [1951

SUPREME COURT
ts.c. CASSIM JEEvVA AND ANOTHER (APPLicANTs)
1951

la1J. 22.
v.
THE MOU'LMEIN MUNICIPALTTY
(RESPONDENT).*

Bmma Jv.t111icipal Act, ss. 79 and 201-Validity of tlecree or order passed by

Court of rompetcnt jurisdiclioH-APPlicability to q:msi-judteitrl officials-
Subsequeut asse,smenl b-y Municipal Commdtee under s. 79 (1) of /he
Mnlticipal Acl-Wrtf of (ertiorcrri-lnterfercnce by.
The Finance Sub-Comn,ittee or Moulmein l\Juniciralily recommen ded lo
the Municipal Committee that ap.plicant's damaged Mill should be a~se~sed
at 50 per cellt of the r ental value. This reconunendation was accepted by the
Municipal Committee. The applicant appealed to Ihe Depnty Co:rimissioner
who treating the decision as decisio.1 of Assessment Sub-Co mmillee
entertained the apreal under s. 79 (2) or the Burma Municipal Act llr.d st:t
aside the order. Subsequently the Muuicipal Committee pa~~ed a resolution
to recover arrears of tax on the basis of the original decidon at 50 per cent
of the rental value. 'l'hc applicant nppealed to the Commi~sioner who held
't hat no appeal lay to him. The applicant applied to the St1preme Court ior a
direction in the nature of certiorari.
Held: Though the Commissioner was wrong in not entertaining the
appeal, directions in the nature of certiorari are discretipnary and. the Court
wifl be slow to interfere if the result of an irregularity of an inf~rior tribunal.
has been to promote substantial justice between the parties. Though the
Deputy Commissioner exercised jurisdiction under s. 79 (1) of the Municipal
Act the :~pplicants never took I he preliminary steps which conld enable them
to exercise the right of <lppeal. Thtrefore this Court should not exercise
it n.ow.
. The decree or order passed by <1 Cou rt of conipetent jurisdiction will not
be <lecl~red void or a. nnllit)' uriless the ~am~ has been set asicle in proceeclirgs
by. way of review, revision or appeal, and 'this applies in relation to a tribunal
exercising judicial or quasi-judicial functions as to a Court.
The Court has jurisdicti'On to decide wrong <Is well as tight.
S. A. Nathan _v. S. R. Samson, 9 Ran. 480 at 490, referred to and applied.
Makajan v.Nnrhari, (1901) 2i I.A. 216, followed.
The proceeding!> by the Municipal Committee by way of re-asfiessmenl
must be treated as a fresh decision under se::tion 79 (1) of the Act and this is
so even though the Committee diu not tl1ink it was acting under the.~~i.d
provisions.

~ Civil Mis~ .. Appliclltion No. 73 of 1950 bein~ an ,.l_\pplication under

section 25 of the Co.nstitution of Burma for directions .. in the nature of
ce~tiorari.
r Present , SIR BA u, Chief Justice c.f . the Union of Butma, MR.' ]USTIC&'
E .MAVNG and MR. JUSTlCE THEIN MAUNG,
1951] BURMA L AW REPORTS. 177

P. K. Basu Jor the applicant. S.C.

1951
CASSilC
The judgment of the Court was delivered by J.EEWA AND
ANOTHER
t.
MR. JusTICE E MA UKG.-The applicants are the THE
l\IOUL&!EIN
()Wners of a rice mill in Moulmein known as the l\1UNICI-
PAL1TY,
Mupun Rice Mill which , before 1943, was apparently
in working order. But in 1943 and since then,
serious damage was caused to the mill by bombing
.and looting during the Japanese occupation of Burma.
When in 1945 Moulmein was re-occupied by the
forces of the lawful government, it is not disputed that
the engine required extensive repair s and that the
godown s attached to the mill shed were damaged and
that the premises were overgrown with shrubs and
weeds. It appears that certain residential bungalows
formed part of the premises ; one of them was
requisitioned by the Civil Affairs Service for 7 months
from April to October 1946 ; and the owners were paid
:a rent of Rs. 37~ in respect thereof for that period.
In the financial year 1945-46 the Moulmein
Municipality, under the provisions of section 76 of the
Municipal Act, had an assessment list of buildings
and land within the munici_pality prepared and the
annual rental value of the Mupun Rice Mill was
estimated at Rs. i6,000 and the amount of tax was
.assessed thereon at Rs. 520 per quarter. This
assessment' was not challenged by the applicants till
5th February 1947 when the 2nd applicant stating
u that the mill and the god owns are in a state of
..disrepair owing to bombiqg" requested the responde-nt-
Conimitt.ee " to remit the taxes for the same" . It was
in this letter that the applicants stated that one
bt,mgalow w~s occupied by the Civil Affairs Service
for 7 mpnths.'for _wh ich they received a rent of Rs. 378
in ~~ an4 that :apart from that occupation the mill
. 12 .
i78 BURMA LAW REPORTS. [1951

S.C. and other accessory buildings were not occupied by

195L
any one. This letter was fo llowed by similar requests
CASSDI
}EEWA AND for remission on the 12th March 1947 and 2nd April
ANOTHER
v. 1947 in respect of different quarterly demands, ending
TH!-:
1\.(QUUJE!l-1
with the second quarter 1946-47. These request-s for
MoNtCJ- remission were placed before the Finance Sub-
PA LITY.
Committee of the Moulmein Municipality on the
31st April 1947 and the Sub-Committee decided to
recommend to the full Committee to assess the mill
"at 50 per cent of its assessed rental value with effect
from 2nd quarter of 1945-46 to 3rd quarter of 1946-47. "
This recommendation of the Sub-Committee was
accepted by the full Committee on the 12th May 1,.94/.
An appeal!was preferred by the applicants against
this decision of the Municipal Committee and on the
16th January 1948, the Deputy Commissione~, Amherst
District, treating the appeal as against the order of the
Municipal" Assessm ent Sub-Committee, informed the
applicants " The order of the Moulmein Municipality
to assess your rice mill at Mupun Quarter, Moulmein,
as an occupied factory under Instructi on 27 is set
aside. It should be assessed as an .unoccupied one
under the Bye-laws of Municipality."
The appellate powers of the C.1mmissioner of a
division or the Deputy Commissio: 1er of a district in
respect of proceedings of a Municipal Committee are
defined in sections 79 and 201 of the Municipal Act.
Section 201 has no application whatsoever to the facts
of the presenf case. If, as the Deputy Commissioner
contemplated in his order of the 16th January 1948,
th~ decison challenged before him by the .a pplicants
w'as one made by the Assessment Sub-Committee,. an
appeal w<?uld lie to hiin un~er section 79 (Z) of the
Act And it w~s qn this }?asis . Jhat the :Deputy
Commissioner entertained the appeal and pa ssed his
orders. We shall have to make some commen.fs later
1951 ] BURMA LAW REPORTS. 179

on the correctn ess of th..: ;-.~s umption, but rightly or S.<.:.

1951
wrongly the Deputy Com mi::;sioner, having assumed CASl;JM
that the appeal bdore him \vas one against an order jEE\\'A AND
A"OTHF.R
falling within section 79 (1) of the !vinnicipal Act and v.
THE
having exercised a jurisdiction which section 79 ( 2) l\'IOULMEIN
has vested in him, that decision \~.:ould appear to us to J\lu:>IICI
PAT. JTY.
be binding as far as the parties thereto are concerned.
A decision of a Full Bench of the late High Court
of Judicature at Rangoon in S. A. Nat/zan v. S. R.
Samson (1) would appear to be apposite in this.
connection. What \Vas said by Page C.J ., in relation
to a Court will apply equally to a tribunal exercising
judicial or quasi-judicial functions.
The learned Chief Justice there said :

" 1 will assume for the purpost: in hand that any decree
passed by a Court without inherent jurisdiction,- wl~ ether the
want of jurisdiction has been waived by the parties or .not,-will
be declared in proceedings taken by way of appeal, revision
review, or otherwise as pres~ribed by Jaw, to have been coram
no~ judice and ab initio void.and a nullity. Bnt, in my opiniont
a subsisting decree passed by a duly constituted Court that has.
not been set.aside in proceedings by way of appeal, revision,
review, or otherwise is not to be treated as a mere nullity, but
is biJ;~ding and conclusive against the parties thereto duly
impleaded in the suit."

We find it not impossible to appreciate the

difficulty which the Municipal Committee entertained
to underst~nd how the decision in January 1948 made:
by the Deputy Commissioner could be effective -in iaw
.t o set aside the assessment made as far back as 1.945-46.
In any event, on the decision being communicat~d to
the respondent-Committee it protested .against wba t it
considered to be an incorrect decision .and requested
.. the D'eputy Commissioner to res<:ind the same. Je
{1) ' 9 Ran. 480 al490.
180 BURMA LAW REPORTS. [ 1951
S.C. Deputy Commissioner-rightly in our opin ion-
1951
informed the respondents that he 'vvas not competent
CASSlM
}EEw ..\ AND to review or rescind his own de.cisio~. But the Deputy
ANO'rHER
'1}.
Commissioner did not stop there. He added, what
THE
MOULMElN
appears to us a gratuitous suggestion, chat "it is left to
. i\IUNICI- the Municipality to still assess the mill though not at
PAI..lTY,
the full rental value," and that the Committee ''may
proceed v.rith whatever course of action it deems
justified and 'if the assessee feels himself aggrieved he
can then appeal again to the Deputy Commissioner or
the Commissioner."
The result of this reference to the Deputy
Commissioner was that the Municipality felt itself at
large and when on the 24th April 1948 the applicants
applied for re-assessment of the premises as on a rice
mill in a state of disrepair, it decided to reaffirm its
previous decision and to recover arrears on that basis.
Against ~his decision the applicants (lppealed to the
Commissioner, Tenasserim Division, who rejected the
appeal on the ground that neither the Commissioner
nor the Deputy Commissioner has jurisdiction to
entertain the appeal.
The applicants have come before us seeking for
directions in the nature of certiorari to quash
the. proceedings 9 the Commissioner, Tenasserim
Division, and of the respondent Municipality rejecting
their application to re-assess the premises in question
in terms of the appellate order of the Deputy
Commissioner: At:nherst, of January 1948.. In so far
as t he learned counsel for the applicants contends that
the decision. o~ the Dyputy Commissioner, Amherst,
made ~n January 1948 is bindi~g between the parties,
we feef that th~ claim .must be accepted. It , matters
not, fo.r this pt,trpose, whether the decision was correct
or erroneous in law and on the facts. Section 79 (2) of .
the Municipal Act vests the Oeputy Commissioner
 1YS 1] BURMA LAW REPORTS. 181

with appellate jurisdiction in respect of asscss111ent of S .C .

l'J5 l
muni ci pal tax. It was in exercise of t hat jmisdiction
CASSJM
that the Deputy Commissioner had purported to set JEE\\' A ANr>
ANOTIJ ER
aside the assessment ; and as the Privy Council rightly
said in Markajin v. Narhari (1) : THF.
Mot;uum-:
MUNICI-
PALIT Y,
,. It (the lower Court) made a sad mistake it is true ; but a
Court has jurisdiction to decide \\Tong as ,,ell as right."

As was pointed out by Page C.J., in the Full Bench

judgment of the High Court of Judicature at Rangoon
earlier cited, even an incorrect decision not in excess
of the inherent jurisdiction of the tribunal requires to
be set aside in due course of law to cease to bG
operative and till thus set aside rem<\ins binding on
the parties thereto.
The position then in law is clear. Th e assessment
of 1945-46 has been vacated by the appellate order of .
the Deputy Commissioner, Amherst, of January 1948 .
What follows thereafter at the meeting of the
respondent-Committee on the 17th .May 1948 must be
regard ed in the contemplation of law to be by way of
re-assessment of the premises in substitu~ion of . the
previous assessment which had been vacated 'by the
appellate authorily. The d~cision must be treated as
a fresl?- decision under sectioh ,79{ t) cif .the Mui1icipa:'l
Act. It is true that the Committee did not thinkthat.
it was acting under the provisions of section 79 (1) of
the Act but it is clear that in 'law the proceedingstaken
by it were in fact in pursuance of that sub-section.
That being so, the appeal to the Commissioner,
Tenasserim Division, clearly was competent under tpe
provisions of section 79 (1') of the Act, and the
Commissioner erred iri declining jurisdiction to
entertain the appeal. .

. . . . {1) {1901) 27 I.A. 216.

182 BURMA LAW REPORTS. [ 1951

~:c:. N ormally, on a findi!lg su ch as this, an order

11951
-quashing the proceedings of the Commis3ioner would
CASSU.(
,JXBWA AND
follow. But directions in th e nature of certiorari are
ANOTHER discretionary. This Court will be slow to interfere by
v.
TKE way of such directions if the result of an irregularity
MOULMI!IN
.MUN!Cl
of an inferior tribunal has been to promote substantial
.PALJTY. justice between the parties as in this case. I n the
present case, while, as we have already sa id, the
D eputy Commissioner exercised jurisdiction which the
Municipal Act under section 79 (1) has vested in him,
it is clear that the applicants never took the preliminary
steps which could enable them to exercise the right of
appeal under that provision. Moreover, the applicants
prior to preferring their appeal to the Deputy
Commissioner had been applying repeatedly for
remission of the municipal tax by applications which
would fall under section 5 of the Municipal Act. It
was against the rejection of these applications that the
applicants appealed before the Deputy Commissioner.
It can not therefore be said that substantial justic~ has
not been done by the Commissioner, Tenasse rim
Division, in rejecting, though on grounds which we do
not consider suffi cient, the ap peal of the applicants.
In these circu m5tances we dismiss the application.
The respondent has nol been represented before us
and there will be no order for costs.
 1951] BURMA LAW REPORTS. 183

SUPREME COURT.

KO TIN (APPLICANT) t S.C..

1951
v.
THE CHAIRMAN, PUBLIC PROPERTY PRO
TECTION BOARD AND ONE (RESPONDENTS).*
Publie Property Profecttotz Act, 1947. $, 2-Cash whet lttr public property-
Rrtlc of ejusdem generis in coustmctiou of Stnlu/es-Cotutifio"s for
appticafiors.
Held: Cash issued to a Village Headman for agricultural loans is public
properly within the meaning of s. Z of the Public Property Protection Act.
1947.
The doctrine of eju.sdem getterts must be applied with caution in connection
with the construction of Statutes. Where in an act of Parliament there are
strong reasons from the history and circumstances connected with its passing
and from the structure of the Act itself, to indicate the real meaning of the
Legislature. this doctrine has no application.
The specified things must possess some common and dominant feature
so that the genus can be ascertained ; but there is no authority for the
proposition that the rule must be applied whenever a common and dominant
feature can be found in the svecific:d things.
Attorney-General v. B1ow1J, (1920) 1 (K.B.} 773, applied.
Moh.amed Hussci11 v. Tile Union of Burma, Criminal Mi~c. Application
No. 115 of 1948, over-ruled.
S. S. Mag11ltild v. Me lt~lyre Bros. & Co., (1920) 3 (K.B.}; Tlte King v. U Saw
Hltl Pru and one, (1947) R.L.R. 113 at 86-87, referred to.

S. T. Leong for the applicant.

Ba Sein (Government Adv~cate) for the respon-

dents.

The judgment of the Court was delivered by

MR. JosTICI!: THEIN MAUNG.-This is an application

for a writ of habeas corpus by a village headman who
_has been detained under section 7 (3) and (S) of the
Criminal Misc. Application No. 3.-* of 1951 being application for diree-
"the nature of habeas corpus in re>;pect of Ko 'I'in.
tions:in ,. . .. .
f Pres"e"t:StR BA U, ' Chief Justice of the Union of Bum.la, MR. }usr.rce
E MAUNG and MR. ]11STJCi: TRJUN MAUNG.
184 BURMA LAW REPORTS. [1951
:-;.c.
1951 Public Property Protection Act, 1947 in connection
with cash issued by the Government for agricultural
Ko T rN
v. loans ; and the only question that has been raised
THE CHAIR-
MAN , Ju :a.rc by the learned Advocate for the applicant is whether
P ROP. ftT Y
PROTECTION
such cash is "public property" within the purview o ~
BOARD AND the Act.
O~E.
He has contended that although it would ordinarily
be regarded as public property, it is not public pro-
perty for the .purposes of the Act as the Act contains
a special definition of public property.
The relevant part of section 2 of the Act reads :

"2. In this Act unless there is anything reP,ugnant in the

subject or context,..,.-
(i) ' Public proper'ty ' means ailY store or equipment or
any other property whatsoever belonging to, or
consigned to, or intencled for the use of the army t
naval or air forces serving in Burma or belonging
to, or consigned to, or intended for the use of, the
Government of Burma or any local authority, or any
Bo~rd or Body constituted under any law."

So the learned Advocate has contended that. the

doctrine of ejusdem. gene7'is should be applied and
that the words " any other property whatsoever" should
be held to mean any other property in the same
category as stox:e or equipment ; .a nd in S!Jppo~t .?.f his.
cont(mt1on he has invited our attention. to A'tloiney-
General v. Brown (1) and Mohamed Hussein v. 'The
Union of !3.t:tn:na :(2). _, . . . . . ..
. In Attorney-General v. Brown (1) the meaning of
the wotq~:-- '.~~ an:y- other goods~ .in secti'on :43: .or~ the
Customs;->Consolidation '< Act/ i.1876; -whiclv .'p:ti>vides
. ~:The- iirl~ortatidn 0r:ai.ti1s''f:. aclrimnit1on) gm~po\ydei
. ar.-an ..
. .. .... .Yl..o'the~r:.- .- voas:""a-::-~=.e
. , .,.,g ,..... .P.l. . ~ .d? ........ ~!>'. . ~ f)"::.p-:oaam:r-.
:-:-r.on:~~it'd . Y. J. . . , . .
tion or Order. in- 0oundit~ ::wa:S.-- -held ' tor:,haw: been;
" ; . ; . ~: ' , .~ ' ., : .. ~l _: , (~ ',.~: "f"' l '~ ) _' . ~ -( -::~ :it '3 . fi:1:2..,S P
(lJ (1920) l .(K. B.) 773. (2) Cr. Misc. Appr,#No;>H!S~f:l'948 of'the High'CO'ortr
. .
 1951] 13UR~1A LAW REPORTS .
S.C.
restricted to things of the same ci<t!->S as those 1951
previously specified. However, Sankey ] ., who decided Ko T1!'
that case, obscned : TH:
iJ
l..:ruu~
AIAN. I'GIIl.l(
" Altlioug\1 thereiore the doctrine of cjusdCI!I ~c11cris is to he PROPF..RT
PROTF.C1' 10N
applied \\'ith camion, \\'here in an Act of Pal'liame nt there BOAIW Al'\1>
are stronl-! re".s,n5 ( a ) from the history :mel circumst:u.ces ONF,.

connected \\'ith it!' pa~sing, (b) from the structure of the Act
itself, to indicate the real meaning of the Lcgislatu:e, in my view
the doctrine of ejusile111 [!cttt:ris is one which not only can,
but ought to, br. aprlier1. Further than that, in this particular
case it may he urged thnl there is evidence in the section itself
that the meaning o the general words is to be restricted."

In the present case th ere is nothing in (1) th e

history and circumstances cornected with the passing
of the Act and (2) the structure of the Act i t~elf to
indicate th at the Legislature intended to resi rict
the meaning of the \Yords "or any other property
whatsoever". In fact the circumstances under \\'hich
the Act had to be passed, the structure of the Act itself 0

and the use of the word "whatsoever" indicate

the contrary, i.e., that the in.tentioo of the Legislature
is to protect not only stores, equipment and the
like.bu t all prope~ties! .. . .
In Mohamed Ht~ssein Th~ Union v.Burma (l)t of
U Aung Tha Gyaw. J., held that old ~:ooden crosses
already used in. a -military cemetery were not covered
by the gen'e ral words "any other property whatso-
ever". However, in doing so, the learned Judge has~
on t_h e. a.tlt'ho.r1't y of 'an. ~xtract from the judgment
of-M2cardie J~~ in S. s~ Magnhild t;. Mc ~'lntyt~' $to~~
& Co., (2) which was quoted by u Ba U 'T.'~
(now the Chief Justice of the Union) in The King v.
P.;~'l;W /:!fa~' Pr~ .
0

\. ... ... t... I f :1.

ar4('ot:e.
.-. . ~. . ... ~
' (3);I ,,PI9.2id:ieq
" l . .. 6~
. . : the

0

. .. -
'

assumption that the .sole test (as to wh~~tP.~r..th~ .r.u)e or

' ', '' o \ '

(1) Cr. .Misc. Ap~hi. No.1~.) o.f 't94!3 of't~e ,Hjg~ .~url. ~- (2) i1920) 3 '1K.l3.).
. .. (3):(19471 R.,L.R. s3laf'86-s;;
186 BURMA LAW REPORTS. [1951
S.C.
1951
ejusdem gmeris is to be applied) is whether the
specified things which precede the general words can
K o TIN
v. be placed under some common ~ategory.
l'FiE CHArR-
~(AN,PuBLic
PROPERTY
.PROTECTION
The said extract reads :
BOARD AND
ONE.
''But the rule of ejusdem generis cannot be applied at
all unless there be some broad test ior ~he ascertainment o
genus. So far a~ I can see the only test seems to be whether
the specified things which precede the general :.vords cap be
placed under some common catego1y. By! this I understand
that th~ specified things must possess some common and
dominant feature."

Read as a whole, the extract merely means that the

rule of ejusdem generis cannot be applied at all unless
the specified things possess some common and
dominant feature and the genus can, for that reason,
be ascertained. It is not:an authority for the proposi-
tion that the rule must be applied whenever a common
and dominant feature can be found in the specified
things which precede the generaliwords.
As a matter of fact U Ba U J., himself refused
to apply the rule of ejusdem gmeris in The King v.
U Saw Hla P1u and one (1) stating :

''This intention of the Legislature would clearly be defeated

if we we:re to restrict the meaning of the words, 'or otherwise ,
as used in section 124-A by the words that precede them."

This is iri accordance with the following extract

from page 344 of Maxweli on Interp1etation of Statutes, .
9t.k Edition :-

'.' The. general object of the Act, .also~ sometimes requires

that. t~e final generic word sha11. QOt be restrict~d in meaning
. by its predecessors:"
(1} (1947) R.L.R. s3 at 86-!!7.
 1951] BURMA LAW REPORTS. 187

In short the present case is distinguishable from S.C.

11>51
Attorney-General v. Brown (1) inasmuch.as a narrower
Ko T!:>~
construction under the rule of ejusdem generis will v.
THE:: CHAIR-
restrict the effect instead of promoting the object MAN, PI:BLIC
of the Act; and the decisio n in Mohamed Hussein v. PI<OPI I!TY .
PROTECTION
Tlze Union of Burma (2) cannot be accepted as correct 0 0ARO AND
0:-IR.
inasmuch as the rule of ejusdem generis was applied
therein without regard to the mtention of the Legisla-
ture and the object of the Act.
W e accordingly hold that cash belonging to
Government is public property within the purview
of the Act and dismiss the application.

. . .
ill 11920)1 (K.B.).773. (Z) Cr. Mis<i..Appln. No. lfS of 1948 of the .High Court.
1~8 BURMA LAW REPORTS. [1951

SUPREME COURT.

-j- S.C.
1951
u ZAN (APPLICANT)
July 12. v.
THE DEPUTY COMMISSIONER, INSEIN
AND ANOTH~R ~RESPONDENTS).*

Public Orde1 (Preservaltot~) Ac~, 1947. s. 5 (2)-Report by Police Inspector and

detention by Deputy Commtssioner fhcrcon-Delmtiott on nasouable-
susprcion-Dr.taining first and seeking materials in mpporl laler-
Praclice co1tdcmncd.
Held: That a detention under s. 5 (2) proviso (ii) of the Public Order
(i'reservationl Act on reasonable suspicion cannot be fur any period in excess of
two monthsa.nd this period is permitted by the Act to eni\blc investigation into
the activities of the person detained,
Where the Deputy Commissioner took action ei!!ht months later l'l.fter being.
addressed by the Applicant and the earlier order w;ts cancelled and a {resh
order of detention w;ts passed, on" being satisfied" with the necessity therefor
willwuten:juiry of all available evidence or withotit any examinat;on wh::tlever
by the Deputy Commissiontr, the detention is illegal. Reasonable sa!i~faction
of the necessity to direct detention is the basis of the exercise of powers
under s. 5-A of the Public Order {Preservation) Act. There must be known to
the authority such reasonable grounds before he can validly exercise the power.
Tinza Maw Naing v. Comtt>iStioncr of Police atld one, B.L.R !1950)
(S.C.) 17 ; Naklwda Ali v, M, F. DeS. Jawara.tne, 54 C.W.N. 883, referred\
to and followed.
The practi;e of directing detention first for an indefinite period and later to
seek materials in support of the order or detention, followed by the Depdy
Commissioner, cannot be too highly deprecated. As there were no materi als.
at the time of the order of detention on which the. authority could be reason-
ably satisfi~d, the detention order is illegal.

Kyaw Myint . for the applicant.

L. Choon Foung (Government Advoc~te) for the

. respondents:

" Crimmal Misc. Appli~ation No. 86 of 195l' beirrg application for clirections
in lhe nature of habeas corpus.
t Present: Hon'ble MR: JUSTiCE E M.A}JNG, Hon'ble MR. JUSTICE THEIN
MAUNGand U THAUNGSEIN, J,
195 l] BURl\IA LAW REPORTS. 189
S.C.
The judgment of the Court was delivered by 1951

MR. JusncE E M..\tTNG.-At the close of th~ U ZAt

v.
hearing on the 9th July 1951 we directed the release THF. D F.PUTV
Co~tli!IS
of the applicant, promising to give our reasons for the SIO!'>ER,
I N.SF.IX A~D
order of release la te r. "N OTHF.R.
The applicant was taken into preventive custody
by U Ohn Pe, Inspector of Police, on the 14th June
1949 in exerci:-;e of the powers under section 5 (2) of
the Public Order lPres ervation) Act, 1947. U Ohn Pe
then submitted on the 16th June 1949 a report of
the arrest to C Hla Tiu~ the then Deputy Commis-
sioner, Insein. In the report it was stated of the
applicant:
''This individual U Zan is Retired E.A.C. and fathe r-in-law
of Saw Ba U Gyi. He is a member of KN DO Administration,
and legal advisor. His house was Headquarters of KNDO
War Office."

The report then proceeded to recite the names of nine

persons with wh.o m the applic"nt was alleged to have
been associated.
Of the nine persons, one is Saw Belly whose
detention under section 5-A of the PNblic Order
(Preservation} Act we quashed at the same time we
quashed the detention of the present applicant. Two
other persons, namely U Shwe Sein and Saw PoTu,
who were alleged to have been associated with the
appl.i cant as members of the KNDO administration,
had been released from detention.some time previoqsly.
Two at least of the remaining persons named in the
list had been sent up for trial and had been either
acquitted or discl~":rged. Of the rest, nothing appears
on tne record of any action taken against them and the
ieariu::d Government Adv~cate -also could not assist us
with any information.: .
ltJO BURMA LA Vv REPORTS. [ 1YS t

S.C. On this report, and obviously without any examina-

1951
tion of the materials-if such materials did exist-on
U ZAN
v. which the Inspector of Police based his report,
THE DEPUTY
COMt.HS
U Hla Tin passed an order of detention in th e
SIONR, following terms :-
}NSEJN AND
ANOTHER.
" I he1eby direct the following person whom I reasonably
suspect of having acte d, or acting, of being about toact-in any
manner calculated to distmb, or to assist a disturbance of the
puulic tranquillity, to be detained in the Central Jail, Insein, fo~:
an indefinite period till further orders. "

A detention on reasonable suspicion cannot be for

any period in excess of two months : see section 5,.
sub-section (2), proviso (ii) of the Public Order
(Preservation) Act. The two months detention.
obviously is permitted by the Act to enable the officer
who is investigating into the activities of the person
detained to complete his enquiries. But in this case,
having on suspicion ordered the detention Jor an in.d e-
finite period of the applicant, the necessity for further
enquiries appear to have been lost sight of altogether.
Some eight months later the applicant moved the
Deputy Commissioner for an order of release, com-
plaining, not unnaturally, that since he had been in
custody for over eight months it should be possible by
theh for the authorities to say whether they had been
able to collect tangible e'[idence against him if further
action is to be taken. When this application reached
the present Deputy Commissioner, it apparently
ocourred to him that the detention for eight months
on reasonable suspicion was not in accordance witp
law. He took action then to formally regularise the
ddention by cancelling the earlier order of det~ntion
o.n '' r.easonaqle:suspicion " and substituting ther-e for
a fresh order of detention on "being sitisfied.'-' of. the
necessity to take action under the Act.:
1951] B URMA LA \V REPORTS. 19t

~.c.
In formally n:gulari::;ing the detention in tll is 1951
manner, it d oes not app~;1 r to h tLVe struck the learned
U ZA~
Deputy Commissiocer that he was in fad issuing an v.
.
ord er o f d etentwn ot.
th e II ru b'oer stamp , vanety
THE 0FI'UTY
c~~n;ls-
without judging for himself whether the materials before 1 "~~~~E~~o
him were such as to justify his being reasonably satis- ,\).;OTHER.
fied of the necessity to direct the detention of the
applicant. Bishop Ah Mya, U Ba, retired District
Superintendent of Police, Mr. Dinan ath, a leading
merchant of R angoon, Mr. Ba Maung Chain and
Saya Ba Than, who made th eir affidavits in support
of the present application, were all available to the
D eputy Commissioner for examination. And they
were clearly persons who had personal knowledge of
the events they speak to. No attempt whatsoever was
made by the Deputy Commission er to examine for
himself whether the facts were as claimed by U Ohn Pe
in his original report to U Hla Tin.
It was only on the 19th April1951, about two years
after the applicant had been in custody, and shortly
after the summons of this Court calling upon the
Deputy Commissioner, Insein, to justify the detention
of the applicant, reached the Deputy Commissioner
that the_ detention proceedings show his having
received a detailed but unauthenticated note of the
illegal activities alleged against the applicant. It iS
apparently from this note that the D eputy Commis-
sioner obtained his materials for the affidavit seeking
to j ustify the detention of the appl icant.
I n Tinza Maw Naing v. Com1nissioner of Polia~
at~d one (1) this Court had said " reasonable satisfac-
tion of the necessity to direct detention is the basis of
the exercise of powers under section 5-A of the _Public
Order (Preservation) Act.'' We note that in
Naklzuaa Ali v. M . F. Dif S. ]awt,rat"ne (2) the Privy
(1) B.L.R. 11950J (S.C.) 17. 12) 54 C. W.N. 883.
192 BURMA LAW REPORTS. [ 1951

S.C. Council had independently arrived at conclusions Yery

1951
much on the lines of the decision of this Court in
U ZAN
v. Tinza Maw Naing's case and said in regard to a power
rHE DEPUTY
Co~ans
of cancellation to be exercised on "reasonable grounds
SION ER, to believe " under a Ceylon Regulation that '' there
I NSEIN ANI)
AKOTHER. must in fact exist such reasonable grounds, known to
th e Controller, before he can validly exercise the
power of cancellation."
The practice of directing detention of a person for
an indefinite period first and only later to seek
materials in support of the order of detention is one
not in accordance with law and cannot be too highly
deprecated. That practice has been followed by the
Deputy Commissioner in the present case.
n is clear then that at the time the order of deten-
tion, whether it be that of U Hla Tin or that of the
present Deputy Commissioner U Tin U, was made
there was no material before either officer on which
they could be ''reasonably satisfied " of the necessity
tc take action under section 5-A of the Public Order
tpreservat~on) Act against the applicant.
1 ~51] BURMA LAW REJ!>OitTS. 193

SUPREME COURT.

KO TUN SEI N AND TWO OTHERS (APPI.-ICANTS) ts.c.

1951
v. July 24.
KO WA NAH (RESPONDENT).*

Unin Judid11ry Act, s. 6-New case in t .Pecial ap~eal-Tena11ts erecti11g

;erma11eul strucl,res witlumt mterference by ltssors-:E~toppel.
Held: Where in the Trial Court and appeal the Applicant did not plead
'that the land in question was primarily used ...; a house site, it is not open on
~n application for special leave to urge a new cround or to evade the lack of
-success in the Courts below IDy devisin~ a new case never set up when it should
have been set up.
Nallm Piraji Marwadi v. U111edmal Ead umctl, (1909) I.L.R. 33 Bom. 35,
Teferred to.
Held further :That the law has been settled si nce 1899 that Lessors are not
-estopped in equity from br inging ejectment by reason of tenan15 having erected
permanent structures upon the land leased to the knowledge and without
interference by the Lessc,rs.
Lala Betu Ram and atJDlller Y. Kmulan L all aml o~/Jers, 26 I.A. 58,
Teferred to.
A building put up five years ago w! th mere thatched roofing and mat wall-
ing cannot now be said to be a substantial structure.

Dr. Ba Han for the applicants .

.tJ.ung Min (1) for the respondent.

. .
The judgment of the Court was delivered by

. This
MR. JusTICE THEIN MA'!JNG.- is. an application
under section 6 of the. Union JudiCiary Act, 194.8
for. special leave to appeal from the .judgment and
decree of the High Court in Civil 1st Appeal No .39
.cO[ 1950.

Civil Misc. Application No.3 of 19SJ , bein: a pplication unde~ aectioa 6

, -o the Unien Judiciary Act, 1941'foupecialleave to appeal.
t Preset~!: SIR ~A u, C.hief Juat~ce f tle Union. of 'B urma, Hon'IPlc
Jdft.']UliTICE E MA\IIfG ani Hen'ble M~. JUSTI~E THatlf ~AWNA~ . ,
13
194 BURMA LAW REPORTS. [ 1951
S.C. The learned Advocate for the petitioners has urged
1951
that specia) leave should be granted on two grounds~
Ko 'f~=0SEIN ViZ :
TWO OTHERS
v. (1 ) That the case does not fall within the
Ko WA NAH. purview of section 11 (1) (d) of the Urban Rent Control
Act, 1948 as" the respondent had failed to make out a
case in the Trial Court that the land in question
was primarily used as a house (sic? house site)
and was subsequently let to a tenant " ; and
(2) That " the appellants having built a sub-
stantial and permanent building on the premises
at a considerable cost, with the consent and or
acquiescence of the respondent's predecessor-in-titler
the law of estoppel as provided in section 115 of
the Evidence Act operates against the respondent
in favour of the appellants. "
With reference to the first ground the petitioners
have not pleaded in the Trial Court and the High
Court that the land in question had not been primarily
used as a house site and the Courts must cneck the
tendency o( defeated litigants to evade their def~at
by devising a new case which was never set up
when it should have been set up. [See Nathu Piraji
Marwadi v. Umcdmal Eadumal, (1).]
In those ,Courts they merely pleaded that section 11
(1) (d) of the Urban Rent Control Act, 1948 was applic-
able only where the land was bona fide required
for construction of a building to be let to tenants-and
not .where the land was required for construction of a
building for the use of the owner. This plea forms a
part of the 'first ~round of appeal in the memorandum
of appeal in thts Court also. However, the learned
. Advocate for _the petitione!s has not mentioned it in the
-course of ..9:is__-argument ; and he . appears. to have
abandoned-it a,~ bqth the Lower Courts hav~ held that
.I. .

tt) (1909) l.L.R .33 Born. 35.

1951] BURMA LAW REPORTS. 195

the clause does not place any restriction on the purpose s.c.
1951
for which a building might be constructed and as the - _ -
wording of the clause is so clear. . Ko ,~~N~stm
With reference to the second ground, the law Two oTH.sRs
has been settled as long ago as 1899 by Their Lordships Ko "~~ NAH.
of the Privy Council who held in Lala Beni Ram
and a.nother v. Kundan Lall and others (1), that "the
lessors are not estopped in "equity from bringing
ejectment by reason of their tenants having erected
permanent structures upon the land leased in the
knowledge of and without interference by the lessors."
They have stated in the course of their judgment
therein :
" If there b~ one point settled in the equity law of England,
it is that, in circums.tances simila~ to those of the present case,
the mere erection by the tenant of permanent structures upon the
land let to him, in the knowledge of and without interference by
his lessor, will n:Jt suffi-ce to raise theequit;tble right ag:~inst the
latter which has been.affirmed by the Courts below. It must also
be kept in view that in Indian law the maxim 'Quicquid
inaedificatur soio, solo cedit, ' has no application to the present
case . . The rule established in India is that of section 108 of the
Transfer of Property Act, which provides that ~ the lessee .
may remove, at any time during the continuance of the lease, ali
things which he has attached to the earth, provided he leaves the
property in the state in which he received it. "

Besides, the petitioners' building does notappear to

be so substantial as they claim it to be since it is
~ building constructed in February, 194.6 with me~e
thatched roofing and. mat walling.
The learned Advocate for the petitioners has
also contended, though it is not in the grounds of
appeal, that the~e was "a verbal agreement.to execute
a registered deed of lease of the :leasehold land in
dispute agreeing n-~t to. "disturb . p~titioners . in their
- - - - - - - - ---'--,--- --:-'-:--:----:-:---- ----
(1) 2~ t.A. 58. ::." .
19_6 BURMA LAW REPORTS. [1951

~9~i possess10n so long as the building erected thereon

-.:._j_ of petitioners stands " and that the respondent's suit
Ko ~~ SExN should have been stayed t.o enable petitioners to file a
Two ~~HERs suit for specific performance thereof. However, the
Ko W"A NAH. e~istence of such an agreement was not pleaded in the
lower Courts .
. It bas been mentioned for the first time in
connedjon with the present litigation only in their reply
t.Qthe respondent's objection in this Court ; and their
suit for specific performance- (which by the way has
been dismissed) was filed only after the High Court had
;pa~sed the judgment and decree under -appeal.
So we cannot allow them to set up, at this stage and
for the purpose of the present application, a new case
which was never set up when it should have been set up ;
and we cannot go i nto the connected questions as to (1)
whether there has been part performance of the alleged
agreement and (2) what must be the legal con~equences
of part perform~m:e (if any) thereof.
The application is dismi~sed with costs; Advocate's
fee three-gold mohurs.
1951] BURMA LAW REPORT.S. 197
SUPREME COURT.

KYI CHUNG YORK (APPLICANT) ts.c.

1951
v. July -30.
THE CONTROLLER OF IMM IGRATION,
BURMA (RESPONDENT).*
Certiorari-Order of Controller of lmnzigraloitl directing nppTicmil to leave
coutttry-Bt~rma]mlllig_':aliou (Emerge11cy PrOt:iSIOIIS) Acl, s.4-Foreigm rs'
Act, s. 3.
The. applicant was granted permission to enter Burma and work as an
A.ssistant Editor of a Chinese paper for four years, the manager and publisher
thereof guaranteeing that the applicant would so work. Before the expiry of
the time so fixed, the applicant resigned the post and worked as a teacher ;
whereupon the guarant_ors withdrew their guarantee. The Controller of
Immigration, acting under orders of the Forei~n Of-fice, cancelled the
applicant's Stay Permit and ordered him to leave the country.
Held: That whatl the Controller had done was merely tCJ carry out the order
of the Government. Every country which extends its hospitality :to an aiien
can withdraw it and send him back to his own ..:ountry. Every Power has
the right to refuse to permit nn alien to enter the State and, if it permits an
alien toentc:r, to annex what conditions it pleases to such permission and expel
or deport. him from the State at pleasure. This principle is propounded and
followed by English and American Courts and is in conformity with th~
practice of every sovereign State. This principle is to be found embodied
in s. 3 of the Foreigners' Act whereby the President may order any foreigner
to remove himself from the Qnion of Burma. Without such power the
position of the State will be almost intolerable. Government was perfectly
within its rights in cancelling the permit for breach of condition.
The- King v. Secretary o(Statefor Home Affairs, (1917) 1 K.B. 922; AUome}'
Gmeralfor C,mada v. Cain,!1906) A.C. 542 a~ 546; Mahler v. Eby, 264 U.S-.
32, referred to. . - :':

. C~oung ?o for the applicant..

L. Choon Foung (Government' Advocate} for the
respondent.
The judgment of the Court was delivered py lhe
c hief JustiCe of the Union: :.:
. _ SIR BA U.-This application -is of ~-two-fold natu're ::
. one is for the ,. issue of a : writ of. certiorari to hiwe
: . ~.

. . . Civil Mise: AppJication No. 93 of 1950 being applitation for. direcUops ,in
the natur~ of tertiorar'i and rrqhibitiOJJ. - ' . . ' ,
. t P.rcse11t r .'sui BA. U, Chief Justice of the Un-Ion dt Bunnai- H'on.'~le .
1-fR. JUSTICE; E ~bu~o and ~on'lile MR~ Jus~xcB T~EIN MAUN;~f, . . \ . .
., I : ~ ' -. :
l98 BUt~MA LAW REPORTS. [19~J.

's.t: the order of the Controller of Immigration directin5

"1951
the applicant to leave this country brought up to this
KYICHUNG
YoRK Court and quashed and the other is to prohibit the
~aE Controller from putting the order into effect.
CoNTRoLLER The application must be dismissed. It is in our
OF IMMIGRA-
TroN, opmton clearly mtsconcetved both m law and on facts.
BuRMA. The applicant is a Chinese national. In or about the
end of the year 1948, an application on behalf of the
applicant to enter this country and work as an Assistant
Editor of a Chinese]:Newspaper called the "China
Commercial Times ''was made. . The manager and the
publisher of the paper, M,r. S. Huie and Mr. Ah.Fong,
ga\te their guarantee that the applicant, if allowed to
~nter and stay in this country, would work as an Assis:
tant Editor of the "China Commercial Times." On
their guarantee permission, as applied for; wa? granted
by the Controll.e r of r'ml.Jligration. The period pf the
applicant's stay 'in the country was fixed for 4 years
with effect from the lOtb January '1949. In Juiyt950
the applicant -resigned the post of Assistant Editor 0f
the '' China Commer~ial Times " and worked as a
science teacher in the Chinese School In Kemmendin e ;
whereupon the two guarantors withdrew their
.guarantee. On their withdrawal of the guarantee the
Controller of Immigration cancelled the applkant' s
stay-permi.t and ordered him to leave the country.
These facts are not in. dispute. What is. clear from
the's e undisputed facts is that the applicant clearly
committed a- breach of the condition on which h.e \vas
allowed to stay in this country. He has thereby
rendered himself liable to expulsion under order of
the President. within tl~~ meaning of .section 4 of the
Bu.r ma ~mmigration (.E~ergency. Provisions) Act,
. 1947. . _.Thaf i~ exactlywh~~ thecP~tr:~ller of lffi:mig~a~
tion says in his affidav!.t. .H e s~ys \ tha.t' when he:gay~ .
permission to.the appl~~a,nt to ~nter and . stay, in _this
 1951] BURMA LAW REPORTS. 199
..
-country, he d id itunder orders of the Foreign Office. S.C.
1951
,
And when he cancelled the stay-permit of the applicant
KYI CHU~G.
a.nd ordered him to leave this country, he did it tinder YoRK .

Qrders of the Foreign Office. In' other w~rds, what T:E

the Controller has done in this case is merely to carry CoNTRoLLER
O F lM&UGRA-
QUt the prder of the Government. In the case of T~oN.
The King v. Secretary of State for Home Affairs \1) the BuRMA.

Aitorney-General, Sir F. E. Smith, who subseq uently

became the Lord Chancellor of England in the
name of the Earl of Birkenhead said in the course
-of his submission to the Court : "Every country wh ich
-extends its hospitality to an alien can terminate the
hospitality, and can do so by sending the alien back
to h is own country. Any other country might refuse
to receive him."
This submission apparently found favour with
Lord Justice Swinfen Eady who in the course of
his j~dgment ~aid:

'' A Secretary o State is not required to justify in a Court of

Law his reasons for making a deportation order in the case of an
alien. In the event of it being disputed that the subject of a,.
deportation order is a n alien, the matter 'mus_t be determined by
the Court, and unless itbe proved that the person is an alien the
<>rder must be quashed as made without jurisdiction ; but I am
not aware of any other ground' upon which such art order c~an be
quashed."

Simjlarly, _Lord Atkin'son, delivering a judgment. on

behalf of the Board in Atlorney-.Gmeraljor Canada
v. Cain (2) said : .,

" One o lhe rights possessed by th~ Supreme power in every

$tate is the right to refuse to permit an alien to enter that state, tp
. ~nnex what condit ions it pleases to the '}::ermission to enter it, and
to expel or deJX?rl from the state, at pl!=a.su~e, even a friendly alien,

_(I) (1917) 1 K.B. 9ZZ. (2) (1906)' A.C. $42 -at 546.
200 BU.RMA LAW REPORTS. [1951
S.C. especially if it considers his presence in the state opposed to its
1951
peace, order, and good government or to its social or material
KYI CHUNG interest.''
YORK

T~E The Supreme Court of America adopted the same view

CONTROLLER
oF IMMtGRA as the E ng1'IS h court s m
. tl1e rnat ter of an expu1ston
. of
~~:;A. aliens from its country. In Mahler v. Eqy {1) quoted
by M. R. Konvitz in his book called "The Alien
and the Asiatic in American Law'', Chi~f Justice Taft
said that the sovereign power to deport is limited only
by treaty obligations. The principle thus enunciated
and propounded by the English and American Courts
is now in conformity with the practice followed by
every s~vereign state, as is to l;>e found in every
stanqard book on International Law. The principle
thus asserted, clai~p.ed and followed by the Co.m ity of
Nations is found . embodied m section 3 of the
Foreigners' .A ct which says: .
..
"The President may: by .writing, order any foreigner to-
remove himself from the Union of Burma, or to remove himself
the~efrom by a particular route td 'be specified in the order.'' .
. .
If such a power is not to be had, the position will
become almost intolerable. Ever}' non.:dtiie~ is thtlS
liable to .. be expelle4 from the l)ntpn of
~~rrp'a #he is
found committii1g a breach. of the .con.d itio:n on~h~ch
he is allowed to stay in this colin try or if he . is ..
found - ;.l;>using the hospitality extended. 'to. him by
G.o.vernment.' . -
In expelling the applican.t from this ; country . the
Government acted within its rights.. The application
is dismi~se.d. and the 11ul~ n.isi- is disclr~rged,:. ~.-: :..

. . .
, ''-(lr2o4 u.s:;3:, ,
1951] BURMA LAW REPORTS. 201

SUPREME COURT.

CHAR,LES R. MANASSEH (APPLlCANT) ts.c.

1951
v. July 3()~

THE COLLECTOR OF RANGOON AND ANOTH ER

(RESPONDENTS). *
Requi>it ioning (EmerietiCy ProvisiotiS) Act, 1N7-Mccwin[! of reqttisition-
Property cccup!ed by tCIIDiii-Purchnser 1110 ti11g govcmn/C1:t to rr.quisi-
lioi~-Reqlliii!iollitJg Act wh ether apfJiicablt-Couslitutio11 of Burma, ss.
13 and 23 (4)-If RtquisilitJIIillg Act repugnant lo-Compt1J.,Sftii011 to
owner-Tenant if owntr-U1ba11 R1att Control Act, s. 32-Possession of
governmmt-Meaning of the words posscssiotl, requisi/1011, public
' senJatii-Defcnce of Rurma Rules, 1940, R11le 2 (9 ) and Rule 2 (JO)~Motive
in' requi.silio11ing, relevutley of.
Applicant was a monthly tenant of premis~s since 1946. In 19~0 tlie 2nd
Respondent, an Officer in tl1e Medical Service of the Government of Burma.
purcliased the premises. The Collector or Rangoon made an order on the
16th January 1951 requisitioning the premises and followed it up 'on
31st January 1.951 calling on the apt>licant to vacate, warning him that on failure
to vacate an order authorising his removal would be issued. Upon an
application for an appropriate direction under s. 25 of the constitution
of Burma it was contended that the Requisitioning Act is repul(nant to the
'Constitution ; .that the requisitioninj! was not ingood faith ; that the Act did
not apply to property in the posse~sion of a tenant; that there had been
disi::riq~inatfon in that government servants had been preferred as against.
ordinary citizens and that it Is not in public interest; that deprivin'p; a tenant
of 'liis property would amouhl to limitatio.n or expropriation of private properl)t
and that the Urban Rent Cootrol Act can be invoked only to pro perty in
actual possession of Government.
. .!fel~: Negativing the contentions :.:..._ .
~. 2 til of. the Requisitioning Act empowers the' President by order in
writing to requisiti9n any land, building, <etc. A tenant in possession is not
exempted from having the propert y requisitioned. Pro\isions of s. z cannot
be narrowed ~own and the absence of specific provi~ion for payment of
compensation can amount to no more than .a casual omission.
Held: (it That the 'Requisitioning Act ' is not repu~nant toss. 13 o; 23 (4)
o( th e Constitution. No 3I'bitrary discrimination as contemplated by, s: 13 is
pernetratc;d wh~n Govern me/it' provides accommodation to a person cliarged
with the perform~nce. of public duti~ in preference to a person not so c~arged~
. . . . . .. .. . . ..
' . ..C~IIif ' Mise:.. :ApplicaUon No. 12 of 1951 beiiig an appfication. ur;cler
sec~on.:2? ,of !h~ Constitulio~ .o f Burma. 1
. : )-ir~ent ; .SIR. 8~ u, CJ:!ie j'ustic~of the,Union of: ~.u~ma.' Ho.n'bl.e
14R. } Os'I'JCE E M AtiNG and Hothle MR : Jomca THEIN ?tf:A'UNG.' .. .
202 BURMA LAW REPORTS. [1951
S.C. The requisitioning does not also amount to limitation of private property
1951 within the meaning of s. 23{4) of the Constitution. A tenant has a rgiht in
CHARLES property to the extent of his term~ and he is the owner of an interest in the
:R.MANASSEH property. When s. 6 of the Requisitioning Act provides n:ach;nery fer
v. assessment and payment of compensation to the owner it satisfies different
THE
COLLEC-
and concurring estates in the property.
TOR e F Held also: That s. 32 of the Urban Rent Control Act providing for
RANGOON prohibition against. termination o.f a monthly lease on notice does not extend
.&ND
ANOTHER.
to premises which have come into the possession of Government. Possession
in this section is not restricted to physical posse$siun : so'to .read it wou ld
unduly restrict that term and makes. 32 a futility. .
Minister of Agrictllture and Fishtrie~ v. Malltetls,- (1950) 1 k:H. 148;
the Stet;zua Romana v. The Ottmia, {1944) P. 43 at 48, r eferred to.
The word "Requisition" is not a term of .ut .and does not oonnote fhe
same .s tate of things in every particular case. It may mean hiring or may
involve taking over of absolute dominion, It is so used in Rule 2 (10), of the
Requisitioning Act to the extent that the property is placed at the disposal of
Government. The t<equisitioning Authority may well come within the
meaning of landlord under s. 2 (c) of the Urban Rent Control Act.
The word "public servant:' is not defined in the Requisitioning Act ; it is a
rte-enactment of the Defence of Burma Rules, 1940. Rule 2 (9J of the. said
Rule~ defines the term as u-;cluding publiC servant according to the Penal
Code and any servant of any local authority or Railway Administration. The
test is whether !lis pay comes out of the ~ational funds and the office must be
.pub!iG in the strict sense of the term, namely, an o'ffice in the discharge of
. i>llblic duties. ...
The Broadm4ytte, .(l916) P. 64; Umail Moltamrd v. The Ki11g; (19'tl) R.L.~.
536.: ltJ Re. Nirams, {1891) 1 Q.B.D. 594. referred to.
An exercis.e of a lawful statutory righf cannot be vjtiated by any improper
'<lT ulterior rnot!ve.
Allen v.Flood, (1898} A.C.l, referred to.

P. K. Basu. '5r the ap~licari~.

L. Choon Foung (Government' Advo~ate) for . t.h e
1st .respondent. ~~

Chf?ti.ng Po for the 2nd respondent.

:,

Th:~ judgmeaf of the Coutt \vas deli\.r~fed b~

... MR. Ju~TrCE E MAUNG....:..The applicant seeks direc-
-tions in the nature of mandamu~ t~' ensure. fC>rbqarance
<>f the 1st respondent from t'equis:ftibning the preipises
:in the oC<;:JJ_patio~ of the applie~rit. . : . . . : : . . .
 1951] BURMA LAW REPORTS. 20

The applicant's occupation on a monthly tenancy s.c;:.

19.:>1
from the then own<!r, one Sagarmal T1brewa1la, began -
in 1946. In 1950, the premises were purchased by R.~.i~~s~~
the 2nd respondent, an officer in the Medical Servic~s v.
TH
of the Government of the Union, holding the rank CoLLc
TOR OF
of an Assistant Surgeon. Following the purchase RANGooN
and on the 16th January 1951, the 1st respondent AN~~~aR.
made an order under section 2 of the Requisitioning
(Emergency Provisions) Act, 1947 in respect of these
premises; and this order was followed up by a further
order calling upon the applicant to give up possession
of the premises by the 31st January 1951. This later
order, after drawing the applicant's attention to the
penal provisions of section 2 (4) of the Act, winds up
with the warning that, if the applicant 11 fails to vacate
by the 31st January 1951 at the latest, an order
authorising his removal therefrom will be issued and
legal action. will also be taken against him, .i f necessary,
under tpe.Act. "
The applicant tlaims that it is incumbent upon
the 1st respondent, who is . a person holding a public.
office, to forbear from interfering with his right of
occupati~n as a tenant except in due course of law ;
d. that the Hequisit1onlng Act fr9rn which the 1st
derives his powers either is not applicable
P ...u"'"'"' in the occupation of a tenant or, if it
b~ so applicable, . is repugnant. to th~

~~~ ~lterrtative, said by the applicant that if

not repugnant to the Constitution, the power
~htiSWtonrinJ~, in the pre~ent case~ has not been
~~erc~1~P!d in good faith or for the purposes permissible
the Act ; andthat he is entitled to have direc:-
issued. to the l st respon'dent to forbear from
I.'BI'oc~~eding further in pursua nceof such .an order. Olf
aspect of the case, the applicant's allega~ions ~~e
204 BURMA LAW REPORTS. [19Sl

(<ifi that the 2nd respondent, after his purchase of the

- house from the previous owner, fi'nding it impossible
CHARLES
R. MANAssEH
b ~cause o f the Urban Rent Control Act to evict . the
Tv~E applicant, used "his influence with the Government r
CotLEc- to obtain by the requisitioning order, under challenge,
TOR OF . . ,
RANGooN the ejectment of the applicant. It is conc~ded by
AN~~~ER. the respondents that, if and when the applican~,
vacates the prtmises as a result of the requisitioning
proceedings, the premises are intended for the
~ccupation of the 2nd respondent. .
By sectien 2, sub-section (1) of the Requisitioning-
Act, the scope of requisitioning power is defined in
very general terms. The su b-s(!ction reads :

'' The President may by orcter in writing requisition any. land~

building, part of a building, or other premises; together with
any fixtures, fittings, fm-niture or other things therein, or any
water-supply system connected' or pertaining to s~ch land or
premises. . . . . . . ''

Two restrictions only are placed on this general power

by the provisos following the operative part of ihe
section; Neither proviso relates to property in the
possession of a tenant. But Mr. Basu seeks to infer..,
what he consider.s to b~, the true intention of the
legislature ~y a Teference to section 6 of the ~ct.
Section 6 provides m~chinery for assessment .and
payment pf compensation to th.e owner-of the prope rty
to be requisitioned. The1:e is; he says~ no corr.e~p.og;--
ding provision . anywher~ .in tJ,le act in re1ation .to the'
tenant whose occupatio'n must necessarily be distti.rbed
as . -the result of re-q uisitioning. From this w~ are
asked to hold that; since . the l~gislature cannpt be
. pre.Sitmed to intend. -an inju~tice, ~he Ad. wa.s . n,pt
. ~nte,nded to extend ,to,. prQ_per,t y_i~J. tre p9ssessioP, :Pf
~ t~n~nu.n qQntra4;istincti,ol). .t9 the P!operty~in posse~
'sion of the owner.
1951] i3 U RMA LAW REPORTS. 205

We cannot accept the proposition that the very clear S.C.

L951
provisions of section 2 of the Act can be narrowed
CHARLES
down for the reasons and in the manner s nggest~d by R.MANASSEH
the learned counsel for the applicant. The absence ''
THE
of specific_ provision s for payment of compensation to COLLEC-
TOR OF
a tenant in occupation could have been at th e most a RANGOON
AND
mere casus omissus. ANOTHER.
If we hold, as we do, that the Act extends to
property in the occupation of a tenant as well, the
learned counsel's contention that the_Act is repugnant
t~ the Constitution remains to be considered: The
attack on the constitutionality of the Act is based on
the conflict which the learned counsel claims to exist
between the Act and the provisions of sections 13 and
23 (4) of the Constitution.
Section 13 of the Constitution provides that "there
shall not be any arbitrary <;liscrimination between one
citizen or class of citizens and another". T he provi
sion of the Requ isitioning Act .auth0rising the requisi-
tioning of private property for the use of a public
servant is claimed to be a breach of this provisio-n in
the Copstitution, We cannot accept the contention.
that in .en.a bling 1the Government to provide accommo-
_ dat~on to <(person who is ch~rged with the performance
~'t _public duties . in preference to -a person not s9
.c harged any arbitrary discrimination as contemplated
b y this section of the ConstUution is perpetrated.
:.: . .' Section 23 (4)'of the Constit~tion reads ':
. .
"Priv_at~ property may be limited or expropriated if tbe
public interest' so requires but only in accordance with Jaw . which
shall pr~~~be in what cases an4 to. what extent the o~ner sh~U
b e COtDJlCOSated, II
r. . .:.

. Mr. BasQ~s- contention" on. this aspect of the ca~e is-that

__the requisitioning of property fqr the use of Hpublic
_. servants .a nd per~ons wh,ose wor~: or duty_is connected
206 BURMA LAW REPORTS. [19St
S.C. with the Government" is not c;overed.by the condition
1951
"if the public interest so requires". With respect,
R.~::;:S~a this contention lacks substance and what we have
niE already Said Of the relation between SCCtion 13 Of the
coLLEc- Constitution and the Act would be sufficitnt to dispose
TOR OF
RA~GooN of this obje<;tion.
AND
ANOTHER . The further point taken on bel~alf of the applicant
that the right of a tenant, as in this case, of residential
. premises is '' private property", that th~ requisitioning
of the premises of which as a tenant h'e is in occupa-
tion would ~mount to limitation or expropriation of
that "private property " and tbat as such the limitation
or expropriation cannot be Iaw'fully made except in
accordance with law which must of necessity prescribe
in each case and to what extent the own~r of the
private property is to be compensated, requires a little
more car6ful consideration.
It iS" thte that the tenant of a house has right of
property in the house to the extent of his term as a
tenant and that term may be for a shorter or longer
period. To that extent he is the owner of an interest
in the house. Can it then be said that when section 6
of the 'Requisitioning Act provides machinery for the
assessment and payment of compensation to the
''owner of such property" (i.e., the property requisi-
tioned) no provision exists in the Act to satisfy the
req~irements of se_ction 23 (4) of the Constitution
in relation to every person having different a.nd
concurring estates of ownership in the pro'perty
r equisitioned ? H is 'elementary learning that in
respect of immoveable property both th_e person
bavirig exdusive and unlimited::right of ~hjoy~ent
of the . property_and .the. person. having excltisiv~' qut
. restrict~d-it may be -in measure of time 9r otherwis.e -
. 'right of enjoy~ent may :-be.correctly termed owner of
.that p;rop~rty.
 1951] BURMA LAW REPORTS. 209

To thatextent at l.east it seems that the requisitioning S.C.

1951
authority may well come within the meaning of a
landlord under section 2 (c) of the Urbal) Rent Control R.~~A~;~~H
Act. "
THF.
The purpose of the requisitioning being admittedly CoLLEc-
ToR OF
to provide accommodation to the 2nd respondent, RANGooN
his claim to. be a public servant within the meaning of ANo~~~R .
the second proviso of. section 2 of the Requisitioning
Act has been challenged at the Bar. The Act does not
define. the term " public servant" but it must be
remembered that the Act is a re-enactment of certain
provisions of the Defence of Burma Rules, 1940,
relating to requisition of property and in those Rules
the term " public servant " has been defined in Rule
2 (9) as ''including any public servant as defined in the
Penal Code and any servant of any local authority or
railway administration ". l'he. intention of the legisla-
ture is therefore clear when in this Act the term
4l public Servant II is USed. It i~ Of interest to mention
in
that Ismail Mohamed v. Tlze /(ing ll) the Head Clerk
of the. controller of Prices -has been held to be a
public servant within the meaning o( the Defence of
Burma Rules 2 {9).. The test adopted in that case is
the same as the test which had been applied in In Re:
_Nirams (2}, namely," the pay must come out of national
and not out of local funds, and the office. must be
public i~ the strict sense of that term'',. namely, an
office in discharge of public put(es.
_ It is not necessary for us to examine in detaif ~he
, applicant's.- cla~m that the requisitioning was not in
good faitli, . the same having been brought about .
through the 2nd respondent's " influence With the
Government "~ The r~spondents have not admitted
. this allegation and even if the applicant's ..negations is.
est~.b~shed . we_do not ~ee that it would be of any
(1) (l9t~) R._L.R. ~36, (~) ll891) 1. Q.~~ 594~
14 <' .
210 BURMA LAW REPORTS. [1951

S.C. relevance in the present case. No exercise of a lawful

1951
right can be vitiated by any improper or ulterior
CHARLES
R. MA'NASSEH motive. See Allen v. Flood { 1).
'll.
THE
We cannot, with the applicant, anticipate from the
CoLLEC- warning in the further order of the 1st respondent that
TOR OF
RANGOON ''an order authorising his removal " from the premises
ANO
ANOTHER.
requisitioned that the 1st respondent will take any
action not in accord~e with law.
The application therefore fails and is rejected with
costs, ten gold mohurs.
19511 BURMA LA \V REPORTS. 211

SUPREME COURT.

M. R. DAS (APPLICANT)

July 30.
c. R. DAS AND THREE 01 HERS (l~ESPONDENTS).*
Urbau Re11f Control Act, s. 16-A-Order uulcr-A f>f>lication /or re1ticw by a
co-tenaJJt ol grant of Pennisstott to assig" tmancy-Dismissal by
Con/rolle r- Certiorari attd ma.ttdtJttJus i/ Permissible.
Held: Under s. 21-A of the Urban Rent Control Act, 1948 the Controller of
Rents may review any order made by him and the provisions of the Code of
Civil Procedure, Order 47 would ::~pply to such review. Any person
considering himself aggrie' cd by an order may apply for review under
Order 47, Rule 1 of the Code of Civil Procedure ; but t he Controller's crder
is not binding upon any person not a party to the proceedings. As the present
applicant is not bound by the said order, he is not an aggrieved person whe
can apply for review thereof.
Kttptarakulti Adammecra v. Esooj at~ti one, (L948) B.L.R. 421 , reft:rred to.

P. K. Basu
for the applicant.
G. N. Banerji

Dutt for the respondents Nos. 1 and 2.

/Ja Sein for the respondents Nos. 3 and 4.

The judgment of the Court was delivered by
MR. J usTICE E MAUNG.-This. is an application
'fbr writs of certiorari and ~andamus in respect of tbe
.4th respondent's order by which he dismissed the
. present applicant's applicatiqn to review an order of
his predecessor "in offic~.
The order, that was sought to be reviewed, was
passed under. section 1f>.A. of the Urb~n Rent Control
. . . ,

. Civil Misc. Application No. 18 of 1951 bein~ an application .un,der

section.25 of the Constitution of Burma for directions in the nature of certio"-.ari
. and mandamus. . . ,'
t Present: SIR BA U, Chier'Justice ot'the Union of Burma; H?n'bi!Y
M R. JUSTICE E MAUNG and Hori'bl~ M R. JUSTICE THEIN M.ltiNU.
212 BURMA LAW REPORTS. [1951
S.C.
1951
Act, 1948 granting permission to the 1st respondent to
assign to the 2nd respondent his tenancy of certain
... R. DAS
v premises of which the 3rd respondent is the owner.
C. R. 0AS
AND THREE
The present applicant applied for review of the
oTHERS. said order claiming that he was a joint tenant of the
premises with the 1st respondent and that the latter
had. deliberately suppressed this fact in his applicat.ion
for the permit.
The 4th respondent (Controller of Rents) dismissed
his application on the grou~d that he had no right to
apply for a review inasmuch as (1) he was not a party
tQ the proceedings under section 16-A of the Urban
Rht Control Ad, 1948 and (2) he was not, for that
very reas6n, bound by the said order.
"Section 21-A. of the Urban Rent Control Act, 194~
pr6v_i_d es : .
''The.Controller may review any .order made or (ieemed to
be made by him under this Act. and the provisions of Order 47
of the First Schedule to the Code of Ciyil ~rocedure shall,
so far as may be, apply to sucti review."

Ord.er 47, ~ule 1 of the Code or' Ci~-il Procedure does

provide that any person considering himself aggrieved
by an order may apply for review. However, as a ,
general rule an order is not binding on any per~on
who 1s not"a party to the proceedings ; and there does
riot(~ppear to be any speCial re~son why._the said order
sho~ldbebinding on the present applic~nf atan.
. : T.he learned Advocate for the first two respondents
rublnits that the said order ca~not be binding on tJte ..
present applicant ; and. as a. matter o f fact his own
learned. Advo~ate is of- the same view although h~
app~~h~n-48 t~at the High . Court :might be constru~d
to have .. de.cided . to the contrary . in .K upparakutti
Adammee"r.:ti v . Esooj atictone (1); . . . .
_ll~ tl948). R.L.R. 4.21.
1951] BURMA LAW REPORT$. 213
S.C.
Adammeera's case, in which the plaintiff-appellant 1951.
merely relied 'on the Controller of Rents having M. R. DAS
reviewed and cancelled the original order without v .
C.R. DAS
pleading that it could not in any case be binding AND THREE
OTHERS.
on him-was decided before the enactment of section
21-A; and the High Court merely decided that the
original order must stand as the Controller of Rents
then h.ad no power to review and cancel it as he did.
The Controller of Rents is right in holding that
the present applicant is not bound by the said order
and that he is not an aggrieved person who can apply
f9r review thereof. .
The application is dismissed with costs ; Advocate's
fee three gold mohurs. :
.214 l3 U RM A LAvV REPORTS. p951

SUPREME COURT.
t S.C. :u SEIN LIN AND ANOTHER (APPLICANTS)
1951
)t~ly 30. v.
THE ASSISTANT JUDGE, TAl!NGDWI NGYI
AND TWO OTHERS (RESPONDENTS).*
C.:rtiorari-Lessee building a hot~se on leased land a11p felling il out to
len<llds-Applicatiotz for fi:<at ion of fair retzt under s. 19 (2)(g) Of the
Urban Rent Cotztrot Ad-A isis!a~t~ ControUer {I.Xmg standard rent at
COIItract rate.
Held: Before the third proviso to s. 19 (ZJ(g) of the Urban Rent Control
Act can operate, it is necessary that the Controller of Rents should be satisfied
that the rc:nt fixed for the first time after ist September J939 when the
premises were first let was excessive or not just or fair.

Hla Pe for the applicants.

Tin for the 3rd respondent .
_I

The judgment of the Court was d~livered by.

MR. JusTICE E MAUNG.-The applicants leased a
pie~e of free-hold lanJ belonging to the 3rd respondent
in October 1946 on the agreed rental of Rs. JS rer
mensem. Having leased the land, the applicants built
a house on it, as found by the Assistant' Controller of
Rents, at a cost of Rs. 500 and let it out to tenants at a
rent of Rs. SO per mensem; For two years followi~g
the lease from the 3rd respondent the applicants
continue4 to pay the contract rate in r~spect of the
land. Then suddenly it see:rns to have occurred to
them th~t they had been paying rent at a highe.r rate
~h.an they should have and applied. to _the Assistant
Rent Controller to
fix the s~ndard rent under the
clv!l Misc. Application No. 24 of 19:>-1 being appllca!ion under
section 25 of the Constitution of the Union of Burrqa for directii)ns in the
nature .of certior-ari. . .' . . '.. " . .. .
t Pres4nl: SrR BA U, Chief Justi~~f ~he
:Union of ~un~a; .Ho~'ble
MR. JusTtCE. E MAtiNG and Hpn!ble MR. 1uSTlCE.THtuN MAU!IG.' . .
 1951] BURMA LAW REPORTS., 215

provisions of section 19 of the Urban Rent Control S.C.

1951
Act. The Assistant Controller considered the contract
rate as fair and fixed the standard rent of the land at U SE!!f{.(('(

the same figure. ANo

ANOTHER
Proceedings in revision before the Assistant Judge v.
THE
()f Taungdwingyi having failed the applicants have AssiSTANT
<:orne to us to have the assessment of the sta'n dard rent TAl~~~~~~N
{)f the land made by the Assistant Rent Controller of GYr ANo
. . h d . TWO OTHERS.
T aungd wmgy1 quas e . . .
T he learned counsei for the applicants relied on
the 'provisions of section 19 (2) {g) read together with
the third proviso ther((to, of the Urban Rent <;;ontrol
Act. We are clearly of the opinion that these pro-
visions cannot help him. ~efore the third proviso can
{)perate it is necessary that the Controller should be
satisfied that the rent fixed when the premi~es .were
for the first time let after 1st September 1.939 was
-excessive or not'just and fair. In this ease after taking
into consideration all the circumstances, the Assistant
Controller came to the view, and in our opinion rightly,
that the rent fixed for the first time after September
~ 939, *hat is. in October 1946, .was neith~r excessiv~
0

no"r unjust, . . '

In thes~ drcumstances the application .faiis and
m.u~.t" be d'ismissed with. costs ; Advo~ate's fee three
gold mohurs.
0 0
216 B.U~MA LAW REPORTS. [195!

SUPREME COURT.

ts.c. U HTUN TIN (APPLICANT)

1951
!uly 30
v.
u BA TUN AND TWO OTHERS (RESPONDENTS).*

Quo warranto-City o/ Ra11goon Mttnicif!al Act, Rule 251, Chaf>l~r JX,.

Schedule 1-Standing Conl!nttlee-Appai"tme" t of Chairntan'-Meelittg
attended by eight members-Chairman adjourtling eledi<HJ C'f Clulirmatt-
Date to be azttOtmced later, remaiuhg members electing a C#airnum-
Validi!J7'Quo warranto proceedings-Nalre and sc~e.
Htld: Proceedings in the nature of quo 'll!4Tr41llo v.m lie for usurping any-
office whether created by charta or by t he Crown with the c:onsent of
Parliament, provided the office be of a public nature, and a substantive office
and not one held at the will and pleasure of others:
Rex v. S~ayer 1111d Cassel, (1916) l K.B. 595, referred to.
Dm 1, y v. The Queen, 12 Ch. and F. 537 at 541, followed.
The said remedy is availal:He to private persons within !he limits mention elf
and subject to the di~cretion of the Court to refuse or grant it. The Court in.
exercising its discretion will consider the facts . and cir.;umstimces and.
the co{lseque11ces likely to follow.
The 'Qtteeti v. Cousit;S, cis73) L.l~. 8 Q;B.D. 216 ; The Qileen v. Ward'~(1t!73y
L.~~. 8 Q.B.D. 210 at 215, referred t~.
In the present case fu~ term.of the Chairman of a Standing Committee oi
the Municipa:l Corporation or Rangoon expired at .midrlight ori the 20th March
1951. A meeting of the Standing Committee wns called on the 20th March
.1951 to elect a Chairman for the next year. Out of elev~n members, eight:
were present (three forming a quorum). The Chairman adjourned the meeting
announcing that tire date for next meeting would be 'announced later ill'
consultation with the Commissioner. -
Six out of th~ ele~en members prot~ted against the adjournment. Th~
Chai~man and other four members then left the meeting. On. the advice ot
the . legal adviser of the Corporation who ~as pr~~er\t at the m~eting
the: remaining six members held a meetin~ and eiected the first Respondent.a;
Chairman fo~ the next year.
Held: The election of the Chairman was legal. . .
" The Chairman of tlie' St:1nding Committee had ftitr discr:etion to adjourn.
th~. meeting of the 2oth March, but Rule .9 of Chapter IX prov~des uiatr

;.Civil Mise: Applic~tiori 'No~ .20 of 1951 b~ing applicati~n u~der s~ctimi 2S
of the Constjtution ofB~rma for.'direclions in.the nature of qu~ w~rra1#o-
and[or c~T.tio~ari and/or:,prohibition andfor mandamus. . . '
, t.Pr.eset~f: SIR .-BA -U, Chief Justice. of the Union . of .B:urma, Hon'bie:
MR. JusncE E MAUNG and Hon'ble MR, JUSTTeE ~HEI~ MAuxo;
 BURMA LAW REPORTS. 217
1951]
S.C.
in adjourning the meeting the Chairm:tn " shall fix s11ch time and I'll ace for an 1951
adjourned meeting as he shall think fit. " Without such fixation of time an d
place of the n ext meeting a mere adjournment to a date which the c hairman U HTUNTI~
proposed to announce later after consulting with the Commissioner of the v.
U ilA TUN
Corporation is not a lawful exercise of the power of adjournment under Rul e 9 . AND
The Chairman would have ceased to fun ction after the 20th March, no on e TWO OTHERSh
could fix a date for the adjourned meet in)!. It is to provide for suclt
conseq uence thai the rule requi res that the adjourned meeting shall be at a
fixed time and place.
No practice however consistent, can override the plain provisions of law.

Woon for the applicant.

Tun Aung for the respondent 1.
The judgment of th e Court was delivered by
MR. JusTICE E MAUNG.-This application for
directions in the nature of quo warranto was laid. to
test the right-of the 1st respondent to the office of the
Chairman, the Public Health and Markets Committee
of the Municipal Corporation of the City of Rangoon,
to which ~ffice he claims to have been duly elected o~
the 20th March 1951.
';fhe Public Health. and. Markets Committee is a
.Standin~ Conimitt.e e of the Corporation constituted:
unqer. Rule 25) Chap.t er IX, Schedule 1 of the City of
Rangoon. Municipal .Act. It . is composed of .1 Z
councillors. of the Corporation eleCted. at the first
meeting of .th? Corporatio.n held after General Elections.
R~le :26 requires th~t"tlie Standing Committee " .shall
appoint a . ChairiM,n from. among its members who will
hold office, f~r:. one yea(' bu~ shall be eligibl~ for re.:. '
I

appointment.., _ .: ~ . . .
The meethig~ ~onv.ened for the.. 20th March .1951
was. attended, by. eight' members. Three members
ex~used themselves fro.m attendance ; and. .it is saiq
th~t one member appointed by the President' had been
removed by. the .President from his office. as . a
~ou~cillor
. of:.the:
.
Corporation.
. .. . . . . .. . .
218 BURMA LA'vV REPORTS. [1951
s,c. The applicant who had been elected as the
1951
Chairman of the Standing Committe~ on the 21st
U HTUNTJN
v. March 1950 presided at the meeting, as was his right.
u a,:."~~uN The first business arranged for the day was the election
"TwooT.HBRs. of the Chairman for the succeeding year;_ but before

the same could be taken up for consideration, the

applicant stating that he considered the attendance
inadequate for the transaction of business of such
importance as the election of the Chairman . f~r the
succeeding year declared the meeting adjourned to a
date which he proposed, after cbnsultation with the
Commissioner of the Corporation, to announce later.
Amidst protests from the members that, under Rule 29,
three members constituted a quorum for transaction of
business at a meeting of the Standing Committee, the
applicant accompanied by another member departed
from the place of meeting. .
Six members who remained behind refused to
<:tCCept the declaration of adjournment made by i:he
applicant as effective and consiqered themselves
competent to proceed-with t he business of electing a
Chairman for the succeeding year. .It may_be stated
that this view was shared and supported by the Legal
. Adviser to the Corporation. The result of the proceed-
ihgs after the applkant departed from the pfuce of
rne'eting was that the . 1st respOlldent .was elected to
the offi~e of the Chair~an for the succeeding year by
thy votes of ali six me~bers remaining~ :
T-he n'Mure and scope of . proce~dings _in quo
w.arrq1t.lo have been exhaustively considered in Rex v.-
SfJaVer :a~id- .Cassel' (1 ).- Lord Read_ing C.J., accepted
tti-e conclusions arrived at by Tin~al C.J., 'in..Da.rley v.
The .Queen-(.2 ,-that: t -
.
"ttiis;p~ceed'ing i.~ th~ nat~tre 6--qao -zuarr~tiit? :will lie for-_
usurping any' office~ ~-.;het~~_r crea~ed by dharter- alon.e , or by the '
'1) (1916) 1 K.B. 59S... .. . (21 .11 Ch. 'and I(.5_37 at 541.- . .
1951] BURMA LAW REPORTS. 219

Crown with the consent of Parliament, pq>vided the office be of S.C.

1951
.a public natuu, and a substantive office, not merely the function
Or employment of a d eputy or servant held at the will and u HTUN v.
Tt l*

pleasure of others. " U BA T UN

AND
TWO OTK F.RS.
"The learned Lord Chief Justice added that the
:information in the nature of quo warra11to " is a remedy
available to .private persons within the limits stated by
'Tindal C.J., and subject always to the discretion of
ihe Court'to refuse or grant it. '
The Court, in exercising its discretion to refuse or
.grant the application for directions in the nature of quo
u:arr.anto, can and will take into consideration the facts
.and circumstances of the case, and the consequences
wh1c~ would be likely to follow.should the application
'be granted.. This in TJie Queen v. Cousi11s (1), Black-
lburn:J., said of the Courts discretion to refuse the
.application:- .

~ The rule :tlways acted upon is that if the right person has
been elected,.an<l it is not shown that any on.e else had been kept
out, nor the result of the election in any way effected, the Court
will not allow the writ to issue."

Similarly, iu The Qt1een v.. R-"'ard (2), .1;3lackburn J.,

.delivering the Judgment of .the Court, said :
"We .ti1ink, therefore,, that seei~~ that the mistake c~mmit
ied here has produced v o result wlia.t ever ; that the same person.;
:have been elected who w~~ld have been ele~ted if Ute electkri
'bad . been conducted \\'ith the most scrnpuious reguiarity, . and
ihat the defenqant's title,if bad at all, is only Lad as I may ;ay
on spec~al .demurrer ; we ought in the exercise of our discretion,
to refuse leave to disturb the peace of tfiis district by filing this
information. " , .
. . .. . . . /

In t he case before us, the applicaht's term of office

as,. t:h e . Chairman, wli1ch is.. for one year. 'from : the
(i\ (1,87~)' L.g. 8 Q.B.D. 216 . (1),.ClS73) L:~ 8 Q. ~:o. 21.0 llt p.Z1S. .
220 BURMA LAW REPORTS. [1951

f9fi 21st Marcl:ll950, expired at midnight on the 20th March

-T
U H TUN IN
1951 :see sections 2 (65) and 20 of the General Clauses
v. Act. The vacancy caused by the removal of one
u B;N;uN member could not have been filled before the 3rd
:v:o oTHERs. April1951 , when, under Rule 1, Chapter IX, Schedule 1
of the City of -Rangoon Municipal Act, the Corpora-
tion would next meef to transact business. Till then
the membership of the Standing Committee would be
eleven ; six members have voted for the 1st respon-
dent ; and the other five cannot rightly claim that they
had been denied the opportunity of exercising their
choice of the Chairman. Prima facie, the result would
not have been different at an election held at any time
in March 1951 ; and Rule 28 requires . one meeting at
least a month for each Standing Committee. .
Moreover, we are not satisfied that the view taken
by the respondent and his five colleagues on the
Standing Committee, supported as it is by . the Legal
Adviser of the Corppration;. on the effect of the
dedarafion of adjournment by the applicant~is incorrect.
True it is that Rt~le 9, Chapter IX read with Rule 30
granted the appli~~mt a.s the Chairman of the Standing
Committee on the 20th March 1951 full discretion to
adjourn the meeting of_ that" day ; .but that Rule
r~q~ires also that the Chairman _in adjourning the
meet!ng, " shall fix such time and place for the_
adj<?urned meeting as he shall think fit." An adjOtirn-
r;nent . without fixing the time and place for the
. 'adjourned meeting' cannot . be said to' b'e in lawful
exercise of the powers u~der Rrile 9. _ .
..,_. The de_a dlock that would follow fro in an adjo'urnmen t
without fixing the time and place for tbe adjourned
. IJl.eetingis ..well.illustrated in this _case -; a~(fwe have no
"9~mbt that. :.s uch a conseqtt<?fice -was present tQ ~ the
. ,framers of th.e' Eule in inserting a mandatoryprovision
'__requi-
.
r ing the time and::place
. . .. . .
ofthe adjourned
.
in.eeting
. . .
1951] BURMA LAW REPORTS. 221
to be fixed \"hen adjourning a meeting. After midnight S.C.
1951
of the 20th March 1951, the applicant having ceased,
U HTUN TtN
by efflux of time, to be the Chairman of the Standing v.
Committee would not be competent to fix a date for u .tM;uN 8

the adjourned meeting; and there would be no other Two o THKRs.

personwho could have fixed the date.
The l.e arned counsel for the applicant states that
the practice in the Corporation has consistently been
that till the next Chairman is elected, the outgoing
Chairman continued to exercise the privileges of a-
Chairman. That may or may f!Ot be so, as a matter of
practice. But no practice however consistent can
override the plain provisions of Law.
The application is refusftd with 'costs ; Advocate's
fee ten go14 mohurs.
222 BU RMA L AW REPORTS. (1951

SUPREME COURT.
t S.C. M AUNG WEIN AND TH REE OTHERS (APPLICANTS}
1951
lul:y 31. v.
THE DISTRICT AGRICULTURAL. COMMITTEE
OF THAR R A WADDY AND T HREE OT HERS
(RESPONDENTS). *
Dis~:Jsal of Teu.aucies Act, s. 3, ~~<-viao (a)- Rigllh of ow11er to remain tiP
posscsJion-Witeflrlr can be disledged . by Village Agrictrltural Cotumitlee
or District Agricult ural Commiltee,
Where the owners applied to the Village Al(ricultural Committee to-
culti~ate their land which is j~st over 10 acres for the season, 1950-51 and
were allowed to do so but the old tenants applied for permission to work the-
same land which was granted by the new Village Agricultural Committee and
which was confirmed in appeal and the owner applied for a writ of certiorari'
to quash the !laid proceedinl(s :
Held: That under the pro~ision of s. 3, proviso (a) of the Dispo; a J
of Tenancies Act I he owners of the land are entitled as of right to r emain i~
possession when it is proved that they are engaged in the cultivation of the
land with their own hands as their principal means of subsistence. Neither
the Village Agricultural Committee nor th e District Agricultural Comm ittee on.
appeal have power under the said proviso to dislodge the owner .

Tun I for the applicants.

Ba Sein (Government Advocate } for the respon-
d ents 1 and 2.
The judgment of the Cou rt was d elivered b y the
Chief Jus tice of the Union.
SIR B A U .-The facts of the cas-e, when properly
s"rted out, appear to be quite simple.
In 1947 the applicants bought a piece of land
situate in Sha-daw-yo E ast J{win No.9,. now known as
h old ing No.. 5 of 1949-:50. At the time of t he purchase.
Civil Misc. Application No.4 of 1951 being an appli(;alion for dl~ections
in the nature of certiorari.
t Present: SIR BA U, Chief Justi~ of the Union uf Burm;l, Hon'ble
Mll. jl:JSTIC& E MAUNG and Hon'ble MR. JuSTICE T HEitl MAUNG.
1951] BURMA LAW REPORTS.

the land was in the occupation of two tenants, the 3rd S. C.

1951
and 4th respondents Ko Po T hway and Ma E Sein.
These two tenants \vere alleged by the new owners MAl'>O AUNG WEI~
THREE
Of the }and as baYing defaulted in the payment Of OTHERS
rent due for 1947-48 and th e new owners were "
THE
D ISTRICT
accordingly allowed by the P ebingon Village AGRrcur..-
Agricultural Committee to work th e land for the co~~~~F.E
year 19+8--l9. But the followi ng year (1949-50) oF TaARRA-
WADDY liND
the owners could not work the land owing to insurgent TH ~ttE
and the former tenan ts, respondents 3 and OTii.ERS.
activities
4, worked the land instead, apparently without getting
permission from anybody. After the insurgen ts had
been driven out of that area, the owners applied to the
Pebingon Village Agricultural Comll'ittee for permission
to cultivate th e land for the agricultural year
1950-51. They were allowed to do so but the old
tenan.t s attempted to interfere with them in the
culti,vation of the land with the result that the matter
had to be taken up to the Deputy Commissioner.
Under the orders of the Deputy Commissioner, the
Headquarters Assistant and the Subdivisional Officer
inquired . into the matter one after 'the other and
submitted th~ir reports in favour of the owners. In the
meantime the old .Village Agricultural Committee .was
dissolved and a new one .was constituted. To the
new ~ommittee the old tenants, the respondents .3 and
4, applied for permission to work the lanq. Permission
was granted. .By that time the land had been ploughed
and the. crops had been sown by the owners the ,
applicants. . An ~ppeal was accordingly launched by
the owners to the District Agricultural Committee but.
the committee confirl1led the order passed . by the.
.new V~age Agricultural Committ~e. . .. .
in s~ doing, the DistriCt Agricultural . Go~mittee
overlooked the provisions of section 3; proviso (a) ~r'the
, Dis~osal of Te-nancies Act: Under the.said prQ~isions
'224 BURMA LAW REPORTS. (1951
S.C. the applicants, who are the owners qf the land, are
1951
entitled as of right. to remain in possession. Neither
MAUNGWEIN
ANo THREE the Village Agricultural Committee nor the District
oT~~Rs Agricultural Committee have power under the said
01-;~~cT provisions to dislodge the applicants from the possession
AGRicuL- of their land when it is proved that they are engaged in
TURAL
coMMITTEE the cultivation of the said land with their own
~~A~:::~- hands for their principal means of subsistence ai).d
TIIREE
OTHERS.
when the land is one measuring just over 10 acres.
For all these reasons the rule nisi is made absolute
and the order of the District Agricultural Committee is
quashed. It f01lows that the order of the Village
Agricultural Committee is also quashed as it has been
merged with that of the District Agricu1tural
Committee. Advocate's fee is five gold mohurs.
i951} . BURMA.
. . LA:W
.. REPORTs.
. 225

SUPl~EME COURT.

DR. R. c. DAS (APPLICANT)

v. Aug.l.
THE CONTROLLER OF RENTS, RANGOON
(RESPONDENT).
.Certiorari-Urban Rent Co11frol Acl, ss. 16-AA (4), 16-AA \Zl-Decisron ba>Scd
on!miscO!'ceitro;1 of facts and wrot1g assunrptiotz of law.
Where the Controll<!r of Rents purporting to act under the Urban Rent
.Control Act, as. 16-AA !41 and 16-AA (2) held that tlie apP,li<!ant had vicated:
.a room and failed to give notice thereof and that the unauthorized OCL"Upa nt
was liable to be evicted therefrom and there was no legal evidence of the
room J:!;a-yitig been vacated:
Htld : That the order itself contains a statement of what led to the
-decision. it is" a speaJiing Clrder " and the Supreme Court' can inquire into
:the correctness of the detision by certiorari.
R~~ v . .Norlliumberland . Compeusatio~ Appeal Tribuual Ex Par te Shartt,
~1951 ) 1 K.B. 711, referred to.

G. D. .Williams for the appl~eant.

Ba Sein for 'the respondent.

The judgment of the. Court was d'ellveredby
.. .
MR: ju~'t(C':E THEiN MAUNG.-thisis :an appli.ca:..
a'
-fion!for wtft of' certi'6ra:ri to quash the re'S~oiident"s
.Order wherein he held (1) that the applicirtt had
vacat'ed room N:o. 5 i'n House No. 177- 179, Lewis
:Str eet, Rangoon, (2) tl1at he had failed to grve notice
-of hi:s lla:ving done so' as requite'd by section 16-AA of
t he. Urb~rt. R'ent
.
Control
.
ACt,
. ~
19~8- a'rid (31} that tfi~
.
.Uli'<Juthori:zed!. OCCU'p'an'f Of' th'e' premises, WnOeVet he
.
mig}:lt -~e, was liable to be evict~d t~erefrom under
Civil Misc.' ApplicatiQn' No. 26 o 195.1> bt ing an applicatiow for
-diectio~~ in the nature . of ce.~tiorari.' . . .
t hesent: SIR. B~ u, cliie~~justice 9 t6e u'nioo oi B'urma, Mil. ] uSTtcs
E !\~AUG and 1.\~R. JusTICE Tn~I~ M.tu~~
~5
226 BURMA LAW REPORTS. [195t
S.C. sub-section (4) of section 16-AA of the Act read with
1951 '
sub-section (2) of section 16-BB therepf.
DR.RC.
DAS The respondent has observed irt the course, of the.
v: said order : .
TJIE
CONTRQLLER
OF RE~TI,
RANGOON.
" D~s (the :lpplicant) admitted that he had vacated the
room and had gone to reside w.ith his wife in' ano't her room beld
by him in the ground floor of an . adjoi11ing buildin~. Whethe~
he had left the room as il temporary measure or not, the fact
remains that he had vacafed the. room and after about a week or
so later, during which renovaticn and repairs to the room were
effected, it was occupied by S. V. Tata who is admittedly an
authorised occupant."

However, if the applicant's statement to him be

read as a whole, as it should have been, it will be seen
that the applicant's case was ll) that he was just
temporarily accommodating S. V. Tata in the said
room (2) that he had not vacated it altogether and
that as a mat~er of fact, his two sons were living with
S. V. Tata during his temporary stay there and (3)
that repairs and improvements were being made by
him at his own expense.
The respondent appears to have misread the appli-
caqt's statement. and to pave overlooked the part
wherein he stated that his two sons wen~ still iiving in
the room.
Apart from the alleged admission of the applicant~
the respondent had no legal evidence whatsoever of
the applicant having vacated the room or of his h'a ving
assigned the tenancy to S. V. Tata -or of the repairs
add improvements .having been made ~y S. V. Tata
at all.
Furthermor~, the. respondent appears to have
proceeded on t he wrong assumption that it 'Yas for the
ipplicant to pro.ve that' he had not vacated the room
:~.talL
1951] BURMA LAW REPORTS. 227

The respondent's order contains a statement of S.C.

1951
what led him to the decision. So it is a " speaking
order " and this Court can inquire; by certiorari into nuD~ c.
the correctness of the decision. [Cp. Rex v. Northum- .v.
1 H
berland Compensation Apfeal T1ib.u nal Ex Parle Shaw CoNTRoLLER
. 01' RENtS,
( 1951) (1 )J RANOOO~.
The decision is erroneous inasmuch as it is
based on-
(a) a misconception of facts as to vacation of the
. premises and
(b) a wrong assumption of law as to the burden
.of proof.
The application is allowed with costs ; Advocate's
iee three gold mohurs. The respondent's order is
quashed ; and its being quashed wilf have the effect
of nullifying furt~er proceedings. before him culmina-
ting in the allotment of the said room to a third party,
which has been kept in abeyance during the pend.c ricy
of this application.
728 BURMA LAW REPORTS. l195 1

SUPREME COURT,
t~.
1951 U PE AND ANOTHER (APPLICANTS)
~ug: 13:. v.
TH E HON' BLE MI NISTER FOR HENLTH1
AND LOCAL GOVERNMENT A:ND OTIHER3
(RESPONDENTS\*

Directiou in the tiatttrt of certiorari-$. 14, Limii<Jtit?n Act-S;t;remc Cvtll t

Rules, Order 21, Rule 8-St'ffictent caust-Lo(a/ A'rit horit res (Sus PetiSionj
Act, 1946 attd Rules 3 (1), 7 and 8-By:;..law 4 of H<~nlh-awadtly Dis/ riel
Council made in purs~tance of s. 80 {I) of R~trat Self-GO'IIer nment Act-
Failure to advertise in consPicuous places in /Ire mark~ of increase of
rate-Bye-law superseded-Revisron and enhance11rcm a/trtll-es- llldicia l
or quasi-judicial act.
An order for increase of rates of stall rent in Kayan Market was pa'lsed an<t
a11ction sale of the right to collect stall rent at enhanced rates was held, The
applicant being aggrieved filed an appeal to tbe Commissioner as provided!for
'by s. 80 (1) of Rural Self-Government Act and on the dismissal of the appeal
~evision was filed to the :Pr~sident. .
Held: That time 'thus occupied in these proceedings may be excluded
'Under c. 14 of the Limitation Act read with Order 28, Rule 3 of the Supreme
Court Rules.
Under Rule 3 (1) of Lo::al Authorities {Suspension) Rules, 19~6 all the
-existing rules and bye-laws under the Rural ScHGovern:nent Act shalt. apply
unlC?SS they are superseded.
Byelaw 4 of Hanthawaddy District. Council Public Market bye-laws
p rovid es that the rat~a of daily fees shall be fixed and be s~1bject to the
revision by the District Council and they shall be publicly advertised in
conspicuous places in the market. When there was no public advertisement
in the ~arket this rule was not complied with:
Hule 7 of the Local Authorities {Suspensioa) Rule~. 1946 s~pe~sedes
Bye-law 4 of the Hanthawaddy District Council Public Market Byela\V:
lt provid:s that if it is considered th"t the collection ol the rates or taxes
should be superseded or amended, proposals for the same should be forwarded
to Government through the Deputy Commissioner and the Commissioner.
As this rule applied and no reference was made tO' GoTernment, the order of
enhancement was bad.
Revision and enhancement of rates or stall rent is judicial or quasi-judicial
act and therefore amenable to.tbe jurisdiction of the Supreme Court.
Civil Misc. Avp1ication No;_ 25 of l95l being an application under
section 25 of the Constitution of the Union of B11rm1 for directions in tlie
mature<> certiorari and prohibition:
tBeftm SIR 81. u:Chie(J-,tstice of the Union o( B.:~rrna, ~ R. ]USTIC
t MAONG and MR. JUSTICE TEiin!l:MathtG.
 1951] BURMA LAW REPORTS. 22.9
As regards auction bf ~tall<~ or collo:ction of sl:tll ren t at re' is eel or s.c.
enhanced rates they are executive acts in respect of which applications for 1~5~
the wrlts of certiorari and prohibition are absolutely incompetent.
U PE AND
U Htwe (a) A. E. Madari v. U Tun Olm 4ncl one, (1948) B.L.R. 541 at ANOTHER
559-560, referred to. v.
TilE
H oN'BLE
Ba G; an for the applicants. MusisTBR
!FOR HEALTH
Ba Sein (Government Advocate). for the AND LoeA:L
GovER~~
r e.sponden_ts. MENT AND
OT~iMs:

The ju.clgment of the Court was delivered by

MR. JuSTICE THEIN I't1AUNG.- This is an applica-
tion for writs of certiorari and prohibition in respect
of (1) the order of the third respondent, who is the
Officer-in-Charge of the HJ.nthawaddy District 'council,
enhancing the rates of stall rents -in Kayan Market and
(2) the auction sale by him of the lease of the right to
collect st all rents at the enhanced rates.
Tpe 3rd respondent has been appointed to be
the Officer-in.:.Charge under -section 4 of the Local
Authorities (Suspension) Act, 1946 ; and subject to th.e
limitations imposed by Rules frame-d under section 12
of the .A:ct he has been invested with all the rights,
privileges,.du,ties, powers an.d fu-n ctions which were
previously v.e~ted in or exercisable by ,t he District
couQcil. [Se~ Notific~tion No. 209, da.a~d the 30th
rJuly 1946 o( the Local Government (Administrative
Eran4h).J . .
!H~ ~revised .the said rates and directed that the
enhanced rates ~hould _come 'into force on the
l .s t O~top~r 1.950 by h_is .order d~ted the 1st ~ugust
;19SO.i. - ~-~d !h~. sold. the said lease -by' attction on the
11th September 1950.. ..
: S.9 th.e aJ:?pl:icatip~ for the .writs which was filed
OillY. :9_1). 3 rd :April 1951 is primd jade. 'time;b<,trre;a
~.rid~r _ O rder. 21, R\l.l e 8 ~ of -the' supreme Court 'R~l_es
. which. requ~res sliyh. ~pplica:tio~s to :be filed '~- ~i.t~,~ll
230 BURMA LAW REPORTS. [1951
~.c. three calendar months after the order, r.e cord, pro-
IJ.9)l
..:.......! ~eeding or act, of which complaint ' is made, shall
'(jPE AND
.ANOTHER have been bad, made or done. ''
"
TjtE
However, the learned Advocate for the applicants
H ON'IILE has applied for extension of time under Order 28 of
MlNISTEK
FOR HEALTh the Supreme Court Rules read with section 14 of the
;tND LoCAL
qov~mN Limitation Act on the following grounds : - ..
MENT AND
OTifERS. (1) That under section 61 of th~ Rural Self-
Government Act, it is the duty of the
ComJ;Ilissio~er, Pegu Division (the second
respondent) and the President (who is
represented by the first respondent) to see
that the proceedings of the Officer-in:-
Charge (the third . respondent). are in
con formity with .that Act arid with the
orders and rules in force ther eu nder ; .
(2.) That the app~icants have accordingly applied
first to the Commissioner and then to the
President to. set aside the said order aqd
sale ;
(3) That the Commissioner and the President
passed orders rejecting thei~ ~pplicati<.ns
bn the 2?t~ January, 1~51 and the
21st March, 1951 respec.tively ~ ~
(4)' That the hme during which they had . been
prosecuting the said proceedings with due
diligen.ce might be excluded in computipg
the period of limitation ; and
( 5) That after . exchision of such tf~e, the.
application will be found. to h:~.ve been filed
well -within time.
f~e learned ~~veriun~rit Advoc#e, ~ho app~ars for
:he. responderits::cannoCassail ~my .of th~~said' grounds;
ind we, are of the opinio.ri "'t haf this Is a fit case for
~xte'rision o(time under Orde'28, Ruie 3.' . .
 1951] BURMA LA\V REPORTS. 231

To turn now to the merits of the application, S.C.

1951
Rule 3 (1) of the Local Authorities (Suspension) Rules
U PE AND
1946, made under section 12 of the said Act, provides ANOTHER
" In discharging such duties, powers 2nd functions v.
THE
{asare entrusted to persons appointed under section 4 HoN'aLE
MINlSTJ;.R
<>f the Act) the provisions relevant thereto in the FOR HEALTH
AND LOCAL
Municipal Act, rules and byelaws or the Rural Self- GOVERN-
MENT AND
Government Act, rules and bye-laws., as the case may OTHE~S.
he, shall apply unless a separate provision is made for
.any such matter in these rules."
So bye-laws of the Hanthawaddy District Council,
which have been made in exercise of the powers
Conferred by section 80 (1) of the Rural Self-Govern-
ment Act will apply eKcept where a separate provision
has _b een made in the said rules:
Bye-la_w 4 of the Hari.thawaddy District Council
Public ~arket Bye-laws provides :

,, The rates of daily fees shall p~ fixed by the District_

C~unci,l and shall be subject to revision by the Council with
effect from the 1st May of each year ; and tl1ey ,shall be publicly
3dve'r tis'e d in conspicuou~ places'iii the market."

If this ruie ha5 not been supex:seded by any separate

provision in the Local Authorities (Suspension) Ru-l es,
-1946, as conten<:ied by :the respondents, the , revised ,
rates should have been publicly advertised in _conspi-
. -cuous . places in the market~ Whiie admitting that
they have not been so ad~ertised, the respondents
dai~ that they have-complied with Bye~law 4 as far
-a s poss ible by publishing. t:l:;lem at the offices of the
Township Officer; Kayari~ tl~e Deputy Commissioner, .
.Hanthawaddy and: the District<council, Hanthawaddy
all in-- Rangoon; ._ .
It is true .that Kayan was not liber~ted from insur,..
gent o ccupation ti.l l .t he:.2Sth August 1950 and that the
revised
... . :rates
. . . .the
-cdtild .not be :adv ertised . in ;. market at
.
232 BURMA LAW RlEPORTS. [1951
S.C. Kayan before -that date ; but the learned Advocate for
11)51
tt.le res,p0ndents has to aclmit that they could have
U P. M~O
AKOT HEH been advertised there after the 26th Augitst 1950 ~nd
v.
T .HB
before the auction sale of the lease of the nght to- I

HoN'BLE
MlNIS1lltR
collect rents at the revised rate~.. So the fact remains
:FOR ' HEAUrH that the revised rates have not .been published at any
ANO LOCAL
G.O 'I- ERN place in Kay.an although there was nothing to prevent
.}.~ENT .AND
.OTHERS.
their publication in Kayan after the 2t5th August 1950 ;:
and under these circumstanees we cannot accept the
contention that Bye-law 4 has been compned with as
.far as possible.
The .matter does -not rest there even. Rule 7 of
the Local Authorities (Suspension) Rules, 194()
pro.vides:
u ;faxes and ,rates which were in force in each urban and
rural area in the pre-evacu.ation period shall be assessed and
collected by the local authority concerned. If it is considered
that the collection of any taxes or rates should be suspended or
that the r~tes-~hould be-amended, propo~aiS'for the same should
be forwarded to Government through t.h'e J?eputy Commissioner
and the Commissioner
., . .. . .
The prescribed procedure in the Acts and roles concerned
shall be followed as far as possible in making proposals for the
le~y of any. new taxes-or t"a-te~.l'

The lear.ned tGovern_ment -Advocate ,has' coptett.d cd

tha!tth:e Rule does no_tapply to st~it r.ent,s ;and amend:..:
ment of the ,rates .o f .stall..r:.en:ts 'and t-h~t .the rple ~~hi.ch
:is .really ,applicabl-e to them j~s Rule . ~. Ho.weva,r,
.Rule 8 pFoV.idesionl;y ;for clispos~l o fl.eases and liq~nse~
-a,bdiit ha$ nothing !Whatsoev_er ,,tq ~~"O : with am~ndll}ent
of ll'ates ;a.t :all. -'J}h~-r~tes .Il)ust JU~ a1]len9edin ~Gcor
danee.W:ith :R\'ile ; !f{lthough th.e :l({~e of !lhe ;li(ght to
collect stall rents at the revised rates pa~ ,qe ,(\i&p<o~.e_d
.. .afmnderRule :..8. : .
.S.6 Rul~ (J .mus-t bt d-e~Q1~d ~9 hf\v.e ,s:tip,~r~~ded
Sye-lliw f qf ith.e ~nih~:waruly Plstfi.G~. t~cp;n:<til
 1951] BURMA LAvV R,EPORJ1S. 2:33

Public Market 13ye-law in so far as it has provided S.C.

1951
" If it is considered that the rates should be
uP AND-
amended,proposals for the same should be forwarded ANO!l'HER
v.
to Government through the Deputy Cornmissiorlh T.HE
and Commissioner "; and since it ~s admitted that the HoN'BLE
MINJSTI!R
O$cer-in-Cbarge has not s~bmitted proposals for FOR HEALTH
AN I>,LoCAL
amendm~n.t of the said r.ates, he must be held to GovERN-
have exc_e~ded his jurisdiction in enban.cing them. MB'NT:AND-
O~ERS.
Super~essio.n of Bye-law 4 and provisiqn of an
additioi;lal s.afeg,uard appears to hav.e been necessitate
by the .facts tha,t p~rsons appointed u!lder section 4 of
.the Local Authorities (Suspension) Act, 1946 are
Government Officers and not elected represent.atives of
,t h_e p~qp.le and ~hat .they are to. carry on the functions
of local authorities only till such time as elec_tions can
be held.
With referencelto the question as to whether revi-
sion and enhancement o{ the tates of stall rents is a
judicial .or quasi-judicial act in respect of which a wrft
,of ~erti.or~ri . rri,ay . b_e is~ue~, R~l~ 21 of :th.e ;Bti.r~a
.~q~l Se;!f-.Go,ve.rnm.e nt ,R!Jles, 1936 mu.st be read
~tog~hh~r. ~it.l;l Rule 20 of the -sa roe.. They . read :

41
: .p. STAJ'lDA~pJZAT~ON OF Stt\.U ~~NTS, ;B>t:C~
~0. Standard rents; chirges and fees 'for the ri~ht to
occupy, and exp6se goods qr live$tock for -sale in, any s4oPt
. stall o~ stand in la District Conncil market imd for any other
right in conne.c tipn with the ,bringing or :expo.sure of goods or
iiv.estock fo~'sate. :in the ~a:~k:e't ~h-;ir .he ~xeci by 'the ~co~~ncil
'~i~h due regard to the poslticn, size an:d- constr.nction of eaeb
shop, stall or stand, the natnre .and value of-the' good$ or Ji.ve-
!stn~k P.elir;P.jJt~d to :b~ b~oqgh_t or e:l{posed 'f or .sale .- and the .value
.q :!tn<;ri~\1~ ~q~.ce,q~~ ;ill ~~RI:lt:W~Ho~ - ~:it\1 -th_e lbr:i~gii)g . ;~n~
,e.?mo~~!\~) 8 ,th~ ;g9.~4s. qr ~iv!~sto~k _fQr Jl;~l~. .
. 2'1. Save as provided i~ :~t1~~ 2~ . bP.~ow, sucP, .sl~n~ar.~
.X:~!!t~ ..f~_a.t;&e~ ..~!1~ _f_e_e_s ~sha.ll:_q_e_ ~s_t!P.kc.t ~to ._t:.ci~!~iq!lJmnm~!1Y.. ..qr
at the end of th~Je!l.e jp. gl!ie? .w~.tie .~{le; right of collection bas
234 BURMA LAW REPORTS. [1951
S.C. been Ieas~d for a term longer than one year~ aucl the rate fixed
1951
after such revision shall be published in the market not later
U PR AND than the is!>ue of the notice prescribed in Rule 14 above and in
ANOTHER
'II . aliy case before the 1st of March in each year."
THE
HON'.BLE
MINISTER Having regard to (1) the detailed provision of. Rule 20
FOR HEALTH
ANU LoCAL
as to the factors to be taken into consideration in
GoVR;RN fixing rents and (2) the provision in section 61 of the
MltNT AND
OTHERS. Rural Sell-Government Act that the President and
C0mmissioner must see that the proceedings of
DistriCt CounGils are in conformity with the Act and
with the orders and rules in force tbereunde.r, there
can be no doubt of the fixing of rents being a judici<il
or a quasi-jud1cial act. .
This Court has.already observed in U Ht'l!)e (alias)
4,. E. Madari v. U Tun Ohn and one (1) ;
,. ft may, therefore, be fairly argued that, since the
Admil)istrator has to fix these r~s of taxation in his discretion,
he should be treated as an administrative officer, performing a:n
administrative duty imposf':rl on him by statute for the benefit cif
the community. His act is; therefore. more of l!o mecbanical
rather than of a judicial nature and is, therefore, not open t
scrutiny or e~amination by this Court. Tlie a~swer is that; a
discretion which is demonstrably groundless or exerdsed in
ignorance or at random, is not, in the eyes of the law, a discre
tion at all, b~t mere caprice. It must b~ the exercise of his
faculties by a re:1sonable man, resulting i_n such actio~ as a
reasonable nian might. have adopted, though not. neces.~arily that
.which another impartial critic would have adopted.'' .
. '

Since the fixation of rents is <:l .judici~l" or qua~i:

. judicial _act, revision and .en}lance~ent o( ,ient also
must a fortiori besuch an act.
we . accordingly hold . that ._ in .. revisin.g. and
~_nban~ing the rates of stail r~Iits. as he
d id the Officr-.. .
in-har~e has e~~~.eded h'is jurisdi~tion in pe9orming
._a jn~.icial _or .q~~.~i-jud~~iai' ~cf; ' ... :
\ " .
U) .(1~48) a.u:R. SH af P.P.S59~560. :.
=1951] BURMA LAW REPORT.S. 235

As regards the auction sale of the lease of the right S.C.

1951
to collect stall rents at the revised and enhanced rates,
it is a purely executive act in respect of which the ~N~~~::~
:application for the writs of certiorari and prohibition T~
is absolutely incompetent. HoN' JILE

The order of the Officer-in-Charge revising and Fo~~~~~~~"

.enhancing the rates of stall rents is quashed ; but A~~v~~<;L
:there will be no order for costs. lrENT AND
OTHERS.
236 BURMA LAW REPORTS. [1951

SUPREME COURT.
.fs.c. ,
1951
DA w YU AND OTHERS (APPELLANTS)
v.
MAUNG KHIN ANP OTHERS (RESPONDENTS). *
Burmese Buddhist law-Re-marriage oj mother-E~tc.fe to be divided is the
estate held by mother at the re-marriage-Share of inherila11~e t;lain:ed
and givetz--Suclt heir debarred from claiming j1~rtlter inheritt111ce.
On re-marriag~ of mother a son claimed from his mother ancl step-father
property with which to set himself up independently. He was givEn
prpperty and cash which was not less than half the estate brought by
mot11er to the second marriage. Demand was not for a gift but for a share.
Held: That on the re-marriage of a parent the estate to be divided is
the estate held by lhe parent at the time of re-marriage.
Held further :That it is ~eltled law that when on re-marriage of one parent,
the atel child or children SOLight and obtained a share from the parent
re-marrying, that child or children have no furtlier claim in the estate of that
parent.
Ma On Thin v. Mtl Ngwe Yin and auolher, 7]Ran. 398, followed.

Chan Htoon (Advocate-General) for the appellants.

Aung Mi1~ (2) for the respondents 1 and 2.
Zeya for the re.s pondents 3 to 7.
The judgment of the Court was delivered by
MR. JusTICE E MAUNG.-The essential points
in this appeal lie within a very narrow compass.
U Shwe Kyu, a Burmese Buddhist, died in 1880 leav~ng
his widow Daw The Nu, and a son Maung Tun Hla.
The son .was then about 4yearsold. DawTheNu, about
th~ee years after the death of U Shwe Kyu, .married
usan Gyaw and by her second marriage she had five
children. li San Gyaw died in 1918 and Daw The Nu,
..survived fiimfor 19 years. when>sh.e .died i~ 1937 .h.er
Civil Appeal No. 4 of 1949 against the j~dginent and decree~ dated tt{e
.18th M~y 194~ in Civil ist Appeal No:S7 of 1947ofthe High,Court.
' t Present : StR a A U, Chief Justice o the Uni~n of Burma, MR. JUSTICE
~ MA"UNG and U AUI'G THA GYAW, J. . '
1951] BURMA LAW REPORTS. 237

atet child Maung

.
Tun Hla, together,
.
with. two daughters S.C.
1951
a-r1d a son of the second mart-iage, survived her. -
T h e smt . ou t o f wh'1c h th 'ls
' appea
' 1anses
. . .tn essence Awo
ts DAW Yu
oTHERs

a claim for administration <:>It behalf of the ate.t child MA:u;~KH'-rN

Maung- Tun Hla of the esfa'fe left by Daw The Nu... ANooTHERs.
M:any ;_ pleas were rai~ed in'' defence but the most
important plea and on which this-appeal can be decided
is the plea that in 1902: when Maung Tun Hla was
about 30 years of age, there was a partition between
Maung Tun Hla on the one hand and his step-father
and mo:t her on the other.
The rule is well settled that on the re-marriage
of one parent after the death of tl:ie other, the child or
children of the first marriage are entitled to claim .
partition against the parent re-marrying and the
step~parent. The share that would fall to the children
of Hudirst marriage when there is-more thari onechikl
ofsubh marriage has been with u-n animity held fu. bea
half of such estate as bec anie divisible. But where
the: isSu<e o f the J1rsfmarri'age consiSts ob.ly-of;a:---sihgle
child1 .there lias been::a conflict of judicial -~mfhofity.
Certain -decisi-ons -of-the High Court of Judicature<at
Ra:ngoon would grant such-:a child a ft>t!iTth while-certain
other: decisions:: would giVe him a ' half share-. Thait
confli'cf, however; it is not' necessary to settle in: the
present case fot reas<ms which w'Hf become apparent
later.:
T~en again, there has beena confli-Ct of ju-dicial
aui_aority on tlre--;a-attire-. oF the est~te which became
divisible,on: such' a re-:rnarriage. One I'hie. of
~ .
makes - tlhre join.t . estate-o fthe -p arents the estate w-Hich
.
de cisions

become divisible on the re~rriartoiage:. .of iorie'- par:ent,

. Another line of decisions makes the estate held by the
sllrv:iving.-p_~-rent at the mo.m~nt -of :his or -heJ::-re,.:mairriage
. so diy.isihle~ For,,the .-pu\rpose of::thi5;~ase, tlnj~ ~onfHct
a~~ doesn0't-1 tequire~to:'; be:iset:at rest. .: ' .
238 BURMA LAW REPORTS. [1951

S.C. The trial Court and the High Court in appeal granted
1951
the plaintiff a preliminary decree for . . administration_
AN~A~r~~Rs The trial Court came to the conclusion "that U Tun Hla
v... . did not receive any share from U San Gyaw and
MAI,;"NGAHIN
A:so orHERs. Daw The
Nu m. f u 11 sahs
. facbon
.
of h1s
. nght
. to the estate
as _alleged by the defence". The learned trial Judge,
however, did not come to a specific finding on the
defence plea that in 1902 U Tun Hla, on leaving.
Daw The Nu and U San Gyaw with whom he had till
then been living, was given at his request a large paddy
boat worth about Rs. '3,000, a house-site worth about
Rs. 1,000 and a sum of Rs. 3,000. The omission t()
come to a definite finding on this allegation was due to-
the 'learned Judge taking the view that even if such
property had been given to U Tun Hla in t-902,..
their 'value was so much out of rroportion to the.estate
then held by U San Gyaw and Daw The Nu that in law
he cannqt be deemed to have accepted it in full
sa;tisfaction of his claim as an atet child.
The_High Court on appeal held as establis.h ed that'
when u Tun Hla left the house of Daw The Nu and
U San Gyaw. he was given a boat and a sum of Rs. 3,000.
Though the learned Judges did not specifically say so,.
it is clear from their judgment that they accepted the
substa~tial truth of the testimony giyen by U Thaw Dar
a brother.of Daw Th~ Nu, .and also the testimony given
by U Shwe Hla, who was at one time servi11g_ ~~
a. bo.a tman of U SanGyaw and Daw The Nu.,. However,
~ith great. respect, the learned -Judges of the High
Court appear to have ~isdirecte~ themselves on a
ra:dfcal point of law, just as the learned trial .}udge had.
~
The learned Judges:said :
t
.J.

~ ..."U'San Gya\V and Dai.IJ T1'eNu ..\vere W0rth a'l'i~ut 40 O'r 50

thousand rupe~s at th~.t time ail~ t,hevalue of vroperties: given to .
U Tun Hla to enable. him set
.. .to uphis'ownbusiness'was.a
' . . . . . .. . small
.

- '
 1951] . BURMA LAW REPORTS. 239

fraction of this amount. How can it be said that it represented S.C.

U Tun Hla's sh~e of inheritance especially when it is 1951
an admitted fact that not an acre of land was given to him when DAw Yu
U San Gyaw and Daw The Nu owned no less than 400 or ANt> OTHER~
. ~

500 acres of paddy lan.d ?'' MAUNG KHIN

AND OTHERS.

The learned Judges of the trial Court and of the

High Court overlooked the fact that the extent of
the joint estate of the second marriage of the parent is
entirely irrelevant. It is the estate held by the parent
at a period not later than his or her re-marriage that has
to be taken into consideration for the purposes of
partition on re-marriage.
. If therefore the learned Judges had not mi~directed
themselves on this cardinal question of law they wo~ld
have rearised that the share th at was given to U Tun Hla
in 1902 was not less than half the joint . estate of
U Shwe Kyu and Daw The Nu or the estate held
by Daw The Nu when she married U San Gyaw. The
plaintiffs themselves claim in their plaint that
Daw The Nu, when she re-married after the death
of U Shwe Kyu; was in possess.ion of about 90 acres of
paddy land, houses and some cattle. The entire body
of evidence on this p<;>int came from the defence..
According to the defence witnesses there were two
houses and two paddy boats in additiqn to the 90 acres
of paddy land but no cattle. Now in 1902, 90 acres of
paddy land could not have been worth anythi-ng like
Rs. 9, 000; Rs. 4,000 or Rs .. 5,000 would be the near.e r .
valuation. . .
Accordingly, we have in this c.ase the following
facts established. U Tun Hla made a claim from his
mother. and step-father of property with which he coul~
set himself up ind~pendently. Jie was givep property
and' cash which would be of a value not less than half
. the ~st.ate thilt 'h is. mother . brought to . the secoi1cL ..
.m arriage. It .. was clearly on the evidei1ce . not'. ..
.. .
240 BURMA .LAW REPORT~. [t<JS1
s:c-. a voluntary gift. 1t was on U Tun Hla's demand that
1'95'1:
fhe step..:fathe'r acceded to the requesffor a share.
AN~A~T!~Rs The. law is now w~ll s.et'tled .that when on
- v.K
M AUNG HIN
a re-marriage of one parent , the atet
.
child or children .
.AI'Io o'rHERs: sought and obtained a share from the parent
re-marrying that child or childreh have n'o further
claim; in the estate of that parent. See Ma On Thin v.
Ma Ngwe Yin atrd a.,1ofher (1 ).-.
'Fl'le appeal therefore must be allowed: . The
preliminary decree of the tria'll ourr-and the appellate
decree of' the High Courf affirming ~he deet-ee of the
trial Court, are set aside and the plaintiffs' sui!f! disifiissed.
The tst and 2nd respondents wiU pay the costs of the
app~Uan tsthroughou:i.
1951] BURMA LAW REPORT S. 241

SUPREME COURT.

CHUNILA.L DALABHAJI (APPLICAN'J;') ts.c.

1951
v. itug. 13.
THE ASSIST ANT CONTROLLER OF RENTS,
RANGOON AND OTHERS (RESPONDENTS).*
Vrban Ren.t Confrol Act-S. 12-Bona fide occupation-Finding of fact
, 'by Rent Cet~lroller-App/icatiot~ for writ of certiorari-If i:an be
quistioned.
Where aperson nlieady in possession ecttered into an agreement with the
applicant under which she was permitted lo occupy a portion of the premises
for a period and the said person applied lo the Controller of Rents, R~~goon
ior a permit under s. 12 of the Urban Rent Control Act and the Controller
.after careful consideration of the evidence adduced before him granted a
permit to occupy tb: premises as statutory tenant under a. 12 of the Urban
Rent Control Act.
Held: That the Controller having found that the 2nd Respondent was law-
fully in occupation prior to the agreement , he was entitled to grant her a
!)ermit.

Dr. Ba .Han and E Maung for the applicant.

. Kya:w (Government Advocate) forth~ respondent .

No. L
P. K~ Iiasuand G. D. Williams for the respon4ent
No.2.
N. R. Burjorjeefor the respondent No. 3.
' ..
The judgment of the Cp urt was delivered by
MR. JusTI:cE E MAUNG.-This' ~pplication mu~t Qe.
d.ispiis!?ed. The e~sent1al facts lie within.a very narrow
compas~ and only a short point of law arises for
consideration. . . .
... .. .. ..., .;

. . *Civil. Misc. Appi.l9~tion No~ 3t of 19Sl'being an application.in th'e nature

-of. certiorari. . .. . .
tPreseut: SIR BA U,' Chief J!lStice of th~ Union ~f B~ma, Mit. ]OSTICE
~: 'Jo(.&ONG mel Mk.~)USTI<~'i:'TiriiN ~AUNG .

16
242 BURMA LAW REPORTS. [1951
S.C. The 2nd respondent had been in occupation of a
1951
portion of the ground floo r of a building known as
5:L~~~~~~ No. 107, Mogul Street, Rangoon, for some time
{88 previous to 28th July 1950. How she came into
~sstsTANT occupation origi nally is not a matter ot importance in
CONTROLLER ,
oF RENTS, th1s case. On the 28th July 1950 she entered mto an
A:oA~;~~~s. agreement with the applicant under which she was
permitted to continue to occupy a portion of the
premises for the period ending with 31st October 195(}.
The transaction which resulted in this agreement has
been described by the learned counsel for the applicant
as a license and the learned counsel for the 2nd
respondent has not. challenged this description. It is
unnece'ssary for us to consider for the purposes of this
case whether the transaction can be rightly described
as a. license. but what clearly emerges is that this
transactlvn is not one by way of tenancy and that by
this.agreement the 2nd respondent di d not becoine a
tenant of the applicant. .
On 10th Novern~er 1950, the period stipulated for
occupation by the 2nd respondent in the agreement of
28th July 1950 having expired, the 2nd respondent
applied to the Controller. of Rents, Rangoon, for a
permit tinder section 12 of the Urban Re nt Control
ACt. Her petition was opposed by the appl~cant, and
evidence. was ~e<,i before the Controlle r on behalf of
both the applicant and the 2nd respondent. The
leanie'd Controller, after a careful consideration of the
eviden<;:e adduced ~fore him, both oral and documen.
t:try,. granted tht! 2nd respondent a permit to continue to
occupy the premises as a statutory tenant under section
li of theUrban ..Rent Control .Act. . .
: . Tlii~

-,:deci~icin
. r
of the.. .~Rent

Controller:

has heen

.sought t~:be. quashed by the applicant on the ground
that the=zn<.l r.esp<;>,pc;ient is not in law a person ~ho .:is
.'entitled.. to
. the . benefits
.. of
.
section
. . 12. of the Act. The ... :
1951] BURMA LAW REPORTS. 243

learned counsel for the applicant seeks to read section S.C.

1951
12 as granting the right to obtain a permit only to a
Ct>Ur\ILAL
person in " bona fide occupation " of prerilises in DALABHA11
'V.
respect of which the permit is sought. Thus read, the TilE
learned counsel claims, unless the occupation originated CONTROLLER
AS~ISTAST

bona fide, that is in circumstances implying the absence OF RENTS

RANGOON
of fratid or unfair dealing, the Controller of Rents has Ar\D OTHERS.
no jurisdiction to grant a permit.
It is not necessary to examine the cogency of this
reading of the Act for, assuming for the purpose of
argument that the learned counsel's reading of the
section was the correct one, we are satisfied that the
application fails in any event. The Controller, as said
earlier, examined witnesses and on such oral testimony,
as also on documents led before him, came to a
finding on the facts that the original occupation before
28th July 1950 by the 2nd respondent was a lawful
occupation and far from the agreement of the 28th
July 1950 being brought about by fraud or unfair
dealing on the part of 2nd respondent, the 2nd respon-
dent. was Cl actuated by fear and excit~ment into entering
upon the said agreement.".
These findings of fads made on materials before
the Contx:oller must, for the purpose. of the present
application, be accepted. Accepting them, the basis of,
'the applicant's contention that the 2nd responpent
having got into occupation other than bona fide is not
entitled to make an applica-tion under sedion 12 of the.
Urban Rent Control Act, is gone.
Actordingly we dismiss this applic~tion with costs.
in favour of the 2nd respondent. Advocate's fees five
gol~ ~ohurs.
2.44- BURMA LAW REPORTS. [1951

SUPREME COURT.~

t S.0., KANTILAL GORDHANDAS .S HAH (APPLICANT)

1951
Aug. 1'3t
v.
THE AS@STANT COLLECTOR OF CUSTOMS
(PREVENTIVE) (REsPp~DENT). *
Direction in the nature of certiorari-S. 1~7 (81 of the Sea Customs Act-
S. 3 (2) of Import Tracie Co"trol Act, 1947-Proceedings bejo~e the
Collector u'nder tiie above Act quashed.
Applicant!s shop was raid~d by the Pblice and paTt of the stock of u.ncut
synthetic ~tones. -~ere sei:ed. and they were later returntd. Later Custom
Officials went and seized s9me synthetic stones and the Applicant was called
upon to show cause why penalty should not be imposed under s. 167 (8! of the
Sea Customs Ad rea<i with s.1!3 (2) of the lmport Trade Control (Temporary}
Act, 1947 on the ground that these stones were reported to have been imported
into Burma without import licence and witl;!ont payment of dnty. On an
application to quash. the proceedings :
Held: That s. 167 (8) of Sea Customs Act provides for imposition for
penalty upon p~~sons codcerned in. import and export of P.rohibited goods and
the. burden of proof under that section is on the accuser to prove hi~ accusati.on
against the accused and unless and until tlie accuser can prove his allegation
the accused must be let off. Ptocedure adopted bythe Collector is the very
antithesis oHhe one contemplated in s. 167 (8) of Sea Customs Act and is a
breach of the cardinal rule of criminal jurisprudence.
.s:
S . 4nand" v. Collector of Cu;toms, B.L.:R. (1951) S.C. 28, distinguished.

Kyaw Myint for the applica'nt.

Ba Sein (Government Advocate) for the,respondent.
. . . . .
The 'j udgment of the Court was delivered by the
Chief Justice of the Union..
StR -BA. U.-The applicant in'this case is a partner.
i n a firm called Messrs. Burma Jewellers, which d~als
,ip the.. purchase and ~ale of.. synthetic. stones, both
:rougp. a.fl'd polished, at its shop at N0 .. 62, 29t~ .S treet,
Rangoon~ .
.:.....-- Civil Misc. Appllcation No. ' 32 of 1951 an apP.Jiciti6n under section
~5 of the1,Constitution ofBu~~~ for directions in the -nature of . t:ertiorari
and/or prohibiti9n and(or maudam_us. .. . .
t Present: SIR BA U, Chief. Justice of the Union of .Bunna, MR.JtrsTICE
E M~UNG and. MR. JUSTICE THBIN MAUNG: . ' . :
. : . .
 1951] BURMA LAW REPORTS." 24'5

On the 4th February 1951, the shop was ra1ded by S.C.

1951
the police and a part of the stock of uncut synthetic
KANTILAL
stones were seized on suspicion that they were stolen GORDHANJ)AS
propecty". But the stones seized were soon returned to SH.~H
v.
the applicant when the applicant produced all relevant . THE
ASSiSTANT
purchase vouchers. Not lo~g after the applicant was COL LECTOR
summoned to appear before U Han Thein, Superinten- OF(PREVEN- CUSTOMS

dent of the Public Property Protection Police and T IVE).

questioned with regard to his stock of synthetic stones.

The applicant again produced all relevant vouchers
and account books and no more was heard about the
matter. But on the 14th March 1951 the Customs
officials appeare4_on the scene. On that day U_ Hla
Pe; Inspector of Customs, accompanied by four civil
police officers raided the shop and seized some rough
and polished synthetic stones kept in biscuit and
c'igarette tins and took them away from the shop.
~our days lai-er, that is on the 18th . March 1951/
bearing not_hing fr.orp .the Custom' officials the ~pplica:rit"
sent. a leiter .through his lawyer to . the CoU~ctp.r: of.
c ustoms asking for information as to .why his shop!
had been r<!.ided and his stones seized. In reply:
thereto a note h~aded " Memorandum" was sent o~
the 20th March 1951. .
Th~ .tfote is in the following'.
..
terms =- . . ~,,

. "Mr. .K. G. Shah is called upon to sho~v c~use why a pen:dty:;

should: notbe imP<>sed under.s~ction 167 (8) o{ the Sea :CP._stoqw:.
A.Gt, ,re~d. ~ith s~t~ou 3 t,Z) o~ I.l:.C. Act, . .1 94.7 ~I '1?-PO~t :1;'~!\d,eJ
Control (TePlROr;:try) Act] on the grounds set qi.lt beJo.\\' :....._ .. .. .
', ,. \ , ,, .,. t ' #" ' I 1- : ;'

. Acfing Ot1 infolmatio~ recei~~<h the pfficers. ,of th~ n.et.ec:-

tiv.e m~partm_ent, . RaJ.lgoon, City ..Police.. witb th.e assist'a~c;.~ of'
tn~~ctor u:Hii J?e o'f H1e R~\1goori custom.s - ~hd''wa:s <t~phted.
by .:meraided :ydurpremises ~t : 62, 29th st~et, -Rangoon;;~(l)
.fotiM:in .ypur.:pQ:ss.ession .th"~JqJ;IO\virrg _s.y.ntheti:e<- .stones;- . ro1,1gil>
aniwii~~~p-(prq~~!~.e~f~~~~~r~l;l~<U: : _.;,; , :.:. :.{ .: ,:,.: ;,,.._.~~.._:::::.:;:.,
.. These. stones a r.e. r~qrted to)tave .be.en i.tp,ppr:.t ed ,jnto;
Bur~~ without ii~oort -Lit~~cea~d -D~vm~nt of dutv.ii ... , ,, . ' .
.246 B:BRMA LAW REPORTS. [195l

The present application is to quash the proceedings

re.sulting iri the issue of this note. The note as it
.KANTiLAL
GoRoHANoAs. stands- putting it into popular language-means this:
SHAH " You prove your innocence or else I punish you ".
v.
THE This is a breach of the cardinal rule of criminal juris-
AssisTANT .
CoLLECToR prudence under which welive. It is, in fact, almost a
. cus'l'oMs shock to those of us wh.o have been trained and bred In
oF(PUEVEN-
TIVE). the tradition and belief that under our law everybody
is presumed to be innocent until his guilt is proved.
The Assistant Collector of Customs; who.has been
dealing with this case, may plead i gnorance of. this nile
but he cannot plead ignorance of the plain provisions
of section 167 (8) of ~he Sea Customs Act because it is
on these very provisions that he relies; The section
reads, inter alia, as follows :

'' If any goods, th~ 1mp::>rtation cr exportation . of which is

for the iime being prohibited or restricted b.y or under Chapter
IV of tbisA.ct. be imported into or exported from the. Union of
Burma contt~ary to such pro-hibition or restriction, any person
'concern~d in such offence shall be liable to a pen!}lty not excee9..
ing three . times the value of the goods; or not exceeding one
thousand rapees."

Accord.ing to the section the burden is on the

accuser t~ prove . his acctisation against the accused and.
until and unless the accuser can prove his allegation,
the accus\::d must . be let off. Bu:t. the pr'oc~dure
adopted in this case is. tlJe' very antithesis of the one
contemplat~d- by Uie above section . . in consequence
t~ereof a grave miscarriage~ justice is.likely;to ensue
unless this Court intrvenes. . . . . . ..
. }he question is w~at form our .'jnterve~~ion ~hcmld.
r
take .,' The prayer is)qr the .iss1,1e of a wrifofcei:tiorari
or~'.prohibilion or J#andarttus : :certioiaii.to qua~h the
procee~~ngs ; ' prqh{bition to.restrain: the respdmlent
froin
. :
pro~yeding
. '
fuithci
. . ,. .
:
W..ltii' the
\'.
case ~nd . Iriahdamus
, . .. .
1951] BURMA LAW REPORTS. 247

to direct the respondent to return the stones which are S.C.

1951
under seizure.
The writ of prohibition, in the circumstances of the G~;~~~L:~As
case, is, in our opinion, not appr.opriate. It is true that SuAa
v.
in the case of S. S. Ananda v. Collrctor of Customs THE
ASSISTANT
(1) we issued a writ of prohibition but the facts of that CoLLECToR
cusTo~rs
case are entirely different from the facts of this case. oF(PREV&N-
Jn that case the Collector had no jurisdiction whatso- TIVE).
ever to take up the case against Ananda so long as his
.acquittal by a CriiD:inal Court of competent jurisdic-
tion stood. In this case it is not that the Colledor had
no jurisdiction. He has. But the procedure resulting
in the issue of the order calling upon the applicant to
show cause why he (applicant) should not be penalised,
if not quashed; is likely to and, in fact, will result in a
grave m'iscarriage of justice. Therefore the appropriate
writ is, in our opinion, a writ of certiorari quashing the
order directing .the applicant to show cause why a
penalty should not be imposed upon the applicant.
The writ of mandamus is also not necessary and for
that very reason no notice was issued in respect thereof
by the learned Judge in Chambers.
For all these reasons we quash the order issued by
the Assistant Collector of Customs calling on the
applicant to show cause why a penalty should not be
imposed upon him.

(i) B.L.R. (1951) S.C. '18~ .

248 . BURMA LAW REPORTS. '[1951

SUPREME COURT. .

t .S.C. M;A E KHIN (~PPELL'ANT)

1951
- ;- v;
. :A.-!l;g. 20i . .
MA AHMA fiPYU {RESJ;>ONDEN.T).* .

Money Le11ders Act,194S, s . 12-Correct interpretatiotL.

Held: That under s. 12 of the Burma Money Lenders A<;:t prohibition is
against a decree for the aggregate of the principal-of the original. loan and such
sum towards arrears of interest which together with itny interest already paid
exceeds the 'amount of the p~incipal. I~ other wo;ds, s. 12 bars the Court
against gr.anting a decree for arrears of interest in excess of a figur.e
wlii~h, 'witil the inter~t already paid, adds up to the aJ;}lo~nt o the. principaL
!Hhe interest' already paid exceeds the limit unde~ s."ti of the :Act; all that :the
Court cal). do is to reft,1se _a decree for in!er~st without .affec.t!~g howev~r
tpe claim for repayment of the original loan." Under that section Court has n!)
pow:er to reC!uce _the a~ount ?~ principal, but Court ma-y -~e-open th:e
transa ction \lnd.'grant relief fo debtor in re spect of interest payable; prior to lhe
suit under s. i3 of the Act;

Tun seznariq J(law u :foi u~e responde~t

The jud~ment of' -tife Ceu~t ~~~ delivete~ -~y

MR. JusTICE E M~'uNG.-"'This' appeal irivdtves ~a

snort point c)a the :int,erpretation of section' J~ " Qf -the
Money Lenders Ad o'1945. .._.! .- _
The appellant sued for. the recovery of a sum or"
Rs. 1~,000, being the principal sum lent on a mortgage
bond. Iq the plaint presented to the trial Court .on
13th January 1941 if was stated that the loan was taken
ana a registered mortgage bond was executed b}' the
respondent on.
1st December.
. 1930, the prindpal
. sum
. i
Civil Appeal No. 2 of 1950 aglli_nat the decr~e of the 'High Court, Rangoon
in Civil ls~ Appe~~ No. 89 o( 1948. . . : .
t- Pr~11t ::SI'f!t BA U; hiefiusti~-ofihe-l:Jnion of-1irma-; ~M'R:'jU'STICE
E MAUNG and M~;JUSTICE TaarNiT4.\ull!Gn :.
 195!] BURMA LA\V REPORTS. 249

being Rs. 11,000. repayable on d emand and bearing S.C.

1~51
interest at Rs. i per cel'lt per month till the date of
MAE KHn:
realization. It was also alleged in the plaint that v.
MA AHlfA.
interest had been received up to the month of HPYU.
March 1938 and that tli.e appellant waived all arrears of
interest thereafter.
The trial Court granted a preliminary decree to
the appellant in the sum of Rs. 12,358-12-0 inclusive,
of costs of the suit. An appeal was preferred against
that decree by the. respondent to the High Court
of Judicature at Rangoor.. But because of the interven-
tion, o( the war, the appeal could not be disposed of by
the appellate Court till the 1st March 1949. Before
~t could do so the trial and appellate pr<?ceedings,
which during the occ~pation of the country by the
e~emy had been destroyed, ha~ to be reconstructed.
The High Courf modified the preliminary mortgage
.d_e~ree of the trial Court by granting to the appe~lanfa
preliminary mor~gage decree in the sum of ?s. 6,S~t-'8-8-~
instead~ In so modifying the trial decree, the HigH
Court read section' i2 of the Money Lenders .Ae.t
~b mean ::, th~t no ,Co~~t shaH gr~~t a decree in respe d
of' any loan . advanced, for a total 'sum which .. exce:ed
twice tJ:le am:ount 0~ the_loan advance~ . aD:d that ~ny'
interest already p~id should be taken into c'"~nsideration
for th~ purP-~se ~f ~u~Ii.' calc~l~tion ,;~ Jfayi'ng "read:
. section 12' In this sense:.; arid on the . admission Tifi
the plaint th~ int~~est up to Ma.rch 't938 had beeti'paid
towards the loan, the High Court held that the
appellant is not entitled to a decree in any sum ip
excess of Rs. 22,000, double the principal sum, less the
'sum already -received by the appellant by way of
intere~t ; the learned Judges on the materials on the
record thought it reasonable to assume that the
appellant had alr~ady received Rs. 15,840 by way
of interest. .
250 BURMA LAW REPORTS. [1951

S.C. It is clear to us, however, that the reading by

1951
the High Court of section 12 ef the Act is not correct.
MAE KHIN
v. Section 12 deals with two things. The prohibition
MA AHMA
HPYU.
is against a decree for the aggregate of the principal of
the original loan and such sum towards arrears of
interest which, together with any interest already paid,
exceeds the amount of the principal. In other words,
section 12 bars the Court against granting a decree for
arrears of interest in excess of a figure which,. with
interest alreaciy paid, adds up to the amount of the
principal. If interest already paid exceeds the limit
under section 12 of the Act, all that the Co;urt can
do is to refuse a decree for interest, without affecting
however the claim for repayment of . the original
loan. It is only in exercise of powers under section 13
that the Court may re-open the transaction and grant
relief to. the debtor in respect of interest payable
prior to the suit.
The judgment of this Court is that the appellate
decree of the High Court is set aside. The amount
declared to be due to the appellant by the trial Court. in
the suit is affirmed subject, however, to th~ right of the
respondent to seek relief if so advised under section 13
of the Money Lenders Act. Either party, if aggrieved
with the decision of the trial Court in exercise of
the powers under section 13 of the Act will have
her remedy by way of appeal in the ordinary course.
There will be no order ~or c9sts in this appe~l.
 1951] BURMA LAW REPORTS. 251

SUPREME COURT.
u BA HLA (APPELLANT) t !>.C.
1951
v.
A14g. ZO.
KO HAN TUN AND ANOTHER (RESPONDENTS).*
Sale of Motor Car-Payme11t of Rs. 10.000 out of Rs. 14,000 purchase price-
Delivery of tltt. Car-Forfeiturt. oj Rs. iO,OOO for farlure t o pay the balance
-S. ZO of Sale of Goods Act.
Appellant sold a motor car to the Responde~ts for Rs. 14,500 and deli"l!ered
the car to the Respondents and received Rs: 10,000 as part:price. The sale
~ntrrovided that if, the balance Rs. 4,500 was not" paid by 30th April,
the sum of Rs. 10,000 will be forfeited and the e;~r will be... retu~nea to the
Appellant. The- Respondents failed to. pay RS: 4,500' ondue-aate imd the
~~ filed a suit for possession of the car.
Held: That und~r the contract behveen the parties the property in the car
passed to the Respondents. Tht:.clause rela.ting to forfeiture of Rs. 10,000 was
a penalty clause and High Court was justified in granting re-llet ..against
forfdfure.
Johu H. Kilmer v. Brilisll Columbia Orchard Lands Ltd., (1913) A. C. 319;
Steedman v . Drmkle a11d others, (1915) A.I.R (P.C.) 94; Bhimii
Dalal v. The Bombay Trust Corporatiotl Ltd., (1930) I.L.R. 54 Born. 381
followed.

Kyaw Myint for the appellant.

The judgment of the Court was.d elivered by

MR. JusTICE THElN MAUNG.-The principal question

for consideration in this appeal is whether the property
in. the car passed whe_p E xhibit A and Exhibit I, both
dated the 9th April i949, were executed. by the
respondents a~d the appellan t ~espectively.
Exhibit A reads :

" - .
We the understgned Ko Han Tun a:nd Ko Kan Nyunt of the
. .

Yoqth Trading Company; No. 67, 11th Str~et, Ran~oon have this
day the 9th of April19-t9, bou~hHrom U Ba Hla, Sole Proprietor
~Messrs. Khyn Company, No. 218, Creek Street, Rangoon, one
Civil App~ at NQ. 12 of 1950 aiainst the judgment and decree of the
Hi&h .Co!Jrt, Rangoon, in CivipsJ App~l No: so of 1949. . ..
... t Present: SLR RA U, Cl,lef Justice of the tTnion of Buriua, MR. ] USTWS
E .MAUNG and MR:)osTICJi: ~~EIN ~:tUN~. .
252 BU-R MA LAvV REPORTS. [1951
S.C. Oldsmobile Car, Registered No. R.D. 40'l for Rs. 14,500 (Rupees
1951
fourteen thousand five hundred only) out of which paying an
U BA HLA advance of Rs. 10,000 (I~upees ten t'housand only) ; ihe under-
v.
Ko IJ.AN ToN signed have also agreed to accept the transfer of all the necessary
:o\ND documents, sale deeds, insur~nce policy, etc., only on our final
ANOTHER.
payment of the remaining Rs. 4,500 (Rupees four thousand five
l!undred only) on or before the 30th April1949, failing which we
shail forfeit our advance of Rs. 10,000 (Rupe~s ten thou-s and only)
and return the Oldsmobile Car, Registered ~o. R.D. 404. to
U Ba Hla, Sole Proprietor of Messrs. Kbyn Company, No. 218,.
Cteek Street, Rangoon. "
Exhibit I reads :
,., . . . . . . . .
Recetved from Ko Kan Nyunt and KoHan Tun, No. Q9',..
11th Street, Rangoon, the sum of Rs. 1O,OCO (Rupees ten thousand
only) on account of an Oldsmobile Car, RD. 404 sold for
Rs. 14,500."

Where there is a contract fo.r the .sale of specific o r

ascertained goods the property in them is transferr-e d t6>
the buyer at such . till1e as tlje parties to the coi1tra~t .
intend
. it to be transfer-red~
' . . . .. , . .
For the purpose of ascertaining theJI?-tention of the
parties, regard must be :had . to the terilfs of .. the
contract, the conduct of the parties .a nd the cfrcum-
sfances of .the case ; and 'un1ess a different intention
appears -therefx;oyp, . th~-- inte.nt1on mustb'e'ascertaihed!
under'sectiop 20 of fhe Sale of'~oods Act. (s_ ee sectio.fi
i 9 thereoL) ,
Section ~0 provides !
:: .. ' ' Wh~re-ther~. is' .-a n -uncoQgitipQal .con~t:~ct for ~h~ -.~ale of
spe~i&c good~ in, a ?~lJ-v~rab_l~ s,~t~, th~ , prop~rty in the gpo~~.
p~~~s tp tp .P,~yer w~~n tl~e ~ont~c;:t_j~ tp<;J.de, ~no-#. is,i!D~atet.:.i~.
w,h~tp~.r ~.he~iriJe:gJ. ,Pay~e?'t o~ the.;price.pr.:tl time :o.. deHyi.r~
of the' go'ods, br.both, is postpon~d. ''
. t' . . . ( '

. Sp ___the q~,~ti9'Ii. :rp's.olv:~s . ":J:rs.~m- mto . 9ll~ : a~ } to

-:Wil~thfir. ii~:-di1f~rent
.
tntention~~.i:
.
..the !infen-
..
tiO:ri'.:~t~-t
. . .
1951] BURMA LAW REPORT5. zss

SUPREME COU kT.

GURBACHAN SINGH BINDRA (APPELLANT) tS.C.

1951
v. Aug. 27.
JOS. E. FERNANDO {RESPONDENT).*

Lease <mtlliceus.:-Difference bclwcrn-Test, exclusive right of occupalio1t.

\iV'here the parties entered into an agreement whereby the Appellaut was
allotted a floor space 17' x 5' and agreed to pay a guaranteed monthly
commission" of Rs. 100 as consideration and the Appellant constructed
fixtures and show cases on the sp;;ce allotted to him with exclusive right of
occupation in that area.
Held: That -the Appellant was a lessee and r.ot a licensee. The
circumstances leading to the execution of the document, the fixtures put up
thereafter by the Appeilant and the fact that a specified space was allotte~
for busin<'SS purposes with exclusive right of occupation to the Appellant leads
only to the conclusion that the Appellant was a lessee.
S. R. Raju v. The Assista1~t Coutroller of Re1ds, Ra11goon a11d others,
(1950) B.L.R. (S.C.) 10, referred to and applied.

K.1?. Venkatram for the appellant.

I ..

R. ]aganathan for the res_pondetit.

The judgment 6 the Court was delivered by

MR._ JusTICE E MAuNG.-The respondent is a

tenant of tb e premises known as 2-17, Sul.e Pagoda
Road. Some months before lst May 1947 th~
resp~'r~d-ent rented a portion of the premises to one
Harbhaja11 Singh on a monthly renta.i of Rs_. 100~
The payment of the sums for February, March and
April 1947 :were recorded in .the respondent's own
account books as payment of rent and ~e admits in
his evidence
.
at. ,..the trial " I .t hink that Harbhajan Singh
.
~ -. * Ci~u Appeal No.7_ of 1950 against the dec~~e 9 the ~rgh ourt,Rangoori.,-
.i li: Civil 1st 'A ppeal No_. 49 of 1949. .. - .: . ::
. t Present: SIR sA -u;_ Chief Justice of the -Union of Burma;. MR. JrisTICE.
. E M~UNG and U ON PE,}' . .
256 BURMA LAW REPORTS. [1951
S.C. paid me as rent". On the 28th April 1947 the
1951
respondent wrote to the appellant:
GURSACHAN
SINGH
BIN DRA
'' . . . Mr. Harbhajan Singh Kanuja is willing to transfer
v. the rights of occupancy if all the rents which he has paid up to
Jos. ~. date'to our firm, v~z., Rs. 300 (Rupees Three hundred) is refunded
FERNANDO.
to him in full. If this could be complied by you, please call at
this firm at 9-30 a.m. on Thursday, the 1st May 1947 with the
money and the writer will see the transaction put thrpugh.
Of coutie you will have to sign an agreement as that 0'
Mr. Harbhajan Singh Khanuja rep;ardingterms, etc."

The appellarit admitted at the trial that he had b.een

warned by his landlord that he could ~bt sublet the.
premises in view of the Urban Rent Control Act.
It was in these circumstances that the transaction
between the parties found a record in Exhibit A:
Ynder this agreement the responden.t agreed to allot
to the appellant a floor space measuring 17 feet in
length and 5 feefin width along the northern side of
the show room, reserving to the respondent therei-n a
floor space of 4 feet in length and 22 inches in width.
The appellant wis under the agreement fo. pay " a
guaranteed monthly commission "r,'of Rs. 100 to the
respondent as consideratidn for the allotment of the
space. On the sp~ce allotted to the appellant had
been constructed teak-wood fixtures and two show
cases for the purpose of the appellant's business in the
sale of radio goods and service of radio instruments.
Qtj 30th November 1948, the respondent instituted
the suit out of which the present appeal has arisen.
I~ the p.iaint, after reciting the agreement Exhibit A
~nd . .its contents, the respondent claimed: that in
entering. the . ag,reement ttie appellant was only a
liceps.ee of a portion of the prell)ises allotted to him .
" inasmu.ch as : he ts to conduct his business not" .
freely . but- with certain restrictio'ns im)?osed' o'n hiill. ~J ; .
The
.
respon(ienfs prayer
..
in the
.
plaint
. .
wasfor
. recovery : .
 l

BURMA LAW REPORTS. 2s7

of possession of. the portion of the premises allotted S.C.
1951
t.() the appellant in consequence of the transaction
GURBACHAN
evidenced by Exhibit A. SINGII
BINDRA
The trial Cotirt and the High Court in appeal held v.
that the document Exhibit A granted merely a license ]os. E .
FERNANDO.
to the appellant to enter upon the premises in the
possession of the respondent. The distinction between
a lease and a license has been considered by this Court
in ~- R. Raju v. The Assistant' Controller of Rents,
Rangoon and others (1); and we do not understand th~
High Court to have enunciated the principle in any way
diff~rently. The High Court accepted that the crucial
test is whether the instrument gives an exdusive right of
oc;:cupation and not whether the occupation was sub-
iect to reservation or restriction of the purpose for
. which that occupation may be used. If exclusive right
0f occupation is given by the, instrument it is a lease.
. In this case it is impossible to escape the conc.lu-
'Sfc:>n, from all the circumstances leading to the execution
of the document Exhibit A and from the fixtures put
up thereafter by the appellant, take~ together with the
fact that the agreem~nt was to allot a specified space
to the use of the appella.nt for his business purposes,
thatan exclusive right or .o ccupation in that specified
a!ea was intended to be given and was in fact given .
by ~he respondent to the appellant.
Once we hold, as we do, that Exhibit A document
purports to grant ex~hisiv~ right of occupation to the
app~llant of the floor space measuring 17 feet by 5
f-eet less4 feet by 22 inches, the respondent's case th~t .
~e appellant was a mere licensee necessarily fails .
. We allow the. appeal. The dec.rees of the trial
Eourt and of the High. Court are set aside and the
.resp.o ndenfs suit is dismissed with. costs t~roughout..
:.~\dv~cate's f-ees in this Co~ut ten gold mohurs.
'(1) B.L.R. (1950) S.C.lO.
17.
 BU RMA LAW REPORTS

HIGH CO\)RT
f

'1951

Containing cases determined by the High Court

at Rangoon

Rai Bahadur P. k. BASU (Advocate) , EDITOR

U BA SEI N (Advocate), REPORTER.

Index prepared by-Mr. B. W. BA TCN, Bar.-at-Law &

U TUN ON. B.A. , B.L. (Advocate ).
.
Published under the authority of the President of the Union ot
Burma by ' tht?. Superintendent. Government Printing an<l
stationery; Bur~~; Rangoon .

[All rights resen:ed]

 ~ .:

NAMES OF THE JUDGES AND LAW

OFFICERS OF THE UNION

THE HIGH COURT

H on'ble U TuN Bvu, M.A. (C<mtab.), Barrister-at--Law,
Chief Justice.

PUISNE JUDGES
Hon'ble U ON PE, B.A., Barrisfe1'-at-Law.
Hon'ble U SAN MAUNG, B.A., I.C.S. (Retd.).
H on'ble U AUNG THA GYAW, B.A., B.L.
Hon'ble U THAU:-lG SEIN, B.A., I.C.S. (Retd.).
H on'ble Maha Thiri Thudharnma U Bo Gvr, B.A., B.L.
Hon'ble U AUNG KHINE, Barrister-at-Law (from
7th April 1951).
H on'ble U SI Bu, B.A., B.L. (Acting from 3rd
June 1951 to 2nd July 1951 and from 11th
July 1951).

LAW OFFICERS
ATTORNEY-GENERAL
U CHAN HTOON, LL.B., BaY1'ister-at-Law.

ASSISTANT ATTORNEY-GENERAL
U: CHAN TuN AuNG, Barrister-at-Law.
GOVERNMENT -ADVOCATES
U CHOON FOUNG.
U TIN MAUNG.
U MYA THEIN.
u BA SEIN.
U KYAW (1).
..
ASSISTANT GOVERNMENT ADVOCATE
U KHIN MAUNG.
MEMBERS OF THE LAW REPORTING
COUNCIL.

PRESIDENT
Hon'ble U T uN BYu, Chief Justice of the High Court.
MEMBERS
Hon'ble Justice U ON PE.
Hon'ble Justice U SAN MAUNG.
U CHAN H TOON, Attorner-General.
Mr. E. C. V. F ouCAR, Barristet-at-Law.
Rai Bahadur P . K. BAsu, Advocate.
 Vlll TABLE OF CASES REPORTED

PAGE
:;vraung Tin and one v. U Po Nyan and one 197
---Tun Nyuut v . .Ma K!1\ve Ma and another" 341
::\ieenakshi Achi and another v. S.K.A. R.S.T. Chettyar
f'irm and anot her . .. 436
Mohamed Abdul Kader 1'. C. M.A. Ismail... 89
Mrs. K. M. Ket'\Yick v. P. D. Patel 40
N. B. Sen Gupta v. U Jone Bin... 77
Nageswar Rao Dungarmull Mahaclev
Mullai:ya. v. ---M~!(;~ancl - - '-182
Nana Meah v. Sidcliq~e Ahmed 105
0. S. Mohiyuddin S::thib v. Ynsuf Abdul. R~zak 24
P.R. P.L. Ramaswamy Chettiar t!nd others v. Ma Aye
and another 320
Raman and v. 0. N. Menon 192
S. Naclesa Pillay and one v. John Huie .71
S.P.S.N. Kasivisvanathan C hettiar v. S. S. Kl'ishnapJJa
. Chettiar and others 399
S. Samuel v. Kl<. S. Annamallay Chettyar and another 17
Seetha Ram v. Mst. Alia Hakhi and others ... 356
~m~derm~J Ranglal v. Jhabarmal R<1jaj ::wc\others : : 31 6
U Ba Ohn v. Maung H.Ja Kyi and one 382 .
- Bo Gyi,"ncl another v. U Kan Win and another 37~
v.
- Ngwe Barna Tag~n &CQ .and one .. . 134
-San Gywe v. Hirchand Kalidas 469
V. A. S. Arogy~ Ocleyar v. VR.RM.N.S. Sathapra
Cl;lettiar ~ 2H
Vy. K. G. Pill.ai v. Balthazat: & sons, Ltd .... 100"

CIVIL HEV SION

,,
Biswanath:G l~ owby and on~ v. Janaw 2 19
Daw Pan Myaing and others 7!. Ko Seiri Khant (a)
Ma,gbul .Ahmed .... . 365
~ Tin and onev. P-..P,
. Ananthanarayana
. lyer
. .
~ . .. ... 152
lbrahin~ Moh'lmed' and one. v.., M~lUng H la . p / (a )
; .-. ' AWul" Raiak- ... . .. ;,,; : .... . .. ... 1 ie;
 TABLE OF CASES REPORTED IX

PAGJ;;

Ko Phan N~a v. Daw Pway ::md others 457

Maung The in t . Daw Ht\Ye and otht.:rs 41 0
P.L.K. Ktsi c;,ettn!r (a i u Ka~i and one v.
Shashammal (a) Shayu~h .-\mma 489
S. ~1. Ahmed and one z. Bakridi 156
U Hla Aung v L: .?!.in_Thant
368
U Hla Saung and others u 1-'h an Nga :tnt! otlters
U Shwe Ya and one v. Sitaree 222

OIUGINAL CIVIL

P. B. Sen v. The Deputy Controller of Exchange 476

U Hla Pe v. The Board of Directors, Union of Burma
Airways 347

FULL BENCH CRIMINAL

The Union of Bnrma v. ?via Ah Ma

APPELLATE CHIMINAL
Chit Tin (a) Su Thi and one v. The Union of Burma 202
K. N. Chopra (n) Maung ~o and another v. The Union
of Burma 1 17
Ma Myaing v. The Unionof Burma 312
Sein Hla v. The Union of Burma 289
U Ba Pe v. Ma Saw Yin 113
- H la Myint and two othe.rs v. The t :nion of Burma . . 56

CRIMINAL REVISION

Daw E Sein v. The Union of Burma 59

The Union of Burma z. Saw Stanley B:t Kyu 28
 TABLE OF CASES CITED ,

. P.A(>~
. ' .- . ~

A. Janco Hassan Sait by his authorised agent Dada Beg .

Muhammad v. M. S. N. Mahained Ohuthu; 47 Mad.
'd77 at 880, followed ... . .. . 2i5
A.K.A.C.'f .A. L. Chettyar v. A.K.R.M.M. K. Firm and
others, ( 1938) RL.R. 660 ... .. ' "22
Abdul H amid v. King-Emperor, 14 Ran. 24 at 28,
followed ..... 207
- - - R1thman v . . King-Emperor, 5 Han. at 53 at 69, .
followed .. 292, 293
Abdut Samad Ansari and one 11. Mt. Aisha Bibi and
others, A. I.R. (1Q48) Oudh 76 at 77 ... ... . 97
Ah Kyan Sin and another v. Yeo Ah Gwan and others,
A.l.R. (1937) Ran. 497 .412
Allinson v. General Council of Medical Education and
Registration, L .R. !1894) 1 Q.E.D. 750 at 758-759 38
Amir Hassan Khan v. Sheo Bak$h Singh, 11 Cal. 6 at
8 ; 11 I. A. 276, followed ... .. 170, J 72
Am look ch:md Pa!'rack v. Sarat Chunder Muker'jee, .. .
38 Cal. 9 13 at 921 , . . 141
Anklemannessa Bibi v. Mahome'd Hatem, 3 1 Cal. 849 ' ti4
Annamalai Chetty v. Murugesa Cbetty, :26 Mad. 544
at 545 . .;. 448\;455
~nnapurnabai. and one v. Rnprao, 51 Cal. 999, followed . ' . 98
Annie Besant v. Advocate-General, Madras, 46 I.A . .176 ..
at 195-196 ; 43 Mad. 146 .;. ~ 244, 262,
. . 257
Atmaram ~hag~ant. ~hadgay v. Colle~tor
of Nagpur,
A.I.R. (1929) (P.C.) .92 ." 434
B. l~am Saran Oas Jt:>hri v. Emperor, A.I.R. (1934) All~ .
. 717 at 1i8. ... ;..' 243, 244
Babh1ddar Singh v. Badri Sah, 1 Luck. 215 _ " .- :39i
Badri Nath v. Ram Chandra, 14 Luck. 442, follo'wed' 174
B l ijnath Karnani v. Vallabhadas Damani, A. I.R. (1932)
Mad. 661 ... .. . 40C
B:tker Nicols~. B aker, L.R. 44 Ch.D. 262, 2.70 : . . 37
Balakrlsh9a Udayy~r v. 'V~~ud~v~ Aiy~~~ (19i7) 1..1\. 261 . . . . .
. . at'267, foflowed . . ... ."'. ..... 170, 1?7,
. 180

4
xu
PAGE
Balasundra Vaker .and one v. Ranganatha Iyer and
others, 53 Mad. 127 22
Barker v. Palmer; (1881-H2J L.R. 8 Q. B.D. 9 at 11 130
Barry v. Butlin, (1838) 2 Moore (P.C.J 480 ... 331,332
8babi Du"tt v. R'\malalbrama, A.l.R ( 1934) Ran. 303 380
Bhagchand Dagadusa and othe1s v. Secretary of State
for Jndia, 54 LA. 338 at 357, followed 185
Bh.l_ltnath Chowdhury v. Emperor, (1948) Cal. 289 70
Bijoi Chandra Singh v. Howrah Amta Light Railway
Co. Ltd., A.I.R. (1923) Cal. 524 88
Binnalnandan Prasad v. The United Refineries Ltd. and
. others, 11 Ran. '19 466
Bishun Persad N arain Singh and an'Other v. Ph ulman
,Singh and others, (1914-15) 19 C.W.N. 935 392
BoYan Naing's Case, B.L.R. (1950) (S.C.) 17 67
Brijlal Ranjidas and another fl. Govindram Gorhandas
Seksaria and others, A.J.R. (1947) (P.C.) 192 400
C. H. Crowdy v. L. 0. Reilly, (1912-13j 17 C.W.N. 554 391
c. K .' Ramaswaini Goundan v. Muthu Velappa Goundan
and others, A.I.R. (1923) Mad.l92 370
Captain C. R. Smith v. Mrs. Heptonstall, (1938) R.L.R
11 . 377
Cedars Rapids Manufacturing & Power Co. v. LacostP.,
(1914) A.C. 569 424
Chamupati, 13 Lah. 152 (F.B.) 261
Chan Eu Ghai v. Lim Hock Seng (u) Chin H~1at, (1949)
B.L.R. 647 324
Chandi Charan Chakravarti v. Panchanan Pandit, 9 Pat.
521. 92
Ch"van Seng 'Chan v. 'fhe Commissioner of Police,
RangQon, (1937) .R.L.R. 414 480
Coles. ~. Enoch, (1939) 1 K.B. 614 '53
Cox v.. J-Iak.es, 0890) 15 A.C. 506 at 528 2$0
Dam~.dusa and another v. Abdul Samad and others,
~.I.R. (.1919) (P.C.) 29 472
'Daiv'a 'Ammal and others v. Selvaramanuja Nayakar
. iwct others; A.I.R. n936) Mad. 479 ... 448
:b~ "Pta!\ad. v: King-Emperor, A.I.R. (1947) All. 191,
reliedon . . . 64
D~vidas Maroti Bok v. Ni1kanthrao Narayantao .
Desltrot.~k~ 1 ' A-.p~ . 09~~) N~~ JS7 at iS9, fo{lowe~ . 173
 'f.-\l3L,E OF CASES ciTED xiii
PAGE
Dhari Jena v. Gaurange Charna S:~hu, A.I.R. (1940) Pat.
89; followed 187
Durga . Oas Khann:. z. Emperor, A.I.R. (1944} Lah.
3~~t42 66
~aSSOf\. V. London and North Eastern Railway Company, .
0944) 1 K.B. 421 al425 . 35P
EIJlpei:ot v. Joglekeb, 55 All. 115 57
r - - - v. Miss Manniben L. Kara, 57
Born. 253
at 259 .. . 236, 240,
264
-.. - - - v. . Mohamed Kassam P<mwall, J.L.R. (1942)
Bo1~1. _107, relied on 65
Euspof Ahmed Serna v. Ismail Ahmed Sema and others,
;A.I,R. (1938) Ran. 322 .... 332

F. H. Pel! v. M. Gregory, 52 Cal. 828 at 843-844,

followed 108
.fraser,;u!d others v. City of Fraserville, (1917) A.C. 187 424

G:.nga Prasad v. Ram Dayal, 23 All. 502, followed 220,1221

- _ _;.:__ . - and another v. Ganesh Lal and others, 1
5t(All. 119 403
v:
Ganga :Ram Rulia and others, 2 Lah. 249 343
Gauri Shankar v; Keslutb Deo and others, (1929) All. 148 451
Gppal~:sami v. Arunachella, 15 .M.a d. 304, foilow~d 108
Govero~ent of Bcmbay v. Merwan Mondigar Aga,
4!fBom. 190 . ... .... 424
Grand~. Gl}ngayya v. Grande VenkalraJn\iah, 41 Mad. 454
. .. at.456-457 .
. \
46t
.G upta & . Co. v. Kirpa Ram Brothers, 57 All. 17 (F.B.)
.,at 22 ' . ... . . ... . 162, 116~6

Gurf: B~rLBehari
. .
~~
v. K'ing-Emperor, 19 C.L.J.- 151 120
, ...
tt A. Aziz. v. Kilyoboy, 4 Ran. 304 371
H. D. pba~terjee v. L . B. Tribedi, A.I.R. (tn2J C1l. 427 370
-Haj,i C.-~;tif a~<;l fiv~ others v. Haji Kyaw, 3 U.B.R. 201 ... 3Q9
. Hare~dta Kumar Bose and another v. Khemada Kinkar
. ' . . R-oy and athers, A.I.R. (1927) Cal. 86 ... . 309.
Hlr~lal ~~- :_Abdul. . Gany- Haj~e Ishaq and . ano~her,
H Ran. - 1~6 at l4-?.~l4r . f" ... . ~,.
 ..
XlV rABl-E OF CASES CITEl

PAGJ

. Hari .Pandurang and another v. Secretary of State for

lnclia;27 Bom.42l at451 74
Hariday Nath Roy v: Ram Chandra Barna Sarna, 48
' ~al. 138 at 149-150, followed 180
Harmer v. Humbil (Nigeria) Tin Areas, Ltd., 1 C'h. D.
20.0 at 226 84
Harmes and an~lher v. Hinkson, A. I.R. (1946) (P.C.).1S6 333
Harris v. Taylor, (1915) 2 K.B.D: 58(fat 587-588; 592;
followed ~ .. 213,214,
. 215
Hindust(m ~SSQrance and Mutual Benefit Society Ltd.
v. Rai Mulraj and others, 27 l.C. 455 26
Hiralal Ramsulcb v. Monghibai Chimi1aji, A.i .R. (]938)
Born. 510 ;.; . . 1.53
Hoe Shwe Fong v. E I. Atti:~, (1949) B.L.R. 394 at :395 145,147
Impetiat Bank of India v. Bengal National Bauk, 59 ,
Cal:_377 (P.C.) . .. .... . '.307
In Limbaii Ravji Hajare Z'~ Rahi Kom Ravji Hajare
and others; 41J Born. 576, follo'vved
..
279
.
In re. a~ at~bitration between Lucas and the Chestedield
Gas and Watet Board, (1909) I K.B. 16 at 29-.30 . 423
- . - '' Anandaoazar Patrika, '' 60 Cal. 408 .; . 2_48
. - - L. C. De Souza, Cawnpore,. A.I.R: (19S2) All. 374 484
- . - '' Saptall " and In 1e: Ben.oy Kum~r, : (1919-SO)
54 C.W.N. 334 ... ... -248
I~ the Goods of A. J. Primrose, I 6 Cal. 776 36~
. In. the Matter of ''Dail) Zamindal'," lahore"v. Emperor,:
. " . A.I.R (1947) La h. 340 .,. . . ~:. . .. 242
"Japasldi ~of Sylhet and others .1\,I.R~- . ..
(1932) CaL 649 ... -_, ... . . ~36 -
.--'-.,.-----'" Ja1ig-i-Azadi," Lahore, A.i:i~. (194S) ; .'
Lah. 6 . . {'' 242,.246
-..,...---'- "Na\vai \\raq D;lily/' Lahore. .v: ''T,b.e : . .
Crown, 28 Lah. 497 at 514, 561-562. 239, 242
... .=.24.8,.26?,' .
. . . ' . . . . . .'' . . 26.7
------~-'The' Co-6p~rative Capital' Press," . - ;
Lahore, A,.l.R. (1949) Lab; 21S. af228. 2:4'4~259,
. :. . . '.. ' .. ~ . 2'60,-~_62,
267
-~~-- . ,' The I~d~an camp~n.i.~s ; A.ct.VII . [Ji:
(1913) an_d the .Trad~i,s' . :;Bii'nk _' Ltd.,: : .. ,_
~...,-'llt9re; A.LJX. '(19-!.9) Lah.' 48.' ;.. .. 2SS
 1'ABLE OF Ct\SES C1TE1> XV

PAGE

I n the Matter o(fhe Ncwspar;er, "The Daily Pratap ",

Sl Cr. L.J. East Punj. 725 at 727 . 265, 268
"The Sun Press " Ltd., 13 Ran. 98 243
- -- - -- '.'The Zamindar Newspaper," L abore;
A. I. R. l1934) Lah. 219 at 226 242,244,
. 265,270

Inavat Ullah Khan v. Nis<w Ahmed Khan, 44 All. 279 26

Jagdeo v. Dwar.:-a, 26 Pal. 68 ... 392
]arne~ T. Burchell v . Gowrie and Blockhouse Collieries
Ltd., (1910) A.C. 6 14 at 625, relied on 54
}anki Das and another v. Kalu Ram and another, A.I.R.
(1936) Pat. 250, followed .. 1HZ
Jar~t Kumari Dassi v. Bissessur Dutt, 39 Cal. 245 ... 332, 336
}as\rant Rai, 5 Cr.L.J. 439 . 261
}esinglal Kalidas Shah v. Gangadhar Mabacleo Karandika.
. and others, A. I.R. (1.938) Born. 354 14 1
Jitendra Chandra Ray Chaudhuri v. S. N. Banerjee,
I.~.R. (1943) 1 Cal. 101 , followed 22
- - Nath Gupta and one v. :Emperor, A.I.R. (1937)
Cal. 99 at 113; foUowed 207
Jogu Bibi v. MeseJ Shaikh, 63 Cal. 415 114
}umna Dass v. Harcharan Dass, 38 Cal. 405 at 407,
followed ... . . 21 7
. ..
K. Parthasardhi Naidu Garu v. C. Koteswara Rao Garu
and a\"}other, "A.I.R. (1924) Mad. 561 .. - 370
K. A. M. Mohideen v. Baltshi Ram, 3 Ran. 410 ~ .. 370, 371
K. M. Modi v. Moha~~d Siddique anct another, (1 947)
R.L.R. 423 at 461-462 .. : 486, 487
K. N. S. P. K. N. K. Firm v. U Ba Chit, A.I.R. (1935)Rau ." .
158, followed ... . ... ... 17 1
K. S. Abdul Kader v. Sri Kali Temple Trust, "(1949)
- ."B_.:L .R 1.7~. . . ... . . . . . .~._ 387
Kai1ish Chandra Chakraborty v. King-Emperor, . .19 .'
C.L.J.: ~28 .: .. : . ... . .:. . . . ~ ' 119
Kali Charan Sh:d ar v. Sarat Cbunde1; Chowdhury, 30
. Cal. 397
. . 173 .
~--- Singh and.another v. Janak Deo Singh and
;. others, A I.R. (1932) All. 694 . 46~
. Kalla fl. Bashir U.ddin, 53 All .J72 at 178. ,. . 292.
: .. ....
Kam<il Sircar v: ~mperor , A.I. R. 1,1937) Cal. 691. at 69.4 ~J~
 TABLE OF cAsEs citED.
P.AGt!

Kanhaiya Lal and another v. Abclulla, A.l.l~. (1936)

All. :J85 191
Kanshi Ram and another v. Ishwarclas and another,
A.I.R. ( 1923) Lah. 108 461
Kanto Prashad H azari v. Jagat Clundta Dutta and
other!', 23 Cal. 335 433
Katra1-r~dds Rajagrpala Hao v. ThE: Province of Iviadras,
I.L.R.(l949) Mad. 157 ... 261,269
Kenkani and two others v. Maung Po Yin, 1 L .B.R.190,
followed 220,221
Kesholal v. Lexm:tnrao, I.L.R (1940) Nag. 659 at 668,
followed . . . 173
Kltati Gul and another v. Lakha Singh and another,
A.I.R. (1928) Lah. 609 281
Kh~rider Kapra Co. Ltd. v. Daya Kisban and others,
43 All. 116 451
Khiarajmal v. Daim, 32 Cal. 296 at 312, relied on 3~fj
King-Emperor v. B ) nomali Mabarana, 22 Pat. 48 at S3 239
Kishen Cbunder Ghose z. Ashoon1m, {1863) 1 Marsh 647 323
Kumar Radri Narain Singh v. Chief Secretary to the
Government of Bihar, A.I.R. (1 9H) Pat. 132
at 13-J. 238
- - Purnendu Nath Tagore and others v. Sree Eree
Radhakanta Jew, (19'l9-50) 54 C.W.N; 538 at 539 96
L. Mac:ho Lal and one r. L. Duli Chand .and one,
A I.R. (1933) All. 429 at 431 92
L1chlunan Das v. Commissioner of Income-tax, AJ~R.
(1948) (P.C.) 8- ... ,;, 444,446,
451, 455
L:lchmipat Singh Dugar v. Mirza Khairat Ali, (1869) 4
B~n . .L.R. 18 (Io'.B.) . . 378
L3kshmi Insurance Co. Ltd. v. B. K. Kaula and another,
. A.r.R. (1940) tah. 85 . ... ... ... j .Js
Lai Behari.v. King-Emperor, 38' All. 393 ... 119
Li~baji Ravji Hajare.' v. Rahi Kom Havji Hajare and .
others, 49 Bom. ... 576; 279
Lo.bm~ Domini iu1cf~t1-ters v. The Assam H;j.ilway .and .
Tr~din~ Co. Ltd. and the Secretary of State for
. India in Council; 10 Cal. 915 at 917-918 .
!.' '
.:.
.Lti'ditt and others v. Ginger Coote' Airways Ltd., (i'9-t7J
: A. C. 233:.at' 245 . ... . 3~3
~f;'Gcikuldas -D. Emper:or, so-:Bom. L.R. -158 . .. 7o .
h>i.'A~ L.M: Cht:tti~r Firm v . . Maung Po Hmyih ' ~hd ~-.
. ' others; f3 Ran. 325 at 328 . : . ... 142, 146''
 'tABlE OF CASES ClTEb. xvii

PAGE
Ma Htwe fl. ~laung Lun, 8 L.B.R. 334 (F. B.) 308
- Khin Than v. The Commissioner of PCilice, Rangoon
and one, (1949) B.L.H. 13 at 16 247
- Sein and others fl. Collector of Rangoon, 7 Ran. 227 424
- Shwe Myat fl. Ma ung Mo Hnaung, 48 Cal. 832 at 835 282
- Than Seinandothersv. Ma Hla Yi, (l94 1) R.L.R. 246 154
-Thin On and others fl. Ma Ngwe Hmon and others,
A.I.R. (1936) Ran. 13 412
Madho 1\am v. Nandu Mal, 1 Lah. 429 343
Mahant Ram Bhusan Dass fl. Bachu Rai, 14 Pat. 210 at
222-223, followed 177
Maharaj Kishen v. Hargobind and Basheshar Lal, 49
Punja b Record Judi. 377 . 44'9
Mohamed Ebrahim Moola v. S. R. Jandass, 11 L.B.R.
387 370
- - - - Syedol Ariffin v. Yeoh Goi Gark, 5 Lab.
701 281
Mahori Bil'lee v. Dharmodas Ghose, 30 Cal. 539 at
548 279
Malka,jun Bin Shidramappa Pasare 11. N'arhari Bin
Shivappa, 27 I.A. 216 at 225, followed 18'4
Ma';li L:tl fl. Durg~ Prasad, 3 Pat. 930 at 940, followed 177
Manmatha Kumar Saba v. Exchange Co. Ltd., A.J.U.
(1936) Cal. 567 ... ... ... ... 281'
M1nohar Damodar Patil and another" The Government
of Bombay, (1950) Cr. L.J. Born. .829 ... 261
Mlnom.o han Ghose v. Emperor,38 Cal. 253, followed .... .271
Maqbul 'Abm'ld and other~, fl. Prahp Nara1n Sin~h and
. others, 57 All. 242 (P.C.) ... ... ... : 146, 150
Maung Ba v. Maung Tha Kyu and another, (1939) R.L.R.
39 . . . ~.. . :''' . . :380
- . -BaHan v. S.M.A.R.M. Firm, A.I.R. (19.3 4) Ran:
230, followed ... 172
- .- Ba Tu v. Ma Thef Su and three others, 5 Ran.
785 . . . ~ . 412
. .
- .- - Bo'!l' Khin v. Special . Colleetor, Manbin, A.I .R.
(19.,~5) Ran. 157 425
v:
- . - - Chit U Maung Pya~ 6 Ran. 538, follow~d ... 121
- .Kya 'Yan and ~n~ther fl. Maung Tha .E, A.l.'~ .
. : :~ 1(}36) Ran. 121 . .... . ... . .. ~ ... ..491
X.viii TABLE OF CASES CITED
ur .;'

PAGE
Iv.J;at)IJg Kyi v. Ma Ma Gale1. (1919-20) IO L.B.R. -54,
distinguished 109
-. -. -. - Kri an d ot hers v . Ma Shwe B:n.v, 7 Ran. 777,
folio wed .. . 114, 115
- -Po .Ni im'd one v. Ma Shwe Kyi and three,
' 2 Ran. 392 .. ... 433
..:-- . - San Bwin v. Maung Nyi, "3 Hari. 239 492
- - Tin .v_ Ma Mi, 5 Ran. 833 at 834, followe d 93
:Mc~va Ram v. Ram Gopal _ and I-Jo ti La! and o thers,
48 All. 395 at 396 .. ." 450
Mitsui Bltssan Kais'h~tf1 Ltd. v. Firm of Toleram- .
~: : Bhagwandas, A.I.R. (t921)"Sind 166 ... 142
. Mohamed Amin v. Jogendra Kuma.r Bannerjee , and
1 others, (1946-47) 74 LA. 193 ... .. . . 392
- -- - Cho otoo and others v. Abdul H amid Khan
: .: and o thers, 11 Ran. 36 a t 38., followed 165
Mohinder . Singh and another v. The King, 51 Cr. L,J.
' . _ t483 at 1484, followed 186
Mohini M.olnn Banerjee and others v~ The Secretary of
; Stale, A.J.R. (1921) Cal. 193 ... 425
Motichand Balubhai v: Dis trict Magishate, Surat, A. I.R.
(t9'!5) .Born. 385 ;..
M9H Ran! v. .Mul..tauuuau Ab<lttl Jalia-, 46 AlL 509
at 510 , ... ... ... 4SO
Mt$. Anui Besant v. Emperor, 39 Mad. 1085 271
. N . johnstone, etc. (Defet~ ~l~nts), Appellimts. v.
Gopal Sitigh and others (Plaintiffs), I~espondents,
.
A.I.R. (J93I) Lal1.
. ~19 at 428, followed . 224
Mf. Anupa - Bai w/o Gorelal Kinir v. Bhagwant Singh
and oth-ers, (1938l N ag. 470 . .. . ::.~ 472
. ,- t! .

~unshi Singh, 10 Luck. 712 261

. Mussammat: : Dur'g a ChoJahr'ai~ v. Jawah'ir S.fngb
'... Choudd, 1,7 I.A. 123, followed 343
Mussamut- Ktioob Conwur and ti11~e othe;s v. Bab~iJ '
: ; Mqodharain Sin'g h and after his death two others,
9 Morua~'s I.~.. I . . 472 .
Nidar Alam Khan v. Empero~, A.I.R. (1935) Pesh. :108
at 109 t t.:\ ,.- -6
Nafaf Chand.ra Pal Oll~wdhury .. v. Shuku~: Sfi~ik,. 46
.. ~- ~ Cal. l~:Cj}. (P,.C'J_. ~ . ... : . :.'.;,; ' , 343
.. Nafida 'Kisl]Jor~ Gows\\~.ui1i. -v. Ball Co. operative Credit , ,- .
~ocie~Y. Ltd., (1943) Z Cal: 431 at 434, .followed. .:. , . . 287
 :fABLE OF CASES CITED xix
~.
PAGE

N-andam:tni v. Hari Krish na Bh ima Oco, .\ .-!.f~. (1939)

Pat 564, fo!IO\\'<.:d . 187
Narain Das and other~ v. RaHi Brotlhr-;, 50 funja')
r~ecorcl Judi. 270 at 27i .,. . .. 449, '151
Naranarayan l\fancl.al v. Aghorcchandra (;:mgnii, t>3
Cal. 136 370
Narayan Vo.sndev Phadke u. Emperor, ,\.l.l~. (l 1>40)
' Bom. 379 <1! 381 ~ao.... ... 237
Nathu Lal v. Raghubir Singh a nd o thers. 54 All. J.t6
at 149 .. 97
N:azir Ab~~d v. Emp~1:or, 63 J.A. 372 64
Nga Ba Myit v. King 7Emperor,.19 C.L.J, 3 16 119
- . Sein v. King-Emperor, 090_6) U.B.R. 2nd Qtr. 49 ... 119
Nirendra Lall Bhattacharyya and one v. Bepin Clnndra .
' Bhattacharyya atlcl. ott.ers, A.I: R. <19351 Cal. 224 ... 492
Nitai Lal Dutta ?'. Gobinda Bhushan Sen and o!hers,
A.I.R. (t936) Pat. 142 ' . 462

P.J{.P.S. Pichappa Chettihr ;mel. others v. Chokaling'a m

Pillai ~!'ld others, A.I.H. (1934) (?.C.) 192' .. . 448, 453
P. T. Christensen v . K. Suthi, 5 L.B.R. 7~ ... . ::109
~akala Narayan Swami v. King-Emperor, 18 Pat. 234
(P.C.), followed ... ... ... . 185
Par~er and anothei v. Felgilte a.n d TillY,, (1883) L.R . : . .
. . , 8 Prob. Div. 171 .. .'.. ... ... 337,3 38
Penton v. Southern Hailway, (1931) 2 K.B. 103,
follo\'\ed . . . . 354
Perer:a and others v. , Perera and another., (19()1 ) A~C..
354, fqllowed . ... . . 1 , 33S.
Petamber ~anik-Jee '' oti Chu~d. l\faoil~-Jee,. l Moore's
I . I.A. 423 ... . ~ . ' 472
Prem~h~nc!' Bunal and a~other t . T he ColJe~tor of. .
. Calcutta, I.L.R. 2 C_at. 103 ... ... :424, 425
Premomal Daomal v. Khundabux and oth~s~ ~.. l:R.
(1937) Sind 27-3 at J-77 ... 142
!>ribhu Diyal v. Secretat~y of State, A.'l.R. ( i93 1) .Lab..
364 . ..; ' . ... . 425
r .
R. ~. Barrori, (1914) 2 :k.B. 570,- followed ... 207
R. A.:: Aru~ach~la. Ayyat: v. C. Subbaramiah, 46 Mad. 6<f
:.. 'o_at 63,.f01lowed .. , .. : . ... .~.~ . : 137
.R::.B: Lalal Narsingh Das =v>secretary o{State 'fot:I ndi<!.,: i .
' .A.I.R. J 192:5) (P.C.} 91 .,. . ... . :424
 ;t.x -

PAGE

f~aj Pal v. The Crown, 3 L!!h. 4~5 at 413 ... 235, 236,
261
~aja Brajasundar Deb and oth'ers v. Raja Rajendra
Narayim Bhanj Deo, A.I.R. (l94l) Pat. 269 at 276 ... 98
- - Shyatn Sunder Singh mid others v. Kalmam
Agarwala a~d others, A.LR (1938) {P.C.) 230 467
Ram Chand (Plaintiff), Petitioner v. Chhunni Mal
(Defendant), Respondent, 6 Lab. 470, followed .... 224
- - Kan Pandit v. King-Empetor1 19 C.L.J. 304 120
--Narayan Singh v. 1\.dbindra Nath Mukerji, 44 Cal.
388 at 400, followed ' 107
- --Sa hay Ram v. Emperor, 48 Cal. 81 at 83, followed 207
Hama Ayyar ~ Krishna Patler, J9:Mad. 773, followed ... 214
Ramachantlta Ganesh Khadhika:r v. Emperor, A.I.R.
(1933) Hom. 58 10
. I?amanathan Chetty v. Alagappa :Chetty and others, 53
M1d. 378 at! 385 141
- - - - - - - v. YegappaChetty, (1916)30 M.L.J.
. 241 .... ....
447 '
Ramaswami and others v. Gttrukar Rudrappa,. A.I.R.
(1939) Mad. 688, distinguished . 2~
Ramji Pandey v. Alaf Khan, 3 Pat. 859 413
Hamkhelawan Sahu v. Bir Surendra Sahi, 16 Pa:t. 776 af
777, -notfollowed . l62,.166,
178
Rani Kulandaivelu Nachiar. and another v. Indran
. Ramaswami Pandia Thalavap, 51 Mad. 664 at .
669-670, dist~ngui~hed .. :. .. -163, 179
Re; Chinnayan Rowther v. Emperor, I.L. R. (1.945) Mad.
76 ._.. . 70.
- Tonnalaga:dda Ramatingaya, (1937) Mad. 14 261
Readhead v. The Midland Railway Company, (1868-69)
4 Q.~. 379 . .. . 349
Reddiar. and San Chein " Secretary of State tpr India-
. in Council and the Special Collector of Rangoon,
..
5 Ran. 799- .
. 424
Reid o. Reid, (1-886) 31 Ch. D. 402 at 406 148 -
: ..
-S. Gurba~hsh Singh v. - Empe.ror, A.{-. R. (1947) Lab.
361 ~ .~ .. - ... :;t7o .
_. S.C. Da~ ; v. :A; B. Datta, A.I.R. (1934) -Ran. 233)
followed !'' !.. ! ,:' 172 .
-: . .
 tABLE OF CASES CiTED xxt

S.N .S. l\luclaliar v. The Secretary of State for India

in Council, 10 Ran. 165 at 169 249
S.P.R. M. Finn v. Maung Po Kya and others, 1 Ran.
580 .. . .. .:. ... ... 310
Sakarchand Narsidas v. Yacub, A.I.R. (1923) Sind 14 ... 142
Samabhi Nathubhai v . Someshvar, Mangal and
Harkisan, 5 Bom . 38 447
Saraswathamma v. Paddaya, 46 Mad. 349 at 359 376
SJshi Bhusan Prasad Sinl-(h v. Dalip N 1rain Sin~-th
and others, A.I.R (1936) Pat. 75 466
Satchidananda Dutt v. Nritya Nath Mitter, SO Cal.
878 ... 54
Saw Chain Poon v. Tan Choo Ken~ and three others,
(1947) RL.R. 23 398
Secretary of State v. Mask & Co., A. I. R. (19 ~0) (P.C.)
105 159
Sergeant and others v. Dale, L.R. (1876-77) 2 Q.B.D.
558 at 567 38
~ Sbah.Chaturbhuj v. Sh;th ~Iauji Ram., A.I.R (1938) All.
456 370
Sbailendranath Kundu v. Surendranath Sarkar, t2 Cal.
417 at 418, distinguished ... 164
Shanmnkha Madan and others z. Arnna; hab Chetlyar
and others, A..I.R. (1922) Macl . 332 46 1
Sl1eik Rah~at Ilabi v. Mohammad Hayat K11an and
others, A.I.R.. {19-JJ) (P.C.) 2Q8 ... 472
Sheo Nandan Lal ahd others v. Mangal Chand, A.J.R.
., (1927) Pat. 333 ... 27
Sh~eodiaf and. another v. Prag Dat Misra and another,
3 All. 228 at 233 379
Shepherd fl. Robinson, (1919) 1 K.B.D , 474 311
She~ v:)agmohan.Ran. an~ another, 53 All. 466 . . 412;'413
' Shew -~csad Bunghshid hur v. Ram Chunder Haribux,
41 Cal. 323 at 337-338, followed 172, 113
Sl)i~abasava v. Sangappa, 29 Bom.l (P.C.) ... " 409
Sladen (deceased),2 t Mad. 492, distinguished 3f>3
.'
Sokkanadha Vannimunder .v. Sokkanadha Vannimundar .
and others, . . Mad. :.344 .at 345-34'6
. . 28 . . . ... ... 446, 441 .
SOitltr10n v. Solomon, H.897) A.C: 22 at 38 ... 249
Soroj Bashini Debi. v. Girij1 Prashad Bbattil~harjee'j
A.I. R. 0926) Cal. ;326 . ,;. 26
xxii TABLE OF CASES CITED

Sl'i Raja Vy1icherla Narayana Gajapatiraju Baf1adur

Garu v. The Revenue Divisional Officer, Vizagapa-
lam, I.L.R (1939) Mad. 532 at 5+8 425
Sulniman v: Ma Ywet, A.I.R. (1934) Ran. 198 ... 314
Suraj Kuar v. Si'm t 'S ingh and another, A.I.R ( 194 1) All.
219 . 155
Swift & Company v. Board of Trade, (1925) A.C. 520 424
T. Hamjayya Reddy v. V. R Sttbramania Aiyar and
four others, 60 Mad. 365 ... 4'59
Thaldn Aye Maung v. The Hon'ble Justice U Aung Tha
Gyaw and others, (1949) B.L.R. 188 (S.C .) . 370
Thompson v. London, Midland and Scottish Railway
Cor,t pany, (1930) 1 K.B. 41 354
The Carr Iron Company Proprietors v. James Maclaren,
Henry Dawson, E.H. Tibbats Stainton , (1855)
S H.L C. 416 at 441, followed .. ... 216,217
218
- Collector v. The Manager, Kurla Estate, A. I.?.
. 0926) Born. 223 426
- R'ing v. San Min, (1939) R.L.R. 97 64
-Municipal Corporation of Rangoon v. M.A. Shakur,
3 Ran. 560 371
- Official Trnstee o{ Ben~al v. Krishna Cbandta
Mozumdar and others, 12 Cal. 239 (P.C:) 399
---- Union of Burma v. Bet Kai and five others, (1949) .
B.L.R. 107 .. ~ 15
--Union of Burma v. Maun~ Chit Swe, (1950) B .~. R
278 6~
T itath Ram v. Harbhajan Singh, A.I.R. (1 933) Lah.
1033 ~ ,26
Tula Ram and one v . Harjiwan D as and others, I.L.R.
' (1883) All. Vol: 3, p. 61' . .... 26
T yrrell ~. Painton and another, (1894) Prob. Div.
151 ... ... . ... .-.:'331, 332,
. 333, 336
~ A~o~ Gyi ~..T?e .Gov~~:tmeot of ~~rma, (1940) I.L.~: . l.3
6
- Ba Pe and another u. U Ba Shwe and others, J1
Ran. 1 _ .. .. 372
- Ba Thwin v. Maung Ba Stiein, 10 Ran. 517 171
- Htwe (a) A. E. Madari v.- UT~ Oho and one, (1948)
B:L.R. S41, followed : j07
. - Soe v. Maung Ngwe T lia and eight others; 5 .Ra11~ . .
70S . , ... . ... 39~
 TABLE OF CASES CITED

PAGE

UHatunnissa v. H ussein Khan, 4 Cal. 520 at 525 378

Urdu Daily Newspaper "Pratap ", New Delhi v. The
Crowr1 1 A.I..R. ( 1949) East Punj. 305 .. 269
V. C. K. P. Menon v. V. C. K. R. Menon. 54 Mad. 955
(F.B.) at 960-961 408
Vadilal v. Shah Khushal, 27 Born. 157 447
Vickers v. Evans, (1910) 79 L.J. K.B. 955, follo"ed 250
Vithoba v. Karim, A.I.R. (1932) Nag. 49 25
Yulcan Iron Works v. Bishumbhur Prosacl, 36 Cal. 233
at 237, followed 217
William Robins v. N:ttional Trust Co. Ltd. and others,
A.I.R. (1927) (P.C.) 66 332
Woodward v. Sarsons Sadle1, (1874-75) L.H. 10 C.P.C.
733 at 746 129
 GENERAL INDEX
OF
CASES REPORTED IN THIS VOLUME
(HIGH COURT).
ACTS:

ARBITRATION ACT,

BURMA Co.:OPERATIVE SOCJ1!1'1E ACT.

- -- - DIVORCE ACT.
Cf'fv CJVJL CouRTs ACT.
ONtL PROCEDURF. Coos.
.<JO~S1'JTUTION OF llURMA,
CoNTRAcT Acr .
CouRTs AcT.
DEBT:SETTUMENT BoARD ACT 72 OF 1947.
Elofj,RGENCY PROVISIONS ORDINANCE, 1-948.
ESSENTIAL 'SOPPL!ES AND 'SRRVICBS ACT.
EVJ'DENCE ACT,
.FoliJEION EXCH~NGE RBGOL~TION ACT, 194i,
GJ!.NimAL CLAUSI!S AcT.
HIGH 1'RBASON ACT.
LAND ACQUISITION ACT,
.
LiMJTAt:roN' ACT.
MoN~Y LENDl'.HS. ACT.

P&NAL CoDE,
PRass (EMEI!GEI\CY POWERS) A;~T.
IU~GOON MuN.ICIPAL ACT.
Rimi~RATiON ACT,

S.u.a-oP.Gooos ACT.
Sl'IJCIAL,JtlJlOES
.
ACT, 1946.
.
- - - - - -.(SECOND AMENDMI!NT) ACT, 1947.
Sl'ECIPIC RELIEF Act. .
8l:CCI!SSION AOT.

TbNSFER .OF hllofOVEABLR PRoPERTV (RRS~RICTloN) ACT, 1947.

- - -.- - PROPERTY ACT,

UNioN oF- BuRMA ADAPTATioN (LAws}'OaoER; 1948,

-. - _ : C ITIZENSHIP A~.. .
__..;_. Joi>IClARy ACT. .
uR~~liiENt colirRoL A.ct.
 XXVI GENERAL INDEX

P AGE
ACCUSED, DUTY OF, IN Cll!Ml~ .\L CASES 289
ACKNOWLIWGv!ENT OF AC<.:Ot' X'r STA1'ED WHETHER GIVES FRESH
CAUSE 0}.' ACTIO~ 219
ADDITION 01> PIHlSON IN I'<:SSF.SSI(>~ AS f>AIITY 410
. : .. ( .

AOJUST>IENT OF DEC ilEE, Al.' l' l.l t:AT!O.'< FOR l'ECORDI:\G 89

ADMIN!STilA1'ION surr-T'rl1P. r ty joi11tly acquired by Buddhist
co~tple-Mortgn.ge by ouc of thcw-l'roPer decree. A house wa~
jointly acquired dari n ~ Lh e co~crt nre of U Ba Nyei11 and
Ma Aye Kyi. The Re~ponde nt o.;laimed the p'roperty as the
pr operty of their hille r U Ba Nyein anll after bis death their
mother marrird a;:ain and they claimed two -thirds share on
the principle of Nis;ay,, and Niss1 /<1. The hot.se had . been
mortgal!ed clming tbc lifeti ne of the husband ouce by the. wife
who redeemed the tnott~age. Held: That the Respondents
stepped i<ll) the s!to.::s of the husband. He was burdEned with
th.e li'lbility, f,,r the mortgage, for one hall' of which he was
clearly !iable. The prop:.:r decree in favo ur o! the Respond~nts
w.ould be for on<:- half share subjc:.:l to the payment of half the
debt as the liability must be considered to have pass.e:! to them ...
C BA 0HN t'. MAUNG HLA Kn AND ONE ...
.~ 382
J\D~INiJSrRAI'ION SUIT-Addition of Persou in possession as party-
Necess,,ry parties i:l admituslratio1J suil-WI~ether a Stlii should
be disnaisscd agai11S/ a11 U1:1:eccssa ry party or lle should be ~i1uck
off-Code of Civil Procedure, . Order 1, Rule 10. Held: That
administration suit is really a s t.it fo.r accounts as tetween
members of the family of the deceased, i.e., heirs' to the estate of
a deceased person as such. A person outside the family cannot.
Le joined :~u <t party atthuuglt he may be in pc,33eooion of a part
ol the estate ;.the proper course then is for tbe reptesentatives of
the estates to tile a, separate suit fo t lll e r~::cuver y of soch
properties. In the case '!f ,B_unnese. Budc~hist a~miryis~ratinn suit
should be filed when dtvtston or lllhentance ts ..:!armed froni
another heir. When, a person who is not a IH!L-essar) party in
the administr,ttion suit, is added, he should be s truck off from the
suit under Order 1, l~ule tO of the Code of Civil Procedure and
suit should not be dismissed as again~t him and the defendant
struck off should not be granted ..ul vnlorc111 costs. A 'II Kya11 Si~t '
a11d one v. Yeo Ah Gwan a11c/. otflcrs. A.t R . (1937) Ran. 497 ;,.
Ma T hiu On and otl1crs v. l't!a Ngue Hmon and others, A.I.R.
(19361 l~an 13; MaU'IF Ba Til v. M<t Tile! Sll and others, S .Han.
785, followed . Siler Ali v. Ja,!!,moltatt Rou n.ncl atzothev, 53 All.
466 ; Randi Pandey v. Ala/ Khan, 3 Pat. ~59, dlslingu!shed . ...

. MAUNG THEIN fl . 0 AW HTWF. AND OTHERS

ADM ISSI O ~ OF POCUME~T llY APPELl ATE C o uRT

... 4 10
197
- - - - - B Y ADVOCATE, BI ::;DING NATI!IlE 0~ CLIENT 300
. '
'ADVANCE PAID 0~ SEH.ALl' OF MINOlt, nECOVF.RY OF 275
.::.: .: -
AFFIRMING OF A 11J DGMENT ......
.:
95
A LT&RNATIVE Cl.AlM As A PERSON OF souND M IND ANP A PERs o.N o F
' UNSOt;'ND MIND NOT ~!AlNTAINAill.F. . - . 489
APPE LLATE COURT-FAI LURE 'fO WRIT~ PROPER ' JUD GME~T' IN
CRllMUf.~L A!?PEAlo , Ui
 GENERAL INDEX XXVli

PAGE

APPELLATE C OURT WHETHF.R CA~ GIVE RELIEF UNDER S, 12, MONEY

LF.NDERS At."T IN SPI TE OF PLEA NOT TAKEN UP 300

APPLICATION FOR BAIL-C01tSideratiom go1ernittg-S. 498, Criminal

Proc<dure Code. Held: In applications for bail the court is
~oncerned with the questions as to whether on I he materials
placed before it there are reasonahle grounds for believing that
the applicants have been guilty of the offences dmrged. Under
s. 498 of the Criminal PrclCcdure Code the Hi~h Court has
unfettered powers in _!ranting bail to persons charged with
non-bailable offences puuishable with death or tran~portation for
life but the grant or bail in such case is to t>c made not as a
general rule but only in exceptional .:as~s EmPeror v. Joglckab,
55 All. 115, referr ed to.
U HLA MYINT AND TWO OTHY.RS v. THE UNION OF BURMA 56

1\PPLICATION FOR PINAL DBCREP. FILED BEYOND TIME 139

- - - - - -- SECURITY POR COST3 AGAI NST A DECREI::-HOLDER

WHO IS .RESIDENT OUTStDE BURMA, WHt.THER LiES ... 152

ARBITRATION ACT, SS. 14 (2), 17, 33 AND 39 (I)-Objection to the

auurrd-Notict about lite filitJg of the award. Held: Where
arbitrator made his award and Conrt rassed a decree in
accordance with lht: award no appeal lies against such decree
under s. 39 (1) of the Arbitration Act but the (;our' may in proper
cases treat the appeal as an applkation for revision. Where
arbitrator filed his award in Court and the Court failed to issue
notice about the filing of the award to the parties and it was proved
that the arbitrator when he filed the award had given notice about
the :;igoing and filing of the award to the parties and parties had
filed objections in Court the award cannot be set aside simply.
owing to the failure of the Court to issue formal OtJti::e. Under
s. 33 of the Arbitration Act r(ad with Article 158 of Limitation Act
as amended by the Third Schedule of the Arbitration Act a
party has 30 days for filing an application to set l\Side ao award
or to get an award remitted for reconsideration and only
when that period has expired,.the Court can under s. 17 of
the Arbitration Act make a decree, in terms of . the award.
Where the Court vassed .a decree before such period expired
tlie decree should be set aside.
RAMANAND v. u. N. MENON 192

ARBITRATION ACT, ss: 14, 15, 16 AI'!' 17 284

ARMS (TEMPORARY AMENDME~T) A~, 1949, S. 19-A 202

A utrefois CONV.!~,. PLEA OF 202

AWARD, OBJECTION TO FILING OF 192

- --BY OFFICER APPOINTED BV REGISTRAR OF Co-OPERATiVE

SOCIETI E_S, WHETHER CAN BE CHALLE:-;GEO IN COURT OF LAW . 284

B AIL. APPLICATION FOR 56

~AIUFF CONDU~ING AUCTION JS." PERSO~" ... ..... 320

8otw fide REQUIREMEN~ J:'oR sRECT!J~o A nun.oiNo ...,- 18~

5
xxviii GENERAL INDEX

PAGE
BROKER FOR SALE OF LAND-Remmuration_:_Whell eutillcd to .
P acted as agent of Mrs. K for the ~ale of her land to the
American Embassy but he did not act as i\frs. K's sole or only
agent for the sale of the said land nor did he br'in~ the Head of
the Embassy or any accredited agent of the Embassy into
contact with Mrs. K; nor did be do anyth-ing substantial for
the sale of the land. The sale was subsequently put through
by one S. P then sued Mrs. K for recovery ol Rs. 7,000 for
services rendered in connection with the sale of her land to
the American Embassy or in the alternative for a breach of
contract in preventing him from completing the sale. Held:
An age'nt is not entitled to any brokerage or remuneration
unless he has done substantially something which can be treated
as the effective cause of the subsequent sale. James T. Burchell
v. Go71Jrie and Block House Collieries Ltlt., !1910) A.C. 614 at 625,
relied on. Coles v.Euoch, (1939) 1 K.B. 614; S. Dutt v.Nritya
Nath;. Mitfer, 50 Cal. 878, referred to.
. . . ..
MRS. K. M. KERW!CK v . .P.. D. PATEL 40
t . 0.

BUDDHIS'T COUPLE, JOINTLY ACQUIRI!D PROPERTY MORTGAGED BY ONE... 382

'
BURDEN <>F PROOF OF GUILT Ai'IVAYS ON PROSECUTioN ... 289
--------MISAPPRERENSION oF LoWER CouRT 341
BURDEN OF PROOF_:_S, 102 of Evidence A~t . . Held! Where in a
document the executant has aamitted the re~eipt of consideration
;ind if he alleges ina suit that he did not receive the consideration.
the burden of procf is on him or her to rrove the non-receipt
of the consideration. Rant Cltattd v . Chhun"i Mal .. !1925\
I.L.R 6 Lah. 470; Mrs. M. Johnstone v . Gopal Singh and ot!u;rs.
A.I.R. (19311 Lah. 319 at .32~, followed. Where the burden
of proof has been mis-placed and case has been decided wrongly
the High Court can interfere in revision. Rasu v. Kattara,
(_1924) I.L.R. 2 R.an. 201, followed.

U SHWE YA AND O':IIE v. SITAREE 222

BURMA Co-oPE.RATniE SoCIETIES AcT, s. 15-Awar4 by Officer
appointed. by Registrar, Co-operqtive Societies Ruze-:15-Auard
made by such arbitrotor-Ar~itration Act, ss. 14, 15, 16 and 17
-Wheliler such award conld be challenged in a Court of La71J
under tJ1e Atl:ritration Act. Where an award ,Ita~ been made by .
an Officer appointed by the Deputy l<egistrar of the Co-ope~ati~e .
Society in the exercise of powers under Rule 15 of the Burma
Co-operative Sockties Rules .directin~ payment of a 'sum of
money. Held: T hat Rule 15, sub-clause !3) authorized the
Registrar to appoint an arbitrator and sub-rule (4) provide that
such an award shall be enforceable as a decree.of a Court having
Ios;71l jurisdiction in the matter. Held further: '!hat tilis Rule
15 is inconsistent with the provisions of ss.14, 15, 16 and 17 of
the Arbitration ACt.: It is not con templated by Rule 15 that an
award i's to tie filed in Co1rt or the Court would have the power
'to modify pr remit the award under the Arbitration. S. 32 ofthe
Arbitratfori .Act-does not appJy toan award made under Rt'le 15
o.f the Ru'rma . Co-operathe.. Societit:s Rules and such ' award
cannot b~fcl;lallenged. in Civil Cou~;t. /l"and Kishore .Gowswami
. v. Ball Co.,.opcridive .Crer!il. Society, Limited, (1943) Vol. II, Cal.
Seriea, 43~ at 434; follow~.
DAw .ouN .. s&tl'\
. . v. SHINSAWBu . coNcoLt)(ITBD 2s~
 GENERAL INDEX xx,ix

BURMA DtvORCF. Act, ss. 12, 13, .14 .AND 17-:-Di:oru on admission 11ot
allo'IIJed-Duty of the Court indicattd. II eld : That provisions
of ss. 12, 13, 14 ancl U of the Burma Divorce Act indicate clearly
that it is not proper in a case for a dissolution of marriage nuder
the Act to j!rant a decree nisi on the mere admission of the
parfies. The Judge must first ascertain whethtr. on the fa'ct" of
the case he has jurisdiction to entertain i! for the purpose of.
pronouncing a decree nisi and in as::ertainh.g whether the Court
has jurisdiction, the Court will have to ascertain what the
domicile of Ute parties are. Even though the e be a staterrent
that there is no collusion or connivance between the parties sucn
statement will not absolve the Court from its duty of ascertaining
whether in tbe circumstances of a particular case there was no
collu3ion or connivance between. them. The Court will then
ascertain whether it is a proper case where a dfcrec tzisi ought
to be granted.

REVEREND CHIT PE fl, M A KHIN SEtN AND ONE 131

CARRIER, LIABILITY oF-Doctritze of res ipsa loquitur meaning and
application-Po~ition in law of carrier-Whether can COtltracf .
I)Ut of liability for acc.tdeut by a conditiOtt. 1-'lainliff's wife was
a passenger in a Dove aircraft .which crashed into the Gulf or
- Martaban on the 19th March 1949 and she lost her life. PJ:tin(iff
claimed damages for hill)sel and his children under lbe Fatal
Accidents Act and 'the defendants denied tha t they were common
carriers, that there was any negligence and that under the condi-
tions .P(inted on the back of the Ticket they . were absol\'ed from
lia bility. Held: That a carrier of -passengers, even a common
carrier. is not .liable unless . he has been negligent. Rearlhcatt
v. The Midland Railway Company, (1868-69) 4 Q.B. 379,rtferred
to. The qoctrine of.7es ipsa loquitur (the thing speaks for its!'if)
is not a proposition oflaw but only afig11re of speech meaning that
any other view except liabjlity. of the defendant is inconsistent.on
mere proof of facts. It is a.Iso used in the sense that on mere proof
0 certain facts an il)fetence of n egligence might be drawn
reasonably. 1'he plaintiff-himself admitted that he was unable to
connect the accident with the particulars furnished by him and tne
defendanr-s theory about the accident did not require examination.
The doctrine res ipsa loqwtur cannot be invoked in the circl:m-
stances and the death has not been proved as due to ;my
negfigence. Held also: That a carrier of passenge1s is in law
neithentn insurer nor precluded from makinl! any special contract
with its passenpers. Eas~Oll v,. L ondo11 and North EasttrtJ Rntl-
-:::ay GomP"11Y, {1 944)l.K.B. 421 atj425: Luditt and olh.trsv.Gi~Tger
Coote A tr:llays Limited, (1947) A.C. 231 at 245, referred to. It is
open to a carrier to make a special contract excluding liability
and if the deceased before the death had by a valid contract
excluded himself from the Fatal AccidentsAct hisrepesentatives'
cannot maintain an action under that Act. The conditionsin the
notice are printed at the. back but att.ention is Ci!lled to the.m on
fhe fac~ of the ticket an~ reasonable step had been taken to bring
the conditions to' the notice of the intending passengers. The
(iefendants are absolved from liability by rea~on oi fhe saicJ
conditions. 'lhomP.so.u v. Lotzdon, Midland and Sccttish Rail~iaJ
..Cotnpany, (19301 l.K.B. 41 ; Pen/ow v. Sout hern Railway, (193!}
...~ K,~~l03, followe~ . ., .. . .. , . : .
. . u H LA PE u. THE ' BOARD OF DIR ECTOUS, ..UNION OF l;JUR.MA
. AIR\\"~YS . ... , .... . . . ..... . . 347
XXX GENERa-L I~DEX

PAGE
CA'US!i; OF. ACTION-Whether acknowledgment of account stated gives
a .fresh ca11se of actiotz. Held: That acknowledg1n~t of accoqnt
stated which was not a mutual account does not in itself constitute
a fresh contract. Kenkani tltld two others v. Marmg Po Yi11.,
1 L.B. R.l90; Ganga Prasad v. Ram Dayal, (lQOl) 23 All. 502,
followed. B11t where the accounts have been settled and agreed
11pon between two parties, and one of the parties ha$ promised
to pay the atnount. a suit can be filed on ~<uch promise.
Maring Clt'it U v. Maung Pya, I.L.R. 6 Ran '538, followed.
BISWANATH CHOWBY A~D ONE v. JANAW 21<}
CERTIFICATE oF CITIZENSHIP OBTAINED DURING PENDENCY <lF SUIT-
E FFECT 197
CITY CIVIL CoqRT Acr, s. 17 ... 394
CIVIL PROCEDURE CODE, s. 2 (12) .... 404
CIViL PROCEDURE CoDE, s. 24-Transfer of suits-CottSicfe?'alions
11,0veming. H cld: Suits relating to the same trap.sac!ion and
involving common questions of. fact should be heard by the
same Judge. Vithoba v. 'Karim. A.l.R. (1~32),. Nag. 4\1; So1oj
Bashini Debi v. Girija PrasTrad Bhattaclzarjee, A .I.R. 1(1926) Ca.!.
326 ; Tirllth Ram v. Harbllajat Singh, A.I:R. (1933) Lah. 1033:
Inavat .Ullah Khm~ v. Nisar Ahmed Kfzatt, l.L.R. ( 1922)AI J.., Vol.
44 at p. 179, referred to. Th e fact that a party has th e clioice of
the forum do~s not depril:e the High Court of its inherent
jurisdiction at;~d powers of general supe.rintendence over all
infe~ior courts- Such power cannot be limited by any action
taken earlier. The Hindustllt Assut'n11ce aud Mulunl Betiejit
Society L td. y. Rai Mulrai and others, I.C;, Vol. XXVJI, (191!\) at
p. 455; Tulu. R4m and one v. Harjiwatz Das a td others, I.L.R.
(1833) All. (Vol: 3) 61 :. STteo Nandan Lal 011d others v. Ma11gal
(;hand, ~.I.~.- -~1927) Pat. 333, referred to. .
s:
b . MoHtYooDrN SkHIB v. YusuF AB~UL R~ZAK
Ct viL PRoc~i>URE CoDe, s. 100 . ciA.us'E~ (A) To (c) 469
oCHIL PRoCEDURF. CODE, S. 100- Fitding of f a ct wTt.etl ji1(al~-
. Questions of lmeJ a11d fact- WTu1t are-Evidettcc Act, ss. 101 ntJd
102-Btutlen of Proof-Misapprehe11Sroll of Lo~t'el' Co11rf.
Plaintiff sued the defendant Maung Sein for cnn.cellation of a
Registered s:~le Deed on the ground that she and her husband
had purchased from the previous owner during Japanese regime
and that subsequent sale by the owner to the defendant was
collu~ive and without considera:ion. The trial Court decreed
the suit arid the decree was confirmed 'On appeal by th e District
Court. Ou Second APPeal, Held: That no seconrt appeal lies
under s.lOO of the Code of Civil Procedure except on the grounds .
mentioned therein and where ther-e is no error or defect in
procedure the fin din!'( of the first Appellate Court on the question
<)f f.act .is final, if th~re was evidence before that Cou rt.
Mussunr m at -Dttrga Cltoudhram v. Jawahir Su, g.lt Choudllri, 17 .
I .A. 123; followed: . What are questions of law and question's of
fact 'are sometimes difficult to disentangle, When tht< ~llocat ion
of 011us of proof. is one of the triost vital question be.tween the .
flartie's, itis the dutY' of the Court. to r'cctjfy the mi~ta~e. ~ade by
the Lower Appellate Court. Najar Chatrc;lra l'al Cho'IJ)dhury v.
Shttkur STeik, 46 Cal. 189 !P.C.); M.adho. 'Rtmt y..'Nqndu Mal,
1 L ah:429 ; Ga11ga Ram v. Rulia atid others, 1 I.;ah .249, referred
:to. The question o f onus of .proof is a q\lestion of Ia V.: renderin~
' a .secoriq appeal co~petent. T he f~~da~~ntal pri~dpf~ relating
I I
 GENERAL INDEX xxxi
PAGE

to the burden of proof are embodied in ss. 101 and 102 of the
Evidence Act. As the genuineness of the docume.n t Exhibit 2 in
favour of the defendant was proved, the Lower Appellate Court
was entirely wrong in dismissin~ the appeal under misapprehen-
sion as to the burden of proof, which Jay upon him to disprove
consideration.
MAUNGTIN NYUNT v. MA KUWE MA AND ANOTHER 341
CIVIL PROCEDURE CODE, S. 115 IF APPLICABLE TO RENT REFERENCE
PROCEEDINGS 36S
- - - , s. 115 489
- -- -- - - -, ORDER 1, RULE 10 410
- - -- -- - - - - , ORDER 21, RULE 9WHETHER APPLICABLE
TO U.LEGJ\L SALES ' ,.; 32()>
- - - - - - - - - , ORDER 32, RULE 15 489
- - - : - -- - - - - , ORDER 41, RULE 11(1) 463
- - - - - - - - - , ORDER 41, RULE 27 197
CODE OF CIVIL PROCEDURE, s. 10 AND S. 151-Held: Til at s. 10 of the
Code of Civil Procedure prO\'ides for stay of suit pendinJ! hearing
of another Civil Suit. There is no provision for stay of a civil
suit pending criminal trials. S. 151 of the Ccde of .Civil
Procedure cannot be invoked to stay a suit which cannot be
legally stayed otherwise. Lak$/mri Insurance Co. Ltd. v. B. K.
Kaula a11d another, (1940) A.I.R. Lab. 85, referred to.
SuNOER:'fAr; RANGLAL v. ]HABARMAL BAi AJ AND oTHERS . ... 316
CODE OF CIVIL PROCEDURE, s. 12-Foreign jrldgment-Production
of decree copy but not judgment. of foreign Cour(-Maitllain
abili~y-A.rticle 60, Limitation Act: A suit was filed upqn a
foreig~ judgment and only copy of a decree of the foreign Court
was produced. The clai-m according to the decree was for amount
due on a deposit letter and the suit was dismissed on the ground.
that the claim in the foreigri Court was barred by _limitation.
On Appeal, Heltt: Article 60, Limitation Act is -applicable tothe-
claim in question and tl1e matter of limitation hinges on whether
there was a demand for payment of the money more than three:
years prior to suit. The fact that the defendant faiied to enter
appearance in the foreign Court would go to show that there was
no such demand and if there was no demand beyond three years,
the jud~ment was correct. Th:: said judginent cannot be said to
be founded upon breacli of the Jaw in force in Burma. The :;uit
to recover moneys in deposit is not an illegal claim. :rhe general
,rule is. that a Court which entertains a suit on a foreign judgment
cannot enquire .irito the merits of the origipal ;tction. oc the
propriety of tlie decision . Baijnath Kam-emi v. Vallabhad~
Dam!ftzi, A.I.R. (1932) !\fad. 661 ; BriJlal Ramjfdqss 1111~
atzother_ v. Govindram Gorhapdas Se~saria atJd others, A.I.R.
(1947). (P.C.I 192 ;_Ganga Prasad a11d another v. GancsiJ Lal
~nd others, 56 All. 119, referred to.

s :P.S.N: 'KAsivrsvANATHA~ citETTIAR v. s.s. KRrsnNAP.P A

C.HETTIAR AND OTHEJ!S . . 399.
CODE OF CIVIL PRoc>~DURE, s. 47, 0P.Oi!R ~i, RULE 2"-An apj:i~atjOtl
for recording an adjustment oj"the ileer.ei. Held : Where an
application for exe.cufiQnhas been-filed ~nd the judgment-debtor
xxxii GENERAL INDEX

PAGE
files an application to record :m adjustment of the decree, t'he
court i~ bound to hold an enquiry to . find out as to whether the
decree has been adjusted or not. Chandi Charatz Chakravarti v.
Panclfanan Pa11dif, (L930) l.L.R. Pat., Vol. 9, 521 ; L. :Madho Lal"
mzd 011e v. L. Duli Chand. 1111d one, (1933), A.l.R. All. 429 at 431;
Mauug Tin v. Ua Mi, (19!7) I.L.R. S Ran. 833 at ~34, followed.
MOHAMED ABDUL KADEl~ v. C. M. A. ISMAIL 89
CODE OF ClVIT. PROCEDURE. s. 115-Rt!1isio1~ 111/le/h-er lfes against
an erroneous order regarding Cotrt-fecs. Held by tlte Full
Beuclt : That an order demanding Court-fees erroneously frorn
the defendant on the ground thal thecJaim for adjustment m:tde
in the written statement is tantamo.mt to claim for set off is not
open to revision by the High Court \lride;rs. 115 of the Code of
Civil Procedure. Amir Hassatt /(hat: v. Sltec Bak~h Si!'gh,
(1885) 11 Cal. Series, 6 at 8; 11 I.A. 176; Bnlahrish.ua Udayar v.
VasudeVIl Aiyar, (1917) LA. 261 at 267; U Ba TlnuitL v.
Maung Ba Slteitt, (L932J 10 Ran. 517 ; K.N.S. P.K.N.K. Firm v.
U Ba C!tit, (1935) A.l.R. Ran.t58; Mau11g 8a Him v.S.M .A .R.M.
Firm, _(l934) A. I.{{ Ran. 230: S.C. Das. v. A.B. Datfa,(1934) A.I. R.
(Ran. 233; Sltcw Prosad Bu1tgltsliidhur v. Ram Cltutzder H aribux,
(1941) 41 Cal 323 at 337-338: Devid~rs MarotiBoke v. Nilkantlzrao
Naray(l",.ao D~/t11t1t~h, (1936) A.l.R. . Na~. 157 at 150;
Kesltelal v. T.nmaurao,lt940) I.L. R. Na~, 659 at 668 ; Badri Nath
v. Ram Clt.mtfra, 11939) I.L.R. 14 Luck. 4.42 ;Gupta & Co. v.
KirPII Ram Brothers , (19351 57 All. 17 at 22 {f<'.B.J ; Mai: tal
v. l)11rga. Prasad, (1924) 3 Pat. 930 at 940$ J.faltant
Ram Blzusan Dass v. Baclw Rai. (1935) 14 Pat. 220 at 222-223 ;
Hariday N;t/h Roy v. Ram Clt.tnrlr.a Bttrna Sarma, (1921)
48 Cal. 138 at 149-1.~0 ; Mohamed Chooloo mut others v.
Abdul Hainid 1(hnu l)ttd others, (1933)11 Ran. 36 at 38. fo1lowed.
Ramklielliwnu Sahtt v: Bir Sttrrf!dra Sahi, (1937) 16 Paf. 766 at
777, n6r;l61lowcd. Ram-i Kulunt.luiveltt Nadtla"r at:d another
v. lmfriin Ramaswami Pandia Thamyctn, {1928) 51' Mad .664
at 669"670; S!tailentfranath Kundu v. Sure1Ldrantfia Sarkar,
(193S) (>2 :Cal. 417 .at 4.18, di.Sting~:ished. J:.falkitjun Bin
Shidrnmajpa Pasarc v. Narhari Bw Shi.vappa, 27 I.A. 2L6
at 225: Balakrislma UdaYar v. Vasudcv11 Aiyar;(l9171 24 l.A. 261
at 267; 'Pt~kala Narayan S111ami v. The King-Emperor, (1936)
I .L.R. 18 Pat. 234; Bhagcht.~ttd . Lagas11sa and others v. Secreln r!)
oJ State fOr lttdia, 54 r..A. 338 at 357.; ftfo{ta11dar Sitzg!J and
anotherv. Tilt Ki11g, '51 Cr. L;J. 14!!3 at 14!!4; Na11damaniv'. Bari
Krisht/(i Bllinta DI':O, A.I.R. (1939 i Pat. 564 ; Dhari ' lena v.
G'aurangn C!taray Sahu, A.I.R. !1940) Pat. 89, followed: .
itA :TaAN. Y rN ~- T.AN KEAT KiiA,NG (a) T..\N KErr
~EIN .J6l
ConB oF Crvn. PnocE.DURE-S. 141. Otder 25, Rtile i..:...Applicalion
' for secutity for ~its again~/ ~- decree-holder uho .is resid~nt
outside Bz~rma"-Hlhellier sucll aPplicatiotl lies. Held: Th~t
O.rcfer-25, Rule l has ne appficat.ion to th!! Execution Proceedings
against'a decree-holder. S. 141 of t he 'Code ' of Civil Procedure
dO!!S not applv to Execution Procee~lings.. Hiralal Ra,.tsizklt. v.
Monghiba; . Chim.naji, A.I.R. (1938) Born. 310; ' referred to.
Ma Than Sci" and otlters v. Ma Hla Yi, 11941) R.L.R. 246 ;
Sura} Kunr v. Sa til Siizgh and o11e, 28 A.I.'R. (1941) All. 219,
'followed. .. ' .
. DAW l~i~ l\1\n: ~~E v; p; P, ANANTHANARA~ANA I YBR.: . ,.. ' .' .152
 GENER:AL INDEX xxxiil
PAGE

CODY. OF CIVIl . I'IIOCEDURE, O RDER 9, RULE 9--Sz~fficieu l c.ruse.

H e/d: That C >:lrt exist so that people who have cases can have
those case;; h eard anJ determined. lt should never be the
intention of Co:1rts that a man should be deprived of a hearing
unless there has beeu something equivalen t to mis-conduct or
gross ne!!ligence on his part or something which cannot be put
right, as far a; the other side is concerned, by making t he man
to blame pay for it. Even if a person is rude or disrespectful to
Court that W<)U)d not be ~ufficient to deprive him of benefit of the
provisions of Order 9, Rule 9 of the Coje or Civil Proced ure.
\\' here a medical certificate is prod uced showing that a party
W:IS ad vised rest and it WitS proved that he Rew to Honl(kong
that fact alone doe:s not !'rove that the medical certificate was
untrue. Where a party has to be absent on very important
personal bu;;iness transaction that may be a sufficient cause for
non-appearance. [ Au1~R Gyi v. The Govemmetlf of Burma,
(19401 Ran. 512, distin guished. R. A . Artwacltela A yya r v.
C. Subbarmui.rh, 46 Mad. 60 at 63, followed.
U NGWE V. BAMA TAGUN CoMPANY AND ON E 134
CODE OF CIV IL PROCEDURE, ORDER 14, HULE 2-Prtlimi1lary isstte-
Whenmust be decided. Held: That under Rule 2 if the Court is
oft he opinion that the case or an y part of it may be disposed of on
the issues of law only, it shall try those iss ues first, and lor that
purpose may, if it thinks fit, postpone the settlement of the issues
of fact until after the issues of law have been determined. In
deciding the question as t'o whether the Court should grant or
r efuse a prayer to try a preliminary issue on a point of law, some
harmony is to be observed between the general principle that
. it is undesirable to try a case piece-meal and the specifi c and
wholesome provisions of Order 14, Rule 2 of the Code of Civil
Procedure which have been enacted for the purpose o f preventing
the injustice of a party being able to force his opponent to go at
great length into evidence when the sim ple decision on a point of
law might render the inve~tigati on of the facts un11ecessary.
la11ki Das n11d another v. Kalu Ram a~Jd another, A.I.R. (1936)
Pat. 2jO, followed.
<

IBRAHIM M OHAMED A~O ONF. v. MAUKG H LA PE (a) . A BJ?UL

RAZ AK ltO
CoDE OF C1vir, PROC&DURE, OllDER 20,- Judgment ?JJrdtw by prede-
cessor a11d (Jro11ou.Jced by succeedi11g judge- Appeal heard by
t he same judge as D istrict Judge-Qm,peten,y. Where argu- ..
ments were heard by one Judge wh o prepared the judgment and
left it to be pronounced by his succe$Sor, and th.1t successor
delivered the judg1.n ent under- Order 20, Rule 2, Code of Civ~l
Procedure and subsequent!y the same Judge became District and
Sessions Judge and in that cap-.citydecided the appeal also. Helfl
by t he Full Bettch: rhat he was not competent to hear-. the appe~].
Tl1e language used in Order 20,rRule 2, Code of Civil P-rocedure,
is tbat a Ju9~e may pronounce a judgment written but not
pronounced-by his predec~ssor. This power is discretionary,
and "hellier a Judge should exercise such discretion iS: a matter.
d epending on the fJlcls of each case. Pronouncing a judgment is ..
part of the trial, and if the Ndge is in doubt as to the correctness
o( such judgment,.he can eillier proce~d under Order 18, Rule 15, .'
Codeof Civil Procedure or hear the case de 110'110 .: Baker NiCIJ~S
v. Baker, L.R. 44 .C b. D. 262 a't 270.; Ilarg11lal v. .Abdttl Ga11y
Hajee Is~aq at~d a1tot!rer, (1936.-37.) 14 Ran. Series, 136 at 142-43,
.,a :.
xx..xiv GENERaL INDEX

PAGE

referred to and .followed. It is essential that everythin'g which

might eugender suspicion and distrust of a Tribunal should be
cleared away and there must be a feeling of confidence in the
administration of justice. It is also important that a Judge
should appear to be in1partial and without any r re-conceived idea
of what his decision should be. The question, in such cases is
not whether in fact the Judge was or was not biased, but that
there should be no room for suspicion that a Judj!e is biased.
Lobt~ri Domitli. and others v. The Assam Railway and Tradittg
Co. Ltd. und The Secretar'V of State for India in Council, (1384)
10 Cal. : Series, 915 at 917-18 ;Sergeant and othersv. Dnle, L.R.
(1876-77J 2 Q.B.D. 558 at 567; Alli11S01~ v. Ge11cral Crmncil of
Medical Edttclllion and Regi5/ralto11, L.R. {lll94) 1 Q.B.D. 750 at
758-59, referred to
DAW LAY AND THREE OTHERS v. v MAUNG GYl 34
CONSIDERATION 17

CONSTITU,t{ON OF BURIIfA, s. 23 (4} 300

226
. CONSTRUCTION OF STATUTES 226
CONTRACT A<:T, :>. 63-Remission of a portion of clait)!-Witellter
requires constderation. Held: Under s. 63 of fhe Contract Act,
a dispensation or a remission by'a rromisee of the performance
of the wholE' or any part of a promise made to him need not be
supported by consideration. A unilateral act on the part of the
promisee absotve:; the promissor from his obligation under the
contract. A.K.A.C.T.~ ..L. Clteltyar v. A.K.R.M.M.K. ;,rm and
others, (1938) ~.L,I~. 660; Jitendra Chandra Ray Cl1audi!Uri v.
S. N. BanerJee, I.L.R. (1943) \.a!., Vol.l. 101, follo~ved.
Balastt.ttdta Vaker and oue v. Rat1ga1tafha lyer ar1d otlt'ers,
I.L.R. (1930) 53 Mad. 127; Rama~wami and uflrcr6 v, Cnmkar
Rttdrnfpa, A.I.R. (1939) Mad. 688, distin~uished. . .

S. SAMUEL v. KR. S. ANNAMALAY CHET'I'YAR AND ANOTHER 17

CoNT~ACT. A'CT, s. 65 275
- - - - - . s. 178 312
CONTRACT 'oF .SALE ON'.BEHALF 'OF MINOR-Advance />aid-Recovery
oj-s. 6S of lfr.e Contract Act Wflether appttcablc-Whether pur-
'haser could adtance in equity. Where a sum of Rs. 5,000 in
Japanes~ Currency was paid by the agenf appoint~d by" a Hin'du
minor:s mo1ber as ~tiardi~n in pursuance of.an alleged a-g rtlement
topurcbase land and the suit wasfiled for return of the said rrioney
amongst 'o ther claims. Held: That the agreement of pur.chase
of land entered on belralf of the' minor is void nb initio. Mal11Jri
Bibee y. Dhiirm.Odas Gl1ose, (1903) 30 ' Cal. SerieS, 539 at 548 : .
Lim6aji 'IUwji l!ajare v. Ralti Kom Ravji H.aiare and :others,
(1925) . 49 Boin. Ser-ies, 576, followed. Ss. {>4 and 65 of the
Contr;tcl Act a"I:e not ~pplicable to a claim for refund of lhe
advan~ as .t!l'ese .Sections start $rom the basi~ ,<>f there peing
a conl~ac~ betw~en .the" competent pa'l'ties. The Court hov.:e~er
on equitap ie P,rinciple dir ect the refund of llie adv-a nce motiey
when th~ allcged put"ehaser -can plead no equity -in h is fayour.
The ~u~ :~ughHO'be mol!t .cba'ry to. ~ct aga.in.s~ the fnt-erest 'Of.
the minor ah:d his i'tlterests. should 'not lie jcbpa'l'dised for a
technicai' errot in drafting the plaint. Leave should therefore
 GENERAL INDEX .X}....<Vii

I'AGE

been made to a Board, any suit, appe:~l or other proceeding

pending before a Ci vii Court in respect of a debt for the settle-
ment of which an application h:ls been m:~<le.s l1all be stayed under
s. Z6 of the Act 7Z of 19n. The Civil Co:art could not thereafter
make an tnquiry whether the applican ts are bcnti fide
agriculturists.
0,\\V PAN MYAI)'(G AND OTHERS ~, . l{o SEIN KHA:o;T {a)
MAGUt:L AIIMIW 365
DEFAULTI'R :\OT F.:o;TITLED 'fO ~IAJ'E FRESH AI'!'LICATION FOR STA't OF
EXECUTION 385
DISPOSAL ol' EXHIBITS--Order for 1Clnm of jcwcllery--Couviclio11
j;Jr breach of trust-Opportuillly to 'owucr lobe gi l!etl-Co11tracl
Act, s.J78-Sate of Goods Acl, s. 2 (9). Whe re: a broker entrusted
by owner with authority to sell certain jewellery gave it to another
person WllO in his turn pledged it in a pawn shop and upon
conviction of the broker {or criminal breach of trust tbeM:~gistr:~le
m:~de an order for return of the jewellery to the owner without
notice to pawnee and the Additional Sessions Jud~e cancelled the
said order and directed the same to be returned to the pawn ~hop
owner. Held: That unless the order of the tri:!l Magistrate can
be said to be cl:arly wrong on the f:tce of the record it ought to
be sustained. Where opportunity is not ~iven to tbe pawn shop
owner or to the original owner to be heard before the orders for
the return of the jewellery were passed, that fact would amount
to serious irrej!ul:trities. The pledge in the present. case was
made by (P. W.3) and not by the original t>roker. There was
also nothio~ to show that the jewelleries were in fact pledged in
her name. There is consequently no material en record tbat .
the pledged jewellery must he considered to have been a pled~e.
made by a broker. Heltl !urfl1cr: That under s. 178 of the
Contract Act a mercantile ~l!ent acting in the orJinary cour~e d
busines$ can pledge !!OOd$ in his possession with the consent of
the owner and a broker in jewellery l!iven for tale cou:es within
the definition <>f mercantile agent as defined in s. 2 (9) of the -ate
of Goods Act. Sulainum v .. ltla Ywel, (t93~) A.l.R. Ran. 191!,
referred to.
MA. MVAING f), THE UNION OF BURMA , 312..
DIVORCE ~N ADMISSION 1\0T ALLOWED ..... . 131
DOCTRJNE OF Res ipstJ Loquitor MF.ANIN_G Al\0 APPLICATI ON 347
DoCU!fENT 1 ADM ISSION .OF 197
-----SHOWING. ADMISSION OF RECEIPT OF CONSID.BRATJON

DENIAL. BURDEN OF PROOF 222

DuTY OF DivoRCE CoURT ,. 0 131
EMERGE)'(CY PROVISIONS ORi>I!~ANCE, 194!1, s. 3 AND s. 3 (1}, .HIGR
TREASON ACT, 1948-The of!eltCts .u nder. lleld: The . juxta-
.. position of tbe words .u e3" (intention) and 11 ~" (obj_ect)
jn s. 3, Emergency Provisions Act, 1948 shows that an act contrary
to the provisions o{ the section must have been done with .
the object and intention of delaying or defeating the operations
o the Police f:'orce or the Armed Forces keeping the peace in
B.uz:qia. Held /urt~~r: ~hat in ordc_r to constitute an offence
 xxxviii GENERAL INDE X

PAGE

under s. 3. (I) or the High Treason Act, 1948 the purpose and
intention must be of a general public nature as coutra-'d istinct
from a pri vate one such as theft or robbery. Ba Mauug v.
Tlte U1,iou of Burma, (19501 B.L.R. 131 ; Mauu~; Joker v.
Tit e. Unio" of Burma, (1950) B. L.H. 300, followed.

T H E UNION OF BURMA v. SAW S TANLEY i:fA l{YIJ - 28

EsSBNTJAL SUPPLIES AND SERVICES A CT, 1947-S.3-Nolificatilm No.92
of 1947 rcrtiring permission to t ake gold to Arakan-1/ ultra vires
-Efftct o publication-No/tee to all persons- Criminal Pr()cedure
Code, s. 342 (l) (b)-Evide nce of accused under-Cq.u be used
against accused-"Shall be liable to confiscation "-Meauiug.
Applicant was tried and convicted under s. 8, subs. Ill of the
Essential Supplies.and Services Act, 1947, for taking 15 bars or
Chinese gold from Rangoon to Akyab by plane without having a
necessary permit as required by NotiJication Ko! 92, dated the
23rd Stplember 19~7. She was sen.tenced to a fine of Rs. 600 or
in default 1o undergo 9 months' rigorous illlprisonment. The
gold was orderecl to be confiscated. Her appeal was dlsmisfed.
In revision it was inter atta urged tbat the above Notification
was ultra vires of s. 3. of the Essential Supplies anu Services Act,
1947, that as the Applicant was not aw are of the said Notification,
she should be released under s. 562, Criminal Procedure Code,
that the admission made by the Applicant in the course of the
evidence ~iven under s. 342, Criminal Pr<.cedure Code :;hould be
taken, if taken at all, as a whole and that the expression" shall be
liable to confiscation " did not mean that the Court had no
option but to order confiscation. Held: That Notification
No. 92 of 1947 is not ultra v ires of s: 3 of the Essential
Supplies and Services Act thottgh it does not contain such
formula a:s it appears to the r.overnor {now President)
for maintainin~ Supplies and Services essential to the life
of the country and therefore movement of . gold from Rangoon
to Arakan is prohibited. " One has to take the language as one .
finds it, a lthough, of course. one has to look at the Act as a whole
:1nd construe it so as to give efft:ct to what appeas from the
language of the whole Act to be the intention of the leglslalure.
Emperor v. Mo},amed Kcusam Panwall , I.L.R. (1942) Hom. 107,
r elied on. It is not necessary for the prosecution to prove aetna!
communication of a notification to the alleged offenc'ers. Once
publication had been made the persons affectetl by the order are
. to be deemed to have been informed, it is not open to him to show
that he was not actually informed. Deb . l'Y0$<1d. v. Emperor,
A.l.R. (1947) All. 191, relied on. Evidence given by an accused
person under s. 342 {1) (b) of the Cr iminal Procedure Code can be
used against him. Nazi AIJmed v. Emperor, 63 I.A. 372 ; The
Kitlf. v. Stm Mirr, (1939) Ran. 97, relied on. T he words" shall be
li11'lle to conli!cation ," when used in connection wit h contraband,
mean that the conlraband is to be compulsorily confiscated.
The Union o'/ 8u r111a v. MautiR Chit Swe. (1950) B.L.R 278:
Durga Da:s'KIJarmn v. Emperor, .JI:.I.R. '19441 Lah. 33 at 42 : Bo
Yan Nairig's Case, 'B.L:R.I1950) S.C. 17: Mot icha11d Balubhni v.
District Magist rate.Sw.,t, A.I .R. (1945) Boin. 385; Re. Chinnayan
Rowther, (p}Sallul Hamid. (1945), Mad.-76 ; 8 ht1tualh l.loud1rury
v. Emperor, (1948)-cal. 289 ; M Gokild as v. E mperor, S1 Born.
L.R. 158, r~rerred to.
..
D AW E SEI N f'. TH E C NION 011' S U RIIA 59
 -:t.ENERAL INDEX xxxix
PAGE
EVIDENCE ACT, SS. 65-A ANU 85-Presump/iou-Power-ofaltomey
1egisterert w lndia-Witellter j>remmptiou of aufheuticily
applicable to Brtrma-S. Z (50), General Cla11ses Act Held :The
presumption as to anthenticit y arising in I.'Onnection with powecs-
of-attorncy executed before and anthenticated by the auth1 rities
mentioned ins. 85 of the Evidence Act will not necessarily arise
in regard to documents re~istered outside 13urma. Uuder s. 2,
Clau~e 50 of the General _ Clauses Act." registered" with rderence
to a document means registered according to the law in force in
Burma. In the case of powers-of-attorney executed an :1
authenticated as mentioned under s. 85 of the Evidenre Act, proof
of execution lll\ISt be di~pensed with; in the case of powen:.of-
attorney not so execut~d and authenticated legal proof must be
given. hz the ~toods of A. J. Primrose. 16 Cal. 776, refarrccl to.
Where the substituted powcr-of-attomey was produced but the
original power authorising sucb substitutior. was not produced
and it was claimed that the holder of the orig:ual power, being
resident-outside, was not compeIIab!e to produce the original
power, such a plea is not available ; the StlbStitde Cannot place
himself in a better position than the holder and the original power
must be proved unless such proof is to be dispensed with under
s. 85 cf lhe Evid'ence Act. Sladcm {deceased) 21 Mad. 492,
distinguished.
SEt::TRA RAM 'IJ. MST. ALLA RAKHI AND OTHERS 356

EVIDENCE ACT, SS; Hll AND 102 341

OF ACCUSED UNDER S. 342 (1) (b) OF THE CRU!INAL
PROCEDURE CODE 59

EXAMINATION OF ACCUSED AFTER DEFENCE WITNES~ES 289

EXF.CU'CION, STAY OF-Terms and Cotul.itiotzs imposed by Judge-

Su-ccessor-i1z-office not competetzt io cancel and substitute new
terms and conditions-Defaulter not entitled to make fresh
application for $tay. Hdd.: However hudable the object may
be in imposing fresh terms and conditions. a successor-in-office
cannot arrogate to himself the function!< of a Court sitting ih
appeal or in revision on the order passed by his predecessor.
Held . also: Having failed to comply with the terms imposed
upon him a defaulter is not entitled t<. !Ilake a fresh application .
for stay of execution. K. S. Abdul Kader v. Sri Kali TemPle
Tru~t, (1949) B.L.R. 175, followed.
!SOOF MOHAMED AND FOUR OTHERS 'IJ. NIZAMI SUPPLY
'CoMPA~Y . 385
FAILURE TO ATTACH STANDARD RENT CERTIFICATE WITH PLAINT.
~FFECT OF .... 128

- - - - TO WRITE PROPER JUDGMENT IN CRIMIN:AL APPEA~ 117

FINDING OF FACT WilEN FINAL tN SECOND APPFAL 341

. FOREIGN EXCHANGE REGULATION ACT,l947, S: 4 (4), S. (1), CLAUSE 5

(b)-Whether Controller or Deputy Coutroll~r bound 'to issue
permit for rcmittan.ce of money-Mandamus-If lic~-S. 45-A.,
Specific Relief Act. Under the scheme of the Foreign Ex;change
Regulation Act, 1947. final authority in. respe..:t of remittance cf
m,opey outside Burma is the Controller or Deputy Controller or
- an A ssistant Controller a ppoioted uhder s. 3. The provisions of
s. 6 of.! he said Act read with other.pr!)"isioos prohibit femittanC;e
. . . . . . .
xl GENERAL INDEX

PAGE

o! money to persons resident out of Burma and clearly include

the contingency of a person in Burm~ remittin~ money to
himself outside Burma. In the present case application was
ma<.le for permit to remit money to himself and his wife and it
comes within the mischief of s. 6 (!l (vl (I>). Burma currency is
legal tender in Burma alone. The Government of Burma has to
htsband its h<Jidings in foreign c:xchange to secure -currency
stability and economic secluity and applicant was not entitled to
call upon the Government of Burma to )1art with a portion of the
foreign exchauge in consideration .of Burma currency. The
applicant therefore does not come within the purview o! s. 45 of
the Specific Relief Act. There is no mandatory provision in the
r'oreign Exchange Regulation Act which makes it incumbent
upo'l th t" authorities to permit rem ittance of money abroad. As
the Deputy Controller in the pre;~ent case considered the applica-
tion in the case accordinl! to certain principles formulated for
guidance and acted bm~ fide and not arbitrarily no application
for mandamus can lie.
P. B. SEN v. THE DEPUTY CONTROLlER OF EXCHANGE 476
FoREIGNI:!R- Written statcmell tl1rouglt- age11t clnill'itlg e.\em pt1o11
fro m jurisdictio11-Poiut decidea agaimt llitu-lttjtmctiol~ to
, .,strmu nforcit;fl decree wit tiller c01tld be granted. A obtained
a degree against 8 in l{angoon City Civil Court and look a copy
o! the said decree to India and obtained another decree on the
same in an Indian Court and 8 then filed a s ui,t for mandatory
inj unction ag:tinst A restraining him from executing the
decree in his favour in India. A appeared through his agent and
contested the jurisdiction CJf the Court and also claimed that no
injunction could be issued -against him. The trial Judge in
Ran~O(n a,nswered both the ;>Oin!s in favour of the present
plaintiff ano dismissed the suit. On appetl/,, Held: That when a
d efendant was served with process by a foreign Court he had
alternative of doing nothing or appe:lring in Court andconteslinj:!
the claim. If he did not appeat the Court might give a judgment
against him but unless he has some property within the
jurisdiction of the Court I he decre.e could not be executed against
him. But if the defendant appeared through agent and contested
the suit on merit an cl also questioned lhe jurisdiction ofthe Court,
be really submils to the juriMli ;t ion of the Court-. 0nce the suit
is decided on men ts he cannot challenge (he dedsion on the
ground of want of jurisdiction. The fact that he appeand
through aj:(ent coes not make any difference. Harri v. Taylor,
(1915) 12 KB.D. 580 at 587-St!S, 592; Rama Ayyar v. Krislmu
Satter; IJIJH>) J.L.R 39 M,1d. 773: T . Sundaram Ptllui v.
Kania'summi Pillai, (1941) A.I :R. Mad. 387 ; A.'Janoo Hassan Sait
hy his adhori~ed agent Dada Beg Muhammad \", M .' S. N.
}fnllcmeti Ohtdhu, {1924) l.I.;.R. 47 M;;td. 877 at 8SO, followed .
\Vhere a defendant is residing in a foreign country and has
obt~ined a deere; there it is not in the interest of justice that
he should be r estrained from executing the decree he has obtained
in the foreign court by ::t permanent injunction even though the ,
decree th:~t he has obt:.ined is on the basis of a judgment obtained
in Burma. Tire .Carr Iron .Compauy Proprietors v. James
Moclaretl Heury Da111SC1J, E. H~ Tibbals Stai11tm, (1855) 5
H.L.C. 416 at 442 ; Vulcau lrou Works' v. Bishu mblmr Prosad,
(1909) I.L.R. 36 Cal. 233 at 237; Jumna Dass v. Harcharnfl Dass,
(1911) I .L.R. 3l! Cal. ~05 at 407, followl'd.
V. A. S. A R : GYA 0DEYAR v. VR: RM,N,S. SATf!A " P.-1.
CHETTIAR !~,- 211
 GENERAL INDEX xli
PAGE

FOREIGNER- PURCHASE OF IM&IOV!!AIILE PROPERTY 197

--- 320
FoREIGN JuDGMENT 399
G~NERAL CLAUSES ACT 320
- - -- - -- - , s. 2 (50) 356
- - - - - --, s. 27 482
GoVERNMENT, MEANING OF 226
H IGH TREASON ACT, 1948, S. 3 (1) 28
HINDU LAW-Karta-Parlt~er.lztp arnw[!,cmeul bclweeu kc7rla and
straugers-WiietltC!' fe~mily becomes Ptl1'ittcr-Karta u:he11 aged.
Htltl: Wher~: the Managing member of a joint family emers into
a partnership with a stranger the other members of the family do
not ipso facto become partners in the business. Lachl11nan Das
v. Commissioucr of il:come-ft~x, A.I.R (19481 (P.<.;,) 8; Sokkauadlla
Vanmmunder v. SokkntJadfla Va11ninnmdar nun ot1zers, 28 :\lad.
344 at 345-346; Samalbha r Natlmbhai v. SfJmeshtnr, MatJgal amt
Harkisaiz, l.L.H. 5 Bom. 38; . Gra/Ule Gangayya v. Grande
Vellkalramiall, 41 Mad. 45-1 at 456-457; Ramanafllau C!tetty v .
. Yegappa Cltelly, (1916) 30 M.L.J. 2:11; Vadilal v. Shah Kh1JS/ta/,
(19031 I.L.R. 27 Hom, 157: Daita Ammal and others v. Selvara-
manuja Nayakar tmtl others, A.I.I<. ( 19361 Mad. 4i9; P.K.P.S.
Ptclzappa C.heflitlT and others v. Chokalin[!,am Pillcli a11d otlters,
A.I.R. (1934! !P.C.) 192, followed . But for the purpose of.
forming partnership with a stranger eFfected through the medium
. Of its karta.a Joint Hindu Famil y is regarded as a unit capable of
being represented by its managtr be<:anse the Hindu Joint Famil y
is.a lej:!al unit which can be represented by its karla. Maharaj
Kisllen v. Hargobmtl aud Baslleshtll' Ltll, 49 Punjab Hecord Judi.
377; Narai1~ Das amt others v. Ralli' !lrotlters, 50 Punjab Record
Jud1 ..270 at 271; Moti Ram v. M11hammad Abdul Jali(l, 46 All.
509 at 510; .'Je'ltJll Ram v. Ram Go Pol aurl Heli Lal a11d others, '
48 All. 3.95. at 396: Gawi Shat~ka r v. Keshab Deo and others, .
(1929) All. 148; Kfladrler KaJ>ra Co. , Ltd. v. Daya Kishan aud
others, 43 All. 116. referred to. It is a question of fact in each
case whether the partnership is-(a)' between the karla in his .
individual capacity utilizing his own separate proper~y and a
stranger, or (b) between the karla acting f9r the bet;tefit of. the
family by using the joint {amily property ar.d the stranger, and
(c) where t~e karla acting as agent o the family and the stranger.
In the first case the lamily is not interested. in the partnership.
In the. secend case, .the (amily property is affected by the
partnership of the karta with the stranger, but the family as such
is not a partner in the part!tership. In the third case, the family
itself, as a unit and not the karla, is the partner. Amramalai
Chelty v. Murugesa Chetty, (1903) I.L.R. 26 Mad. 544 at 545
distin~uished. '
MEENAKSBI ACBI AND ANOTHER V. S.K.A.R.S.T. CBETTYAR'
... FJRM AND ANOTHER ... . . 436 .
I MPLEADING OF PURCHASERS. WITH NOTICE OF PREVIOUS AGREEMENT
. OF SALE, WBETJJBR MISJOINDER . .. 457
I N.JUNCTH)NS, GRANTIN~ OP .ex ptrrte .. 71 .
xlii GENERAL INDEX

PAGE
INJU~CTIO~TO RESTRAIN A FOREIGN DECREE WHETHER COULD BE
UllANnD 211
INTEREST WHETHER INCLUDED IN mesne PROFITS 404
JUDGMENT \V lllTTEN BY PREOECESSOR AND PRONOUNCED nv
SUCCEEDING jUDGE 34
}URISDICTI0\1 OF CIVIL CouRT HOW F AR OUSTED BY URBI\~ R!!NT
Cot-:TROL AcT . ,. . 156
KARTA 436
LA~W ACQUTS11"1oS .'\CT-Ss. 4, 5-A, 6, 9 aud 11-Powu of lite Collector
to rele<~sc l<~tuls-S. 23 (1)-Aleaniug of I fie wont' mat'kel-valtt~"
-W1lc11 to be computed-Principle 011 'II.'!Jich appea~s arc allowed.
Held: In view of the dear wordings of :;s. 4, 5-A. 6, 9 and 11 of
the Land Acquisition Act neither the Collecto: 11or the Judge
sitting un th e Original Side was competent, to red.uce or limit or
over-ride the decision of the Government as to the necessity or
otherwise c,C acqui~ilion of any portion oJ. land. The Collector's
duty is confined to marking out the boundaries and Collector
and Court are authorized to decide only the quantum of compen-
sation payable to the owner for land taken over by Government but
neither can release any portion of the land acqt ired. Market-
value of a Ia tid is the "p rice that an owner willing and not obliged
to ~ell might reasonably expect to ottain from a willing
purchaser with whom he was. bargaining for sale and purchase
of the land, and such value should be the value at the time of the
declaration under s. 4 of the Land Acqui~ilion Act. Potential
value of the lnnd acquired should be taken into consideration in
assessing market-value. Thf? Collector should generally visit the
land personally before fixing the market-value. In appeals
involving the question of valuation in land acquisition ~ases, tbe
decree complained of will not be interfered with unless some
erroneous principle has been invoked or some piece of evidence
over-looked or has been misappli~d. Re. an Arbttralion bet wcm
LttCc!S and the Chesterfield Gas Mtd Water Soard, (1909) 1 K.B. 16
at29-30 ; Cedars Rapids Manufacturing & Pou1er Co. v. Lacoste ,
(1 9141 A.<.:. 569; Fraser a11d others v. City of Pr aserville, (1917)
A. C. 187 ;Swift &Co. v. Board of Trade, (1925) A:C. 520; Reddiar
and Sau Cllein v. Sccrdaty of State for India i11 Cout~cil a11d the
Specia l Colleclor of Rangoor1, l.L.R. 5 Ran. 79() ; Premchand
Burrul . and another v. Tfle Collector of Calcrtla, I.L.R. 2 Cal.
103; R. B. Lalm Narsiig/ Das v. Secretary of S t ate for /1zdia,
(i925) A;I.R. (P.C.) 91 ; Ma Sein and others v. COllector of
RangOOtJ, I.~R. 7 Ran. 227: Govemmertt of Bombay v. !lferttJall
Mottdigar Aga, I.L.R. 48" Rom. 190; Pribhu Diyal v. Secreta ty of
State, (1931) A.I.R. Lah. 364; Mmmg Bow l{hin v. Speciu l Collec-
IO#, Maubin, (1935), ,A.l.R. Ran. 157; S ri Raja Vyrichcrla
Naraya11a Gajapatiraju Ba/ladt~r Garu v. The Reve11ut Divisional
Officer. V"izagapaiBm, (1939) I.L.R. Mad. 532 at S48; Mohini
Mohat~ Barterjee and otfters v. Secretary of Slate, 11921} A.I.R.
Cal. 193; Tht Colledor. v. The Manager, Kurla Estate, (1926)
A.I.R. Hom. 223; Maung Po Ni attd one v. Ma Shwe Kyi and
,tf(~rs, l,L.R. 2 Ran. 397; Kanto Prashad Baza ri v. Jagat
~flandra Dutta ;ltld others, I.L.R: 23 Cal. 335 ; A tmaram
81tajlw(ltd GT1<1dgay v. COlle~tor of Ntigpur, (1929) A.I.R. (P.C.)
)2, referre,d.to and followed.
ADAMJEE HA1EE DAwooD & Co . LTD. v. THE CoLLECToR oF
RANGOON ... . . 415
 GENERAL INDEX xlii

I'AGE

L.~NDLORD AND TENA"I\T-Landlord remodng n of-Rigltts and

littbililies of parties-Non-roofing by Lamil<11 d bnach of duty-
Deroga/io" from graul-Transf<"r (1} Projltrty Act. s. lOS jf).
Appellant occupied a portion of a house helonging to the
resvonde!Jt on payment o! a Salami and a month ly rent. The
agreement provid~d that no repairs or alterations should be
made to the hot~se bv the tenant without the consent of the
respondent. The res.pondent was direct~d by the Bass~in
Municipality to remme the Dhani and bamboo roofings from
his house. In ~:ompliance with the order the respondent
removc:d the Dha!1i and.bamboo roofings and put in corrt:gated
irnn s'ie...ts on one portion of tile house but not on the portion
0cct~pied by the i\ppell:mt. l~espondent undertook to re-roof
the portion of the house occupied by the Appellant provided \he
App~llant vacated the premises and surrendered the iease. The
Appellant reh1sed to do so aud in~tead re-roofed the house and
claimed the cost from the respondent. In a Cross-Suit the
re!<ponden t sued tor ejectment of the Appellant and recov ery of
arrearn of rent due. Both suit~ were dismissed on app.eal to the
District Court.' Arpellan t alone appealed. Held: It is elemen-
tary that for a tenant to enjoy a property of the nature let out to
the Arpellant in this case some kind of a roof is an absolute
necc!sity. As the Appellant was. in any circumstances e nt itled
to a roof of sorr.;:: sort in his part of the building. the failure of
the r espond::nt to put up one in conformity with the Building
Bye-laws of the municipality was a clear breach of his legal duty
which he owed to his :enant. A ~rantor having ~i\"en a thing
with one hand is not to take away the means of enjo,ing it with
the other. Birminghan, Dudley and District Bau.l:ing Co. v.
Rose, 38 Ch. D. 295. 313; Harmer v. Humbil lNigeria) Tiu
Areas, Lid., 1 Ch . D. 200 at 226, relied on. Biil)i C/Jaudra
Siuglt v. Ho7crah A mtn Light Rly. Co. Ltd., A.I .R. (1923) Cal.
524, referre.d to.
N. R. SEN GUPTA v: u ]ONE BlN ...... 77
LETTERS OF ADMII'11S.TRATJON WITH WILL A~NRXED, GRANT OF 326
Ll~UTATI0:-1 ACT, ARTICLE 60 399
LI?IUTATION ACT, ARTICL.R 181. Applicaii01~ for final decree-Loss of
record- Reconstructiou of ncord- APPijcatioJ~ filed beroud
time- -Courts f.Pmergem:y Protisions) Act, 1943, s. 7- Limilati!}n
Ad, s. 4. Held: Article 181 of Limitation Act applies t1> an
applic:\tion for final decree in a mortgage suit for sale of the
propertv. The facts that an :\!)plication for the reconstruction
had to be filed and that recOrd had to be reconstructed are r.o
grounds for not filing the application within the time fixed by
Article UH of the Limitation Act. Amloc~k Chand Parrack v.
Sarat Chunder M11keriee, (1911) 38 Cal. 9J:t at 921;
Jesiuglal Ka!idas Shah v. Gandacilrm: /Jfa/Jadeo Karandi~ar
mul otlrers, A.l.R. U93fl) Bom. 354; R.rmanalhntr Chetty
v. AlagafPu Cheify trnd others, 11930) 53 i\lad. 37/C at
385~; Premonznl Daomal v. Klwdabux and others, A. I.R. (193i)
Sind 273 at 277 : Mits11i Bussan Kaisllnll L:d. v. Firm ojTolaram
Bhagwandas. A.J.R. 11921\ Sind 166; Sakar Ch,.nd Narsidas v.
.Yac"ttb, A.I.R. (1923) Sind 14; M.A.L.M. Cllettyar p;,;,, v.
Maim~ Po. Hmyin 011d others, (19351 .13 Ran. 325 at 328 ;
Hoe Sl;we F<mR v. E. I. Allin, (i949) B.L.'R. 394 al395. followed.
S: 7 of ~ourts .(Emergency Provisions) Act. 1S"43 pro_vides that the
Civil COurts in Bnma will be deemed to be closed frQm the
6
 PAGE
8th of December 1941 nntil 31st March 1947 which was the date
fixed under s. 7 of the Act and s. 4 of the Limitation Act simply
prescribes that where the period of limitation expires on a day
when the Court is cl.:>sed the suit, appeal or application may be
instituted or preferred or made on the day when the Court
reopens. And s. 7 of Courts (Emergency Provisions) Act, -1943.
does not purport to revive a right which has already become
extinct or interfere with a vested riglit. It does not extend the
period of Jin1ilation or the time for payment of the decro:tal
amount into Court by judgment-debtor. There is no general
discretion apart from the statutory discretiop given under s. 5 of
the Act for extending the per-iod of- limitation. Maqbul Ahmad
and otliers v. Pratap Narai1t Siu{!)t an{i olhers, I.L.R. 57 All. 242
(P.C.l ; Reuf. v. Reid, (1886) 31-Ch. D. 40Z at 408, followed.
ABO'GL MAJID AND FIFTEEN. OTHERS V. M. KUNDU

Lu~ATIC-SUJ,T oN BEHALf oF A LUNATic.,-When c'a11. be fiTed-

Revisiou against tnterlocutory order-S. us, Code of Civil
Proc~dure-Order 32, Rule IS~A~ternative claim ir1 the same
suit as a person of sound mind and. a person of unsound mind-
Not mainla~llable. Held: Before a suit on behalf of a lunatic
can be instituted by his next friend, the lunatic must either be
a person who has been adjudged fo be of unsound mind or
a person who, though not so adjudged, is found by the .Court on
enquiry by reason of unsouridness,of mind or mental infirmity to
be incapable of .protecting his inter.csts wpen suing. Otherwise
a suit by a person posing himself as th~ next friend of the lunatic
and on his behalf is not competent. It is open to a person to file
a suit' as a person of unsound mind through an agent or to have
a suit filed on that person's behalf by next friend under Order 32,
Rule 15 of the Code of Civil Procedure in which e\ent there
mtist be au allegation in the plaint that the plaintiff is. a person o
-unsoun rl mind. The ple::t in th~ alternative in the same ~uit is
unten~bk Maung Kya Y:an and another v. Maung Tha E ,
A.l.R..(1936) Ran.Ul, followed. Nirenrtra Lall B'hattacharyya
ond one v. BePin Chandra Bllat/acharyya attd others, A. I.R.
(lli~S} Cal: 2~4; Mauw~ Sanrl;Jwin y. Maung Nyi, 3 Ran. 239,
referred, to. .The Cotirt will revise an interlocutorY order whe1i :.
irreniediable injirry will be done and a 'm iscarriage of jnstice' will
ensue. Moh{lmed Clzootoo and others v. Abdul HamidKhanand
others, 11 ~an. 36, followed.
P.L.K. KASI CHETTIAR (a) U KASr AND ONE v. SHASHAroU.tA,L
(a) SHAYUSH AMMA .. . 48? .
MAHOMEDAN LAw-EsseJ/ials of Marriag~--Maintemmte. Held;
\Vhere in a suit for n1aintenance the ht:sband denies the marriage,
the marriage must be proved. In Mahomedan Law there are
.c ertain fonna1 requirements ofmarriagt:. Words of proposal a.n d 1
ac&ptance must be uttered by the contracting parties or their
agents in each other's presence and heari)lg and.' in the presence
and hearin~ o( two male or one male and two female witnesses
who must be lldult Mu~liins and the whole transaction in1st be
compieted in . one sitting. If.this is not done. there is not valid
marri:tge. Anklcn!nmreS.sa Bibi v. MahomedHatem,-:?i 'Cal.849';
Jagu B!~i v. 1-~csel Sfza'ik, 63 9~.1. 415; Mmwg.Kyi anil oflters v.
Ma Shwc:' Baw, 7 Ran. 77..7, followed.
,..; . . . . :-- ~ . ~. . . . ' .
U BA PE t. .MA :SAW YI~ ; . .
. . ; .
 GENERAL INDEX xlv
PAGE

MALICIOCS PROSECUTION. ESSI::~TIAL POINTS TO BE PROVED 386

MANDA~IUS ... 476
MARKET-VALUE, MEANING 0 1.- 415
Mcme PROFITS-Meaniug of-Whether it includes i11lerest-.S. Z
(12) of the Code of Civil Procedt1re-(;ra11t of interest.
Held: That in view of the d ~finition of mesue profits in s. 2 112)
of the Code of Ci vii Prc,r.edure it is clear mesne profits rnean not
only those p.rofits which a person in wrongful possP.ssion of the
property actually received or might with clue diligence have
rect~ived but a lso i::lterest on such profits. \Vhen a preliminary
decree grants mesne profits to the plaintiff it is not open to the
Court at a later stage of the proceedings to say that the plaintiff
is not entitled to any interest on the profits which the person in
wrongful possession of th.! property actually recei ved or might
with orclinary dili~ence have rec<:ived therefrom. 11. C. K. P.
Menon v. V. C. K. R . MetlOtl, 54 Mad. 955 (F.B.) at 960..961,
followed.
EPK RAIN SOLO)I0:-1 'II. C. AU FOUNG AND ANOTHER 404
. MODIFICATION OF }UDGNE~T OF TRIA L CoURT WHETHER AFF IRMANCE
OF DECREE 95
. MONEY LE!"DEkS ACT, s. 12-Ctnstrlulion of the U1donoj Burma,
s. 23 H)-" Propcrf31" unether includes debts a11d choses in
acfioll- 1-'/eas rmdcr s. 12, Money Lender~ Act not laktn-
WIIethcr appellate Court catl give rdicj-Admissiou by
adwcate-Biudmg nature on client. Held: At the time the-
Constitution c.f the Union of Hurma came into force a debt was
regarded as a piece of property 'capable of being transferred
by law :\nd capable of being expropriated. The term property in
s. 23 t4) of the Cot~stitution is not confined ouly to r.orporeal or .
tangible property but also includes incorporeal or intangible
propertv such as debts and other chases in a-::tion. Halsbu,ry's
Law of Etlgla11fl ( Vol. 25). 189- 1\14; l111Puial Bank of ltzdia v.
Bet~gal Natio11al Bank. 59 Cal. 37.i tP.C.). referred to. Section s
of the Constitution should not be interpreted in a narrow an d
.technical manner but should al ways have a large:. liber al and
comprehens-ive interpretation. U Htwc fa) A. E . Madari v.
U Ttm Olm atul OtiC, (I 9481 B.L. R. 54J. followed. The
Usurious Loans' Act and the Monev Lenders Act had never
been considered 11ltra vires of the Legislature under the
Government of Burma Aot, 1935. " There is no clifference
' between the said provisioi1s of the Government of Burma
Act,1935, s. 145 {2) and s. 23 (~)of the Constitution. He.l d also :
That it is a matter of general principle that the determination in a
case must be founded upon a case either to be found in the:
pleadings or involve in or consistent therewith. This prin~iple .
does not exclude the application of s. 12 of the Money Lenders -~
Act on appe:tl. . This section prohibits all Courts from passing 3:
decree for a sum ~reater than the principal of the orginalloan
and arrears of interest which exceeds such' princi pal taken
together with any interest already p:~id. The duty cast upon
lhe Courts is that provisions of the sec;tion are. applied in
proper c:~ses thou~h the J')arties may not. have raised the plea.. .
P: T. Christensen v. K. Suthi, 5 L:B.R. 76; Ma Htwe v. ,
.
_"lfaung J.-un, 8 L.B.R. 334._(F.R.); HaJi Chit and fi~ others -v.
Haji.Kyaw, 3 u.B.R. 20: S hivaba:Su:::a v. Strtl1/t1Pfla, 29 Bom:.. -
~- (P.C.) : The Official Trustee of fJc:ngal v. Kri~Jina , Chan"dra
xl vi GENERAL INDEX

PAGI!'

Moz unrdar anti. others, 12 Cal. 239 !P.C.) ; Harendra Kumar Bose
attrl atJotller v. Khemati.a Kinkar Roy ancl otlters A.I.R. {1927) Cal.
86, referred to. The terms of the Usurious Loans' Act, 191~ hav~
been applied even in favour of a defendant who had confessed
judgment. S .P.R.M. Fir111 '' Mamtg Po Kya anti. others, 1 Ran.
580, referred to. There is no reason therefore why the Money
Le!1ders Act should not be applied in proper cases irr favour of a
defendant who had failed to invoke the. same. An admission of
fact by CO!fnsel is binding on the client and when once a fact is
admitted proof of the same need not be furnished . A compromi~e
by cou:nsel without knowled):!e cr instructions of the client stands
on a different footing. ShePherd v. Robinson, (1919) 1 K.B. 474,
distinguished .
DAWSON$ B ANK LTD. v. C. ErN SHAUNG AND THREE
OTHERS 300'
MORTGAGE NOT NECESSARILY IMPORT A PERSONAL OBLIGATION TO
REPAY 105
MORTGAGE DOCUMEl>T INVALW-Wftefllcr Suit for money lits-S. 49,
Registration Act. By Exhibit A the owners purported to create
a mortgage of a go down and things attached thereto for Rs. 600.
They undertook to pay this amount by instalments from
December 1948. Upon a: contenlion whether the personal
liability cou1d be enforced when the mortgage is invalid :
Held: In s. 49 of the Registration Abt, 1903 the Jangt1a~e
employed in preious corresponding sections bas been chang~d ;
under the qld section no instrument like the one in qnestion
"could be received in evidence or shall be. acted upon in Civil
Proceedings." The tffect of the amendment is that the transac-
tion cannot affect immoveable property. "Affect" is a compen-
dious term for expressing the lonj:!er phrase " (>urporling or
operating to creatE'. declare, as~ign , limit o(extinguish, whether
in present or in future, any right, title or interest, whether
invested or contingent." Sat;aswalhamma v. Paddayya, (1923) 4&
Mad. 349 at 3.59., referred to. The personal covenant to pay
a loan, if it can be separated from the morlgag.., is not :t matter
which affects ~uch immovcahle pi'opertv in any way. Captain
C. R. Sm. tl~ v. Mrs. HePtoitstall, (1938) R.L.'R. at lJ, distinguished.
The object of the !egislature in E>nacting ~. 49, Registration Act
was. to shut out evid~nce of a document affecting an. interest in
land unless it should have been registered. Lachmi'Pat Singh
Dugar v. Mir<a Khairat Ali, (1869) 4 Ben~al Law Reports J 8
(F.:S.l ; Ulfat unnissa v. Hursein Kha n, (1883) 4 Cal. Series, 520
at 52$., referred to. In the preS'ent case it is possible to separate
the obligation from the interest in the immoveabl<: property.
The suit is for recovery of the debt and not for enforcement of
lien. The doc.ument was tendered to establish th;~tihe loan had
bee.f made. not for proving a transaction affecting the property.
Sh'e'odial and another v; Prag Dat Misra and anotlter. (1880)
3 All. 228 at 233. referred to. Mauttg Ba v. Maung Tlla Kyu anc{
ano!lz~r, (1919) R.L.R. 39 ; Bhabi Dutt v. Ramalal.byamal,
A.~.R . (~934) R~ 30~, dis!inj,!uishe.d.
-~ u Bo .GYl AND ANOTHER v: U . K'AN ViTIN ~ND . A!WTHER .. 373'
. ...
-~ "' . ;.
NOTICE.: Q~ ' THE 1-'ILI-NG. OF AWARD . . 192
_ _ _: .1;~~~: s. ti riJ . (a)
M

~~ - .THE- URBAN RENT c~'NTROL ACT

.. , .
:

WHE:i:HJ!:R MU~ REA~H ADDRESSEE . ... . . ... 482'

NoTno:mA.'ti oN: EFFECT oF PUBLICATioN oF 'SO'
 GENERAL INDEX

OWNER OF JEWELLERY TO BE GIVEN OPPORTUNI'IY-CO~VJCT!Ol'

OF ACCUSED FOR BREACH 01' TRt.:ST

PARTY-WHETHER SUIT SHOULI) BE DISmSSEU AGMNST UNNECF.SS.~RY

PARTY OR HE SHOULD BE STRl.'CK OFF

PARTIES-NECESSARY PARTIES IN ADmNlSTRATION SUIT ...

,pARTNERSHIP ARRANGE~IENT BET\\' EEN KARTA AJ':D STRANGERS

PAYMENT IN EXCESS OF STA'l'UAfW RF.NT

PE~AL CODE, s. 124 (1)

PERMISSIVE OCCUPANT-WHETHER S. 11 (l) OF THE URBAN RENT
CONTROL ACT Al'PLIES
PLEA UNDER S. 12 OF THE MONEY LENDERS ACT NOT TAKEN.
WHETHER APPELLATE CoUHT CAN GIVE Rl!LIEF
POLITICAL PARTY WHETHER A CLASS OR SECTION UNDER THE PRESS
(EMEHGENCY PowERS) ACT ...
POWER OF ATTORNEY RE.GISTERED IN INDIA. PRESmiPTJON OF
AUTHENTICITY
!PRELIMINARY ISSUE WHEN )lUST BE DECIDED

PRESS (EMERGENCY PoWERS) ACT, s. 4 (1) (d)-W!tetfler a

political party is a class or section. wiflriu the me,wing
of s. 4 (I) (d) -Principles 01~ ~hi~h the matter should be
decided-ltzterpre~atiotz of Statute-Duly of 111dge-Mcatdug
of the word" Govertmzent "-Comti/uhon of Burnra. Held: In
a Conrt of Law or Equity, \vhat the Legislature intended
to be done or not to be done can only be legitimately
ascertained from that which it has chosen t'> enact, eitlter in
express words or' by reasonable and. necessary implication, and
the lang~.;age of Statutes is to be interpreted according to the
.recognize<.! canons of construction laid down and the Judges are
not entitled to read words into an Act of Parliament unless clear
reasons are to be found within the four corners of I he Act itself .
.Solomon v.Solomo11, (1897) A .C. 22 at 38; Cox 9. Hakes, (1890)
15 A.C. 506 at 528 ; Vickers v. Eva1LS, (1910) 79 L.J.K.B. 955,
followed. The duty of the Judge is to endeavour to apply the
law corr<!cHr a$ he finds it. and in a liberal spirit and withont
.any bias. It is not the province of a Judge to inquire into tf1e
wisdom of the legislature. lie is.. to administer the law as he
finds it and he is not to be in8uenced by his own personal
conceptions of propriety, or non-propriety, of the piece of legisla-
-tion that comes fN' conaider~tion before him. The Court shodd
not Jrive rigid definition of words not defined by Legislature.
The Sociali.;t Party in Burma has large representatives in the
Parliament of the Union of Burma and has numerous rriembers
.or adnerents in diffeunt parts of tee country and it is not' that
class of political party which is likely to disappear or beco!ile
defunct when any of its leaders leaves it or dies. It follows
certain political ideology which is different from the ideologies
<fo!Jowed by other parties in the country. It is a well-known
. political t'rganization with three of its members in the present
Cabinet of Ministers its memoers form an ascertainable portion
.0 the reside:nts of Burma. Th~refore the Socialist Party is a
~ection of- persons resident in Burma within t.h e meaning of
:s. 4 (1) _(.d) ~ct.. Rai .Pal v. The
.. of Press iEmergencY.. Powers)
.
xlviii GENERAL INDEX

PAGE
Crown, (1922) 3 La h. 405at 413; "lmtasklt" of Sylhet atld others,
(1932} A.I.R. Cal. 649; Emperor v. Miss Ma11niben h Kara.
(1933) 57 Bom. 253 at 259 ; Kamal Sircar v. Empet-or, (1937)
A.I.R: Ca!. 691 at 69.4; Ki1tg-Emperor v. Benomali MaTtarana,
(1943) 22 Pat. Series, 48 at 53 : E111peror v. Miss Manmbett,
I.L.R. (1933) 57 Born. 253; Re." The Co-operative CaPital Pre1s,"
Lahore, (1949) A.I.R. Lah. 218 at 228 ; Amne Besant v. Advocate-
General, Mad.r as, 119~8-19) 46 I.A. 176 at 195-i96; 43 Mad. 146,
referred to. Narayan Vasudev Pflatfke v. Emperor, (1940) A.l.P..
Bom. 379 at 381 ; In the Matter of ' Nawai Waql Dailj>," La/l(we
v. Crown, (1947)28 Lah. Series, 497 at 514 and 561-562 ; " Daily
Zami11dar,'' Lahore v . Emperor , (1947) A.J.R. Lah. 340; "The
Zami fldar," Newspaper, Lahore, (1934) A.I.R. Lah. 219
al 226; view of some judges dissented from. In the
Matter of "]aJtg-i-A:sadi , Lahore, (1948) A.I:R. Lah. 6,
referred to. The intention of the author for the purposes of
the present case is entirely immaterial. In considering the
question it is the duty .o f the Court to have regard to the
surrounding circumstances ; for instance, the c:mtext in which
the words appear, the persons to whom the words were addres-
sed, the political atmosphere in which the words were delivered ,
and the . place where they were published. "NawtLi Waqf
Daily," Lahore v. The Crown, (1947) 28 Lah. Series, 497 at 514
and 561-562; Re. "A11andabnzar Patrika," (19331 60 Cal. 408;
ln lh e Malterof" TlleStm Press" Lim1tea, (1935) D Ran. 98; !11 .
Re. "Saptalt" rmd In Rc. Benoy Kumar, (1949-501 54 C.'\V.N.
334 ; S. N. S. Mudalittr v. Tl1e Secretary of State for lndia-iii-
Couucil, (1932)10 Ran. 165 at 169, followed. Honest or legiti-
mate criticism in a democratic country is not only desirable but i.t
o!
may be regarded as a source strength in the healthy growth of
. a d~mocracy. It .is in the interest of the public and of the
Government, that a writer or a critic should be free to write en
all subjects or topics so long as be does it temperately though he
may use strong or severe expressions here and there. Every free
man has an undoubted right to lay what sentiments r.e pleases-
before the public, to forbid this is to destroy the freedom of the
Press. One po!Hical organization is enti~led to criticise and
even attack another political organizat!on but such criticism-
and attack must be legitimate and not prohibiterl by law.
An11ie Beastmt v. Advocafe.Geltera'l of Ma1dras, 11918-19) 46
I.A. 176 at 1.95-196; 43 Mad. 146; Ma Khiu Thai/. v. The
Commissioner of Police, Ra1tgo011 attd Otte, (1949) B.L.R. I 3 at 16.
followed. The general effect of the article in question must be
considered to be one which tends indirectly at least to c.reate a
feeling of hatred or contempt against'the Socialist Party in Burma ~
Unclt>r s. 114' read with s. 56 of the Con3titution the Cabil1et oJ
which.the Prime Minister is.the head constitutes th~ . Government_
for the purpose of s. 4 (1) of the Press (Emergency P owers) Act.
The article was not directed agatnst the Ministry as a whole,
Per U Ainw T nA GyAw, J.-That the words ''class or section" .
ins: 4 11) (dl' of the Press (Emergency Powers) Act do not include
auy p -.Jitical party like the Socialist Party in Burma. R.e:ad in
the li~ht of the principles laid down in decided cases referred to
the article does not c.ome within the provisions of s. 4 (1) td) of
the Press (Emergency Powers! Act. Rend as a whole. in a liberal
and detacMd s pirit, what an qrdinaty reader would understand
.is that predominant' political party .in the country was goirig to
assume complete control of the. Government machil;ery. . and
that certain unfavourable and undesirable consequences were
..likely to happen if such an eventuality took place. In tltc. !.fatter
~the Irzdian.Com~anies Acl VII of1913 and4>/!lteTraders' B~thk
 GENERAL iNDEX xlix

PAGB

Lid., Lahore, (36) A.I.R !1949) Lah. 48; iii lfze Mailer <'/
"The Co-operative Capital Pre.<~," Lnllore, U949) A.I.R. Lah. 21 :>
at 227 ; Annie Bcsnnt v . .'ldvocale-Getteral of Madras. 11920}
I.L.R. 43 Mad. 146 at 163-164; 46 I.A. 176; Raj Pal v.
The Crotl/11,(1927) 3 Lah. 405at 413 ;28 Cr.L.J . 721 ;Jaswaul Rni,
5 Cr.L.J. 439; Chanwpati, 13 Lah. 152 (S.B) ; Munshi Singh,
10 Luck, 712 ; In Re. Jomzalagadda Ramlinagawz. (1937) Mad. 14 ;
Manohar Dl1110da r Pafil and a11o/her v. Tile Govetnmett.l of
Bombay, 0950) Cr.L.J. Bom. 829; Kntragadds Rajagopal<t Rro
v. The Proviuce of Jlladr.1; (1949) I.L.R. Mad. 149 at 157 ;
"Co-oPctative Cnpi!al Pres~." Lahore, (1947) I.L.R. 28 Lali. 497;
EmPcrol' , ... Mi~ Mauniten. I.L.R. 11933J 57 B<im. 253; lu the
Matter of the Newspaper ' The Vail.J Prntnb ", 51 Ct.L.J.
East Pun. 725 at 727 ; ' ' Co-operative Capit'al Prers," Lahore,
(1934) A. I.R. Lah. 219 at 225 : Urdu Daily Newspaper
"Pratab , Neto Delhi v. " The Crt>um, A.I.R. 36 (1949) East
Pun. 305; l1z t~ze Matter of" Jang-i-A za'di ",Lahore, A.I.R 35
(1948) Lah. 6 ; S. Gurbakhsh Singh v. EmPeror, 34 A.I.R. (1947)
Lah. 361 ; Mrs. Annie B~sant v. ' 'Emperor, (1916), I.L.'R. 31')
Mad. 1085; 1o!a11omoha11 Ghose v. E>~~peror, (1911) J.L.R. 38 Cal.
253, followed.

U ON KBIN v. THE UNION OF BuRMA 226

PRINCIPLES ON WHICH APPEALS A RE ALLOWED IN LA~D A CQt'!SITION
CASES .,, : .. .. < 415
PROOF OF EXECUTION AND ATTESTATION; PRINCIPLKS INVOLVED ... 326

PROPERTY WHETHER INCLUDES DEBTS AND' CHOSESJ!\-ACTION 300

I

- - - -- JOINTLY ACQUIRED BY BUDmiiST COUP LE AND MORTGAGED

BY ONE OF THEl\f 382
PROSECUTION, MEANING OF 388

QUESTION OF LAW AND FACT- \11/HAT ARK 341

RANGOON MUNICIPAL ACT; S. 80 ,,, ... 100

RECONSTRUCTION OF RECORD 139
REGl.S TRATioN Ai:T, s. 49 . '313
REMISSION OF PORTION OF CLAIM 17
REMOVAL OF ROOF BY LANDLORD 77
REM.UNERATJON OF . BROKER, WHEN H E is ENTiTLED TO 40 ,
RENT REFE RENCE PROCEEDING NOT REVI~ABtE BY H iGH COURT UNDER
S.ll5 OF T H E CIVIL PROCEDURE CODE ., 368

REyiSION UNDE R S. 115 OF THE CIVIL P ROCEDURE CODE ... . 161

----AGAiNST INTERLOCUTORY bRDElt ... 48
- - -. BURDl>N OF. PROOF ~IISPLACBD
/
AND EASF. WRONGLY
. DECIDED.
. . 222
..,. /
SALE oF. .G<>Oos
. AC'r;.s.'2 (9J
. ... . 312
 GENERAL I NDEX

PAGE

SECOND APPEAL UNDER CIVIL PROCEDURE COD, S. 100, CLAUSES (a)

TO (c). Held: Where the question before tile Court was wheU\er
there has been a material alteraHon of a promissory not e by
change 'Of figure "1" an<! word" one" to figure" 3" and word
"three" and on .evidence on record both the Courts found in
favour of a party; snch finding is one of fact. the matter cannot be
agitated in second appeal in the High Court. If there is no evi-
dence at all or the Courts fail to ;~rpreciate or determine the real
question of fact, the matter will be one of. law. Damusa a,zd
attother v. Abdul Samad atzd others, A.!.R. (1919) (P.C.) 29; Sheik
Rahmat Jllalti v. Mohammad Hayat Khana1u:l others, A.I.R. (1943)
(P.C.) 208; Mussamut Khoob Conwur atzd others v. Baboo
Moodllarain Singh and otlzeJs, 9 Moore's I_.A. 1; Petambers
Ma11ik-Jee ' Mot ee Chutzd M?-"ik-Jee, . I Moore's I.A. 423;
Mt. Anupa Bai v. Bhagwa11l ~ingh and others, (1938) Nag.
470, distinguished.
u SAN GY\VE v. HI.RCHAND K ALIOAS 469
SENT 482
SHALL BE LIABLE TO CO:.IF!SCATION, MI?.ANING OP 59
SPECIAL JUDG ES ACT, 1946, S. 2-A-Spedal ]miges (Second '
Amtt~dmeut) Act, 1947, s. 2 and s. 4 of Courts Act , 1915. Held
by t /le tFull Bench : Where a Magistrate, who. h~s also been
appointed a S!J~Cial Judge, tries a warrant ~e as a Magitrate
in a case in wl:ich a Magistr.lte has power to try and lhe senlenc:e
passed is a sentence which a Magistrate could.properly. in8kt,
it cannot be presumed that he has tried the case as a Srecial
Judge, merely beeailse he follows the pmcedure prescribed for
warrant cases. In a case tried in Ran~oon, where an appeal lies,
it lies to the High Court under snb-s. (21 of s. 4 of the Courts
Act, 1945 and not to the Court of Sessions. San 1'iu v.
The King, Criminal Appeal No. 682 of 1946, High Court,
Rangooa, distinguished. Matmg . Chit v. The Ki1zg, Criminal
Appeal No. 157 of 1946, High Court, Rangoon; Nadar Alam
Kllan v. Emjletor, A.l.R. 11935) Peshawar fO$ at 109 ~ Rama-
clzMtdra Gauesh Khadkikar v. EmPeror, A.I.R. (1933) Hom. 58.;
T ile l:hziot~ of Burma v. Bet Ktri a11d five others, (1949) B.L.R. 107,
referred to
THE UNIO~ OF BUilMA v. MA AH MA - (F:B.) .~. 1
SPECIA~ ]UDGF.S ISi>?OND AMENDMENT) ACT, 1947 1
SP,ECIFIC RRL IEF AcT-S. 42-Suit for bare declaratio1~ tltat order o.f
the Rent Co11toll.:r czssiklling the tenancy ~oid-Wfltthcr snch
sui/lies-Jurisdiction of the C1vil Court-If oustc4. Held: That
where a tenant sub-let a room to a sub-tenant and the sub-tenant
failed to pay the rent and the tenant gave notice determining the
sub-tenancy and theredfter the sub-tenant applied to the Rent
Controller for assign!llent of tenancy to him and the Rent
Controller passed an order assigning the tenancy without any
notice to the tenant, the tenant is entitled to file a- suit for
delaration tlJat the order is void and not binding on him.
Under such circumstances, a snit for bare declaration lies.
Unless the jurisdiction of the ~vii Court bas been expliciUy or
by ne::essary impl~catio'n, excluded, a Civil Cour t was entitled to
entertain a suit . concernirtg.the Civil right of a liti~ant. 'r.he
Urban Rent (.;ontrol Act does not exclude the jurisdiction of the .
Civil Court.. Secretary of State v. Mask &. Co.. , A:I.R. (19401
{P.C.) lOS, followed.
S. M. AHMED A'ND ON.E fl. BAKRIDI ...... 156
 GENERAL INDEX

PAGE

SPECIFIC REUI!.F'"ACT, S. 45-A 476

STAY OF CIVIL SUIT PE:-IOING TRIALS, l'O l'ROVISION 316
Sl!BSTITOTION OF NEWTER~IS A:-10 CJNOITIO~S FOR STAY OF XECUTIO~ 31!5
SuccEssro!-1 AcT, s. 232 326
SC!T FOR BARE DECLARATl0::-1 TIHT ORDER OF RENT CONTROLLER
AS.>IG~ING TENANCY VOID; \\"HETti ~:ll SUCH SUJT LIES... 516
SUIT FOR ~lA LlCIOUS PROSECUTION-.lifauiug of tlte 1CII>I'ti (Jro.\eW-
tion "-Wisether mit for malicious prosecution lie if dejell-
dcml files a11 applicatiou uud'r s. 145 of tl:e Crimi11al
ProcedMe Cude aud obtaim au attachment. Esse"tial poHlt.<
to be proved i11 a suit tor malicious prosecution. Held: The
word "prosecution " in a s nit for malicious pro~ecution should
not be interpreted in a narrow and restricted sense in which it
is used in the C 1de of Criminal Proce.:ure. It is not tssential that
the original proceedings should have been of such a natun: as to
1 ender the persons against v,rhon it was taken li:\ble to be arrested,
lined or imprisoned. \Vhere there has been deliberate ab1:se of
the process of the criminal court and salutary prO\'iSions framed
by the legislature to secure the' prevention of offences have been
utilised maliciously and without reasonable and probable cause
for lhe harassment of the plaintiff who has thereby suffered
damage in reputation ancl property an action for malicious
prosecution or malicious abuse of judicial process is maintainable.
C. H. Crowdy v. L. 0. Reilly, 11912-13) 17 C.W N. 554; Bishuu
Persati Narai11 Singh aud nnotller v. Paulma11 Singh and others,
(1\114-151 19 C.W.N. 935; Jagdeo v. Dwarka, (1947) I.L R. 26 Pat.
68: Mohamed Anzin v. Jogendra Kumar Banner}ee anti others,
(1946-471 74 I.A. 19], followed. In a suit for malicious prosecu-
tion the followin~ points should be provecl :-(1) that the plaintiff
was prosecuted by the defendapt 1 (21 that the proceedings
co:nplained of ter minated in favour of the plaintiff, {3) that the
prosecution was instituted without reasonable and probable
cause, (4) it was due to malicious intention of the ddendant and
not with a mere intention of carrying the law in~o effect.
HaTbhaddarSingh v. Badri Sal,, 1 Luck. 215; U Soe v. bfaung
Ngwe Tlla and others, (1927) I.L.R. 5 Ran. 705, followed.
K. K. s. KADER MEBRA' v. s . .P. M()HAMED ABUBACKi!R '&
BROTHER AND ANO'I'IIER 388
SUIT FOR MOI'lEY LENT A~D ADV~NCED; WRETHR USUFRUCTUARY
~IORTGAGEE CAN SUE 105
I F. LIES WHEN MORTGAGE DOCUM.E:ST INVALJO 373
SUIT FO~ SPECIFIC PERFORMANCE AGAINST PARTY TO AGREEKE~'T
JmplcarliiiR ofPttrchasers' wit/1. rtOticeo,t such agrfemerd-Witether
misjoinder-Specific Relief Act, s. 27 (bl. Petitioner sued for
specific preformance of eo:mtra,ct to sell a house against the 1st~
Respondent who was party to the agreement ::.nd RespoJ:idents
Z, 3 and 4 as purchase.r s with notice of the agreement The
Di$trict Judge recorded a finding that the suit was bad for aii.s -
joinder of the subsequent purchasers and thaf plaintiff should
elect to proceed with one claim in his suit. Upon r'evision-
_Held: That a person with knowledge of a previous contract'to
sell purchase.s property, the purchafe is voidable at the option
of the prior promisee afld the contract can be enforced specifically
again.st the subsequent purchaser. The. ,Proper decree in a suit
Iii ~ENERAL INDEX

PAGE'.

for specific performance of a contract to sell land when (he same

has been sold to a third party subsequent to the contract with
plaintiff, is to direct the subst:quent purchaser to execute a
conveyance to the plaintiff. Under s. 27of the Specific Relief
Act a contract can be specifically enforced not only against the
parties to the contract and the parties claiming under them by
subsequent title but also again~t persons claimhig u.nder
a tiUe which. might have been displac"d by the defendant.
Consequently the facts in the present case do not warr<mf
institution of a separate suit and the suit as iramed was
competent. T. Rallgayy.t.Reddy v. V. R. Subran1a1~ia Ai:>.tr aucl
others, 60 M:td. 365 ; Nilai La! Dnl/a v. Gobinda Bhush.:m Se1~
a11d others, A.I.R. (1936) Pat. 142, distinguished. Gulliftilli
Ramub and others v. Kokktl Vcnkalasubba Rao and others,
A.l.R. (1944) 31 Mad. 554 : [(ali Char em Sifl.f,h anrl a11ot!Jer v.
lat1ak Dco Siuglt and others, A.I.R, (1932) All. 694: Kaush.i
Ram and auot!Jer v. Ishwarttas aud tmo!hcr, A.l.R. (1923) Lah.
108 : Sltanmuklta Madan a11d others v. A runachala C!uttyar and
other.s, A.I.R, (1922) Mad. 332; Gaur1silankar and others v.
lbralzim Ali, A.I.R. (~929) Nag. 298, referred to.
Ko PHA~ NGA v. DAW PWAY AND OTHERS 457.

TEMPORARY INlUNCTIONs-Grantmg of injunction ex parte-PrinciPles

goveruiug-Deviatio1/. from ordtnary course-Irremediable
inJury to be maclc out. Three ~uits were fikd in the. Cit)' Civil
Court by the respondent, John Huie, against the two appellants,
S. Nade~an Pi !lay and K . M. Chidatnb:uam Chettyar and three
other~, who are foreigners living in Madras for declaration of
title to four Tamil Talkie Pictures, for their possession and for
injunction restraining the appellants from exhibiting the said
Pictures either in Rangoon O( anywhere in the Union bf Burma.
Together with the institution of suits applications for issue of
ad interim inj\lnctions were filed and the application in eac h of
the thr<!e suits was granted ex Parte as prayed, Held :That
suffici.ent materials must be btfore tht: Court to justify t~e grant
of ad interim injunction c:x parte. Such materials as would
justify the Court in granting an ad i11teri111 injunction ex parte
are (1) the alleged existel"ce of a bona fide dispute as to title to a
property, (2\ that such property in dispnte is in danger of being
wast eel, damaged, or alienated by any party in the suit. (3) that
such danger or such threat of danger shnuld be immediate, and
(4) that any consequent injury likely to be occasioned to the
parties disputing the title would be irrepara)fc and not capable
of beibg compensate? by damages.
S. NADESAN l"tLLAY ~ND ONE 11. JofiN Huu~
!
TENA:.IT :ENTITLED TQ DJiDUCT AM!)UNT ovER-PAiD 131.:
TRANSPER OF . IMMOVEABLE. PROPERTY (RESTRICTION) AcT, 1947~
ss. 3- AND 5-Union Citizenship Act, 1948, s. 6 {2)-Purchasc of'
tmnt(JIJeable property by aforeiguc,r who !lad not. yet obtaitze4 a
"rtijicate at the 4afe of pttrclt,lse'-Effect of subsequent grant of
certi'/iflle-Code of Civil P1oc.edure, Order 4l,'R11le 27 Admis~io"
of documet%l. Eleld i When~ the plaintiffs purchased immov~:able
property ont.he :Z~rd March 1949 before they obtai~ed certificate
of . Citizenship. under the Union Citi;~;ens~ip Aet' of !948, . . .
but obtaine? such certificate durin~ tt)e pendency of the '
suit :which ~enUoned t.h at. he was .a dtizen of' Burma . fronj. . ;, .
 GENERAL INDEX Iii f..

PAGE -

4th J:muary 1943, the subsequent grant of certilkate would have

retrospective effect. and would validate the sale nu the 23rd March
1949. Where a certificate was not produced by a p-arty and
which was granted after institution of the suit, th E' Court would
receive that certificate under Order 41, Rule 27 of the Code of
Civil Procecltire ii tlie Court thc;ught that s1:ch certificate was
necessary to enable it to pronounce its judgment.
~fAU NG TIN A:-ID ONE 'IJ. u Po NYAN ANO O:"E

T RANSFER oF. hi~!OVKARLE PROPF.RTY IHES'l'RICTIO:") i\cT, 1947 ss. 3

AND 5- '' Foreiguer ''-f!wou of'Burmtr tlrlaptalion (Laws) Onter,
19:f.:J.- B,liliff conducting aucti011 i:; ' ' person " under Ge1tcral
Cl aus::s Act-Order 21, Ruk 91) of /li e Cod.; of Civil Procetlure
whether applies to illegal Sale:;. Held : That the purport of the
T r ansfer of Immoveable Property !Restricti(,n) Act, 1947 is to
prohibi: the transfer of immoveable property to a fo;ei~ner except
in the circumstances permitted undt:r the Act. All transfers
contrary tc.. the Act are void ab initio, and the Court h:!s no
jurisdiction to sell the property to a foreigner. b.'!uaraJm<~L v.
Daim, (19\15) 32 Cal. 296 at 311, cited and relied on. The Bailiff
who conducts the auction in a High Court sate is a " person "as
defined in the General Clauses Act. He could not sell immoveable
property to a foreij!n er" in contravention of that Act. Clza11 Eu
~ Ghai v. Lim Hock Set1g (a) Chi11 Huat, (1949) B.L.I~. 647, relied
on. Order 21. Rule 90 of the Code of Civil Procedure does not
apply to an ille~al sale, ancl the sale to a foreigner is void ab initio.
P.R.P.L. RAl!o{ASWA&IY CHETTIAR AND OTHERS v. 1\:IA AYE AND
ANOT HER 320"
TRANSFER OF PROPERTY ACT, S, lOti (f) 17 .
- - -- OF SUITS 24-

U NION or: BU ftMA ADAPTATION (L,\WS) ORDER, 1943 32 0:

- - CITIZENSHIP ACT, $, 6 (2) 197"

U NION CITIZENSH IP ACT, 1948, S. 9 (2)-A pplica/ion by a 111ittcr of

foreign llaliOIIality for citizt~lsfliP whtt fter maintai uabje.
Held : That a person who has not attained the a~e of majority . .
is not competent to act and cannot therefore make an election to
become a citi~en of the Union inasmuch as such election would
in effect operate to divest hi.m of his presen t foreign na ti'onality.
THE HoN'BLR MIN ISTER I N CHARGE OF JU~DtCIAL AFFAIRs
'o}" T HE 'UNI ON OF' B U RMA v. AR TUN : . 12:h .
U NION }UDICJARY ACT, 1948, s. 5-ValuatiOII fo r tile Purtose of
a PPea!-Modiftcatiofl of the judRmerlt of fht trial co11rt whether
such modification ca" be call ed a ffirm arlee of the dccisio11. In a ~
suit for recovery of Rs. 34,471 a .decree for Rs. 32,271 was passed
in the trial Court and' in appeal this sum was redtced to
Rs. 19,771. The plaintiff apr,Jied for leave to appeal to the .
Supreme Court, and the question a rose whether the judgment of
th<: trial Court was a~rmed by the judgment of the Appellate
Cour t . . H elf( : That this was not a case of affirming of a. juclgruent
within the meani ng of _s. !i of the Union Judiciary Act. KumaT
.Purnendz~ Nath Tagoie atld. other~ v. S rte Sree Radhaltanta Jew,.
~ U949-SO) 5.4 C.W.N. 528 at 539 ; Abd11i' Sam ad Amari at}d one v.
Mt . Aishd .Bibi and ot hers, A.i R. (3';) (194SJ Oudh.76 a.t ~'J7;:
Iliv GENERAL INDEX

I'AGE

Natllu Lal v. Raglmhir Sittgh a1ul others, (193~) 54 All. J46 at

149; Raja Brajasundar Deb a1ul others v. Raja Raje1tdra
Narayan Bhanj Dco, (2l>) A.I.R. (1941) Pat, 269 at 276 ;
Am1aPuruabai and one v. RnPrtzO, 51 Cal. 969, followed.
A. C. AKHOON AND ONE V, A. ~ABIB 95
URBAN RENT CONTROL AC1' HOW FAR EXCLUD~-S JURISDICTION OF
CIVIL COUNTS 156
URBAN RENT Co:-;TI~OL AcT, s. 2 (d)-Premises-Ejecln:ent of
occuPan~. 11 (1} whether applies lo permissive occuPMiou-
S. 17, City Civil Cou rt Act-Application U11der-APPeal.
Jrel.d: That s. 2 {d) of the Urb3n Rent Control Act defines
premises. S. 11 of the same Ad refers iu every one of its
clauses to "tenants". N()ne of these clauses apply to a person
merely in permissive occupation o( the building. By the amend-
ment of the definition of premises " under s. 2 (d), all persons
in occupation of premises do not come within the ambit of s. 11 ;
otherwise s. 13 providing for ejectment of persons permitted to
occupy premises under s. 12 would be redund:l.rt and therefore
this could not have been in the cQntemplation of the Le;!islature.
The mention of the Hangoon City Civil Court Act ir. s. 11 (I) of
the Urban Rent Control Act does not affect the provision of
s. 17 (l) of the former Act. No appeal lies against the order
nnder this section. Saw Chaitt l'oo, .v . Tan Choo J(c11g and tl11ee
others, t1947)R.L.R. 23, followed. ln special circumstances, in
the end> of justice, a Memorandum or appeal can be converted
into one of revision.
ABDUL HAMEED V. s. A. ABDUL HAMEED 394
f.URBAN RENT CONTROL ACT, SS. 5 and 17'-Contracted rent greater llta11
the Sta,ll:l:ard Retd fixed lafer-lf!!.ether tenant mtitled.lo dt:ducf
the amotmt !J...'!.f!.~J.fl.JJ;l..i..iJ.(cy..W,g..suliS.e4ueiil.Jjlit. Htld: where
tfie tenant paid rent fo_t:..lAW:..JJlOJl!.l.l-'!..ilJ..tlllt~!..!:.li~.lli!. the.
~tanctard _l{_~j_wasli!~x..fix.ed..at..a. J.o~\!.el.:..rate,_ th~ tena~n
htled t.~_?uct frot~~_f~~-!:S!}.L!l;l~~ld in excess dunng
those four ffi0.4'tlls:'" Any sum m excess of fl'i'eS'iandard Uenl
payatmniffei"l'he'Urban Rent Control Act has come into force
shall be considered irrecoverable by the landlord. S. t7 il) of
the Ac~ should be given a liberal interprc:tation.
KO THAN NYU NT v. MAUXG KHIN MYINT \ 124
''URBAN REN't CONTROL ACT, SS. "10 and 17 -Ra11g0o11 !rltmicipal A.ct,
s. 80. Held : That where ~tandard rent bad been fixed and a
t~a.nt hac! paid to the landlord more than tbs.,.s.taii!Lita:::i'.airhe
is enhttM to deduct the excess paid within six m-:>nths from the
rent due. Onder s. 80 of the City of Rangoon Mumcipal Act
taxe' are pa.yl\ble not only for the house.but also .for the land and
if the clefend~)t erects a house on a land belonging to his
lapdlord it will have to be ascertained what proportion ~f the
<>Taxes are for. the land and ~vhat portion for the buiiding.
W. K. G. PILLAI 'IJ. BALTHAZAR & SoN, LTD. 100
f(J.RSAN RENT CoxTROL ACT.'-S. 11 {I) (a)-Notice mtder-Wltetlter
must , (~i:h. addressee-'' Sent "-c;.;,.tertil Clauses Act, ~; 27-
Hel4 : S.Jl {l) (a) ofthe l,Jrban Rent. Control Act provides that
a written c;lemand for pa-ynient of rent mtist be sent to the tenant.
by. registered post and not comolied with for thn;e week9. .
Neither under s. 106 nor s. 100 (gl of th~ ~r:msfer of ~operty
Act is it ~tated ' that the notice should reac-h or he received
 GENERAL INDEX lv
PAG~ :

bv the addressee. Under s. ll (t l (a) of the Urbln Rent

Control Act all th;~t the law requi res is that a ncotice he ~cnt and
non-compliance for t!lree weeks ,tlltrcarter. L. C. de Soutt~,
Cawn/>Ore, !\.I.R 11932) All. 371 , rderred to. K. Ill. Modi v.
iVolt an;ed S iddique nfl(i auotller, (1947) RL.R. 423 at c!6l-463.
followed. Under ~. 27 of the General Clauses Act there is a
rebut:able presumption that a notice properly addre~setl and se11t
by registe~cd post reached the addressee in proper !ime. Even
if in a notice to a tenant 4:> months' rent be demand ed when
claim for four months has become time-barred, the <'emancl is nCit
illegal. Rights as to part may be barred but they are not
extingl.ished and will be held to be actua lly due.
NAGESWAR RAO OUNGA R)IULJ. MAHADEV
MULLAlY A
v. MOLCHAND___ . 482'
URBAN HENT CoN'rllOL ACT. s. 11 (1) (b)-Owuer requiri11g premises
for bona fide ereding a building. Held : That where the previoi!S
owner has allowed" person to construct a permanent snb~tantia l
building: on the land without granting him any lease or any right .
over the land and then sells the l<~nd t'> anotl1er person and the
pu:cha~er requires the land bonli fide or erecting a building,
he is .:ntitled to .:ject the defendant. The fact that the deend<tnt
has btlilt a permaned substantial structure is no ground or not
p~sing a decree. ~o title to the land of the value of more than
Rs. 100 can becreate.t without a rej,!istered deed. Kanftaiyn C.al
and anolltcr v. Abtlnlla. (1 936) A.I.R. All. 385, r eferred to
Ko Wf. N AH v. Ko TU~ SEIN A:-\0 TWO OTHERS 188 :
U.lmA:o-;RE;-e CONTROL ACT, s . 16- Failt1re to attach c..:rtificn fc wili'
plai1d-Clnimfo' recovery of reut. Held: That the wordi ngs o
s. 16 of tl:e Act is imperative and the Civi! Courts ha\c no jurisdic-
tion to entertain a plaint for n:covery of rent unless it is
accompanied by a certifica:e oi Standard Rent granted bv U1e
Controller of l~ents. In the absencelof such certificate the olaint
should be rejected. Woodward v. Sarscns am{ Sadler, 11874-75)
L.l?-., 10 C.P.C. 733 at 746 : Barker v. Palmer, (1!181-82) L.R.
8 Q.B.D. 9 at 11, referred to.
KANAM-\ t/. HUSSEIN B UKSH .K'HAN I .C:D-

URB..l.~ RENT CONTROl. ACT, 1948, SS. 19 11), 22 (11 ANI> 5-Vccisioll
rmder~lf rroi~able by High Court u11der s. liS of lfe Code of
Cit'il Procedure When by an Act of Legislatu re a new authority
is constituted fC'r determining questions which are the creations
of the Act and a Judge or Presiding Officer of the Court as distinct
from the Court is directed to perform such unctions it must be
. presumed, in the absence c.f express enactment or necessan
implication. the intenion of the le_gislature was that the ]l:d~e or
Presiding Officer is a Persona dcstg11ata. Decision under s. 22 o
the Urban Rent Control Act fixing Sttl.tldard Rent pon. a .
reference froh1 the Rent Controller is no! subject to revisicin by
the High C<lurt under s. US of the Code of' Civil Proced ure.
MahomedEbrnhim M(}()l/a v. S. R.Janda~. tl L-B.R.387: K.A M.
Moltidee-t~ v. Bukshi Ram. I .L .R. 3 Ran 410 ; H. D. Chntteriet "
L. R. tribedi, A.I.R. (JQ221 Cal. 427; Naranaravan Maii(Lrlv.
Aghorechondra Ganguli, l.I:..R. 63 Cal. 136 :C. K. Ramaswami
G0111tdan v. Muthu Velapjla Goumian ntufothers, A. I.R. (19331
Mac1.192: Sltah Chaturb.huJ v . Sftah ManjiRam,A.I.R. (l931l) All.
_ 456 : K. Part hasaradhi' Naidu Garu v : C. 1(otrswar4 Rao Ga ru
and a11other, A. I.R. (t 924fMad. 561 : Thakin Jtye Maung v. The
Hot:;ble Justice (., Aung rha Gyaw anc;t others, (1949) B.L.R. 188:
.l:vi GENERAL INDEX

!S.C.I; 1'/u Mu1ticip,rl Corporuliort of Raugoo" v ..M'. A. S/takur,

J.t...R. 3 Han. 560; H. A. Aziz v. KtLyoboy, l .t...R 4 ~an. 304 ;
11 Sa Pe,and a11otller v . U Ba Sllwe artd. otl~ers. I.L.R. 11 Ran. I,
re 1 erred to.
U HlA AU::-IG U SEI:-1 THA:-IT
U HLASAU~G A~D OTHERS v. U I'HA~ NGA AND OTHERS 368
>-USOFilUCTUARY )IORTGAGE l='VALID FOR WANT' OF UEGlS'rRATION-
,,.../tel/ur plaintiff catt sue for mouey lent a11d ac/,a~tutt. Held:
Though a Jom pr.ima ftrcre involves a personal li:-sbilit)' and
such li:-sbility is not displa,ced by the mere fad that a security has
been given for the repayment of the loan with i ntc;est but the
nature and tenns of such l!eCurily may negative any p~:rsonal
liability on the part ot the borrower. Ram Narayan Si11g/t v.
Adhindra Natll Mukerje, (1917} 44 Cat. 38$ at 400, followed.
An usafructuary mortgaj!.ee cannot maintain a suit for a personal
decree in the absence of a specific covenant. Gafalasamt , .
Arunaclsella, (lll92J 15 Mad. Series, 304, followed. ln India a
mortgage does not necessarily import a personal obligation to
repay. F. H. PeU v. M. Gregory, (1925) 52 Cal. 828 at 8431 844,
followed. Maung Kyiv. MaMa GaLe, \1919-20) 10 L.B.R 54,
distinguished.
NANA MEAR fl. SmDIQOE AHNED ... 105
' VALUATION FOR THE PURPOSP. OF .~PPEAL TO THE SUPREME CoURTr 95
;wAIVER OF RtGHTs-Rig lrl to address Cot~tl under the Provisrons of
Order 41, Rule 11 (1) of the Corle of Civil Procedure- Whet Iter
can be warved, Held: Where a rule has been enacted solely ~or
Lhe protec\ion of a class of pefl!uns an d their cctates, and not upon
grounds of public policy or interest of the public generalt), then
the person in whose favour the r 111e operates may by his conduct
debar himself from the ril!ht of insistin~ upon it~ enforcement.
Thn~ where an advocate engaged b y a party had the right' or
being heard. waived tha t right an d filed written argument. then
his cli ent cannot make failure to hear th e a<lvucatc a eround of
appe;1l. The right to be heard has becu waived. Sa.slti 8/lusa"
Trasad. Si11glt v. Dalip Nnrairt Si11glt anrl olllu.<, .-\.I.RI\936) Pa.t.
75; Burmalnaurlan Prasnd v. Tile U11-1tetl Rcfinr;ries Ltd. and
ollters. 11 Ran . 79; R.aia. Shyilnt S1111rltr Singh 1111d ot/1crs v.
Ki'luram Agarwdla aii(J, others , A. l ,R. f193S) (P.<.;.) 230.
referred to.
DAw CHI v. t.1AO~G CHET 463
"WILL~PROOF OF EXECOTIO~
AND ATTESTATION-PrittciP les
iln;olved-Onus-Lelters of atlntim~trat,on u>itlt Will rmnexea-
G;rant of -s. 232, Su,cession Act. Held: Tliat under s. 232 o
the Succession Act a residua1y legalee may be admitted to
prove the willmd Letters of Administration with Will annexed
may be ~ranted to him to the whole estate or tbe unad:ninistered
part. The principles involved with reference to proof of due
execution and at~estation of WUJs are well.settled. The omlS lies
in every case up(>n the party ptopbunding the Will and he must
sati$y the consc~nce of the Court that the . Will is the last will
of a free and.capable Testator. If a party .writes or prep~ res a
Will. under which tJe.t!lkes a benefit, the Court must be judicially
..
satisfied that the Will expressestl)e true intention o the deceased
.. and the Court mu.st be vil!ilant and jealous. in cx~miniop: the evi-
: den'Ce in support of the sa.me. Bar ry v._Butlin, t183S) , 2 M oore~
 GE~ERAL I NDEX lvii
PAGE

(P.C.) 430 : T:JJrrel v. Painton atJd anot her, 11894) L.R. Probate
Division 151 ; William Robins v. Natioual T rust Co. Ltd. aud
others, A.I.R. (19271 (P.C.) 66: Eusoof Ahmed Scma v. [St11ail
Ahmed Semaa11d others, A.I .R. (1938) Ran. 322 ; /a rat K14wari
Dassi v. BisseSS14r Dutt. 39 Cal. 245 : Harmes and 1111ollier v.
Hinkson, A.I.R. {1946) (P.C.) 156 ; Parka 1111-ianother v. Felga/e
.a11d Tilly, (ISH) L.R. 8 Probate Division 17! , r.:fened to. \-\I here
a testator is ?f sound mind and gives instructions for a \ Viii a nd
accepts the instrument drawn in pursuance thereof at the time of
signature he must be deemed to be of sound mind when it is
accepted. Perrra atuf. oth~r v. Perera t111d nuotlur, (1901) A.C.
354, referred to and followed.
DAW NGWE LA Y II. W. COOPER AND ASOTHP.R 326
WRITTEN STATEMENT FILED BY FOREIG~ER THROUGH AGENT
CLAIMING EXEAfPTION FllOM ] URISDJCTION OF C01,;ilT. EFFECT OF 21l

G,U.B.C.P.O.- No. 3; H.C.R., 24.5S- - 11.

 BURMA LA\\. REPORTS.

FULL BENCH (APPELLATE CRIMINAL).

Before U Tun Byu, Chief Jus:icc. U On Pc tiwl U Ro Gyi, J J.

THE UNION OF BURi\TA (APPLICANT)

v.
MA AH MA (RESPONDENT) .*

:Spait!l htdges Ad, 1946, s. 2-A-Spccia/ htdgrs (Srco11d Amcudmwt) Act,

1947, s. 2 11111( s. 4of CI)Urt s Acl, 1945.

Held by lllc F1tlllJwch: Where a Ma~istrate, who has also been appointed
:a Special Judge, hies a warrant case as a Magistrate in a case in which a
Magistrate has power to try and the sentence passed is a sentence which a
Magistrate could proreriy inflict, it cannot be presumed that he has tried the
a
Case as Special Jud;_!<!, merely because he follows the procedure prescribed
lo{ warrant cases. In a case tried ih i(an~oot\, .wlte~e an appeal lies, illies to
the High Courl t:nder sub-s. (2) of s. 4 olo<lhc coiu'tsAct. 1945 :mil nnt t~ the
Court o{ Sessions.
Sm' Tin v. T!tc 1\iug, Criu;innl A pp~al No. 6g2 oL194Q, High Court,
!Rangoon, distinguished.
Mmwg Cltil v. The l:iug, 6,'inlin_fll Appeal Na. :1~1 ~i i,946, :~ligh Cq11rt,
"!~angoon; Nadar A/am Klum, \"f!Ewp.-ror, A.l.R (1935) P~s~a~va)'~ l08 at 109 ;
.Ramochaudra Gatusll /(had~ifar v~ E.t!'P',t:l].r, A.I.R. (1933) 8 Qtp. 58; The
-Uuion of Burma v. Bd Kai an4~.f.~'e o//Jcrs, (19~9) B.L.H. 107, referred to.

. The. follo.ving is the order of reference made by

U San Maung, J, to a Full Ben ch:: -

u SAN MAUNG, }.-Criminal ApP.eal No.

_454 of this Cou~t . is
:an appeal by one Ma Ah Ma against the conviction and sente,pce
-of 6 months' ri~orou s imprisonment under. section 457 (2). read
with sec lion l 09 of the Penal Code by U -Hla Maung (5) who has
.described himself as the 2nd Additional l\-lagistrate, Rangoon in
:the
.
trial. or" Clirpinal Regular No. 1.6 of i950 of. his Co.urt. . The
. -
"Ciiminal .Referencc No. 28 of 1950 :~risin!! o'ut of an appeal !16m the
orrler of-the 2nd Additional Magi:~\rate, HanJ.(r.on, dated 19th Seple1nber 1950
_;passed-i 11 CriininalHegular Trial No: 16 of 1950.
2 BURMA LA 'vV REPORTS. [195!
H.C. appeal tirst came np for admission before u Thaung Sein J.
1950
who gave an adjournment for the porpc;se cf ascertainin~
THJo: Ul\'lON whether U Hla 'Maung has been appointed a Special Judge
OF BURMA
v. under the Specia l Judges Act, 1946. Subsequently, the case
MA All i\IA. came llP for admission before U Aung Tha Gyaw J. to whom it

u SAN \\'as pointed out by U Kyaw Thaung, Achocate for the appellant,
M .. UNG, J. tbat U Hla Maung has been appointed a Special Judge and. that
therefore the appeal from his sentence "'ould lie to the Sessions
Judge, Hanthawaclcly, notwithstanding the fact that in trying the
case a:.nimt the appellant Ma Ah Ma and others, he clescribecl
himself as the 2nd Additional Magistrate, Rangoon. However.
U Aung Tha Gyaw J. decided that since U Hla Maung \Yas
ped01ming the duties of a Magistrate within the City of
Rangoon, the appeal from the sentence passed b y him would lie to
the High Court avd not to the Court of Session notwithstanding
the fact that he had been appointed a Special J nclge before he
bec:~me Additional Magidrat-e of Rangoon . In coming to this-
decision, U Aung T ha Gyaw }. apparently r~1iec1 upon the
provisons of sub-seciton (2) of section 4 of the Courts Act,
1945, wh ich reads:
" Notwithstanding anything contained in the Code of
Criminal Procedure, all appeals which lie. nnder th:tt Code to the
Court of Session from the sentences or orders of Courts or
Magist-rates exercising jurisdiction in the City of Rangoon shall
lie to q1e High Court and not to the Court of Session."
He has obviously overlooked the instructions confaineq in
General Letter No. 23 of 19-+6 of the High Court of j udicature at
Rangoon which was based upon th_e judgment of Pakenham-
Walsh J, in Criminal Appeal No. 157 of 1946 of the H igh Court
of J udicature at Rangoon. I n that case it wa!> held that where
a Special Judge who'is also a Magistr ate follo ws the procedure
pr~scribed for the trial of a Gase by a Special J udge (namely
Warrant-case Procedure) his description of himself as . a
Ma~istrate rpust be ignored and it must be held that he tried
the case as a Special Judge.. T his de<;ision was never dissented
from since it was given on the 23rd of J uly 1946, and it has bee n
~xpressly [ollow'ed by U Thaung Sein .{ _in Criminal App.eal
~o . '196 of 1950 of this Court. T herein U T haung Sei!l J. .p.'lssed
.be following orders :...,-
" The District M.a~is~rate who convicte d th e a ppellants in .
his case wa.s U H laing Bi.va, who was also a ppointed as a Special
 1951] BURMA L A \V REPORTS. .>
...
Judge. The procedt1re adopted at the trial of the appellants was H.C.
1950
according to the ' warrant-case' r.rocedure. It has been laid
do\\'n in the cnse of 11/nuug Chit v. The King (Crimix;al Appeal Till:: l!tiiOI'l
oF RuRM ....
No. 157 of 1946 of the High Court of Judicatme at Hangoonl that v.
where a Special Judge. who is also a Magistrate, tries a case !\1A .'ill J11A.

according to the \\'1rrant-case Prccedure, he shall be deemed to u S AN

be a Special judge even though he may designate himself as a MAUNG, J,
Magistrate. This ruling was brought to the notice of Special
Judges and 1\fagistratrs in General Letter No. 23 of 19-t6.
Applyiug the principles laid down in the above case to the one
under appeal, it is clear that U Hlaing Bwa must be deemed to
have tried tbe case as a Special J ud~e and not as District
Alagistrate. That being so, l.lnder secti0n 6 (2) of the Special
Ju'clges Act, this appeal ,,dU lie to the Court of Sessions,
Hanthawaddy. The Sessions J ud~e of Hantha1.1.addy is also
the Sessions Judge of Rangoon Town District. No appeal, there-
fore, lies to the High Court in the present case and I accordingly
direct that the memorandum of appeal be forwarded to the
Sessions Judge, Hanthawaddy, lor disposal."
It \\'Ould thus appear that en an important matter like the
present; there is divergent opinion bet weei1 t \\'O H on 'ble Judges
of this High Court. Therefore I wou ld submit this case to his
. Lordship the Chief Justice for constitution of :1 Rench or Full
Bench for a decision on the following question : -
" When a Magistrate who is also a Special Judge in
Rangoon, follows the prccedure prescribed for. the trial of a
case by a Special Juclge namely (Warrant-case Proceclute) does
an appeal from a sentence passed by him He.to . the High Court
under sub-se.ction (2) of section 4 of the Courts Act, i 1145, or to
the Court of Sessions under section 2-A of the Special Judges
Act, 1946, as inserted by section 2 of the ~pecial Judges (Second
Amendment) Act, 1947, where the sentence passed is one of
imprisonment for a term not exceeding four years?"
. It fus been ascertained that the Special Judges' powers .have
.never been 'withdrawn from U Hla Maung, who therefore
nmains a Special Judge. .

Kyaw Tltaung for t~~ applicant.

Mya Thein '(Gov.e rnment. Advocate) for. the

. res.pond;ent.
4 BURMA LA\V RE PORTS. [1951

~~ U TuN BYu, C.J.-The respond ellt Ma Ah Ma was

~ sent up with other co-accused in connection with the
THE UNION
o F_ButmA ' loss of tyres from the R.T.B. W orkshop in Ahlone
MA;~ MA . .Quarter, and she was convicted in Criminal Trial
No. 16 of 1~SO of _the Court of the 2nd Additional
Magistrat'e, Rangoon under ~ection 457 (2), read \dth
section 109, of the P enal Code, and was s enten ced to
suffer six months' rigorous imprisonment. Ma Ah Ma
appeaied to the High Court in Criminal Appeal
No. 454 of 1950 against the conviction and sentence
passed upon he~ by th e 2nd Additional Magistrate,
Rangoon. The appeal was first placed for admission
before U Thaung Sei~ J., who adjourned th e bearing
for admission for the purpose of ascertaining whether
U Hla Maung, 2nd Additional Magistrate, Rangoon,
I1as also been appointed a Special Judge . under
the Special Judges Act, 1946. If is clear that
U Hla Maung has:been appointed a Special Judge and
that his appointment as a Spe<::ial Judge has not b ee~
withdrawn or cancelled when he was appointed the_
2nd Additional Magistrate, Rangoon, in the place
v.icated by. -q Ba Thaik.
The appef.'.l was next ' placed for admission before
u Aung T1ui Gyaw J., who held in the diary order,
dat~d the 17th October 1950, th at U' Hla .Maung,
~lthough he has been appointed a Special Judge, was
:performing the cfuties of a Magistrate when he tried
.the Criminal Regular Tria] No. 16 of 1950, in which
Ma. Ah Ma was . sentenced to six months' rigorous
imprisonment, and that the- appeal would, ~n that
circumstance, .lie to the High Cou~t . in view of. the
pr:oyisions of section 4 (2} of the Court~ :1,\.d, 1945,
and not .to the Court . of Sessiof?., Ha,nihawaddy.-.
U Thaung
. .
Sein .
J.,.. .has
.
however. in an , earlier
- case' .
vi..z:, in C~im.inal Appeal No. 176 of 1950, followed.
"'

the ~i~w, which was the con'trary view, ~eld ...by

 1951] BURl.\IA LAW REPORTS . 5

P akenham-\iValsh J., in an earlier case. The present H.C.

1'950
appeal came for final hearing before U San Maung J ., THF. U NION
'''ho referred the following question for consideration, OF BURMA
v.
namely- MAAH MA.

" \ Vhcn a Magis! n<te \\h o is also a Special J u<lge in Rangoon, U TuN BYU
C.J. '
follo"s the procech:re prescribed for th e trial of a case by a
Special ] <!dge namely (\Varrant.case Proced ure) does an appeal
from a sen tence pass~cl by him lie to the H i~h Court under sub-
section (2 ! of section 4 of the Courts Act, 1945, or to the Court of
Session under section 2-A of the Special Judges Act, 1946, as
inserted by seciion 2 of the Special Judges (Second Amenclm~nt)
Act, 1947, where the sentence passed is one of imprisonment for
a term not exceeding fonr years ?''

Pakenham-vValsh J., in the case of San Tin v. :-Tfle

King (1), held that where a Magistrate, who was alsti'
appointed as a Spec:ial Judge, tried a ca:>e ' 111
accordance with the procedure for a warrant case,
which vYas also the procedure prescribed for . the trial
before a Special Judge , the Magistrate should be
. presumed to hav.e acted under his higpet powers,.
namely as a Special Judge, although he might have
designated himself in the records of the case as a
Magistrate when trying the case. Pakenham~ Wal~}:l J.
has also expressed a similar view in another m1repor~ed
case, which came before hitn earlier; name1y, in the
case of Mmmg Chit v. The King (2h_ the r~asons f-or
coming to the conclusion which Pakenpirm-Walsh J.
adopted have been set out more fully i~ th~ subsequj!nt
c~se
. . . Tin v. Tkc King p ), where. be observ.ed:
of San
'' i consider that a Special Judge, when he follows the
proc~clure pre~cribed for the trial C?f a case by a Specia\ }udge:
cannel divest hi~self of the po,~ers conferred. upon him as . a
.Special Judge. i when tiying a case. which bP. could have: tried
*

. {J.) . Criminal At peal. No. .682 of. 1946 of the High Court of Judic~ture
at Raigooq: . . : , - . .:
. (2) Crirninal AppealNo.lSi. o.1946 of . t.h e High Court of Judicat~re .
at Rang?ori.
6 BURMA, LAW REPORTS. [1951
M.C. as a Special Judge he chooses to describe himself as a Magistrate,
. ll950
such Cl. description will be ignored Cl.ncl be win be. deemed to have
"TH Um0N tried the case as a Special J uclge. '' .
OF llUR~IA

MA ;H. MA.
The learned Judge followed the reasoning set out in
UTUN BYU, the case of Nadm- Alam [(han v. Emperor (1) where
C.J. it was stated :
"We are unable to find any provision in the statutory law of
this country recognizing dual and separable positions of a First
Class Magistratt: specialJy empo,,ered under section 30, Criminal
Procedure Code. In our view once he has been specially
empowered under section 30 b~; the Local Government, he c<in
necessarily, when acting as a Magistrate, exercise the 'po"'ers
mentioned in section 34 ; he cannot at will divest ldmself of the
powe~s conferred upon him and he cannot by any action of his
~~Y.n, b~come a First Class Magistrate not empowered ' under
section 30, Criminal Procedure Code. Far less by an
uninte~tional failure or even by a habitual failure to describe
himself as being so empowered, can he divest himself of his
powers."

In the above ~~se, Nadar was convicted un9er section

326. of the Penal Code and sentenced to three. years'
rigorous imprisonment and to pay a fine of. Rs. SO.
The Magistrate did no~ in that case sign himseif as a
Magistrate especially empowered under section 30 of
the Code of Criminal Procedure. It is clear that the
1\hgistrate. -could not, in that case, have imposed the
sentence which he did,. unless _he had acted as_a
Magistrate, who !u\d beef?. especialfy empowered under
section 30 . of the Code of Criminal Procedure, and
that, in my opinion, was a Circumstance which
~ould be taken into consideration fdr th~ purpose 9f
ascertaining whether the Magistrate cou~d be said to.
have acted 1 in the special circumstances of that .case,
. as a Magistrafe. \~hq.' had been . empo,yere_d under
section 30.of the .C.od~ .6f Criminal :Procedure. That
.was
.. . therefore.
. a case
.. where
. . the Ma.gis~ra.te
' .. could 'be
11) A.U~. (1935) Peshawar IOS,a.t 109.
 1951] BURl\I A LAW REPORTS. 7

considered to have exercised his special powers when H.C.

1950
he imposed th~ sentence, in that he could impose
THE UNION
those sentences only if he were exercising his special OF 8 U1UIA
v.
powers. I do not see anything strange, improper or 1\lA AR MA.
unreasonable in considering the act of the Magistrate, U TuN BYU,
in acting in the manner which he did, that he should C.].
be presumed to have acted under the powers which be
actually possessed, when to do otherwise would make
his act illegal. It is difficult to understand how it can
be laid down, and it will not be proper to lay down,
any hard or fast rule that a case, which was tried by
a Magistrate, .who was also a Special Judge, in
accordance with the procedure prescribed for warran t
cases, should always be considered to have been tried
by a Special Judge, without considering the special
circumstances of the case in whi~h the trial to<>k place.
It is clear _that when the question is whether the
inference, which has been drawn in any particular
case, is right or not, the inference, . which is to be
draw!l, is not an irrebuttable presumption of law, a nd
the answer must depend on the peculiar circumstances
and facts of each case. Pakenham -Walsh J., apP.arent-
ly realized this, as the lear_ned Judge, in tl:ie case of
San Tin v, The K~ug (1), also obs ~r~ed as follows:
In my opinion. speaking very generally, the ch'cumstances
under which a trial takes place rather than the presiding officer's
own d~scription
. of himself determine the capacity .in which h~
t.ries the cas~."

The J!ature of the presumption which was :to be

drawn in the case of San Tin v. The I(ing (1) was uot
in the nature of an irrebuttable presumption of law;
and thus the decision in San T itl v. The King ( 1) cari not .
be considered to .have. been laid down as an inflexible
ruleoflawr which must beapplied with <?ut considering
( 1) Crit:Uin:\1 Appe:tl No . . 682 of 1946 of the High Court of Judic:lture at
~ngoon. . '
8 BURMA LAW REPORTS. [19Sf
H.C. the pec uliar circumstances of each case which comes
be_f;re the Cour t. San T m was in that 'case convicted
THE UNION
ot> BuRMA of an offence under section 395 of th e Penal Code,
MA;H MA. which was then puni shable with death, and he could
~B
U T vN Y 0 1
not therefore have been tried by a Special P owe

c.J. Iviagisirate. Tl1at was accordingly a case where it

might be presumed th at the Magistrate trying the case
intended to try it under the powers he possessed,
namely, as i Special Judge. Moreover, t~1e record of
the case shov;s that the Magistrate, at least in three
places, had described himself as Special Judge. That
was clearly a case where it might properly be said
that the learned Magistrate purported to try the case
as a Special Judge and n pt as a Magistrate.
I i1.the earlier case of Maung Chit v. The l<.if!tg (1)
too, M:fung Chit coeld not ha:ve been tried by a
:Magistrate with special .powers for an offence unqe;
section 395 of the Penal Code, which was th e11t
punishable with death. It also appears that the
Magistrate also occa.sionally described himself as
Special Judge in the case diaiy of the "tri~l record.
There~ere therfore circ.\181stan ces on which it might
properly be presumed that the learned Magistrate in
that case purported to try it also as a Special Judge.
U Hla Maung, it is true, was appointed generally
as a Special Judge before he was transferr-ed to
}{angoon, and his appointment as a Special Juage has
not bee n cancelled. There are fot1r Magistrates who
have been tryiDg ca-ses allotted to . Special Judges in
Rapgoon in: theit: capacity as Special J.udges. The
g enerarprocedure, which has be.en adopted, where a
Speci"ai Judge 1s appointed as.a Magistr~te in Rangoon
is to cancel his ~ previous appointment as a Special
Judge; aryd if t.h e Magistrate i"stequired... to ~Is<? try
.. .
. {I) ~riil:fnai Appeal No:ts7.o 1946 of the H.igl1: Court ~f JuC:'i catu;e at
Rangoon.
 1951] BURT\lA LA\V REPORTS.

cases as a Special Judge in Rangoon, he is agai n H.C.

1950
appointed as a Special Judge under a fresh notifi cation.
TllF. U NION"
No notification has, however, been issued to ca ncel OF fiUHMA
t.l.
the earlier appointment of U Hla Maung as a Special i\iAAH MA.
_ Judge \l\'hen he resumed the duties of a f..lagistrate in
t: Tt N UYU.
Rangoon, but t his circumstance does noL tH:cessarily C.J. .
indicate that U Hla :\Iaung could propcriy be presumed
to have tried the case in question as a Special Judge,
especially when the procedure which has been.
adopted in rcsp;!ct nf Magistrates \:v ho arc also
_required to act as Special Judges in Rangoon area is to
reappoint them as Special judges for Rangoon area,
arid in view of the fact that U Hla. Maung had not
purported to try an y case as a Special Judge after l_1e
\vas appointed tb<.; Second AdditioPal Magistrate in
Rangoon ; nor is there anything in the record of
Criminal Regular Trial No. 16 of 1950, iri whic!1
Ma Ah M~ was tried, to show that U Hla Maung had
at any time signed him.se:lf as a Special Judge. The
fact that the procedure in warrant cases had been
followed by U Hla Maung in trying the .Criminal
Regular Trial ~o. 16 of 1950 cannot, in my opinion,
be properly said to indicate that he was trying it as a
Special Judge, as the wa1Tant procedure is the normal
' . '
procedure whjch the Magi~trates follow when they try
warrant cases~ Th~re is also the fac t .that the offence
for .which Ma Ah Ma and other accused were sent up in
the Criminal Regufar Trial No. 16 of 1950 under
section 45-7 (~) of the Penal Code is a n of~en-ce ~hich
is triable by a Magistrate of a First or Second Class
. PQw~r, without being especially. empowered tlnder
section 30 of the Code of Criminal Procedure. It is
only . consistent with . good . re~SOll' that where the
record of the case shows thrbughout . and consistently
that it was being d;alt wiq1 by <t M~g.istrate, .and the
offence was of a nature which . the . M.agistrate
10 BURMA LAW REPORTS. [ 1951
H.C.
1950 concerned could try and the punishment inflicted
was also a punishment which the Magistrate could
'fHE {.:~!ON
OF BURMA impose, it .should be held that it was a case which was
11.
MA AH iVJA. tried by the person concerned in his capacity as

U TliN BYU, Magistrate, and not as Special Judge, although the

c.r. Magistrate who tried the case had also been appointed
a Special Jt1dge.
The case of Ranwchandra Gattesh Khadki kar v .
.E-mpe1or (1) which came before Beaumont C.J., and
two otber Judges, was also 'brought to the notice of
Pakenham-Walsh J., in the case of San Tin v. The King
(2); and with respect to P akenham-Walsh J., if the
facts of the Bombay case are read with the very short
judgment Vlhich was delivered, it purported, in my
opinion, to lay down that where a. case was tried in the
a
Court of First Clas~ Magistrate, and the Magistrate
purported to act throughout only as a First Class
Magistrate, it should not be presumed that he acted or
purported to act as a Special Pvwer Magistrate. It
will riot be necessary for me t.o express any opinion
on the . correctness of the decision arr'ived at in
Ramachm1dra Ganesh Khadkikar v. Emperor (1), so
.far as this reference is concerned, as a person, . who
a~ts as a Magistrate and as a Special Judge is acting,
in my opi'lion, in twci disti~ct capacitiel>. A special
Judge is appointed under a different law; and he is
invested with higher pO\.v ers. He is moreover p~aced
under tJ:le su.pervision of a sessions Judge) and not .
under the District Magistrate. .
It seems to me to be clear that the inference which
i'; ' :toobe dra\vn in such m~t.ter must depend on the .
drcumstances of eachcase j and, , for the reasons tha~
have b~en : set out above, Ute a~swer to 'the qtiesti<?"n
: :propounded is that wl .ere a Magistrate, ~hp .has alSo
0 - '

it) A.I.R. i't'J3) B~in. 58. . . , . . . . '.

(2) C~i1,11iri~t' A{l{ieal No, 682 of 1946 ?f the High Ciurt of J,;dicatuieat Rimg~on.
 1951] BURMA LA\1\T REPORTS. 11

been appointed a Special Judge, tries a warrant case as H.C.

1950
a Magistrate in'a case which a Ivlagistrate has power to
THE l ' )(IOS
1ry and the sentence passed is a stntence ,,hich a OF BURM A
'1/ .
Magistrate could properly inflict, he cannot be presumed MA AH MA.
to have tried the case as a Special Judge by merely U TUN RYu,
following t he p rocedure prescribed for a warrant case C.J.
in the Code of Criminal Procedu re, and the appeal
will in Rangoon , in a case where an appeal lies, lie to
the High Court under sub-section t2) of section 4 of
the Courls Act, 19-J.S, and not to the Court of Session.
U ON PE, J.-I agree with th e Chief Justice.
tJ Bo GYI, J.-A difference of opinion having arise n
as to whether the venu-e of appeal from the decision of
U Hla Maung who d esignates himself as the 2nd
Additional Magistrate, Rangoon,jn his Criminal Regular
Trial No. 16 of 1950 when~ se.nlences of imprisonment
less than four years have been passed is the High
Court or the Sessions Court of Hant bawaddy, the
present reference has been made by U. San Maung J.,
in these terms:
" When a Magistrate who is also a Special Judg~:< in
Rangoon, follows fhe procedure prescribed for the trial of a case
by a Special Judge namely. (Warrant-case Procedure) does an
appeal from a sentence passed by . him lie to ll:e Hi~h Court
-under sub-sect.i.o n C2) o section 4 of th~ Courts Act,-1945, or to
the Court of Session under section 2-A ofthe Spfciai Judges Act,
1946, _:1.5 inserted by S!!C:ion 2 of the Special Judges (Second
Amendment) Act, 1947, where the sentence passed is one of
imprisonment. for a term not exceeding.four years."

U Hla Maung .before his transfer to Rangeon \:vas

appointed. a Special Judge under the Special Judges
Act, 1943, without the terrltorial.limits of his jurisdic-
tion . being d.e fined and h~s appointment as Special
Judge has not been ta.ncellcd. The detet:minatiori of .
the. question . which. has been _propo~nded . depends
12 BURMA LAW REPORTS. [ 1931
H .C,
1950
upo'n 1..vhether th :-: decision of
P aken ham-\Valsh J .,
in Criminal Appe;ds Nos. 157- 160 of 1'946 which wa::;
THE U:o\!ON
OP BURl!.\ later reiterated by him in C riminal Appeal No. 682 of
1J
MA Al-l ~fA. 1946 of the late High Court of Judicature at Rangoon
U Ho Gyr, ].
sbould be followed . T here Pakenham-Walsh J., h eld
that, the powers of a Special Judge being. high<:r thr. n
those of a Magistrate, when a p erson who is invested
with the powers of a Magistrate as well as a Special
Judge tries a c ase he must b e deemed to try it in the
exercise of the higher powus and th~tt when such a
person follows the procedure prescribed for the tria l of
a case by a Special Juclge \this was assumed to be
practically tile same as the vVarr,tn t-case Procedure),
he will be deemed to have tried the case as a Special
Judge, although he has chosen to describe himself as
a Magistrate. In o th~r words, as the High Court
General Letter No. 23 of 19+6 which ttxplains the
effect of t he above decisions say, "it is . the procedure
adopted by a Special Judge in th e trial of a case,
and not the manner in which he designates hin1self
that determines whether be tries it as a Special Judge
or as a Magistrate."
Now, section 5 ot lhe Special Judges Act, 1916,
prescribes t he procedure of Special1udges and sub-
section ( 1) of section 5 runs: = ..
<~ ~ ~.-
~ .
"A Special Judge may t1ke cognizance of _ offeuc~s without
the accused being committed for trial, and in trying accused
persons shall follow the procedu.re prt>scribed l>y tpe Code Cot: the
trial of warrant cases by Magistrates:
. Provided that a Special Judge may refuse to sumnwn any
witness ii>satisfied that the.evidenc~ of such \\'iln~ss wili not .be
material, and_sball not be bound to adjoum a trial for any purpose
whatsoever, UQI~s such adjoUI:nment is, in his opinion, n eces~a:y
in the !nlerests of justice. "
.. . .~

A .cursory. perus'al of t he provisions .. 9f sub-section : (1}

o( section 5 of th e. Spe'Cial- Jtidges . Act,
. 1946) 'sh6ws.
1951] BURMA LA\V REPORTS.

that althou gh "peci:d Jll(Jges in trying accus~.:< l p;;rso ns ll.C.

1950
are enjoined to follow the procedure prescribed by the
TilE Ur-:roN
Code of Criminal Procedure for the trial of mtrrant- o Ht:U~IA
v.
cases by Magistrate!', the procedur e prescribed there in J\!1\ AH 1\~A.
is not identically the same as that prescribed by the U Bo Gvr, J.
Code of Criminal Procedure for such trials , the
important difference being the drastic powers given to
a Special Tudge by the Proviso to sub -section (1) of
section 5 of the Act. To mention but a single instance,
whi le under ;:;ection 257 (1) of the Code o f Criminal
Procedtue the Magistrate is bound to issue process on
the application of an ac~ lls ed person, after he has
entered upon his defence, for com pell ing tl:e atten-
cb nce 'of any witness for the p urpose of examination
or cross examination unless he considers that such
application should be refi.tsed on the ground that it is.
made for the purpose of vexation or delay or for
defeating the ends of justice, nevertheless under th e
Pro'!'iso to section 5 (1) of the Special Judges Act, 19 ~6,
a Special Judge may refuse to summon any witness if
satisfied that the evidence of such witness will not
be material. , In these circumstances, t he procedure
prescribed for' Special Judges is in reality an adaptation
fr\)m the procedute._r.eg~lating the trial of warrant-cases
by .Magistrates and. ,:.t s materially different from tl;e
latter. F or, if a Magistrate . in trying _. a warrant-.case
under t he Code of_ criminal Procedure refuses to
summon a witness in the cir cumstances en visaged in
the P!oviso to sectionS (1 ) of the Special Judges Act,
1946, the trial will be .vitiated.' On the other nand, .
the Special Judges Act, 1.946, is an emez:g ency nie~sure
n ecessitated by the_con4itions obtaining in the ~ountry
during~he post~war period and to meet these conditions .
effectively. Special Judges must be armed w'ith certain
drastic .powers . This-material difference b etween the .
procedure~ respec~i~ely .followed by Sptcial Judges
14 BURMA LAVv REPORTS. [1951

~9fo and by Magistrates cuts the ground fmm under t.he

decisions cited above. Apart from the doubtful
TilE U)IJQ)I
oF Bu t{~tA v~bdity of the process of deducing from the fact of the
MA Av~ MA. Special Judges following the c< \iVarrant-case Procedure''

u ~0 GYJ, J, the converse proposition that a Magistrate cum Special

Judge's pov.:ers who follows the Warrant-case Procedure
must be deemed to have tried the case as a Special
Judge, the basis of the inference disappears \:I.' hen it is
seen that. the two procedures are materi.ally different.
Besides, if the reasoning in those decisions is
followed to its logical conclusion, it will lead to
unlocked-for results. The High Court General L.etter
No. 23 of 1946 in explaining the effect of the decisions
states that in some circumstances a Special Judge who
is also a Magistrate can make use of -certain of his
magisterial powers. ' For instance, the General Letter
says, he can as a Magistrate try cases summarily. Now,
under section 262 of the Code of Criminal Procedure,
a Magistrate in trying a warrant-care summarily is
boun4 to follo_w the procedure prescribed for warrant-
cases ; and since the effect of the decisions under
review, as explained in the Genera] Letter, is that when
a Magistrate who is also a Special Judge follows the
procedure prescribed for warrant-cases he will be
deemed to have tried the case as a Special Judge, we
shall have a legal curiosity of a Special Judge trying a
case summarily, which isnot contemplated-either by the
Special Judges Act or the Code of Criminal Procedure.
The crux of the question in my opinion is whether
U Hla Maung qua Magistrate is a different personality
from: U Hla Maung qua Special Judge. i see no reason
in principle ~hy U Hla Ma_ung cannot' b_e regarded as
exercising criminal p0wersin <f.' dual .capacity: Under:
section 6 of the C0de of Crifninal Procedure, as
amepded, besides the four classes of Ctimin!ll Courts
in the Union of Burma there , may be other Courts
1951] BURMA LA\iV REPORTS. 15

sur.h as the High,Court and Cvurts constituted under H .C.

1950
any law other than the Criminal Procedure Code. It
"fHE Ul:\JON
is clear therefore that the Court o f a l\Jagistrate oF B unM,\
constituted under the Code of Criminal Procedure is l\111. .%.;1 l\'A.
distinct from the Court of a Special Judge constituted -
. J II. I . U J:o GYI, J.
und er the Spec1al udges Act. .'""\. l\t ag1strate who is
also a Special Judge can therefore as 1\'Iagis trate preside
I

over the Court of tht? Magistrate and as Special Judge

presid e over the Cou rt of th e Special Judge. But
when he has started trying a case in the capacity of a
lvlagistrate he m ust finish it as Magistrate. Similarly,
if he has started a case as Special Judge he must
conclude it as Special Judge.
Again looking at the question in another aspect, .
the jurisdiction and powers of a Special Judge are
distinct from those of a Magistrate, so much so that,
as U San Maung J., has held in Tlze Union of Bmma
v. Bet Kai and five others (1 ), a Special Judge in
taking cognizance of an offence cannot make use of the
evidence recorded by a Magistrate who has taken
cognizance of the offence and heard the case in part
and from whose file the case was transferred to his
own. It is d ear that the powers of U Hla Maung as
a Magistrate have -not on his appointment as Special
Judge merged in the p owers of a Special Judge. For
one tl1ing, their jurisdiction and powers are distinct
and different and, furthermor.e , a Magistrate b esides
trying_ cases has to perform multifarious duties which a
Special Judge does not, and cannot be C<!.lled upon tq,
p erform~
The contention that a Magistrate who has been
appointed Special Judge cannot at will divest himself
of the "PO\Yers of the Special Judge must readily be
conceded j for only the authority . that has conferred
the powers can withdraw them. However, be that as.
. (1~ (1949) B.L.R. 107.. . .
 BURi\l t\ L i\W f<EPORTS [ 195 1.
H .....
,~

1950
it may , \Vhen a Magistrate who is flls.o a Special Judge
tries a cr1se qua Mag istrate he is not d ivesting h imself
THE U~w:-;
Ol' HUI\~1.\ of the powers of a Special Judge but is merely
v. refraining from excrci~ing his powers ;'.S such. Since,
M A AH l\IA.
as mentioned before, the Courl o f a l\hgistrate is
U Bo Ovr, J. '
distinct from th e Cou rt o f a Special Judge I can see no
reason why such a ?\'lagistrate presid in g over the Court
of the .Magistrate can not refrain from exercis ing the
powers of a Special Judge. On the cou trary, he cannot
in su(.;h circumstances exercise hi:; powers as a Special
Judge. .
Of the authorities canvassed before us, the Special
Bench ruling in Rt1machandra Ga11csh Khadk1km v.
Ernperor (1) see ms to b e in point in that there also a
First Class Magistrate \~ ho had been invested with
enhanced powe rs of a Spe<;ial M~gistrate under an
emergency measure designated in the Report as the
Em~rgency Po"''ers Ordinance, 1932, purported to try
in offence against the Ordinance as a Magl.strate of
the ~~irst Class.describing himself as such. In awardi.ng
punishment, however, he added to a sentence of
imprisonment a fine of Rs. 1, 500, whereas as a Magistrate
of the First Class he was only entitied to impose a fine
not exceeding Rs. 1,000. It was held by the Special
Bench led by Bea.umont C.J., as he then was, that the
trial being by a First Class Magistrate, and not by a
Special Magistrate, the fine of Rs. 1,500 was in excess
of the sum which he was entitled to impose:
My answer to the question propounded, therefore:
is that when a Magistrate who is also a Special Judge
in Rangoon tries, or purports to try, a case qua .
Magistrate and passl'S an appealable se~tence, an
<tppeal from th.e senten.c-e lies under sub-section (2)
of .~ection .4 ' of . the Courts Act, 1945, to the High
Court.
(I) A.LK (1933) Born. 58.
1951] BURMA LAW REPORTS.

APPELLATE CIVIL.
Bef ore U Ttm Byu, Chi(j Juslict and U San .1/aung, J.

s. SAMUEL (APPELLANT)
v.
KR. s. ANNAMALAy CHETTYAR AND ANOTHER
(RESPONDENTS)~*

S. 63, Contract Act-Remissiou of a ~<Jrtion of claim-Whetltcr requires

considcra li 01~.
Held : Under s. 63 of the Contract Act, a dispensation or a remission by a
promisee of the performance of the whole or any part of a prom i~e made to
him need not be supported by consideration. A unilateral act on the part of
the promisee absolves the promissory from his obligation under the contract.
A.K.A..C.T .A.L. Cl1 e/ly"r v. A.K.R..V.M.K. Firm and ot!Iers, (1938)
R.L.R 660; Jilendra Chat1dra Ray Cltaudlwrr v. S. N. Bauerjee, I.L.R. (1943~
Cal. Vol. I, lOt, followed.
Balasundr a TTnker Dlld one v. RtJI'gtwatfla lyer anrt others, I.L.R. (1930)
53 Mad. 127 ; Rnmaswami and otlur;S v. Gurukar Rudrappa, A.I.R. (1939)
Mad. 688, distingui~hed.

Ba Tu. for th~ appellant.

Tun I for the 2nd respondent.

'.
U T.uN. BYU, C..L-The. appellant S. Samuel
obtained a d:ecree for the payrnenf of a sum of
Rs. 2,715-13-4, with 'costs, against the first respon~ent
K.R. SM. Annamalay Chettyar in Civil Regular.
No. 2696 of 1947 of the Rangoon City Civil Court.
s~ Samuel .next . _applied in Civil Execution Case
No. 787 of' 194_8. for the issue of a prohibitory'' order
upon the second respondent Daw Gun, directing her
to withhold further payment of the money which she.
still owed to the first respondent Annamalay Chettyar,
Ci~ll Misc. Appeal. No. 2 of i9SO against the order ' of the 3rd TtidP.e.
City Civil.Court, Rangoon.in Civil ?d;iac. No. 37 pf-1949.
.. .. 2
18 BURMA LAW REPORTS. (1951
H.C. for a motor boat " Ye-nat-tha-mi J"r' which she
195t
purchased from the latter ; and the prohibitory order
S. SAMUEL
was said to have been duly served upon Daw Gun, the
"
KR.S.
second respondent. S. Samuel further applied in
ANNAMALAY
CBETTYAR
AND
Ci\il Miscellaneous No. 37 of 1949 to the Court to
ANoTHER. direct Daw Gun to deposit a sum of Rs. 3,153-1-4,.
u .~u-~ Bvu, which Daw Gun. was said to have still owed his
C.J. judgment-debtor Annamalay Chettyar in respect of the.
sale of the motor boat.
Daw Gun at first denied that she had anything
more t0 pay to Annamalay Chettyar in respect of th e
sale of the motor boat to h'er. She, however, admitted
in her written objection of 17th May, 1949 that she
still owed a sum of Rs. 200 to Annamalay Chettyar
in respect of the sale of th e motor poat. The learned
TJ1ird. Judge of the Rangoon City Civil Court !ound,.
in his order, dated the 5th Decembet 1949, that
Daw Gun still owed Rs. 625 to Annamalay Chettyar in
respeCt of the . saie . of the motor _boat _to her ; and
Daw Gun was directed, under Order XXI, Rule 63-
tC) t2), of the ~ode of Civil Procedure to deposit the
said ium of Rs. 625 in Court.
The most convenient way of 'approaching. this
appeal will be to first consider whether any settlement
of Annama.lay Chettyar's claim in respect of the sale of
the motqr boat was arrived at be~ween Daw G'uri f.nd
Annamalay Chettyar, as alleged by Daw Gun in bet
written objection . of 17th May i 919. According to
Daw Gun, after Th~kin Than Maung, Secretary of the :
.
Motor Boat Owners' Associat-ion, intervened in the
dispute-which had arisen be~ween her and Annamalay
.

Chettyar, Apnamalay Chettyaragreed to accept a sum .

qf Rs. l,OO<f in satis{action of.: v:hat she still o~ed to .
hiridn: respect' of: the sale o( .the' motor bo'at,: that 'she .
~~bseq~entiy_ ..p~lid: Rs. 375.f~wai-s -the ~a~d :._s~~ "of .
Rs. 1,000 and tha\. she .also ~ade._further pay.m~nts . ~o..
1951] BURMA LAW REPORTS. 19

Annamalay Chettyar, leaviug only a sum of Rs. 200 H.C.

still due by her.' Annamalay Chettyar does not deny
1950
S. SAMUEL
that Thakin Than Maung intervened in the dispute v.
whic~ had arisen.betwcen Daw Gun and himself, but AN~!A~'.n
he denied that he agreed to accept a sum of Rs. 1,000 CnBTTTAk AND
in settlement of the claim he still had against ANOTH&a.
Daw Gun. in rt'spect of the sale of the motor boat u T-;;;-:Bvu,
to her.. C.J.
Thakin Than Maung, who was examined as a
witness on behalf of Daw Gun, in effect stated that at
D aw Gun's request he intervened and suggested to
Anna malay Chettyar to accept a sum of Rs. 1,000 for
tht balance price of the rriotor boat, which Daw Gun
still owed him, and that Annamalay Chettyar agreed
to accept Rs. 1,000 in satisfaction of his claim against
her in respect of the sale of the motor boat. It has,.
however, been argued on behalf of the appellant
S. S:1.muel .that we ought not to accept either the
evidence of Daw Gun or the statemen t of Thakin
Than Maung in this respect, as it was not likely that
Annama~ay Chettyar would accept a payment of
Rs. l,OOO.for the balance money which. Daw Gun .still .
owed nim, because in accordance with Daw Gun's
wx:it~en obje~tion, Daw Gun must have still 0wed
about Rs. 5,000, at the time the alleged settlement was.
arrived at, to Annamalay Chettyar and that there was
nothing to indicate why Annamalay Chettyar should
have consented to accept a much smaller s.um than
what was still due to him. We must say that the
w~;itten objection of Daw Gun of 17th . May 1949-' ha:s
n~t ~een very well drafted: This written objeati<'n
was drafted ih English and, in the absence of anything
on the record to suggest that Daw Gun could read .
. English language, we .c onsider tha~ it will be. mor-e
.proper .~f 'her written obj~ction is read in the light. : 9~
~ther .~vidence. and. circumstances. appearing~. -in thi~
20 B URM'A LAW :REPORTS. [ l lJ5 1
H.C. case, anct. on:ly then we shall be able t.o ascertain what
1~50
is the trqe.solution to the matter und er consideration.
s. SAhtUEL T he Exhibit II receipt, dated the 17th Septembd
'l/.
KR . .S. 1948. , was the receipt which AnnamaLay Chettyar gave
AI\ NAMA LAY
CRETTYA R to Paw Gun fpr.the sum of Rs. ~7 5 which.he received
AND
ANOTHER. fro m her. , Exhibit II was signed by Annamalay
U TUM 8YU Chettyar .himself. ' It has not, and . it . could not, be
1
c.. disputed that Exhibit II contains a genuine receipt of
Annamalay Chettyar in view of the lawyer's notice,
dated the 12th July 1949, which was sent to
Amiamalay Chettyar on behalf of Daw Gun
Annamalay Chettyar; however, denied that he wrote
the expression "'. Rs. 1,000 " which appears in
Exhibit II. receipt. According .to him, the expression
H Rs. 1,000 " had been substituted for the words
" towards the balance. price " which he said, were
origjnally in,Exhibit II. We are unable to accept his
s tatement .in this respect. Arrnamalay Chettyar has.
written if.l . Exhibit B to indicate what those words were
in T amil character, and Exhibit B shows us what space
thosewords woulq occupy. It ap~ears to . us to be
. clear, when Exhibif B . ~nd Exhibit II ate exain~n~d,
that the: 'expression " towards the balance price '' in
Exhibit B will occupy a more ext-ensive space than 't he
space which is occupied by the expression " Rs. 1,000 ".
It has not, .moreover, peen suggested .that' any of the
writing or ~trolce appearing b efore or after "Rs, 1;000 'l
in Exhibit ll had in .at:Iy way been tampered with.
it -has, 'h owever., l;>eeri submitted oh heh~lf of the ,
~ppe!lant that the outward appeara.nce of th~ expression
" Rs. 1;000 '.' in . Exhibit II suggest~ th~t that expres:-
si0tl. in. .Exhibit li 'bad beet}. tampered with, bt!t we are
unable 'to : a cceoe t'o.: this ..sugge.s tion. . It m u~t be
rememberec( that the. figure . "' 375-" has - thC? : sam'e .
appe'atance: as the expr~ssion " Rs. l,000 '' ..and .it ha.li
~ot'been .c ontend'e d that thc'.figure. ~~ 375 ~'. has in an'y
 /

t 951] HURMA 'LAW REPORTS. 21

vay bee_ri" tam~.ercd with.
\< A casual glance at H.C.
1950
Exhibit I I reveals clearly that the appearance d the
S. SAMUEL
expression " Rs. 1,000 " is similar in appearance to the v.
KR.S.
figure " 375 . \Ve ought also to add that the ANNAli.'\LAY
CHE'TTY ...R
expression "being money due " at the end of AND
Exhibit II appears to us to be significant, in that it ANOTHER.

reads more appropriately with the expression U TUN.BYtf,

C,J,
"Rs. 1,000 '',which precedes it. It will be convenient
here to reproduce Exhibit II, which has been
translated as follows :
" Siva's Omnipresence. 17th September 1948 :. Credit
Daw G un Rs.. 375, rupees three hundred and seventy-five
only, received on several .occasions up to this date, tO\\'al'<lS
Rs. 1,000, being the money due in respect of a motor launch
agreement.
(Sd.) KR. SM. ANNA MALA1 C HETTYAR,-17-9-<18.''

If Exhibit II is accepted as genu1pe, and in our

opinion, it should be so accepted, it becomes <;lear
th.at Annamalay Chettyar must have consented to.
accept Rs. 1,000 in s~ttlement of the balance price of
.the m.otor boat, which was still due to him at that,
time, as 4-eposed. to . by Thakin ):han Maung; in. view:
of the fact that Exhibit II sh0\VS clearly that_ the
amoqnt which rema.ine~ dl:re to ' Annamalay Chettyar,
. hefore the sum of Rs. 375. w~s pa id to him, was only .a
sum of Rs. 1,000. . Thus Exhibit II can be said . to
indicate dearly th~t a settlement was ~~rived at
between Daw <;iun and Annatualiy Chettyar, as
deposed to hy paw Gun and Thakin Than Maun8. :
l;lie question .which next .arises is whet-her:. the
agreem~nt to receive a sum of Rs. 1;000 .is. binding
upon Annamalay Chettyar in law.. It has been argued .
'o n his. beha!f that ~he agree~ent was merely a n udufn
pactzi..m, for ~hi"ch _Annamalay Chettyar t_ecei.ve.d. no
copsideration j :~pd :. ~eJi.ance . was foJ: ~hi~ .. p'\lrpose,_.
 BURMA LAW REPORTS. . [1951
H.C. placed upon the case of Balasun.dra Vaker a1~d
19~0
one v. Ranganatha Iyer and. others U) which was
S. SAlolt.JiiL
v.. followed in Ramaswami and others v. Gurukar
' KR.S.
ANlMM}.LAY Rudrappa \ 2).
CHETTYAR
AND
The first paragraph of the headnote in A.K.A.C.T
.ANOTHER. A.L. Chettyar v. A.K.R.M.M.K. Finn and others (3)
U.'I'UN BYU'1 however reads as follows :
C.J.
" Under section 63 of the Contract Act a dispensation o1 a
remission by a promisee of the performance of tl;!.e whole or an~
part of a promise made to him does .not require to be supportecl
by considention. and then~ need not be a proposal' of the
d~srensation or J;"~m~ssion which is accepted," .

The view expressed in A.K.A.C.T.A.L. Chelfyur v.

A.K.R.ii.M.K. Firm and others (3), appears to us, to
be more reasonable and, if we may say so, correct.
The third paragraph of the headn~te in- ]tfendra
Chan-dra Ray Chaudhu1'1. v. S. N. Banujee '(4) also
reads as follows : ' -

''A promisee can by a unihteral act of ~~ace -on his part

..
absolve the pt"'~isor_ of his obligation under a contract. No
agreemen.t or fresh con!>ideration is necessary where there is a
dispensation. or remission of -the performance o the promise
eith~r wholly or in part 01' , .,hen the promisee has ~ranted an
indulgence to the promisor by way of extending ti1e time for
performance or when.any other thing _h as been accepted as fully
S3.t~sfaction~by the promisee.'; ' ..

It). tbe present - cas~ now undtr appeal, Daw Gun

had a~so paid a surri of Rs. 37 5 towards ttie agreement
to pay a. sum -of Rs. 1,000 in full satisfaction of the
claim whiGh Annamalay Chettyar had against . her in
respec.t . of .the . sale . of the ~o-tor boat} . ari_
d the
agreeme~t which haci..be_en arri~ed at b~~ween ~hem
. .
(1) : I.t.R. (1930i
S3' Mad: p. 127. (3) .(1938) R.L.R. p. 6~.
. C2) A.J.R. (1939) Ma.ol.-p. 688. {<4) I.L.R. 119431 Cal. Vol. I, at p. 101 .
1951] BURMA LAW REPORTS. 23
must, therefore, .be considered to be binding upon H.C.
1950
them. In view of the finding which \Ve have arrived
S. SAMUEL
at, this appeal must be dismissed, with costs. v.
KR S.
Advocate's fees five gold mohur?. A~NAWALAY
CHI!TTYAR
AND
U SAN MAu~G. J.-1 agree. ANOTHER.

U TUN BYU,
c.r.
24 BURMA LAW REPORTS. [1951

APPELLATE ClVIi:".
Before U Ott Pe, J.

JI.C. 0. S. MOHIYUDDIN SAHIB (APPLICANT)

19.50

Nov. 10;
v.
YUSUF ABDUL RAZAK (RESPONDENT).*

S. 24 of the Code Of Civil Procedure-Transfer of sutts-Consideratiotzs

eoteming.
Held: Suits relating to the same. II:ansaction and ~nvolving common
questions of fact should be h.eard by the satne Judge ,
Vitltoba v. Karim, A.I.R. (1932) Nag. 49 ; Sor4j Bashini ' Deb; v. Gil'ija
Prashad Bhatlacharjee, A.I.R. (1926) Cal, 326 ; T: rath Ram v. Harbhajatz
Si1:g!J, A.I.R. (1933) '::,ah. 1033 ; !naval Ullah Khan v. Ntsar Ahmed Klta1r.,
I;L,R. (1922) All. Vol. 44 at p. 279, referred to.
. .
.The fact that a party has the choice of the forum does not deprive the High
Court of its inherent jurisdiction and powers of general superintenderic:. over
all inferior courts. Such power cannot be limited by any action taken earlier.
The Hmdustan Assuranct and Mutual Benefit Society Ltd. v. Rai Mtelraj
and other's, (1915) I.C., Vol. XXVII, p, 455; Tula Ram and one v. Harjiwa11
Das .a11d ofhers, I.L.R (11!83) All. (Vol. 3)61 ; Sileo Nalldtw Lal tmf oflte1 s v.
M(wgai Chand, A.I.R (1927) Pat. 333, referred to.

Tun 1 for the applic~mt.

.. .

Thein Moung for the respondeht.

U ON PE, J.-This is ari appli~ation for setting
aside the order of the District Court, Amherst, in
. Civil lY.{iscdlaneous Case No.' 3 of 1950 refusing. to
transfer Civil Regular Suit No. 47 of ~ 949 9f the
Court of the Subordinate Jitdge, Mo ulmein to .be.. }~ied
along with his Civil Regular Suit No. 1 of 1950~ ... :..
0' . .

Tlre District Court in refusing . the transfeJ.i. .of the

case has taken the view that " the fundamental isst.i:es ,
in the. two suits. are different
. .. . from each other. and that.
Civiq Mise: Applicalio~ N~: 7 o.19$.0 beini! application. under:S~ction 24
o{ i~ Civil Procedure C~de for b:ansfer of\ Civil Regular No. '47 of i949 or the
Court of the Subordinate' Ju'tlge,, ~ou!mein to ' the Distriet Court, Amhers:t tG
be tried along, with Civil Regular ~o. ,l9f l950.
 1951] BURMA LAW REPORTS. 25
H.C.
the two suits are ,different although there may be some 1950
points common tv both suits." It is necessary, there- 0. s.
fore, to consider whether the sc-called fundamenlal MOHIYU DI>IN
S AH III
issues are of such a nature as would just ify the Court v.
to refuse to hear the two suits together because of Yust:FAt1Dl.! L
circumstances contemplated in section 24 of the Civil RAZAI\,
Procedure Code. Civil Regular Suit No. 47 ot 1949 u ON PB,J.
of lhe Court of the Subordinate Judge, Moulmein, is
an ejectment suit of the defendant (the applicant in
this case) from a house No. 82, Lower Main Road,
Moulmein. Civil Regular Suit No. 1 of 1950 of the
District Court, Amherst is one for specific performanG(t
of a contract of sale and for possession of the same
property, and the defendant in tint smt is the plaintiff
in the sui~ in the Subordin~te Judge's Court.
However, the defendant in the suit in the Subordinate
Judge's Court and the plaintiff in t he suit in the
District Court are different persons.
On the pleading in the suit before the Subordinate
Judge, one of the issues framed, .w hich appears to be
the most important one, is : " Has the plaintiff sold
out the suit premises .to Mom in Bi Bi ? If sol does he
cease to be a landlord ?" This is an issue to meet
the main defence raised in ~hat snit, ~an:tely, that the.
Suit <Joes ~ not !i.e as the relationship 0 . landlord and.
tenant has ceased by an act of the .plaintiff, and that
he has no lowssla11.d i. In the case before the District
Court; on t~e pl~ading the most important-issue appears
to b'eJhis, ' ' whether there was a condition precedent
lo .~he sale to rent the ground floor of the suit prepiises
~o,~~he d~fendant, as alLeged in, paragraph 2 (7) of the .
written statement.'~ . The determination . o( each. of .
these t wo issues must 'necessarily touch the question-
of title :9f the suit property as to whether the title in-
t~le pr~p~~ty has passe.<! from the seUer to 'the buver
o r not under th~. alleged sale.' .. . . '
26 BURMA LAW 'REPORTS. [1951
,
H.C. In the course of the hearing of eac...h of the cases the
1950
exhibit agreement of sale filed in Civil Regular Suit
MoS.Y~oots . No. 1 of 1950 of the District Court, will also be a
8
~ 18 material document to be exhibited in the suit before
r~~~~ the Subordinate Court, Moulmein. The question of
R~ZA." title will, therefore, be a common point of both Jaw
u ON P, J. and fact in both the suits, and it appears to rrie that
there i:s much force in the argument of the applicant
that the one suit is dependent on the success or failure
of the other suit and that the two suits are interdepen-
dent to one another. The principle to be follow6d in
matters relating to transfer of civil suits coming within
the ambit of section 24 of the Civil Proc.e dure Code
has been laid down in Vi"lhoba v. Karim (1), as
f91lows:
" Suits relating to samt> trausaction and involving con1mon
questions of fact and desirable to be heard by one Judge, can be
transferred to one Court."

The same principle is laid down in Soroj_ Basht11ti

Dcbi v. Girija Prashad Bhattacharjee (~}, Tirath. Rafrr,
v. Harbhajan Singh (3), and Inatat-Ullah Khan. v.
Nisar Ahmed Khm1. (4). It is thus clear to me . that
there ought to be an order that the two suits' in ques-
t~on should be . heard together . as they rehte . to the
same subject matter -involving . common qttestioris of
fact and is desirable to be heard by. one Judge in. the
'interests of all the parties.. ..
It has l;>een urged by the counsel for resporid.e nt
'tl:Yaf l~is client has the choice o the fon1m ,relying on
the cases o f The Hitzdustan Assur.anc~ and . Mutual
: Betzeftt SocittyLt.d. v. Rai .Mulraj anp, .others ~5), a~1d,-.
Tufa. .Rqm . q,1id one v. Harjiwan Das atid oth~is (6).t
"' ~ . .~ . . .. ... . ....
11) A.I.R: (1932); Nag;' p. 49. (<~> tL..I~ : t19.i21 ~u: 21'9. .
(2) A:I.R; h9z61.caJ; 326. ts')' f.c. Vo1. XXVII, '(19f5} p~ 4ss:
,(3) A.I.R. (1933).Lah. 1033. (6) i:.L.R. (1883) Vol. 3, 61.. .
' 1951] BURMA LAW REPORTS. 27

But it must be rP.membered that the High Court has H.C.

1950
an inherent jurisdiction and the general power of
o.s.
.superintendence over all inferior courts, and that JIIOHIYUDDIN
SAHIB
power is not limited by any course taken by the v.
District Court-See the case of Sheo Nandan Lal and YUSUF
ABDUL
others v. Mattgal Chand (1). R AZAK.

There will, therefore, be an order directing transfer u ON PE,J.

of the case pending before the Subordinate Judge to
the Distnct Court, Amherst, to be heard along with
Ci.vil Regular Suit No. 1 of 1950 of th e District
Court. Advocate's fees 3 gold mohurs.

(1) A.J.~. 11927) Pat. 333 .

28 BURMA LAW REPORTS. [1951

CRIMINAL REVISION.
Befc>re U B~ Gyi, J.

H.C. THE UNION OF BU~MA (APPLICANT)

19.50
Sept. -18.
SAW STANLEY BA KYU (RESPONDENT).*

S. 3, Emergency lProl'i>ions Orditlaflce. 1948 and s. 3 (t), High Treason

Act, 1948-Tflc offeu:~s under.
Held: The j~;~xtaposition o( tb.e words" 0 ''
(intention) and" loS "
(objecl) in s. 3, Emergency Provisions Act, 19-H! shows that an act contrary
to the provisions of the ~edjcn must have been done with the object
and intention of delaying or defe:tting the ope~ations of the Police Force or
U1 e Anned Forces keeping the peace in Burma.
Held /tlr/ha: That in order to constitute an offence under s. 3 (I) of
the High -rrea~on Act, 1948 tbe purr-ose and intention must be of a general
public nature as contra-distinct from a private one such as theft or robbery.
. .
Ba Maungv. The Uniott of Burma,l1950), B;L.R.l31; Mauttg Joktrv.
T/;e Uui01~ uf B~trma, (195'0), ~.L.R 300; followed. .

[! Kyaw (Government Adv?cat~) for the applicant.

KhitJ M.aung
. for the responden~.
;

U Bo Gvr, ].-Accused Saw Stanley Ba Kyu, aged

34, has been convicted under section 3 of the
En:tergency Provisions Ordinance, 1948, for participat-
ing in the raid on the Burma Air Fore~ armoury at the
Burma Air Force Station Headqua_rters, MingaJadort;
ori the Jst. February 1949,_ wheri a large number of
heavily armed Karens described as KNDC)'s loo_ted
a considerable amount of arms and ammuni!.ion besides
other .things from t,he said armoury. . ..
The fact's are that on the m<?rnirig iri question abo9t
10 a.m. the late C.h ief of Air StaffS. }. Khin otherwise
ki1o.wn .as Thiira
. .
Khjn, who. ~as then
. . . . Wing Comma.nde(
.. ..,6 -iminat ' Review No. 292 of 19'50 being review of the order .of the
3r.d Judg.c, S.llperlor. !r~'ilit<\ry~~ourt of I.ns.ei.n, dated .2.8t.b. Aug.qst l9.Sil..,p.as3ed. in
Criminal :Regular Trial ~o.'?.~ of 19~~.
1951] BURMA LAW REI~ORTS , 29

of the Burma Air Force was approaching the _Burma H. C.

1950
Air Force Headqu-arters, in a jeep when he saw 20 to 30
THB UNION
jeeps, trucks and other vehicles coming from the north OF BURMA
along lhe Prome Road and driving into the compound v.
SAW
of the Burma Air Force Beadquarters. H e went into STANLEY
BA. Kvu.
the compound to investigate and met 70 to 80 KNDO's
U Bo GYI, J.
in uniform and ab out an equal number of mtn in plain
clothes. Most of the men were armed. S. J. Kh in
was surrounded by the K NDO's. At this juncture
Bo Maung Maung Soe, Sf.rgeant Tun Yi and Gunner
Ko Ko Gyi (p.ws. 1, 2 and 6) joined him. According
to Sergeant Tun Yi, while S. J. Khin was instructing
Sergeant Khin T oe Maung who was on duty at the
Burma Air Force Station Headquarters not to do
anything, a Karen, ar med with a pistol, got out of one
of the tr ucks and aiming the pistol at S. J. Khin
from in front totd ~im, ''We have occupied your
Force." S. J. Kliin retorted that he was commanding
his men and told . him not to interfere. "At that
critical period "1 Sergeant Tun Yi continues, "a Karen
in plain clothes came out of a civilian true~ and taiked
to the man aimingth e pistol at S. J. Khin in Karen" -;
and_ the man with . the pistol . went qff to,wards the
armour-y. T!J.e Karen in. pl~in .clothe$ wh~ saved the
sifuation was identified by Sergeant . Tun Yi. ~s the
accused before the Court. The . acc;;usecl then talked
with S. J. Khin and, when asked ah9ut the aim and
object of the raid, replied. tbat KNDb's wanted arm~
and ammunition because tbesilwttndans were pillaging
and buming-Karen villages. The Karens then to0k
;lway all the 'Brms and ammunition jhey found 1n the
arinoury as well as other articles they could lay hands
on. ~. The list of at:ms and ammunition looted froin the
311Jl0ury is the Exhibit G . . .
The above st<?ry and: ~vidence for the prosecution
is adinitted by, th~ accuSed m his evidence before _the
30 BURMA LAW REPORTS. [1951
H.C. trial C9urt and also before me. His defence is that he
1950
was forced by three KNDO's to join in the raid at the
THE UNION
QF BURMA point of guns. He examines his near relations and
v. family friends to substantiate his story, and their
SAW.
S:rANLEY
BA KYO.
evidence, which is highly interested, is not free from
defects. The learned trial Judge has adequatefy dealt
:0 .B o GYI; J.
with it and I agree with him in his view that the
defence evidence is not worthy of credence. On the
other hand, the e_vidence of S. J. Khin, which I see no
reason to distrust, clearly shows that the accused
during the raid talked freely -and moved about freely ;
and the evidence ielative to lhe whole episode leaves
one with the impression that the accused was an
entirely free a-gent. '
The next question that falls to be dete"rmined is as
to the offence of whi-ch the accused can be held guilty
on the facts which have been proved. The ]earned
Government Advocate frankly admits that the facts
cannot be brought within the ambit of section 3 of the
Emergency ~ Provisions Ordinance, 1948, and I am
inclined to agree with his view of the law. Section . 3
of the Ordinance -runs-
~t~~~~ ~tcGoo5 ~~o'S8~:Gq:c~ d3~::::8S:Goo?tfi!OOG)t oo?4oo5~
'Pi~ GOO?ti)~~f>o:>t ~tCQoo5rocf.i;;oS~Sibooooo()t:oo~:'t?:~u ~oot;
~~c 'Peoo5oo~oo6' ooq."lj-:>t~ GQ::ntlcf.i~GonSSGq:~ G;?~GI:G()&)$
~~Gc:l ~?:G>'\~GOJ~Gt:l ooG-:>f.:~OJ~ oo~ooqoqo~ 01o5~ ~~
'G.0?~0003jCI ~~~?i GOJ~anl ~ooa:~oto5 OO::OOOOOC'J2lt:'~csS ~cOJ~GO
''!~~~ . .. . . . . .. .
. .
juxtaposition of words '' g" (intention) and. ~~~o5 'f
T.b.~
(object) wo~l~ see~ tq sho\\~ that the ;tct contrary to
the provisions of the section must have 'been .d one with
-the ofiject and intention of .d elaying or de'f~ating the
ope rations of the Police For.c~ ;or the: Armed Fqrces
keeping:. th.~ pea:c.e : of t~e ;_Up.ion. :o: Burma. " If it were
otlireriv-ise~ a thie:wl1o:sleats.a .whe'el -of a m6toi-- truck
0
 1951 1 BURMA LAW REPORTS. 31
in which troops are travelling to quell a r iot a11d thus H.c.
1950
delays their movement would be liable to the punish-
ment of death or transportation for life although he ~~EB~=~~;'~"
had had no intention to delay or defeat the operations v.
SAW
of the troops and only stole the ~heel to feed him and STANLEY
BA KTU.
his family with the proceeds of the sale thereof. Here
in this case the expressed object of the raid was to .u 80 Gvr, J-
procure arms and ammunition. That the object was
not to delay or defeat the operations of the Burma Air
Force seems clear from the fact that the raiders left
some 20 planes in the compound intact.
At the same time, however, I fin d myself unable to
a-:cede to the learned Government Advocate!s conten-
tion that I should on the evidence alter the conviction
to one under section 3 (1) of the .Iiigh Treason Act,
1918. For one thing, there is an insurmountable
procerlural difficulty in the way of the course suggested
because an offence under section 3 (1) of the High
Treason Act is a graver offence than the one of which
the accused has been convicted inasmuch as while in
respect of the latter offence the Court is given. the
option of imposing the ~e ntence of death or transporta-:
tion for life, the former offence must be punished with
d eath, and death only. Again,. the prosecution have
.in this case concentrated on th e proof of facts "';hjch
they thought fell within th e purview of section 3 of the
Emergency Provisions Ordinance, with .t he result that
no facts have been proved such as are required
under section 3 of th e High -;rreason Act, 1948. It
has .been held by a Bench 6 t he'. High Court iQ .
Ba Maung v. The Union of Burma (1) that "in -order
to constitute a n offence under the High Treason A.ct,.
1948, the purpose and intention must b~ of a general
publi~ nature as contrad.istinct from a. private one s uch
as th.e (tort obbery." To the same effect is the Bench
~I) (1950) B.L.R.)31.
3'2 BURMA LAW REPORTS. [1951

H.c. decisiQil in ilfau,.,g1oke1' v. Tl;e Union of Burma (1).

1950
ln the present case no evidence has ~een led as to the
THE UNroN nature and activities of the KNDO' organizat . ion at the
OF BPRMA
~ ..... 1'.
;, SAW
material time, and in a case involving a1~ -offence
STAN.LI!.Y of such gravity as High Treason I feel that I should
B~ KYU.
not take judicial notice of the nature and activities of
u Bo Gvr. J. the organ1zation at the time of the present occurrence.
The proved facts of the case, while lhey may perhaps
sustain an inference that the purpose a nd intention of
the raid was, to ohtain arms and ammunition to raise
the standard of rebellion aga inst the Government by
law established, are nevertheless on the materials
avail9-ble equ~lly consistent with the view that the
venture was undertaken just to rob the armoury of
arms and ammunition for putposes of defence as the
raiders professed. The accused is entitled to the
benefit of the view more favourable to him.
Now, the accused has had.ample notice of the facts
which the prosecution sought to prove against him and
he availed himself of the opportunity to meet those
facts. In these circumstances and in view of the
deCision in Ba Maw1g's case (2), I can see n~ legal.
difficulty in the way of altering the conviction to one
undyr section 395 of the Penal Code and I .alter the
conviction accordingly.
As regards the sentence, although I must take
a iery seri:uus view of. the raid and would have imposed
t~e~ ~~: enalty on t he leader ~r leaders; there are
G:jrcpnj~3.Il.~~ ~ccused's favo\.tr which l find myself
llnable .fo oveflQ. c First, the accused was not in .
lii'niform at:tsi wts ndt armed. He haq on a singlet and
a 16ngyi an(f was}q~ dri~er of one of the motor trucks . .
He did not go ~tetr the arnioury.at . all. Secondly,
While .on the other hand the prosecution have not
11ddqced any evidence to show
. .. ... ... .... ,. . . ... -
~~- . ...
that"tlie
.
accus.
.
e d .was a
(I) f1950fB.J.,.R. ~oO.: , . (2) .(1950i B.L.R. 131.
. 1951] BURMA LAW REPORTS . 31
member of the K~DO or other organization, U Po Pe H.C.
1950
(d.w. 7), Assistant ~ecretary to the Ministry for Karen
THE UNioN
Affairs, states that, so far as he knows, the accused is OF BORHA
of a quiet. temperament and does not belong to any v.
SAw
organization. The learned trial Judge apparently STANLEY
BA l{yu
.accepted the 6th defence witness Saya U Chit Ngwe's
evidence that during the KNDO occupation of Insein U Bo GYI, J.
th~ . accused remained at home attending on his sick
wife whose ailment. was intermittent. This circum-
'Stance would seem .to indicate that the-accused was not
.a member of the KNDO organization and that his
participation in the a rmoury raid was his single lapse.
Last but not least, I take account of the fact that but
:for his tactful intervention a tragic fate would probably
have overtaken
, the members of the Burma Air Force
who had been caught .;~~nawares. Knowing full well
the high spirits and reckless courage of Thura Khin
I feel that if the accused had not intervened in the
way he did, words \YOtdd have led to blows and many
valuable lives would have been lost. I acc:ordingly set
aside the sentence of death, and direct that the accused
be sentenced to transportation for life.
34 BURMA LAW REPORT S. lt9Sr

(FULL BENCH (AP P E LL.A:TE CIV IL).

. Before U Tun Byu, Clticf J us!ice, U Oh11 Pe and U San Mattu i', JJ.

H.C. . D AW LAY AND THREE OTHERS (APPLICANTS)

1950
v.
Aug. 25.
u MAUNG GYI (RESPONDENT).*
Ord~r 20, Rule Z, Code of Ci~il Pro ec!nrt--ludgnumt 7llt'itfen by Predecessor
a11d f>r01~ounced by succceditJg judgc....!Appeat heard by the same judge
as Dtsfrtct judge-Competenc~.
Where arguments were heard by one Judge who prepar~cj 'tile judgment
and left it to. be pronounced by his successor , and that suc'cess.,r delivered:
the judgment under Order 20, Rule 2, Code nf Civil Procedure and
subsequently the same Judge became District and Sessions bdge and in that
capacity decided the appeal also.
Held by the Full Bmch: That he was not competent to hear the appeal.
The.language used, in Order 21), Rule 2, Code of Civil Procedure is that a Judge
may pronouncea judgment written but not pronounced by his predecessor.
This power is discretion.1ry, and whether a Judge should exercise such
discretion is a ;natter depending on the facts of each case. Pronouncing
a judgment is part. of the trial, and if the Judge is in doubt as to the correctness
of StiCh judgment. he can either proceed under Order 18, Rule 15, C ode of
Civil Procedare or hear the cued' novo.
Baker Nicols v. Baker, L .R. 44 Ch. D. '262 at 270; Hargulal v. Abdul Ga11y
Hajtt Ishaq aud twotlrcr, (1936-37) 14 Ran. Ser ies, 136 at 142-143, referred
to and lollowe.d.
It is es$enti~l tint ever~thing which might en~ender suspicion and.
distrust of a Tribunal should b.: cleared away and there must be a feeling of
confidence in the administration of jusli..:e. It is also important thara}~dge
should appear tG-.b~ impartial and without any pre-conceived ide.1 of what l.i~
d~cision should be.: The question, in such cjlse~ is not whether in fad the
Jul.lge~a~ or wa~ no.~ bi,as~d, b:tt that there should be no room for suspicion
.
tholt a Judge is biased: ,.,
~
Loburi Domitia1z.d others v. The Assam RailturtY and Traditlg Co . Ltd.
anrt The Secretary ~~ Sftcfe /or India in Council, (18:14) 10 .Cal. Serle~,.
915 at 917-91~: Sergeml an4 o;hers v. Dale, L.R. (11!76-77i 2 Q.B.D. 558 at '5 67;
.AUinso;. v. General G'ouncil of M.'dica! Education a1uf'Reg,straUott, L.R. (~894 )
1 Q.B.D. 7SO at 758459, referred to.
\ . ..... . "
Civil l{eference No. 8 of 1950 ansmg out of refef.ence made uttder
Rule 25 ot'the Appellate Side Hules of Procegur~ {Civili, ~~- publjsh~d in tb~
Hi Ch Co~rt \Generall N'>tifi_c~tion ~o. 4, dated the z:th May 1949. . . .

.. I
1951] BURMA .L AW REPORTS. 35

G. N. Bamrjee for the applicants.

~
H.C.
1')50

Hla G.yaw for the respondent. D AW LAY

AI'D
THREE
The judgment of the Full Bench was delivered by OTHERS
11.
U MAUNG
U T uN BYu, C.J.-The Plaintiff-respondent GYI.

U Maung Gyi instituted a su it for possession of

certain pieces of land mentioned in the plaint against
the defendant-appellants Daw Lay and three others in
the Courl of the Assistant Judge, Sagaing, in Civil
Regular Suit No. 16 of 1948. The case was first heard
by U Maung Gyi, B.A.,B.L., and when U Maung Gyi,
B.A.,B.L., was transfer~ed, U Aye, B.A.,B.L., who
succeeded him, continued with the hearing .of th e case
from the stage left bff by his predecessor. U Aye also
heard the arguments and wro~e out th e judgment
b efore he was transferred, which he left with the record
of the case to be pronounced by his successor U Kyar
Nyunt, B.A.,B. L. U Kyar Nyunt d elivered the
judgment written by his predecessor '!Aye, which he
had a right to do under Order 20, Rule 2, of the Code
of Civil Procedure; and the judgment was in favour
of the plaintiff-respondent .u Maung Gyi. .
The defendant-appellants appealed . against the
judgn~~nt and decree passed by U Kyar Nyti.n( to the
~ou.rt 0. the District Judge, Sagaing; U Kyar Nyunt,
who . delivered the ju.dgme~t and decree passed in
Civil Regular Suit No. 16 of 1948, was afterwards-
tran sfer~~d as a District and Sessions Judge to Sagaing
District. He heard the appeal filed against. the
judgment and decree passed .in ... Civil Regular Suit
Nq .. 16 of 1948, :which he .disfllissed with costs. The
defendantappellants nex_t fi~ed an appeal in the High
.Court against. the judgment and. dec~_ee pass.ed' by
u Kyar Nyunt as. District Ju~ge in Civil : Appeal-' No. l
~f t_<.H9 qf t.h~ pi-strict .Court of ~againg ; .and . one .
36 BURMA LAW REPORTS . [1951
H.C. of the grounds on which the appeal~ was preferred
1950
reads:
DAW LAY
ANO
THREE "That the learned District Judge of Sagaing was not
OTHERS competent to hear the apteal, viz., Civil Appeal No. 1 of 1949
v. of the District Court of Sagaing, in view of the fact that the
u M ,ICNG
GYI. judgment under appeal \\as passed by him when he was
U TUN 6YU,
1st Assistant Judge, Sagai::g. The judgment and decree o{ tbe
C.}. lower Appellate Court was liable to be set aside in law as it has
been passed without jurisdiction."

The question which has been referred to for

decision is as follows :
"Is a Judge, who Ins pronounced a judgment, written by his
predecessor under Order 20 , Rule 2, of the Code of Civil
Procedure, competen t to deal with the appeal against that
judgment as a Judge of the Appellate Court?"

Thus, the question, which has been propounded for

consideration in this reference, is quite comprehensive
and not merely confined to the particular facts of this
case. It will therefore not be necessary to consider,
for the purpust o( this reference, what is the effect of
the case diary, dated the 26th December, 1918, made
by U Aye, the predecessor of U Kyar Nyunt, or what
effect it must have produced on the mind of . U Kyar
Nyunt who delivered the judgment written by his
predecessor U Aye.
Order 20, Rule 2; of the Code of Civil Proc.e dure
reads:
'' A Judge may . pron')unce a judgment written but net

..
pr0110unce.9- by. his predecessor."

The word' may' in Order 20, Rule 2, of the Code

of Civil . Procedure it1lpli~~ that U Kyar, Nyunt who
succeeded U Aye was not bo'Und t-o 4eliver ..the
judgm~nt'yvrittep. by .U Aye, .if he.:: did . not t.hink. 1t fit
to do 'SO. . In other words ; Rule z. of . Order 2.0 .allows
U Kvar Ny.unt to exercise . his own dis-cretion w.h'eth.er
 1951] BURMA LAW REPORTS. 37

he should prOI)Ounce the judgment \'<:ritten by his H.C.

1950
predecessor or nQt ; .and it is therefore only proper to
DAvi'LAY
presume that U Kyar Nyunt must have read and AND
THREE
thought over tbe ju_dgment written by his predecessor OTHERS
before he delivered it, because it would be only u MAUNG v.

rea~onable to presume that a Judge would refer to the GYl.

relevant prov.isions of the Code of Civil Procedure, u TUN BYUt
i.e., Rule 2 of Order 20, before he ~elivered the c.J.
judgment which was written by his predecessor. Lord
Cotton L.J. in Re Baker Nicols v. Baker (1) observed:
"I think that great misconception is caused by sa) ing that
in SOme CaSeS 1 may t meanS C mUSt t It never can mean 1 must T 1
so long as the English language retains .its meaning; but it gives-
, a power, and then it may be a question in what cases, where
a Judge has a power given him by the word 'may', it beyomes
his duty to exercise it."
. It appears to us to be clear that the power given to
a Judge to pronounce a judgment written by his
predecessor under Rule 2 of Order 20 of the Code of
Civil Procedure, is discretionary, . and . whether the
Judge concerned will or will not ~xercise it will depend
on-the facts of each case, and thi_s discretion is to
be exer-cised judicially; in ~ccordance . with the.
circumstances of each case. _ Pronouncing a judgment
is cfearly a part of a trial, and it is performed ' by. a
Judge _of the .Court in which -the proceeding is heard.
In Hargulal v. Abdul Gany Hajee ishaq and angt/Ur l2)
Page C.J', also observed as follows : . _ -__ _
. . ! ; . . i' :: ~ ; . : : . . . . . '~. : . . .:' .. . .
"It. ha~to be borne in mind(ofcourse, .t hat under Qrder,-.20,-
R~le 2, it is iiot necessarily incum6erit up-on the success_Ci! . of.the__
Judge' who: wrote the judgmerif'
.
after' h'e ; had ce~sed'
..
'be I a to- .~

Judge of t~e Co.u rt in wh~ch .the trial was held to pronoun_c~ the .
- judgment that had .b~~n, writt~n :by hi<>. pred.ec~ssor. H~ has . ~:: .
discretion 'in th.e. matter: andif he. is i~ dol,lbt ~s- to the ~orre~t~ess~
of the judgment: that' h~s b-~-~~::w~itt~~ by hi.s predecess~r- h~::_
, : ' . . ' . .: . : ( : : : .,. j .~ ; .' .' I . . ,
38 BURMA LAW REPORTS. [1951
H.C.
1950 . ought either to act in accordance with the prQvisions of Ord er 18,
Rule 15 or: to hear the case de novo."
D.A.W L~T

.lKI>
TH.RltE
It is possible that U Kyar Nyunt mieht
'""
not have
.oTaus given any serious reflec~ion to the judgment written by
u M:u)(G his predecessor before he deliverd it in Court and was
GTI. therefore not likely to be much influenced by his
u Tu BTu, .previous conduct in delivering the judgment of his
C.J. .
predecessor, but it is of importance in the interest of
justice that a Judge should appear to be impartiaf and
without any pre-conceived idea of what his de'cisiQri
should be. It was observed in Loburi D_oniini -.and
othc~s v. The Assam. Raflway and Trading Co. Ltd."
and the Secretary ofState jor India in Council ( 1) as
follows:
"The jealousy of the law which forbids any Judge to try
a cause in which he is .a party or personally interested; or to
adjudicate upon any proceeding connected with or arising out
of stich cause (sees. 25 of Act VI of 1871, whkh embodies this
Jprinciple),does not rightly reflect any umw)rthy suspicion upon
anlndividual Judge, while it secures and upholds one of the great
pillars of judiciai purity."-
Lush J.,. in Sergeant and otliers v. Dale (2} also
observed as follows :
"On~ important object, at all events, is to ' .clear_: away
everyU;ing which might engendeF suspicion and distr~st of the
tribunal, and so ~o promote the feeling of .c onfidence in the
administration
. . . justice
of . whiCh is ...so, essential
. . to
. sodal
. orde.r and-
, /

security;" .
w e.think we als6 o u.g ht .t o reproJuce the tbserva..: .
'tieno(Lord-Esher, M.R., In Allinson v. General Council
of . M;dical Education :and Registratiorz . (3} wh~ch..
reaci,s:: .
.. '''i: his relation .is sueh that by rio po~sibility" h~. can. be :
.biased; 'then' it see~s Clear .that there . is~ .no objection 't<:> hi's..
..(i,(ig~~,IO ~at-. Seriea, 9IS at 91l-~18 1~1 L.~. 11.87~-:?il ~ Q.B:.D: $.S8.;at.5~7.
(3) L.l~. 11894) 1 Q.I\.D., 7SO at 7SS-7SY.. . . . .
. ' .. . . .
 1951] KURMA LAW REPORT S. 39

acting. The question is not, whether in fact he was or was H.C.

1950
not biased. The ~ourt cannot inquire into that. There is
something between thtlse two propo!>ilions. In the administra- D.t W LAY
AXO
tion of justice, whether by a recognised legal Court or by persons THRE E
who, althou~h not a legai puulic Court, are acting in a similar OTHERS
v.
.capacity, public policy requires that, in order that there should U :WAUNG
be no doubt about the purity of the administration, any person GYI.

who is to take part in it should not be in such a position that he U TUH BYU,
might be suspected of being biased . To use the language of .].
Mellor J., in Reg v. Allan (J), "It is highly des~rable that ju~tice
:Should be administered by persons who cannot be suspected of
:im~roper motives.'"

The 'observations made in the cases of Loburt

Domini and others v. Th e Assam Railway and Trading
Co . Ltd. and the Secretary oj Slate for Ind ia in Council
{2}, Sergeant and olhers v.
Dale (3) and Allinson v.
General Cou1tcil of M edi~al Education and Regi stration
(4) are weighty and salutary, and it seems to us to be
only proper in the interest 'Of . : pure admi'nistration of
justice that a Judge who pronounced a.- judgm-ilt
wh ich was written by his predecessor, as allowed
-u nder Rule 2 o( Order 20 of the Code of Civil
Procedure, ought not to hear the appeal which has
been preferred agaK1st that judgment'; an d a Judge
-should be above all suspicion of ~ eing biased. O.ur
4nswer to. the question propounded is in th e negative.

. ~1 ) 4 B:a~d S. 915 at 9ifi.. . . . (3) L.R. ( i876.:77) 2 Q.B.D..55i .at.:56i. .

. ~2) (18i'l) 10 cai."Serill ,915 at 917:-911. (4) L,R, (119-4).Q D. !SO at 7511-759; .
40 BURMA LAW REPORTS. [1951

APPELLATE CIVfL.
Before U Tuu Bytl, Chief Justice, attd U Ott Pe, J
.H.C.
' 1950
MRS. K. M. KERWICK (APPELLANT)
Aug. 25. v.
P. D. PATEL (RESPONDENT).*
Broke1 for sale of lancf,--Remurlerafion-Whcn e11titled to .
P acted as an agent of Mrs. K for 'the sale of her land to the American
Embassy but he did not act as Mrs. K's sole or only agent !or the sale of the
said land nor did 11e bring the Head of the Embassyor a~y accre.dited agent
of the Embassy into contact with Mrs. K ; nor did he do anything substantial
of
for the.sale the land. .
The sale was subsequently put through by one S. P then sued Mrs. K for-
recovery of Rs. 7,000 for services rendered in connection with the sal.e of her-
land to the American Embassy or in the alternative for a breach of contract in
preventing him from completing the sale.
Held: An agent is n~t entitled to ahy brokerage or remuneration unless he-
ha~ done subs~antially something whicl1 can be 'treated as the effective caus'e-
of the subsequent sale.
. .
James T. Bu1clull v. Gowrie and Bl;ck House Collieries Ltd., (1910) ~.C'.
614 at 625, reli~d on, : . .. ..
Co.Jes ~. E1;o~~. (1939) 1 K.B. 614; s: Dt;tt v. Nt: :tya 'Nath !litle1, SO Cal.
878) re(erred to. . ' '

C. A. Soorma for the ~ppellant.

Kyaw Myint for the responden~.

The judgm~nt of the .Bench was delivered ~y. .
U TUN Bvu, C.J.:-The .defendant-appellant
. Mrs. K. M. Kerwick owned piece of land on the side . a
o{Victoria Lake known as the lake.lanci,.whicli. was.
;:;old ~ubsequently to the American Embassy. The
plaintiff-respondent P. p. ~atel institpted a suit; known
as 'Civil
.. Reg:Ular No. ;277', of 194~ , of.. the: City Civi~
.
. '
. . .. . . .
.. " ... . ..
*Civil lst Appeal No. 16 of 1950 against the P:ecree o f the Chief. Judge~
.

,city:Givirci.u rt, Rangoo,ri in ~ivil 'Rei~Iar No. 277pf t949idated 21St Februaty
1~50. . . .. .
 1951] BURMA LAW REPORTS. '4i
Court, Rangoon, against the . defendant-appellant H C.
1950
Mrs. K. M. Ken~i ck, for the recovery of a sum of
Rs. 7,500 for th~ services he was alleged to have 1\:k~~\~ic~I.
rendered in connection with the sale of the lake land P. D. ~~;~T~~:
to the American Embassy, and in the alternative for a u 'f- -
UN 8 YU,
breach of contt:act in preven ting him from completing c.J.
the sale of the lake ~and to the American Emba~s y.
Mrs. K. M. Kerwick, in effect, denied that
P. D. Patel was entitled to receive any brokerage from
her in connection with the sale of the lake land to the
American Embassy. She also denied that there was
any contract to employ P. D. Patel as her exclusive .
or only agent or brok.er in connection with the sale of
her lake land to the American Embassy or that sh~
had committed any breach of contract. She moreover
alleged that P. D. Patel did not take any further step .
or action to obfain sale for her lake land after 5th May
1947; and it inight be mentioned at once that the
Am~rican Embassy, in . effect, decided to purchase
Mrs. Kerwick's lake land on or about 19th. January,
194~ , that is :ibout 7 months after P. D. Patel was
alleged to have done nothing"more to bring about the
saie ~f the .lake land with .the A~erkan Embassy.
The learned Chief Judge, City Civil.Court, Rangoqn,
gave a judgrnentand decree in favour of the plaintiff.-
respondent P. p. Patel. Mrs. Kerwick . ~ow appeais..
_against the said judgment and decree. " :
. . It :wiil be necessaryto ascer'tain f'or the. purpose of .
this appeal the_ ci.rcumstariG.es :un(ier which P .. D.' P.atel
was ~sked to negotiate for tne sale of the lake land\.vith
. the Arrier-ican Rmbassy and :the services that lie was .
sai.!i to have re.ndere~~ in connect{on with t~at . ne-go~ .
.tiat.ion ; and this ,~'ill involve the' cohsider~tion whether
P.n: :t=>a.tel h,ad heen rna.de an .exdusive qr orily ageilt
or hrok~r- fQr Mr~. Kerwick for.the .pin:pqse of -negb<.:
_-tiating the sale:. of th~. take.: l~nd with. the Airieridm
42 BURMA LAW REPORTS. LlYSl
H.C. Embassy. We might also mention that the sale of the
1950
lake land, which was effected ori or about the
MRs. K. M.
KERWICJC 18th January, 1948, was made in fact through one
v. C. Stephens, a broker.
P. D. PATEL.
It will be more convenient to consider first, what
U T UN BYu,
C)~ are the circumstances under which P. D. Patel came
to negotiate _with the American Embass-y for the
sale of Mrs. Kerwick's lake land. P. D. Patel in giving
. evidence as to what led him to negotiate for the sale of
the lake land with one Mr. Packer of the American
Embassy, stated as follov.:s :

" It was. then th~t Mr. Oehme said why I would not sell.' the
defendant's land to the American Consul-General. He said thus
'You wiil do a f_avour to Mr.s. Kerwick and also earn a good
brokerage.' I asked him which was the land and he said it was
' the Lake Land. ' I did not then know where it was situ?.ted.
He gave me the particulars of t11e l;,md. I then asked him the
lowest price that Mrs. Kerwick wan'ted and the brokerage that she
was prepared t? give me. .He sai~ that she Would be satisSed with
whatever she paid for _it. I asked him the said price and the
persons from wnom she bought it and he said sHe bought it 'for
Rs. 1! lakh:; f~om Messrs. Foucar & Co., and .:that I would' be
paid the usual brokerage. on my further ei1cfuiiy he said he
would give me the usual brokerage o Rs. 5 pb1 cent. Soon afte-r
. that, I do not no\v r.e member the -~xact date, I saw the American
Consul-General 'Mr. P'aclq~r at his_:..9fflce and interested him in
th fs tan d."

. lt will b~ observed that 'there is nothing ih. the

. above statement of P. D. Patel to show that G. N. 'Oehme_
iOJor~ed him that he was to act exclusively or solely
for Nrr:;. Kerwitk in connection with ~he s ale .o f her
_lake land to -the American -Embassy. P. D. Patel
.. proceeded in 'his evidence to speak ~ abo~t the . visit:
~hich he made to the lake: hind in: the ~6mpany 6(
Mr. ._Packer-. and C. N. -Oehrne. He did. not mention .
:.in.. his. evidence
.
c:N.
.that .
Oehme ever totci bi
.
~ - at any
 1951] BURMA LAW REPORTS. 43
H.C.
time during the vj.sit to the lakt land t hat he was to be 1950
Mrs. Kerwick's onl~ or exclusive agent for the purrose MRs. K. M .
of negotiating the sale of thp lake land t'o the American KERWICJC
v.
Embassy. P. D. P atel did not also mention in his P.O. PATEL.
evidence that, when he met Mr. Kerwick at Kalaw U TUN BYU,
some time in May, 1947, he told her that he should be C.J.
her only or exclusive agent or broker for negotiating
for the sale of her lake land with the American
Embassy . H e, it appears, met Mrs. Kerwick at Kalaw
for the second time in August, 1<;47 and to use his own
words what he said to Mrs. Kerwick on that occasion
was as follows :

''She then asked me the result of the negotiations for the

lake land, and I told her that we were waiting for the reply from
the building expert in U.S.A. I then returned to Rangoon."

The conversation., ~hich P. D. Patel had with

Mrs. Kerwick' on his second visit to her at Kalaw,
turned more on M.i nto Mansion land -..vhich
~rs: Kerwick was also anxious to s.e ll.
After his second visit !o Kalaw in August, 194-7, where.
he also met Mrs. Kenvick, P. D. Patel did not appear
to be in touch with t.he American Embassy till about
the 4th December, 1 947~ which he ought to have done
if he really desired to have the sale of the lake land
effected throu.g h him. If P. D. Patel entertained any
. prospect of concluding .the' sale of the lake land with .
the American Embassy, orie would also have. expected .
him to endeavour .t o find out when Mr. Acly, who was .
to succeed Mr. Packer, would arrive in Rangoon: He.
apparently.made no attempt-to find out when Mr. Acly
was to arrive in Rangoon, nor did he attempt to .~ee
Mr. Packer again. after his second visit to Kalaw in
Aug~st; 1947, . although . Mr. Packer remained . in.
RangoO'n.until Mr.Acly, his successorl arrived. He~ .
44 BURMA LAW REPORTS. [1951 _
H.C. it appears, met Mr. Acly for the .first time only on
1950
4th December, 1947, when ~e was informed by
MRS, K. M. M A
KERWJCK r. ely that one C. Stephens, a broker, had been
P. n. "PATF.L. negotiating with the American Embassy for the sale of
u TuN BYu the lake land. Thus it is clear that, after his interview
c.r. ' with Mr. Acly on 4th December, 1947, P. D. Patet
knew that the American Embassy was negotiating for
the sale of the lake land through C. Stephens, and not
through. him. It was with this knowledge that
P. D. Patel wrote, . on the same day and after his
interview with Mr. Acly, to Mrs. Kerwick, and in his
letter, Exhibit 4, he accused her of imparting the name
of the proposed buyer of the lake land to C. Stephens,
a matter vvhich Mrs. Kerwick denied at once.
P. D. Patel did not mention in that letter that he had
been informed by C. N. Oehme "that he was to act a's
her only broker or agent for th_e purpose of negotiating
the sale of her 'lake land to_the American Embassy, and
this omission is significant in view of the fact that
P. D. Patel had been alawyer for many years and ~as
a gentleman . who was not unaccustomed to litigation,
and in that he must have reali,sed or surmised, after. his
inte.rvi~w with Mr. Acly, that the America'n Embassy
was not ready or :willing to negotiate :the purchase of the
lake land .through him7 we ought to mention th_at
there ~s not a wbrd in :the correspondence . that pad
passed between. P. D. P.afel a:nd. his lawyer on the_.--one
side and Mrs. Kerwick and her lawyer on the otheF to
show that P. D. Patel ever alleged that lie. ~ad been
"appointed, or. made a sole .or .only broker or agent for
the turpqse of..negotiating the sale of the lake. land with
the American . Embassy~ We .. might add that
P; D. Patei ..also omitted to allege in his plaint that he
had b:een appointed or mad.e a' sol~ agent or . broker to
negotiate , for. the !?al~ .of th~. lake. land with . the
American Embassy.- Tliese.o'missjons ap.pear to. ~s to
 1951J BURMA LAW REPORTS. 45

be astonishing, and. they militate against the truth of H.C.

1950
the belated suggest1<?n of P. D. Patel that he had been
MRS. K. 1\f,
made a sole or exclusive agent for the purpose of KERWJCK
negotiating for the sale of the lake land to the Am erican P. D.
'IJ.
PATEL.
Embassy. V.le cannot in the circumstances of this
U TUN BYU,
-case accept his sta(ement on this point \Yithout C.J.
independent or clear supporting evidence, of which
we must say we see none, especially in view of the
lawyer's E xhibit K letter, dated 12th March; 1948, sent
-on behalf of Mrs. Kerwick to the Advocate who was
then acting on behalf of P. D. Patel, and the relevant
.portion of this letter reads :

" It is significant that in your letter you gave no particulars

of the alleged agreement with rvrr. Patel ; nor do you even state
the rate of the brokera~e that he claims.
Any suit your client files w~ll most certainly be contested.''

A reply was sent ~n behalf of P. D. Patel to the .above

"lefter, and, although the reply was quite long, it d id
not mention anywhere. a bout P. D. Patel having been
appointed a sole agent or broker for Mrs. Kerwick.
Over and above this, P. D. Patel when he was allowed
t~ give further evidence in Court for the second time
_gave answers which cl~arly militate against his subse-
.qtient belated sugge~tion that he had been made a
sole or exclu~ive agent of Mrs. Kerwick for negotiating
Jor the sale of her la.ke land with the Americail
Efnbassy. The answers; ~ith the question~ put to him,
:read :
'

"Q. Is it your .case that you \vere engaged by the defenaant.

~to sell this.land through . you and that the defendant should. not
."eng~ge any ~~h~r person to do..so? : .
A; Ther~ was no stipulation .th~t the . defendant should pot
no.
~engage oq1~r brokers "to sell this. }arid .. ~ Ii1 fact . there was
discussion on this matter.
46 BURMA LAW REPORTS. [195 1

H.C. Q. W as there a stipulation in the agreement between you and

1950. Mr. Kerwick that if she sold her land in suit in question through 0
MRS. K. M. some other broker you would still be entill'ed to fulJ brokerage ?
KBRWICK A. As such a question did not arise there was no discussi0n
about it. As such a question did not arise I did not stipulate with
Mrs. Kerwick that if she had engaged any other broker simulta-
U TUN BY U,
C.J. neously with me I would not have done the work."

P. D. Patel in his answers to subsequent questions

endeavoured to extricate himself from the effect of the
above statements, but we are unable to give any weight
to his subsequent statements, belated as they were and
made by a gentleman who had been a practising
advocate for very many years and who was not un-
accustomed to litigation. .
It has been urged on behalf of the respondent that
the Exhibit 12 letter, dated 21st Decembt>r, 1947,
suggests that P. D. Patel must have been appointed a
sole or exclusive agent or broker to negotiate for the
sale of the. lake land with the American Embassy and
that C. Stephens would not have been asked, in effect
to withhold his negotiation for the sale of the lake land
with the American Embassy if P. D. Patel had not been
made her sole or exclusive agent or broker to sell the .
lake land to the American Embassy. We are unable
to see any real force in this contention, partkululy in
view of what Mrs. Kerwick stated towards the end of
that letter, which read~ : _
- '' It is of course understood 1 am free t~ accept offers from
.
other sourcfs nd 1 do not bind myself in any way.''

If the implication which was attempted to be placed on
be-half of th~ respondent is correct, we would have
expe~ted him to have adopted that attitude long before .
he was all<_>.wed to be .ex amined for the secondtime in .. ,
the City Civil Court.: It. -is only reasonable in the
circumstances of this case -to conclude that neither
..
'
 195 1] BURMA LAW REPORTS . 47 "

C. N. Oehme nor.Mrs. Kerwick held out to or informed H.C.

1950
P. D. Patel that h~ wa~ to be Mrs. Kerwi ck's sole or
exclusive agent or broker for the purpose of negotiating .r.~~~~~;c~f.
forthe sale of her lakeland with the American Embassy. P.o. i':ATEL.
In dealing with the question whether the respon- u T-
.
d en t 1s enbt. 1ed to clam1
. an y bro k erage f rom lli'N BYU,
C.J.
Ivir~.. Kenvick in co nnection with the sale of her lake
land to the American Embassy, which was affected
through C. Stephens, a broker, in January, 1948, it will
have to be remembered that when P. D. Patel met
Mrs. Kerwick on the second occasion at Kalaw in
Augus!, 1947, he merely told her in connection with
the negotiation which he conducted for th e sale of her
lake land that the American E mbassy was waiting fo r
the arrival of the building expert from U.S.A. He
did not tell her on that occasion that the sale was
practically concluded except for the arri\al of the
building expert from U.S.A. or that the American
Embassy were likely to buy her lake land as soon as
the building expert arrived in Burma. It has however
b een subrriittea en behalf of the respondent that the .
Cou!'t ought to bear in mind that Mrs. Kerwick had
not .come forward to give evidence in this case, but
we are unable to see anything in this case which will
indica~e that her absence in Court has . materially
prej udiced the case for the respondent. It was not
alleged by P D. Patel any where that Mrs. Kerwick
ha1 personally appointed him her sole or exclusive
agent for the purpose of negotiating for Hie sale of her
lake land with the American Embassy, and s he app.are~-
tly saw P. D . Patel only twice, and that was at Kalaw.
According to p. D. Patel, he .went and saw
Mr. Ush er of t he American Embassy after his return
frqm Kalaw i~ . August, 1947, and that he ask~d
Mr. Usherto ~eave _a note behind in connectio_n with
his negotiation for the sale of the lands with the
 '
48 BURl\:lA LAW REPORTS. l1951
H.C. '
1950
American Embassy. There is noth-in~ on the record
to support P. D. Patel on this point. His Exhibit
MRS. K. M.
KERWICK Y tetter, dated 21st September, 1Y47, to Mr: Usher
v.
P. D. PATEL.
reads as follows :
U TuN BYu, "I have now retnrned from Kalaw and shall be pleased to
C.J. know how the position stands.
I would like to have a little discussion wit~ you in respect
of Minto Mansions. Any day any time. after 23td September will
suit me. '.'

It will be observed that no mention was made of the

lake land iri that letter, and thus there is nothing in
the correspondence to suggest that P. D. "Pat~l co~l
tinued to negotiate for 1he sale of the lake land after his
return from Kalaw in Aug1:1st, 19-l7.
It does not appear that Mr. Packer. informed his
successor Mr. Acly anything about P. n:s
Patel's
negotiaticm for the sale of the lake land to the
-American Embassy, whid~ we would have expected
him to do if tl!e American Embassy had not ceased to
have anything t~ do furtl1er with . P. o:
Patel 1n
' connection with his attempt to seil the lake land to the
American Embassy, especially in view of. the last
paragraph of his letter sent to Mr. Packer o:n the
14th Au~ust, 1947, which reads:
''Be good enough to leave a suitable note to yoin sucessor
-~s I would like to put through . this transaction both t6 the
s~tisfaCtion of the Consulate-General,: and the Owners of -.the
. . , .
pro pert~. "
T~is letter illsd militates againstthe suggestion that
the American Embassy was wil_ling to purchase the
l~ke land subjcct.,.to the approval by the building .expert
who was - to arrive from U.S.A; -.The- e vidence also
show~ t hat Mr. Packer went ~i6n.g _wlth Mr.. Acly. and
c:.St~phens to inspect the lake land before- Mr. Packer _
.left .:Burma."- This.
incident .also militate~
. .' against
.. .
1951] BlJJ{MA LAW REPORTS. 49
Fl.C.
the suggestion tl;.\at the American Embassy contem- 1950
plated to purchase. the lake land through P. D. Patel. MRs.K.M,
It is only proper, in the circumstances, to assume that KERWICK
v.
the American Embassy had not decided at any time to P. D. PATEr.
purchase the lake land through P .. D. Patel, whether U TU.N BYU,
C.J.
bo;fore . or after Mr. Packer left Burma ; and this is also
supported by the fact that Mr. Packer, before he left
Burma, returned the plan of the lake land to P. D.
Patel, l'idc Exhibit A (1). This explains why P. D.
Patel remained inactive. or did not do anything in
connection with his negotiation for the sale of the
iake land between the end of August, 1947, and the
4th December, 1948. T he last paragraph of the letter
w~i. ch P. D. Patel sent to Mr. Acly on the
4th December 1947, reads :
" As regards RanRocn, I shall be very glad to give all help
and assistance . and I feel sure that I si.Jall not fail you with
40 years connection in Burma provided I know your requirements.
As regards lake. Iand-I am sending you a copy of the plan which
I originally gave to Mr. Packer and which he returned to me
before his departure. As far as I remember it is Plot 32. You
Ca.n keep the copy as l' have a spare orie. I can show you other
land acces.sible fro~ Kokine Road."

The Exhibit 1 letter w~c~ P. D. l?atel wrote to

C. N. Oehme shows that as early as. May, 194.7, P. D.
Patel ~ad not been able to make any real progress
with the American E.mbassv for the sale of the lake
land, and the rele~ant portio~ of the. letter r~ads '; .
"I have 'seen the Am~rican. ConsnJ-General and give~ hitft
your'price of Rs. l ,OO,COO. He has made notes of all particlilars
t?ut my impression. is. that he was.ncit keen. Ho.we.v.er leave to
luck and I shall dotb.e. be.st."
! , .. 1

., P~ . D. Patel' in his l'etter to c. N. Oehnit, :dated the

tst .August,,1947, did not men~ipn anyf~iiig abo~t the ,
lak~ hmd, and' neither di~ ne mention about' flie "lak~
. 4
50 BURMA LAW REPORTS.
.' [i951
H.C. land in his letter of the 14th August, 1947. Thus it is
1950
clear that P. D. Patel had not beeri- able to interest
~;R\~c~ Mr. Packer or any one in the American Embassy in
P. D.vPATn. his negotiation for the sale of the lake land to the
- American Embassy up to the time of his second visit to
u T~\BYu, Kalaw in August, 1947. The letters, Exhibits X and Y,
which P. D. Patel sent,to Mr. Usher on the 20th Au.gust
and 20th September, 1947, respectively also suggest that
he was concerned in negotiating for the sale of lands
other than the lake land to the American Embassy.
It does not therefore appear that P. D. Patel did any-
thing more to advarice his negotiation for the sale of
the lake land after he wrote his letter Exhibit 1, dated
I9th May, 1947, to C. N. Oehme. : Moreover, the last
paragraph of Exhibit A(l} letter, dated 4th December,
1947, appears .to us to be significant in that it suggests
that P. D. Patel had not been successful to any extent
in his attempt to negotiate for the sale of the lake land
with either Mr. Acly or Mr. Usher because if it were
so, we would haVe . expected him to have stated it in
that letter, especiallyJ.if heihad conducted the nego-
tiation to the stage which he alleged, namely, that the
American Embassy was.. willing to purchase the 'lake
land, subject to the approval oi the building expert
who was to have arrived from U.S.A. There is also
nothing in the correspondence, nor had P. D. Patel
alleged in,his evidence, that he made any attempt at
any time t() discover when~the building expert from
U.S.A. was to arrive, an omission which also militates
.against the suggestion that the American Embassy had
in effect agreed with him to~buy the lake land through
him, subject to the approval of building -expert from
U.S.A. . It-. seems to us that something mu~f have
occurr~~ to . mak~. ;the Amrican;: .Embassy . a&ai:n
interested iri the lake.l.arid ; an'!:f we do not think it.wilr
. be wrong.to assume t~afit ~~sthav~ been C. Stephens
 1951] BURMA LAW REPORTS. 51
who had awakened a new interest in the American H,C~
1950.
Embassy after th~ arrival of Mr. Acly in Rangoon
K.M.
because C. Steph~ri s went along with Mr. Acly and MRs. KaRwiCJt
l\Ir. Packer to inspect the lake land. Exhibit 4 letter, P. D. 11.PATEL.
d ate d 4th December, 1947, is also important. P. D.
U T UN BYU,
P atel did not even insinuate in that letter that he had cJ.
practically succeeded in negotiating for the sale of her
land to the American Embassy, or that any one from
the American Embassy had told him that they were
willing to buy the land subject to the approval of the
building expert who was to arrive from U.S.A. There
is also nothing on the record to suggest that the
building expert, who arrived from U.S.A., inspected the
lake land or that he was consulted by the Amtrican
Embassy for the purchase of the lake land. It appears
to us that if P. D. Patel could have accused
Mrs. Kerwick of divulging.the name of the purcbaser
to C. Stephens, he would not have also hesitated in .his
,letters, either to her or to C. N. Oehme, to state that he
had been made a sole or exclusive agent or broker for
n egotiating the sale of the lake land to the . American
. Embassy or that. he had in effect practically su~ceeded
in negotiating for the sale of the lake land subject to .
the approval of the building expert from U.S.A. On
.23rd January, 1948, P. D. Patel wrote a letter to
Mrs. Kerwick, the second paragraph of which reads : _
" I hear enou~h, I know enough and I have no time to waste
-p"ver any f~rlhet corre3pondence in view of yo~r unfair. and
untenable attitude after substanthl work is done."

He has not stated wl1at the substantial work that he
..:had donewas, and we are unable in this case to .see
thaf he h~d done a!lything whi~h ~ould effectively ,
have brought about the sale of the la~e land to the
. A~et.i_cal! ~~b~~~y except f_or the . intt~rventio-u oJ i
.a'n(?ther Hro1{:-er,, C: .S,t_eph~p$. We are.therefore .unabl~
'' ,a <: , ... ' '
52 BURMA LAW REPORTS. [195t
H.C.
1950.
to see how P. D. Patel can claim an.y brokerage from
Mrs. Kerwick for the sale of the. lake land to the
MRS K. M,
KJ!'RWICK American Embassy made in January, 1948.
II.
P. D. PATEL.
' It has also b een contended on behalf of th e res-
U TUN 8YU,
pondent that Mrs. Kerwick, in employing C. Stephens.
C.J. to negotiate for the sale of the land with 'the American
Embassy, had in effect prevented the respondent from
completing t_he sale of the lake land to the American
Embassy. We, however, cannot accede to this conten-
tion. P. D. Patel wrote to Mrs. Kerwick on the
4th December, 19-1-7, complaining against her allowing
C. Stephens to negotiate for the sale of the lake land with
the American Embassy, and Mrs. Kerwick wrote, after
the receipt of P . D. Patel's letter, to C. Stephens on the
9th December, 1947, withdrawing her permission to-
negotiate for the sale. of the lake land with the
Amer\can Embassy. She also wrote on the saxpe day to
P. D. Patel, an d it will be convenient here to reproduce
a portion of her Exhibit H, which reads:

'' Mr. Stephens has worked for me for many years and:
when h.e r,eturned to But-rna and informed me he had restarted
hi15 business I natur.ally p1,1t my properties in his hands for sale~
When h~ told me h.e had approached the American Consul illl
connection with~ the lalce hpd, I then told him thal you had
already approached them an.d taken tlte Consul-General over. the
land and they aJready had all the par ticulars. I am writing to
Mr. &tephens and will t~lll!im that you are still dealipg with the-
American Consul in. connection with this lanq and not to interfere ~
At the same time it must be dearly unders'ood that this does not
bind me from a~cepting any other offer through Mr. Stephens or
~Y:O~~r party meant} pte. I cannot leave the matter in your'
hand!! indefinitely and I am free to accept the ~st offe.r for the
land from any person who .may bring it to me whether the pur.-
chasers are the American people or any ~ther person.'

it. wiU be-: observ'ed.-: that P-: D-. Patel' was gi\ren an
op~~unity- t0 <ontiriue his nei~6&.ition with - the
1951] BURMA LAW REPORTS. 53
American Embassy for the sale of the lake land, but H.C.
t9SC.
there is no eviden~e to show what P. D. Patel did after
MRs. K . M.
that date to renew his ne.gotiation for the sale of the Ka~wum
(/,
lake land .. P. D. Patel has not stated in his evidence to P, D. PATBL.
indicate what effort he made to renew his negotiation u TUN B YU,
with the American l:!:mbassy a'fter the 9th December, C.J.
1947. A portion of Mrs. Kenrick's Exhibit J letter,
dated the 9th January, 194-8, reads as follows :
" I object to being bullied in this n1anner in otder for you
to get some brokerage. I have distinctly told you .that I do not
bind myself to sell only through you irrespective of who the
purchaser may be, the American Consul or any ofher party. I
<1is1ike unpleasantness. I do not see why I should lose a sale if
the American people do not pwchase my land throuph you. This
is what y011t' lelter amounts to. If you approached them fit'Sl
and they 'fail, for reasons known to themselves, to act through
you that is their business and why shduld I pay you brokerage in
.such a case. In the eve'nt of th e business being done fhrdugh
you may I remind you that up-toW.te you have not quoted -your
b'rokerage although I have asked you. Why shbuld all brokers
keep otl the American Embassy because you have approac'hed
them. As I have already mentioned if you have been appointed
their broker what have you to fear ? But if they will not do the
business 'thrdugb you why should I suffer ? " .
., -~

There is not ~ufficient evidence in this case to prov~

that Mrs. Kerwick or C. N. Oehme had, in effect preven-
ted P. _D. Patel from completing the sale of the lake land
with the American.Embassy, or that in asking C. Stephens
to proceed with his negotiation with the American
Embassy Mrs. Kerwick had in effect pr_eve~ted P. p.
Patel from q>mpleting the sale with the AmeriGan
Embassy~ .. The deeision in Coles v. Enf?ch (1) d(j)e\_i10t
as.sist the resporiael)t's <;as.e, a;s .''There wa~ no' break
in the Ghain of causation, and no novu~ adus inter-
-~enie~~" i~ th~t. ca~e,. w4~re~s.iiJ.._th.e..:pres~.~t. <:ase. n0w
f:lnde~ appeal_, M~.. P~~ker ~rth~<. ~mer~~a~ . ~rp.ba,s.sy.
~ . . . . . . . .
54 BURMA LAW REPORTS. [1951

H.C. returnedthe plan of the lake land to 'P. D. Patel before

1950
his successor Mr. Acly left Burma .., The evidence on
MRs. K. M.
KERWICK. the whole suggests that- the American Embassy must
v. have severed their negotiation for the purchase of the
P.D. PATEL.
lake land thro.ugh P. D. Patel before C. Stephens began
U TUN BYU,
C.J. to negotiate with the American Emb4SSY for the sale of
Mrs. Kerwick's lake land and that this was so is sup-
ported by the fact that P. D. Patel did not attempt to
see Mr. Packer again after the plan of the lake land
was returned to him.
In ]ames T. Burchell v. Gowrie and fJlock House
Collieries, Ltd~ ( 1} . it was.obs~rved :
" : if an agent such as Burchell was brings a
person into relation with his principal as an intending purchaser,.
the agent has done the most effective, and; possiblv, the most
la~orious and ~xpensive, part ~f his work, and that 'the princi- if
pal takes advantage -of that work, and, behind the b~ck of' the:
agent and unknown to him, sel,ls to the purchaser thus brought
into touch with him on terms which the agent theretofore-
advised the principal not to accept, the agep.t's act inay still 'wen
be the effective cause of the sale. '
There can be no real difference between such a cases and
those cases where the princip~Isells to the purchaser introduced!
by the agent at a price below tho limit given to the agent."
There is no evidence in the present case however.,
to prove that P. D. Patel ohtain'ed any definite offer
from the .American . Embassy or that' t_he . Ame.r ican
Embassy ever expressed any_intentic~m to purchase the
lake laud through P. D. Patel whether 'for one anq a.
h~lf -lakhs or ot.herwi~e. On the other . hal)d, P, 't>.
Pate.4is ietter . writteQ. in Jut;, 1947~ to -~, N: Oehme,
indicated
. . . .
definitely
. . .
that.. fhe , .American.
Embassy. was. i'
.nofkee_n_ ~o ..,buy _the_lak~ land through_him,.. ' ~
'Itj Saicl#4.itn:(l)tda Dutt_ v. Nritya Nii~h itter (2)t.
whichwas,:a:I~o relied onJ~e}:le~lf. of the _re-s pondent, the
sec<md
.. . .
paragraph
i . . .
of.the ..:be~_
. .
driote -fead~ as follows : .'
. :. .. .... .. . . " . .... .

Ul (i910) A.c. 614 at 625. ' {2) (1923) ~o c~t. Series 878.:
 \

1951] BURMA LAW REPORTS. 55

'' Where the reJi'luneration of an agent is payable upon the H.C

1950
performance by him o a definite undertaking, he is entitled to
be paid tl)at remuneration as soon as he has substantially done MRs. K. M.
KERWICK,
all that he undertook to 'do, even if the~ principal acquires no v.
benefit from his services, and except where there is ai' express P. D. PATEL

agreement or special custom to the contrary, even if the transac- U TUN BYu,
tion in respect of which tl;)e remuneration is claiJl!ed:falls through C.J.
provided that it does not fall through in consequence of any act
or default of the agent."
In the present case, however, P. D. Patel has failed
to prove that he obtained an offer of Rs. 1t lakhs for
the purchase of the lake land from the American
Embassy. The evidence also do not show that he had
substantially done all that he was requires to do or
should have done for the purpose of affecting a sale.
It cannot also be said in the case now under appeal
that P. D. Pafe}!s action in hiking Mr. Packer to see
the lake land in April, 1947 was "the effective cause of
the subsequent sale" ~hich 'was effected in January,
1948. The appeal is therefore allowed, with costs in
both Courts.
56 BURMA LAW REPORTS. [1951

APPELLATE CRIMINAL.
'Befor:e U A~~ng 'l'ha, (;;yaw and V Thaung S~it~, JJ.

r9fo u HLA MYINT AND TWO OTHERS (APPLICANTS)

aug. 18. v.
THE UNION OF BURMA (RESPON:DENT).*

ApplicaU(m for bail-Considerntiorzs govemi'il g- S. 498, Crimi11nl Procedztre

'Coif'e.

Hel'd: !In applications for bail'fhe court is concerned wltb- the questions
as to whether on the materials ,plated ol!lefore it there are reasonable grouttds
for believing tl)at the applicants have been guHty of the offences cba-r.getl.
Under s. 498o'f the 'Crim:nal Procedure 'Code lhe High Court has unfettered
powers in granifng !fail to persdns charged with non-bailable , offences
punishable with death or transportation .for life but the grant of bail in
such case is to be-made not as a general rule but only in exceptional cases.
. .
Emperor v,_Jogleka'b, 5.5 All. '115, referred to.

Thein Ma:u:trg }
Ba Tu . . for the applicants.
Kya.w My.t.nt . .
.The judgment of the Bench was_. delivered by
U 'AuNG Ti-IA GYAW, J.-These are applications
presented on behalf of U Hla Myint, late1y Treasury
Officer, Katha, . Boh Sein U, Company Commander,
8th Battalion, tJ.M.P., Shwebo (under suspen~ion) and
Mr. J. S. Wlltshire, retired Deputy Commissioner, for
their release on bail during the pendency of the trial
before the. Special Tribunal sitting at Rangoon on
charges brought against them under sections 204,
409aad 120 (b) of th. Penal Code. They had made
similar applications to the Special Tribuna]_ at the
beginning of the trial but without succe~~
. . . .
Crlminal .Misc. Application Nos. 13, 14 and 15 of 1950. being appeal
fr.om the order of the Special Tribunal of Raugoon; dated lSijl September
. 1950 p~seq in Special Trial No. 3 of 1950.
 1951] BURMA LAW REPORTS. 57

The Tribunal has since examined 10 witnesses for H.C.

1950
the prosecution i'n~luding one Pe Thein, an approver
vHLA
in the case. It is .IJ.OW admitted that this Pe Thein has MYI~T ANO
implicated both the applicants U Hla Myint and TWO o:rliERS

Boh Sein U as being- directly and actively concerned "

THE U No
OF BURMA .
in the misappropriation of Government money. It is
U A UNGTHA
stated that fhe (lpplicant Mr. Wiltshire has not been so GYAW, J.
implicated by the approver.
Whether the evidence of the ..approver will merit
reliance in considering the guilt or innocence of the
applicants is a matter for the Special Tribunal to
determine at the conclusion of the trial In this
matter before us, we are mainly concerned with the
question in the same way as the Special Tribunal was
concerned when the application was made before
it-as to whether on the materials .placed before us;
there are reasonable grounds for believing that the
applicants have been guilty of the offences with which
they stand charged. Under secti~n ~98 of the Code,
this Court undoubtedly has uni~ttered .powers to
exercise ~ts disctetion in the maHer of granting bail in
respect of persons charged with non-bailable off~nces
punishable with death or tn,m sportation (or but life
as pointed out 'by Their Lor~shi,ps .of the Allahaba~
High Court in Einperor v. ]oglekab {1):

. " In cases wne~e there are reasonable grounds for believing

that the accused have been guilty 'Of offences punishable with
death or tran~portalion for life, the grant of' -bail by the.Sessions
Judge.or the .High Cout:"t, as .the case ~ay be, -though having
undoubted powers un<ie( section: 498, is to be made n~t .as ~3
.. ' . . .
~ener~I rule b~t only. in exceptional cases."
..
. ..
The two applicants; u Hla Myint and Boh Sein -u:
are said to have bpth be.e n ~mplicated by the approver
in his . evidence given_. Qn oath before 'the. Special
(1) 55 All. 115;
58 BURMA LAW REPORTS. [1951
H.C.
1950
Tribunal and in the face of this evi.Q.ence it will not
be proper for this Court to exercie its discretion in
u HtA h I
MYJNT AND t e applicants favour in the matter of enlarging them
Two oTHERs on bail, during the pendency of the trial. We have
~ .
THE UNroN been addressed at some length regarding the intrinsic
OF tlURMA.
- unwor th'mess of t h e approver 1s ev1'd ence gtven
. .
m
u ~~:;j~A Court in regard to the alleged complicity of these
applicants in the crime. This1 however, is a matter
which could prop~rly be agitated before the Special
Tribu'nalltself. This being the <;ase, the applications
of U Hla Myint and Boh Sein U will be rejected.
R~garding the application mad~. on. behalf of
Mr. J. S. Wiltshire it is admitted that the approver who
in' the ordinary course must be regarded as the
princip~l witness in. the . case has not given any
evidenc~ implicating the . applica'n ts, either in . the
alleged conspiracy or in the 'actual commission of the
crime and th-is' fact, in our vi'ew, is a special
circumstanGe which must be co~si4eted in his favour
in the matter of granting 11im the bail applied for.
Although 10 witnesses have been exami11ed in the case
there a.re not as yet reasonable gro~nds. for believing
~hat this applicant is guilty of the offence with which
.he is charged_. . ~part' frot:n this. fact which is the
prindpal 'c onsideration in _,the -matter, other facts of
subsi.Qiary nature also stand out in his favour. He
has retired from the seryice of the State and there
apparently is no 'danger of his a bscondence if released
on bail. or of a~y of th_e witne~ses bei~g tampered with.
Fodbese reasons this applicant will be released on bail
two
with sureties of Rs. 5,000 to .tli~ satisfaction of
the trial .Court
 1951] BURMA LAW REPORTS.

CRIM.INAL REVISION.
Before U On Pe, J.

DA w E SEIN (APPLICANT)
v.
THE UNION OF BURMA tREsPONDENT).*

Encrttial Supplies and Services Act, 1947- S. 3- Noh{icolion No. 92 of 1947

requiri ng termislion to lake Gold t o Arakan-1/ ultra vires- Effect of
Pnblicdtion- Notire to all tersons-Criminal Procerlu1e Code.
S. 342 {lJ (bl-Ev id111ce oj accustd undcr-CGn br us1d agairlslaccrtsed -
" Shall bt liable to coufisiation "-Meani11g.
Applicant was tried and convicted under s. 8, sub-s. (1) of the
Essential Supplies and Services Act, 1947, for taking 15 bars of Chinese Gold
from Rangoon to Akyab by plane without having a necessary permit as
required by Notification No. 92, dated tbe23rd September 1947. She was
sentenced to a fine of Rs. 600 or in default to undergo 9 months' rigorous
inlPri~onment. The Gold was ordered to be confiscated. Her appeal was
dismissed. In revision it was ir.ter a/in urged that the above Notifi<..ation was
ttllra vires of s. 3 of the Essen~ial Supplies and Services Act, 1947, that
as the Applicant was not aware of the said Notification, she sh()nld be
released under s. 562, Crilninal ~rocedure Code, that the admission made
by the Appl~cant in the C(Jurse of the evidence given under s. 3:'12
Criu ina! Procedure Coc'e should be t<iken, if taken at all, as a wl.ol~ and thaf
the expression " shall be liable to confiscation did not mean that the Court
had. no option but to order confiscation. . .
, ' Held: That Notification No. 9t of 19~7 is not ultra vrres of s. 3 of the,
Essential Supplies and Services Act though it does n ot ~:ontain such formula ali
, 'it appears tu the Governor (now Preslclent) {or mainta.ining Supplits and
Services esse~lial to the life of the country and therefore movement of' Gold
from Rangoon to Arakan is prohibited.' One has to take the language as one
finds it, ailhough, of course, one has to look at the Act as a whole and construe
it so as to give effect to what appears from the langt:age of the whofe Act to be
lhe int~ntion of the Legislature.
Em{!eror v. Mohamorl"Kass.rm Panwalt, {1942) Bom.107, relied ~>n
. It is not . necessary for the prosecution to prove. actual .co~~ication
of :l notification to the alleged offenders. Once publiC1'tion had been made the
persons affected by the order are to be deemed to have bt!en informed. it is not
open to him-~o show thaf he \\as not actually info~ed.
DebrPrasad v.. Emperor A.~.R (1947) All. 191, relied on:
~ . . .
.: Criminal ~e~ision No. 64-B of 1919 being revi~w qf Ui order .of the
. se~nd _S pecial Ju4~e Of Akyab; dated." lOth June '1949 passed iri CtiDUnaJ .
, Spe<:ta!.~t No. 12 of 194?.
60 BURMA LAW REPORTS. [1951

H.C. E vidence given !:>Y an accused person under s. 342 (1) (b) of the
1950 Criminal Procedure Code can be used against him. '
DAW E SEI.N Nazi Ahmed v. Emperor, 63 I.A. 372 ; Th e King v. San Min, (1939) Ran.
11. 97, relied on.
TilE UNION
OF BURMA The word~ ' shall be liable to confiscation.' when used in connection with .
contraband, mean that the contraband is to be comp~lsorily confisciited.
The Union of Burma v. Mau11g Cltit Swc, Cr. Rev. No. 17-A of :950;
Durga Das Khanna v. EmPe1w, A.l.R. '(19441 Lah. 33 at 42; Bo Yo-" .Naiug 's
Case. Cr. Misc. Application No. 426 of 1946 of Supreme Court ; Moticltand
Balubhai v. Drstriel Magis/rete, Surct, A.l.R. (19.45) Born. 385; Re.
Chiimayan 8Nfh1r (a) Sah11l Hamid, (1945\ I.L.R. M;~d, 76; Bhtdnalh
;!. Chozulhury v, Emperor, I.L.R. (19'18) Cal. 289 ; M. Gokrtlda's v. Emperor,
51 Born, L.R. 15!1 rc:ferred to.

Tun Sein for the applkmt.

ChotJ'n Foung \Government Advo{:ate) for the

respondefft.

. U ON PE, J.-The applicant Oaw E . Sein was

convicted by the Second Special Judge, Akyat:>, fo'r
having coptr.avened the order cont.ain:ed in Notifica-
tion No. 92, dated the 23rd S.e ptember, 1947-, published
in the Burma Gazette of.. the ' 27th Septembet, 1947,
whicli is.an offence punishable under secti<?n 8, Sl,lb-
s~ction (1) of the ~ssential Supplies and Services Act,
1947, and sentenced to a fine. of Rs. 600 or in default
to undergo 9 months' . rigorous imprisonment with an
order confiscating the e.x hibits 15 bars of Chinese gold
tvhich were found from her possession 'without a t1~ces-
. sary permit issued by the Commerce and Supplies
Department at the Akyab aerodrome. The gold
ordered to be coiifiseated weighs 230 to1as, 6 annas,.
t ywcfand is:said tobe worth Rs. 40,099 . .
. Thi$ order was affitt,ned' by ~~e . S~s~ions 'Judge,
Arakan. She riow .files:this application in ~evision ~o set
a~ide the convicti,Qn arid sentenc'e on die :.grounds . set
o.u't tp~rein. ~efore .I coin~ to 'di:Scu$S lh~e gro'i,lnd~;
~oib~ofthei~ds: ieadingt~;the p~eseeu_tion:w4i~h-hav~
0
 1951] BURMA LAW REPORTS. 61

been set out in e~tenso in the judgments of the lower H.C.

1950
Courts may be narrated. The case for the prosecution
. . D4'w E SIIIN
IS that the appl1cant on the 29th May, 1948, brought to v.
the Akyab aerodrome exhibit gold bars by air from ~~~~~!~~
Rangoon . without the necessar~ permit. At the u ON PE, J.
aerodrome Daw E. Sein was asked by Custom
authorities to declare whether she had anything which
was contraband 'to which she replied that she had
no contraband except her personal belongings. After
the said belongings were checked her baggage was
passed. All the while: there was lying in a truck,
which was then at the parking area, a bag, which
U Hla Sein, the Manager of the Burma Trading
Corporation, which charte~ed the plane carrying
Daw E sein, brought from the plane and handed over
to the driver of the truck. The driver first tried to
place the bag under the seat near his seat but as the
cover of the seat did not fit squarely he took out the
. bag and placed it in the compartment under the seat
. of the. body of the truck. All this was seen by
U San Gyaw U, Inspector of Police (Special Branch),.
who recei~ed information that a woma~ would be
bringing gold. from Rangoon an<;l who was watching
t~e arrival of the plane from Rangoon at the aerodrome.
U San Gyaw U pointed out the place where the bag
wa.s and it was taken out from under the seat in the_
body of the truck by Mr. Rosaria, a Customs Officer
who found' .
fr<?Jh tr.e .~ag. the following
. articles. .:-. . .

u A.
.
pair
.
of gum-boots for childre~
.
Htami and golp ~ra.p~d in that Htami."
.
. ; some child's hats:
.
a

H may be: mentioned- that' U Hla Sein is no other

than a 'sO:n of the applicant Daw E Sein.fs sister and.
he . figur~'c:L earlier in' 'the case as ~ co~aecused but'
the..case aga:lnst him was' ~ithdrawp, . for ':. which the
62 BURMA LAW REPORTS. Ll951

H.C. learned Sessions Judge had passed adverse remarks

1950
against fhose responsible for the 'improper ~ction
DAw E SEN taken in withdrawing the case against U Hla Sein.
v.
THE UNroN The remarks, I must say, were deservedly made and
OF BURMA.
- are well in accord wtth the pnnc1ple bud dO\\n in
u ON PR, 1 the case of The Un.ionof Burma v. Maung Chit Shwe (1).
The. applicant's case is that she had been carrying
on this trade of buying gold and selling it in Arakan
after making the same into jewellery and that. she
was not aware ot the latest order of the Governor,
prohibiting movement of gold from Rangoon to any
place in Arakan. The lower Courts, after giving
cogent reasons, which I have no hesitation to accept,
rejected her story. Thus, there are concurrent findings
on facts and unless those, findings are radically wrong
resulting in miscarriage of justice, jt will not be
proper for this Court to consider those questions of
facts again. At the outset, I might mention "that the
learned Counsel for the applicant" has submitted that .
if the offence committed is found proved, it is a mere
technic~l on.e and that the question of sentence should
be reconsidered by this Court. This view of the case,
as submitted by the learned Counsel, must be said t o
be a right view in the face of the concurrent findings .
of fact:
The grounds set ou(in the appiicatiori centre round
Notification No. 92 and section 3 of the Es.s ential
Supplies---and Services Act. . Notifi~ation No. 92 is
max:ked as Exhibit A and may. be reproduced as
follows:
0 . . .

" In exercise of the powers confe'rred by section 3 (1) of the

' Essential Suppiies and Services Act (Burml Act XLVII) of 1947
and. all other pc;>wers .thereunto enabling, the Gov~rnor is pleased
.t~ pr:~hi~it, subjec~ to the following excev.tioJ.!~ the moven~ent
port
of g;()ld!'silve.r a:nd _quinine from .Rangooh by sea o.r air to anv
t951J BURMA LAW REPORTS. 63
-or place within the Arakan Division except on a permit issued by H.C.
1950
the Commerce and Supply Department:-
DAW E SIN
" Exceptions : v.
THE UNiON
(I) Gold and silver jewellery and ornaments for pesonal OF BURMA.
use in quantities which the Collector of Customs
U ON PE,.J.
deems to be reasonable according to status of the
person;
(2) quinine f.or personal use ; and
(3) current silver ~oins limited up to Rs. SO."

The learned Counsel for the applicant has taken

great pains to place before the Court several aspects of
the case which may be more conveniently reproduced
in the form of issues as suggested by him.
(1) Whether the Governor's order in Notification
No. 92 of. 1<)47 is ultra z:i1'es bf section 3 of the
Essential Supplies and Services Act, 1947, and as such
invalid and without jurisdiction ?
{2) Whether subjective or objective interpretation
-should be applied to the order of the Governor in
Notification No. 92 of 1947 as lo whether it must be
deemed to have appea.red to the Governor to be
-so expedient ?
.(3). Whether the convic~ion is illegal in t he
absence of proof of mens -rea . in such .cases, i.e.,
under E~sential Supplies and Services Act, 1947 ?
' (4) Whether the expression '~shall be liable to
-confiscation -" -means that the Court has no alterna-
tive but to compulsorily confiscate the Exhibit gold,
because this provision occurs in a separate sub-sectio.n
<>f sec tion 8 of the Essential Supplies and Services
A~lW? . . .
. (S) Whether the ignorance of the order of the .
G~vernor, :is not SJ.lffident ground to release 'the_:
accused'lmder seGtion.562 (1) of the Criminal Procedure
Code?.
64 . BURMA LAW REPORTS. [1951

Thfo t6) vVhether the admission of tJ;e accused, while

~ giving evid~nce under the latest ~mendrnent of the
Aw: szns Code of Criminal Procedure has to be or not to be
THE VNxoN taken as a whole?
QF BURMA.

u ON PE, J. The learned Counsel for the applicant first took up

the point that the order restricting , movement of
the gold in question is ultra vires of the Constitutiont
relying on sections 13 to 18 of the Constitutiont
but he has rightly not pressed this point. As regards
the contention that the prosecution case has railed to
prove mens rea in this case, I do not see any substance-
in it, as from tl).e findings of the loyver Courts it is
clear that the contraband was found in circumstances
which were not consistent wiih innocence. Nothing
could be a better proof of a guilty mind than the
manner the applicant declared to the Customs auth.o-
. rities as regards the gold in quesfion which was
evidently htddep. As regards the contention that the
admission of tlie accused has either' to be' taken as
a whqle or not at all,_it has been rightly rejectt:d: as she
was giving_ evidence on oa:th under the amended
section 342' of the Criminal Procedure Code and under
sub-section U) (b) such evidence co uld be used against
her. See Nazt Ahmed v. Emper01' (1) and The King v.
San Min (2). As regards the . contention based on
igno.ranc.e of the order of the Governor, .I camnot do
better than quote. the view held... in Debi Prasad v.
Emperor (3); though . in connection with Rule 119
of the Delence of India Rules. There this observation
h~. been made :

.' .. "lt' is not necessary for the . prosecution to . p~ove . actual

lnforntation, that i~, actual comril!lnication, tQ th~ alleged .
offenders.. Once
. . ..publication hacl 6e.eD' niade tlie persdris. .affected .
(1) 63 1. A. 372. . (2) li939l R.L,R. 97..
(3) A.I.R. (1947) All. 191 .
 1951] BURM'A LAvV REPORTS. 65
by the 0rder are to be deemed to have been informed and \rhen H.C.
a person is deemed C~ have been informed, . it is not open to him
1950

to show that he was not actually intormecl ... E

DAW
...
THP: UNIO N
SI!IN

OF B URA.
Apart from this the way the gold was wrapped in the
Htamein clearly indicates that she was contravening U ONfP, J.
the provisions_of the order in question.
No-v, we. come to the most important of the
contentions raised in the case that Notification No. 92
in question is ultra vires on the ground that it is
contrary. to and i~ violation of the_ law laid down in
section 3 of the Essential Supplies and Services Act.
It has been urged that the order does not contain t'a ny
express finding and recital such as " it appears~ to the
Governor for maintaining supplies 'a nd ~ervice!'
essential to the life of the country and ther~fore
movement of gold from. Rangoon to Arakan is
prohibited." .It has been held in Emperor v. Mohamed
Kassam Pamvall (1} that" one has to take the language
as one finds it, although, of course, one has t~lookfat
the Act as a whole and construe it so as to give effect
t~ what appears from the language of the whole Act to
be the !ntent~on of the legislature." .The order, as it
stands, does not need any amplification for the
purpose for which it is made and, in my view, there -is
nb su.bstance . in this contention. The ~ext. ground
urg~d is that gold has not been decl~red as being
.essential to the life of the community either in the
said .Notification No. 92 or in a separa~eJnotification.
There is no force in this contentiotJ. for it do~s not
appear to require a declaration to be. made for the
purpose of restri~ting ~ts m~vement. The l~st ground
to be met is that . it . is not sho~n that restricting
movem~nt o~ gold in the particu,ar ~anper appears
_personally to the Gov~rnor .t o be so exl?edi~n,.t. It must
il). I.L.~ . ll942) Bom.lf!7~
66 BURMA LAW REPORTS. [1951
H.C. be said that argument on this poit)t will wi-den the
1950
discussion by considerations not n~cessarily involved
DAW E SJUN
v. in the decision of the point in controversy and I d\ not
THE 'CNION think it is necessary to interpret the Act and the ruJe
0F BURMA.
more fhan it is necessary to gather the real intention of
U ON Pa, J.
the policy of the Act from which has sprung the
particular rule in question. After aU, . what is of
importance is that the Act must not fail to lay down
the principle or policy .and the niles are merely
procedural provision by which the intention of the
substantive provision of the Act is carried out. Various
cases have beencited showing instances where rules have
exceeded the limits imposed by the Act and instances
where rules made are beyond the power of rule making
authority, in which decisions have been made that those
rules cannot have the force oflaw. The order in question
as contained in Notification--No.' 92 in my view cannot
be said to fall into either of the categ~ries. It is an
order the accuracy of which must b~ presumed, as,
under sect.ion 114 of the_ Evidence Act, official Acts
must be presumed to have been regularly pe-rformed.
it: has been strenuously argued . that, there being
nothing . to show that the Governor has satisfied
himself personally the notification is ultra vires. On
this point the ~easoning of Harries C.J., in H~rkishan
Das on behalf of Durga Das Khanna v. Emperor (l)
may, with approval, be followed m interp~eting . the
Goternor's satisfaction :
. .
"It may be. argued that where it is recited as a fact tha t the
Gove'\-noris S'ltisfied, 'it must .mean that the Governor was
personally satisfied and that a distinction mus~ be df<iwn betwe~n
the use of the word ' ~vern or ' in t be recital and theuse. o{ that
w~rd. in the ordering.portions of the orders. 1,1 were satisfied
that these orders were. draffed with the exactitude: an~ precision .
. ~yequity
ptactised .
dt:a'ftsmen, ~ migbt accede
.
to this. .argument;..
. (Ll ,A.i.R . 11944) Lah. J.3 al 42.
 l951J BURMA LAW REPORTS . 67
but experience has ~kown us that such accurate ch-afting cannot H.C.
;he expected in such w-ders of the executive authority. That be 1950
.ing so, I am not prepared to presume that the phrase' the Governor DAW E SEIN
-of the Punjab is satisfied' means that the Governor satisfied v.
THE U~!ON
:himseJf personally." OF 0URllA.

U 0~ PE, ].
This shows that it is possible that the matter contain-
ed in the order is within the scope of ministerial res-
ponsibility as in the case of many executive measures.
'See Debi Prasad v. Empe1or (1). In this view of the
oease, the Governor''s personal s atisfactio.n need not be
-determined to test the validity of the order, unlike the
Cases in which liberty of a subject is involved. In my
Opinion, the question as to whether subjective or
objective ~est is 1o be applied to determine the Gover-
lfior's personal satisfaction does not arise in this case as
Tegularity attaches to the order in question. Cases have
been cited where, because the Governor's personal
.satisfaction is not proved, the orders made are held
.t o be without authority. These orders relate to liberty
-of subjects and it is an established principle that when
liberty of subject is invol':'ed the law will jealously
;guard it and allow e.very legitimate point to be placed
before the court. Bo Yan Naing's ca~e (2) is case in a
point. There Their Lordships of the Supreme Court
'h~we made.the following observat~on for applying the
,objective test to deteqnine whether the Commissioner
-of Police "is satisfied" or not . of .the necessity
to act:-
" A few WOl'~S in explanation of the test we hav~ ji:Jit J>rO
;pou,nded. The n9tion of reasonableness must be presumed in.the
.exercise of such .grave powers as interference w.ith the fundamen
tal right of personal liberty which the Constitution h~s assured to
-each
.. citi.zen. If authority .for. wh~t
. appears. to be an obviou~
.

Ill A.I.R. (19~7) All. 191.

(2l Criminal Misc. Application No. 426 of J949 of the Supreme Couri
.Qr the Union ofa~i'ma.
68 BURMA LAW REPORTS.. [ 19Sr
H.C. proposilion is needed, \re have the authorily,of Lord Wnght in.
1950
LiversidRe' s case (1), slrongly l e:~ n e d upon by the learned'.
DAW E 'SR.IN Attorney-General."
v:
THE U NION
ol"Bu~A. Bo Yan Naing's case and other cases where liberty-
U ON Pi'.., J. of a subject is involved are distinguishable, in the mat-
ter of applying subjective or objective test regarding:
Governor's sa.tisfaclwn, from this ca'se where liberty of
the subject is not in issue. The learned Counsel for
the applicant cited the case of Motichand Balu.blraf
v. District Magistrate, Sur at (2) to . show that even in.
the matter of evi-cti-ng a tenant the District Magistrate,.
when acting under Rule 81(2) (bb) (ii) of the Defence of
India Rules, has to be satisfied, that it is r.ecessary or
expedient to make the .kind of the or~er that he con-
temp~_iltes ''for securing the defence of British India ol-
the efficient prosecution of the war, or for maintainin g.
the supplies and services esseritial to the life of the
community". In that case when. the order was sought:
by the tenant from the District Magistrate alleging that
his 'landlord was seeking to evict hi'm without any pro-
per ground, the landlord ha~ already instituted a suil
iJJ. the Court of First Class Sul?ordinate Judge of Surat~
fqr arrears of rent and for possession: _ So when the::
District Magistrate tpok ac'tion u~der the Defence of:
India Rules he was dea1ing with a matter within ordi--
n~ry jurisdiction . o{ the civil Co~rts and his: order,.
therefore, was held to be ultra. vires. The circuli}.-.
stances there are different from those in this case and
thte .twQ cases are therefore distinguishable .. :In the
~esU:l(, I hold that the order cc:mtained in Noti-fication.
'No.:- 9-2 is-not ultra vires of the Essential Stippli'es andt
Se-rvices ACt.
Nciw, -1-.coine to ~helquestio.n- o( s~ntence. It ha5:-
been 'urged that i.f thi.s Court
.
is not
. . . prepare(}
.. . . to.: se_e eye;
(I l (19421 .A,.c. 206.
 1951.] BURMA LAW REPORTS. 69

to eye with the contentions raised in many of the H.c.

. ff 1950
.grr)und s urgea, the o ence is at the most a technical -
. . . . DAW E SEIN
.one and that the fine of Rs. 600 . Imposed wlll be v.
:a sufficient punishment and that the gold confiscated ~~"s~:.:r~~
should be restored to th e applicant. Tile question is -
. l1er I shou Jd dtsturb
w11et the sentence passed as U ON f'E, J.
q-egards the confiscation of tl1e exhibit gold bars.
Section X(1) of the Essential Supplies and Services Act,
191-7, lays down that ''the contraband under the Act
:shall be liable to confiscation .besides imprisonm ent or
fine". It is contended that the words ''shall be
liable to confiscation " do not convey the same meaning
:as '' sh~ll be confiscated". I cannot accept this view.
\IVhen the words "shall be liabl~ to confiscation"
:are used in connection wit~ a contraband, they al\:vays
.convey . one meaning and that is, the contraband is
to be compulsorily confiscated. This is a logical
interpretation and is justified wf?.enever the disposal of
:a contrabanq is under consideration: I have been
quoted a passage from the judgment of one of the
Judges of. this late High. Court. to this effect:
.

"The Cour~ should not- allow litigants t take adv~nhge

-of legal technic1iitie~ and commit what .is practically robbet~y by
process of law."
' .
Th::~.t diCtum is o.n e which would bewise guidance when
a . Court js faced with two litigants one of whom is
trying to acquir~ a sh<lre which is inore than his
due but I do not see how this wou~d help the Court- in ~
dealing with one who .has been tried for an offen~~.
Next, it is urged that the .Court shou.l d admi"niste~.
justice with a broad view, and that the fact of th~
applicant being a first offender coupled with the fact
9f the possibility o'f her being una~vare of the . notifica-
tion in qu.e sti0n should be t'a ken into account. in.
mitigation of' the sentence .par~icu~arly. reJafih.g tO.
70 BURMA LAW REPORTS. [ .1951
H. C. the return of the gold bars. On the other hand, the-
1950
growth of a class of people who are not afraid to dodge
DAW E SEIN
v. the restrictive measures as a short-cut to make money
THE UNION
OF BURMA. has to be discouraged and this explains heavy penalty
measures that legislature-has found necessary to adopL
As regards the plea on the ground of one being a first
offender, I do not think this plea is justified, for one
will never be even a first offender in these cases as:
long as one is not detected. It is unfortunate that the-
exhibit gold bars are of some considerable value but
the principle a Court should follow s.hould not be-
variegated by the value of the contrabands seized .
If the contrabands were opium, the question of
restoration v..ould never have been raised. I n my
view, the contraband in this case should be subject
to similar treatment as other smuggled goods (rice
moved .out without a permit, for instanc~, is so-
described in Re Chi nnavan Rowther (a)"SaJiul Hamid.
J

0) and t.he Court should not be influenced by its value.

See also Bhufllalh Choudhury v. Emperor (2) and
M . Gokuldas v. Emperor (3r. The result is that this
ap.plication 1n revision fails ::J.nd must be dismissed.
The stay order in respect of the gold bars will be
dissolved and the fine, if not paid, will be realised.

. . .
(1) . . (i94S) I.L:u. Micl. 76.. .- . . .. (2) (1948) Ca!. 289. .
. . . . 13) 5~ B ani. L.R. lSS.
 1951] BURMA LA\i\' REPORTS. 71

APPELLATE CIVIL.
Bdore U ..lung Tlw Gyaw a11d U Tit a/Itt{! Sc111 . J I.

S. NADESAN PILL.t\Y A~D ' ONE (APPELLANTS) H .C.

1950
v.
Aug. 25.
JOHN HUIE (RESPONDENT).*

Temporary injundious-Grar~ting of injutlction ex parte-Principles (!.Otern

ing-Detriatioll from ordittary course-Irremcctiable injurY. to be made
out.
Three suits were filed in the City Civil Court by the Respondent, John Huie,
against Ihe two appellants, S. Nadesim Pillay and K. iVI. Chidambaram Chettyar
and three others, who are Foreigners li~ing in Malras for declaration of title
to four Tamil Talkie Pictures, for their possession and for injunction
restr.1inifi1! the appellants from exhibiting the said Pictures either in Rangoon
or anywhere in the Union of Surma. Together wHb. the lnsti'tulion of suits
a!Jplicalions for issue of ad iutcrittl injunctions were filed and the at>plieation
in each of the three suits was granted ex parte as prayed_.
-
Hdtl : That sufficient materials must be before the Court to justify the
grant of ad interim injunction ex part.e.
Such materials as would justify the Court in grantin~ an act 1'nterim
injunction ex parte are 11) the alleged existence of a bot~a fide dispute as to
title to a property, {2) that' such property in dispuie is in danger of being
wast~d. damaged, or aliena!ed by any party in the suit, (3) that such danger or
such threat" of danger should be imme:liate, and (4J th:lt any consequent injury
likely to be occasioned to the parties di,.puting the title W"oul'd be irreparable
ana not capable of _bein~ compens;tted by damages . ..

V.. :s. Ven~atram and Sefn T14n for the appellants.

Kya.w Myinl and Myint .Tooj'l f?.r the respondent.

The judg .n~~t o~'the Court was_delivered by

U AuNG THA GYAw, J.-These are three appears.

from the orders o the . Chief Judge of the City
Civil Court direding issue of ad interim inj~nctions
. * Civil Misc. Appeais Nos. 13. 1~ and 19 of -1950, ~gainH the order
of the Chief Jud~e, . C:ity.. Ciyil Cou~.~ ~angoon in Civil Regular Nos. 451.,
S45 a_nd 628 of 1950, dated 20tl_l Apri11950, 12tlt May 1950 and 2nd June 1950
. respe(;thely;
0 0

72 BURMA LAW REPORTS. [1951

H.C. against the appellants restraining thern from exhibiting

1950
four Tamil Talkie Pictures, namely, ~ohini, Velaikkari,
~~~~AN Abimanyu and Kanjan, alleged to have been release d by
8

A'ND oNE
v.
Messrs. Jupiter Pictures Circuit. Madras and received
JoHN HUIE. by the appellants at Rangoon between the 2nd April

u A;;;;THA and L9th May 1950. The suits during the pendency of
GvAw,J. which the said ad interim orders of injunction were
applied for and issued, were for declaration of title to
the said pictures, for their possession and for injunction,
ahd they have been brought against the two appellants
and three others wh0 are foreig~ers living in Madr~s.
In view of this latter fact the order of ad interim
injunction applied for and issued ex parte. on the
'20th April, 1950 in respect of . the film Mohini was
couched in the following term :--

" I am satisfied from the affidavit that a tempcrary injunction

should be.iss:ued -;:r.t once. l~sue temporarY. injundion .on the
4th and Sth respondents who are in Burma. Also issue notic~s
on them to show cause why the. injtmction should not continue.
~~junction need not be issu~d 'o n the other respondent~ as they
are not residing within the jurisdiction of' this Court, but notic~s
may.be issued on them as usual. " .. . . ..

and the 5th of June was fixed as the date on which the
J?otices issue~ to those living in Tndia were .to be
returned. The orde.r s pa~sed in respect of the
remaining films make no ref~rence whatever to any
. supporting affidavit and the 1st defend'e nt bas also beeri
included \yithin the ~cope of the injunction so ordered.
" The justic'e and propriety of the orders passed
in tire terms above set out have now been called in
>question in these appeals. While it' is admitt~d that
the. principies governing.... the. exerc;;:ise of judicial .
: .discr~tiop. in the rpatte.r of granting . ad '-inferi1n.
.irijtm:ctipris ar~ well established, it ha.sbeen 'di~put~4 ~tl
the appellants' behalf tha~ .the fac'ts set 6ut 'both in '.the
1951] BURMA LAW REPORTS. 73

plaints and the affidaYi ts made in support of til e H.C.

!950
responde nt's applications for injunction do not afford
S. NADES.~ :-1
sufficient and reason,tble grounds for the grant of this P ILLAY
e xtraordinary relief by the Court. A:-\1> O NE
v.
As betv.'een th e appellants and the respondent JoHN HurE.

no allegation of any exi ste nce and breach of contact has U A 'UNG THA
GYAW,J.
been alleged in the plaints and in the affidavits
filed along with them. Nor have any particulars been
given of the manner in which the first three defendants
had conspired to commit the alleged fraud against the
respondent. No serious allegations have been made
against the 4th and the 5th defendants who received the
films in }{angoon on hire fwm the 3rd defendant.
What particular injury was likely to be caused to
the respondent by the two appellants' conduct in
Rangoon in respect of the four films now in their
possession has not also been declared and assessed to
justify the application of the law contained in
Order 39, Rule (1)' or (2) of the Civil Procedure
Code. Allegations of fraud and collusion have only
been made against the first'three defendants in the suit,
who, however, are permanently residingin Madras . . In
this state of the pleadings, it is urged that there are no
su~cient materials before the Court to justify the grant
of ad. interim, ilijunctions without first hearing the
objections raised on the appellants: behalf.
Sue!~ materials as would justify the Court in
granting .ari ad interim injunction are (1) the ~lleged
existence of a . bona fide dispute as to title to. a
property, (2) that such property in dispute is in .
danger. o f being wasted, dania,ged or ali~mate'd. by
any party in the suit, (3) that such danger".or such.
threat of danger shoulcl b~ imm.'e diate, and (4) that
~ny con:sequent injury likely :to beoccasioned.to ";tli.e,'
parties disputing the tit~e wo~l~ be ir'r eparable and
n9t
.
.capabie
. . . compen~
o( being . . . .at~d . b. y:: .damages.
74 BURMA LAW REPORTS. [1951
H.C. Besides these, there may also f;?e other factors
1950
concerning the actual or tht:eateneo violation of a
right, which, considen~d in the light of the special
S. NADESAN
PlJ..LAY
AND ONE
v circumstances obtaining in a particular case, would
JOHN HUIE justify the grant of this form of preventive relief.
U AUNG THA In the cases before us t he orders of ad interim
GYAW,J.
injunction were made ex parte notices being directed
to be issued to the opposite parties to show ca'1se
against the same some six or seven weeks after
they were made. The learned Counsel for the
appeJiants has thus rightly pointed out that under
the particular terms in which the orders in question
were passed undue hardship was occasioned. to the
appellants for the reason that, by attempting to
serve notices on those parties who were living
in a foreign country and could not, therefore, b e
affected- by the Court's orders, a prompt opportunity
was den_ied to the appellants to present their side
of the case to the Court. The 4th and the 5th
defendants are living in Rangoon . and . they were
the parties who were immediately affected by _the
orders passed tx pq.rfe by the Court, and no cause for
complaint could have arisen had they been permitted
to show cause against the Court's ea: parte orders
within a reasonable time.
Although the power of t~e Court to issue such
an ex parte order is not in doubt, the law enjoins.
the exercise of the greatest care in the us.e of
this power. See Hari Pandurang and another
v ., Secretary of Stctfe for India ( 1) '! Suc)l an
injunetion on the application of one party, and
without previously giving to the person to be affected
by .'"it the qpportunHy of contesting th~ propriety o~
~ts .isst"iing,. . is :a :deviation .from the ordil)ar_Y cours~
:Of justic~, :~which nothing, : but the existence of som~
(1 .) (i903i I.L.R.27 . Bom. 42~ at 451.
 1951] BURMA LAW REPORTS. 7S
imminent danger ..to property if it be not so granted, H.C.
1950
can justify. A case,., therefore, of i'rremediable mischief S.NADII:SAN"
impending must the made out." See Woodroffe un PlLLAY
A tfD ON&
Injunction, Fifth Edition, at page 135. v.
JoHN HU!E.
Reverting to the facts of the Ce to see whether
the principles of law set out above can support the U A lUNG THk.
GTAW, J.
orders now complained against, it is noticed that in
the possession of the two appellants there have
r~mained now for four months four Tamil Talkie
: Pictures awaiting their exhibition in Rangoon and
other parts of Burma. The appellants optained
them under a contract of hire entered into with
some party or parties living in Madras. The
plaintiff-respondent, also a film exhibHor in Rangoon,
lays claill} to these four picturesas having been hired
to him by one . of the aforesaid parties living in
India. Admitting that the plaintiff-respondent has
a claim of title to these films and that in the event.
of his success to the clairp. so made the v.alue of
the said films would be appreciably diminished if
an injunction pe not granted forthwith, the question
still remains as to whether the injury likely to be
occasioned to the respondent by the preview of
these films. in the appellants' picture house and for
their benefit; could at all be estimated in terms of
m<tney compensation. Havi.f1g _,.r~~~rd to the control.
of ~his cinema . business . ~~9-*'~-~:r~;J~"f~!lpe authorities
for purposes of taxation, an~-~sw~t~ to. this questi?n
must be found in the affirmative, a'n d clearly
therefore the injury likely to b.e occasioned to th~
respondent cannot be considered. to be irreparab1e.
This being the case, it is difficult to- concede
that the ex parte orders of injunction can be
turthe.r supported on the possib)e grqund of injury
to the prestige o f the respo~dent in .his particul.ar
trade.
76 BURMA LAW REPORTS. [ 1951
H.C. These appeals will accordingly be accepted and
1956
the ex parte orders of injunction passed in the three
:S. N,\OESAN
PILLAY cases will be set aside ; Advocate's fee five gold
AND CNE
v. mohurs in each case..
}OHN HtHE

iU kUNG THA
GYAW,J.
 1951] BURMA LAW REPORTS. 77

kPPELLA iE CIVIL.

Bt/ore U Atmg Tlla Gyow, I.

N. B. SEN GUPTA (APfELLANT) 'H. C.

1930
v.
S IJI . 19~
u JONE BIN (RESPONDENT).*
f.andlo rd and teuaut-Dandlortl ~Ctii01J;'IIg roof-Rights a uti liabililus of
' p,;u ties- No~t-roofing by Lnndlo'rtl bre,rclr of rluty-D.:rogation {:om
g;t111t-Tramfer of Proter/y Act, s.108 {f).
Appellant occupied a portion of a house belonging to .the Respondent on
payment of a Salami and a monthly rent. The agr~ment~providedrthat iw
repairs or alterations $hould be made to the l1ouse by the tenant: without the
coment of the Respondent. The Respondent was directed by the. Bassein
Municipality to remove. the Dhan; and bamboo roofings from his hou~e. In
COmP.Iia.ce with the order the Respondent removed the l>ltani?andlbamboo
roofin~s 3;nd put in corrugated iron sheets on one portion of the!house1but not
on t h e porhon occupied by the Appellant. Re~pondent nndertook!to re-roof
the pol'livn of the house occupied by the Appellant provided the Appellant
vacated the premiacs and surrendered the lease. The Appellant refused to do
so and inst<ad re-roofed the hou~e and claimed the coat from thefRespondent
In a C..rose-Suit the Respondent sued for ejectment of
the Appellant and
recovery of arrears of rent .due. Both suits were dismissed on appeal' to the
District Court. Appellant alone appealed.
Held: I t is elementary that for a tenant to enjoy a propertySof:the nature
let out to the Appellant in thi s case somt kind of a roo( is an . absolute
necessity. As. the Appellant was in any circums tance entitled to a ~oof of
some sort in his part of the building, the failure of the .RespoQ.dent to put up
o'ne in conformity with the Building Bye-Jaws of the Municipality was%:a clear
breach of his le~al.duty which he owed to his' tenant.
' . ., . . . .
A grantor having given a thing .with one hand ia not to take away the
. mean's of enj?ying it 'w ith the other.
Birn,ingh{lm,.iJudley .und Distri cl BanTling Ct~. v. Ross, 38 Ch. D.:
. . . v. Humbil
Ji3 ; Harmer
relied on. .
. .(Nigertn) r;, _Arias,. Ltd.,
. 1 Ch. D.. 200 .
295.
at 226 .
Bijoi Cliand,rn St1zgh v. Howrall A~sft Lit llf R/y, Co. Lid., A.I .R. (19~3r
Cal. '524, referred to.

P. K. Basu 'for the appellant

D_r. Ba }la'? for the respondent
. Civil 2~d Appeal No. 4 of ~'950, aJ:ainst the 'd :cree of the D istrict..Court<
'Ot Baasei.n passC4 in Civil Appeal No. 12 and No. 14 of 1949, . dated. the
.J.Sth . .. . .199.
.. .. . Novembei .
:78 BUP~MA LAW REPORTS. [1951
H.C. U Au~G THA GYAW, J.-The app~llant in tbis case
1950
occupies the southern half of a tenement-building
:SEN~G~~TA known as No. 50, Strand Road, Bassein, of which he
u Jo~~ BIN. became rl. tenant on the 1st August 1944 under a written
agreement. This agreement sets out the initial payment
of a salami of Rs. 1,500, the agreed monthly rental
of Rs. 90 and the undertaking given by the appellant
not to make lresh repairs and alterations to the
premises without the consent of the owner of the
building.
Nearly two years later, on the 1st February 1946,
some time after the British reoccupation of Bassein,
the Deputy Commissioner of Bassein, served a notice
upon the respondent Mr. Jone Bin requiring him ''to
dismantle his building constructed of inflammable
matefials" and to reconstruct the same in accordance
with Municipal Building Bxe-laws. On the 20th
February 1946, apparently in answer to an application
made by Mr. Jone Bin for retention of his building, the
Deputy Commissioner informed him that the bamboo
and Dhani portions of his building must be removed
and that suitable substitutes and alterations be made
in their places.
_Evidently in compliance with the orders of the
Municipal authorities conveyed to him in these letters,
the respondent .::aused the dismantling of the Dhani
ana bamboo roofings on both the southern and the
nqrthern halves -of this building. Thereafter he
replaced the roofing on the northern half by corrugated
iron~sheets, but took no steps whatsoever 't o make any
similar repairs to the southern portion of the building
occupied by the appellant. The appellant called upon
'the respondent to ca:riy out the repairs on his half. por-
tion of the. .'b uilding but was repeatedly -informed that
.to enable the repairs to l?e carried .out he must vacate.
the premi~es and su.~rend~r the leas~. rhi~ alternative~
1951] BUR~tA LAW REPORTS . 79
the appellant refu.c;ed to carry out and on the respon- H.C.
1950.
dent's failure to make the necessary repairs to the roof,
N.B.
the appellant himself re-roofed his portion of the SEN liUPTA
fl.
building and claimed the cost of repairs so und ertaken U J ONEBIN.
by him from lhe respond ent. C A UNG THA
The differences which arose between the parties in GYAW, J.
this manner resulted in the two cr9ss-suits brought
before the Assistant Judge, Bassein ; the respondent
sued for ejectment of the appellant on the ground that
he failed to pay the monthly rent due under the terms
of the tenancy bond executed by him and that he had
al~o cornmitted a breach of one of tbc terms which
provided that he could not undertake an y repairs to
the building without the consent uf the owner ; the
appellant, on the other hand, sued the respondent for
payment of the cost of repairs to the building under-
taken by him and also for an ascertained sum of damages
caused to his shop goods by the respondent's failure to
replace the roofing which he removed under the orders
of the Municipal authorities.
The learned Assistant Judge granted a decree for
ejectment which on appeal was set aside. As regards
the cross-claim for cos~ of repairs and damages, he
granted a decree for Rs. 290 .after adjusting the rent
payable by the appeltant to t~e respondent. Ori appeal
to the District Court the appellant's suit was wholly.
dismissed. :
It has now been contended in this appeal that -the
monthly tenancy taken by the appellant was in re.spe.ot
of a .habitable room in the . southern half. of bui]didg
No. 50, Strand Road, Bassein ; that it was the duty .of
the landlord, as the owner of the room, to k~ep it In
such ,condition as . would ensure quiet enjoyment .and
that no dam.age was caused to the tenant, that the
removal oUhe rooh.mounted to an interrpption of such
e11joyment. ~n4 had in fact expos~d tlte -goods bel<?nging
80 BURMA LA'vV REPORTS. [1951
H.C. to the tenant to the damaging effect oi the sun and rain
1950
and that the landlord had committe~ abreach of this
N. B.
~E~ GutTA covenant of quiet enjoyment by his failure to take
" BDl. reasonable care to prevent such damage.
u- ]ONE
U AUNGTHA
Reliance for the appellant is placed upon section
GYAW,j. 108 (c) of the Transfer of Property Act. It is claimed
that the failure of the lessor \the respondent) to carry
out the repairs to the roof constituted what is known in
law as derogation from his grant. It is claimed that
the lessor having reinoved the roofing and failed to
replace the same, is liable, in damages for the loss
occasioned to the tenant, as such condttd ::m 'lounted
to an interference with the latter's use and,enjoyment
of th e premises let out to him.
In the circumstances shown in this case, it is clai.tried
that the landlord was under a legal duty to eff.e.c t
immediate repairs to the, roof and that his failure to do
so entitled the tenant to do the repairs himself . and
claim the cost from the landlord. Section 108 (/) of
the Transfer of Property Act has been relied on in
support of thi.s coritention. .,
For the respondent it has been put fortrard that the
property at the time the appellant entered into
occupation was a bomb-blasted half of the house, that
at the time he did so, he gave an undertaking that he
would not carry out any repairs to the property withouf
the consen't of the o-Nner, that any subsequent repairs
which the appellant undertook was contrary to the
wishes of the respondent and (!.gainst the orders of the
.
Municipal
.
authorities a nd that, in consequence, the
appellant was not entitled to ma~e any claim for the
cost. in.c urred -by him on his (responderit's) ~ccount.
Ins contended on behalf of .the respondent ttia.t, In the.
a
absence of colitf;:ict, the lessor is. no~. bo'uri<l.to keep
the property in pr<?per repair an4 that . the appellant
having carried .out the repair's without the cortsent .o f.
 '19.) J j BU RMA LAW R E PORTS. 81

the 0\.Yner, contqf y to the terms of his written H.C.

1950
underfaking, has no tlaim either for the cost of rep11irs N. B.
or lor any damage which he might have sustained as SE:-< GuPTA
v.
a result of his own wrong. U Jo:-<E BrN.
To b e able to appreciate the legal position of the U AU NG THA
parties and the points invohed ir; the dispute, it is GYAW, J.
necessary to reco nnt b riefly the broad facts of the C(lSe,
as can b e gathered from the evidence on the record so
far as they appear relevant to the consideratiot'1 of the
points in issur. between t he partie.s . It appears from
the evidence of the respondent Mr. Jone Bin that he let
out the southern half of .the build ing. known as No. "0,
Strand Road, Bassein; to .the appellant for a monthly
rental of Rs. 90 under a written document filed in the
trial Court as Exhibit A ; that th is building was partially
destroyed by bpmbin g during the war ; that for the
occt:1pation of the south ern half of the build ing the
appellant had to pay a Salami of Rs. 1,500 ; that the
same portion of the build ing let out to the appellan t
was previously let" qut to a Chinaman , who had occupied
it before the building was bombed. on a monthly re ntal
of Rs. 60 plus MuniCipal taxes ; and that tl1 is previous
tenant was -also permitted to make some repairs to the .
house for his residence after the premises were damaged
and. tjle Dhani roofing to t he room wa<> made by that
Chinese tenant.
Maung Mu (DW 1) also occupied one of. the rooms
ot th e same building and at thy time he entered into
occu pa#on there was a Dhani r obf. The witness left
the premises. about a month. aft~r the r eoccupation 4>f
the British whiCh t"o ok place e~rly in 1945 and t he pre-
mises vacated by him. was occupied by the . present
Chinese tenant. . . _
:.- . .Maung Htwa (:PW 3), t he m.a n who wrote the docu-
ineri~; :Exhibit" A., also fo"und a Dhani_. roofing ()f some
sor"t-"on .'both halve~ of ttie huildin~Uuiowrt as.No . 50.
. :6 .
82 BURMA LAW REPORTS. [1951
H. C. Strand Road, Bassein, and the haJ:>itable nature of the
1950
portion of the premises let out to . tf1 e appellant is clear
s~>:G~~TA from the fact that the appellant had to pay a Salami of
u Jo:~ BJN. Rs.1,500 to the respondent before he was permitted to
- ,-TH take on the monthly tenancy of the same. The allega-
U ,..uNG A
GvAw, J. tion that the appellat:J.t entered into a bomb- blasted
building without any roof at all in order to live there and
carry on his business can hardly be a correct version of
the facts. If the premises were not habitable a nd had
no roof at the time the appellant enkrecl into occupa-
tion, -it is difficult to understand why he should agree
to put in the clause in the agreement Exhibit A, that
he would make no further repairs and alterations to
the property without the consent of the owner.
Starting, then, from this proved fact that a ha.bitable
portion of the bui~ding was let out to the appellant by
the respondent in August 1944, there next .c omes the
stage which opens after the reoccupation of the Basse in
Town by the Britsh authorities in 1945. In February
1946, the respondent was tol~ to dismantle and r emove
the inflammable bamboo and Dkard roofing of his
building and to reconstruct the same in accordance with
Municipal Building Bye-laws. On the representation
made by _the respondent, the terms of this notice were
modified to the extent of requiring him to make suit-
able alterat~ons to his building after r.emoving the Dlz:ani
and bamboo structures which the Municipal autho-
.rities considered too dangerous to the security of other
valuable properties situated in the immediate neigh-
bourhood. Thus accommodated, the respondent re-

moved the w4ole roofing of the builping and replaced
the ,roofing on the northern half of the building by
cor!ugated iron: sheets but did not r;n_a ke .any similar
repairs to:--:the . half of the building occupied by the
~ppellant/ and ~n :Consequence! on the .2 nd May 194~,
the ~pp~~limt having Ja-iled .to indue~ the respondent t~
1951] BURMA LAW REPORTS . 83
H.C.
replace the roofing on his half of the building, applied to 1950
the Municipal authorities

for permission to undertake ~R
the necessary repairs himself as the rainy season was SEN c~uPTA
approaching and pointing out that the properties lying u JoN~ BrN.
in his house might suffer damage if repairs were not u AuNo TnA
undertaken in time. The Municipal authorities, Gv,nv,J.
.however, did not feei that they could allow the
:appellant to carry out the repairs without the consent
-of the owner, and accordingly informed the appellant
of their views in tl1e matter. The appellant,
considering that the matter could brook no further
delay, took the affairs into his own hands and 'made
the necessary repairs himself and incurred the
expenditure set out by him in his statement of claim.
The question now is to consi<ier whether in the
.circumstances set out above, rights and liabilities of the
parties have arisen in the manner sought to be made
out by the appellant on the one h(lnd arid denied by
the respondent on the other. There is no doubt that
the appellant obtained a lease of half of the buildin.g
with some sort of a roof built partly by himself and
partly by a previous tenant. Owing, perhap:s, either to
the non-existence of ~.he Municipal authorities or to the
:non-enforcement of the. Municip~l Bnil~ing Bye-laws
<luring the priod of t~e Japanese occupation, the Dhani
-roofing put u.p in the 'building was . not objected t.o and
1t was in.this condition that
l
the appellant was. permitted
.
to enter into.occupa_tion of his half of the building. . It
is elemeiitary that for a tenant to enjoy a property qf
ihe nature let out to the appellant in this case sqme
kind of a roof is an absolute. necessity: The roof-which
~as t?uilt o~ the .building was of bamboo ancl" Dhani
.and it was ag~inst the Bu~l9ing Bye-la~s of the Bassein
Municipa~ity that . such materials;. should have . been
:us~d (n the area "in which t.hebu.i lding in suit was. .. It
was t'h~dutyof th"e owncr o(the building to ~onform t~'.
. . i . .
84 BURMA LAW REPORTS. [1051'

H.C. the Municipal Bye-lm,s when putHn.g up any repairs .

1950
to his premises. When the Municipa.l authorities, after
SENNG~~T... the reoccupation, informed the respondent that he
v. must dismantle the bamboo and Dhani structure from .
U JONE RIN.
- the bmlclmg,
he was mere1y to ld w h a t }:ps. 1ega1 d u t.y-
u ~~::.1~A was in respect of his property in the particular area in,
which it happened to be situated. That the lJhani
roofing was dismantled under the orders of the-
Municipal authorities, is not a j'u stifiable cause for
denying the appellant a new roof in place of the old'.
.one so removed. As the appellant was in any circum-
stance entitled to a roof of some sort in his part of the
building, the fai.lure of the respondent to put up one in~
conformity with the Building Bye-laws of the Mun~ci
pality was a clear breach of his legal duty v;hich he-
owed to his tenant.
A . Salami of Rs. 1,500 in 1944 might be of little
vaiue but stiil it seems unthinkable that the appeliant
should have taken the premises under the terms set:
out in the agreement unless the same \vas habitable-
and could reasonably serve the dLial purposes o.f hiS.
shelt~r from rain and sun an.d the carrying on of his
parti'cular trade. Now, to permit the appellant to,
occupy half of the building and then deny him a roof
would clearly amount to what is d'esc.ribed as deroga-
tion from the lessor's grant.. In the words of Bower
L.J." A'granfer having given a thiniwith one hand h;.
tJ.ot to . take away . the means of enjoying it 'w ith th.e-
other"; [Bu1n.i1J,gham, Dudley attd Disf1'ict B.a'#.ki11ft.
cf?: v . .Ross (l )_quqted by Younger. L.J. in Hatnur y.
~Hu_7it'o#-(Nigeria) T_in Anas, Limited (i).J in.order to.
'cbrisii~tite:a. breach of covenant of cl.u iet enjoyrp_ e ilt ih.
:a lease of land, it issufficient th~t'the ~esse~{s otdin~&
";~.'nd .. lawful enjpy_ment of. . th.e . d.emi~~cl'.i la~q. pe-
:0. : : .. ,. ....

'(1) 3~ Cb .. D. Z95, 313:

 1951] BURMA LAvV HEPORTS. 85
substantially int~rfered with by the act of the lessor or H.C.
1950
those lawfully cla.iming under him, although neith er
the title to the land nor the possession of the land be SE:G:PTA
otherwise affected. [Sandersou v. The May or of u JoN~ B~N..
.Bendck upon Tweed-L.R., Q.B.Div. (13} 1883-84-547.] u A - n t
4
This principle of law is thus well settled by authority G;~~. J.
.and appears to have been clearly embodied in section
108 (c) of the Transfer of Property Act. There can
iheretore be no question that tbe respondent is liable
In damages for any. injury caused to. the appellant by
~eason of his failure to provideasubstitu.te in place of,
.t he Dhani roofing removed by him from the premises.
As regards the quantum of damages allowed to the
appellant by the trial Courf, the lower appellate Court
11eld the view that there was no proof qf any such
<lamage in consideration of the fact that the roofing.
was r~moved as early as the 13th of March 1946, at
least three months before the rainy season started.
It was possible that the appella.nt had suffered per-
sonal inconvenience on .account of the absence of a
<roof over his head but he had mad.e no specific claim
tor damag.e s on that score. The date of the removal of
ihe roof cannot have an important bearing on the proof
.of damage sustained by the appellant. . It is shown in
the evidence . .that the appellant kept a grocery
::shop and if by reason of his inability to take adequate
measures to protect his properties from rain and sun
-consequent upon the removal of the rod, he can hard.l y
be ..blamed for permitting-the damage to his properties
to take place. . It is not shown that he had any alterfla:
tive .pla,ce to ~tore his goods during the rains !md if,
. ins.pite of whatever steps he had taken to alleviate the
. loss and inconvenience resulting from the absence .of
the roof over his shop, any damage .was caused to
must
him,. tbe n!sponsib.i lity thetefor.e . rest with the
respondent. Bqt as remark~d :by th.e lear:ned Judge of
 BURfrA LAW REPORTS. [ 1951

H.C.
1950
the lower appellate Court, the properties sold in his
shop of which entries had been found in his account-
SE:/G~f.v. book consisted largely o"f coal-tar, earth-oil, kerosene
u Jo:Ii BxN. oil, etc., and it is difficult to come to any definite con-
. - T . elusion that any serious damage was caused to these
U AUNG HA
GYAw, J. properties by their exposure to r~in and sun inside the
appell?-nt's shop. This being the case, I agree with
the learned Judge of the lower appellate Court that the
appellant was not entitled to any damages claimed on
this account.
The next claim made on the appellant's behalf, and
rejected by the lower appellate Court, is in respect of
the expenses incurred by the appellant in putfing up
the roofing over his portion of the premises. The letter,
Exhibit D, permitted the respondent to make suitable
alterations or re-constructions to his building in place
of the Dhani and bamboo structures which were consi-
dere4 inflammable m.aterials, and .the .' presenc~ of
which in the locality was considered to be a contra-
vention of the_Municipal Bye-la~s. The letter of the
2nd May, 1946, addressed. l;>y the appellap.t to the
Municipal authorities throws $Oine ~ight on what took
place after .the respondent was asked by the Municipal
authorities to conform to the Municipal Bye-laws.
The respondent appeared to have disn~antl~~ the phani
roofing on ~oth halves of the building and replaced
_the roof on that other -half of the building not <?CCupi.ed .
by tlic..appellant'. The app~llant . complained, tha~, by
t~e .resp_ondent's fail_ure to e~tend the repairs. to th_ e
half o1:>f ~he building. occupied by him, considerable
damage was likely to be caused to his properties dur-
lugthe apprqach~~g'_ ra_iny season and U~at the resp.oti-
dent had . turri'Jd ~ _deaf ear to the ~ppella~-l'S request
to ca.t:_r.y' o.1,It the -s.aid repairs.- Although th~ appellant
. expressed his '.desire tii <;ar.r y o:ut the repairs himself,
th'~ I_v.lunic~p.i.l authorities w0u~d nof permit ]'lim to
 1951] BURMA LAW REPORTS. 87

do so in view of .the antagonistic attitude adopted :t~

by the responden't. to the proposal. These matters
in disagreement between the parties were referred SE:G~nA
to in the appellant's letter, Exhibit 2, ~ddressed u Jo:~ BIN.
to the respondent on the 16th November, 1946. The u AUKGTHA
rains had passed but the appellant had not been GYAw, J.
provided wi1h a roof. Accordingly, he gave notice
that he would carry out the repairs himself. To this
communication the respondent made reply drawing
attention to the pendency of an ejectment suit brought
against the appellanhnd to the clause in the \Vritten
agreement prohibiting the appellant from making any
repairs without (he landlord's consent. Matters
dragged on and during the following rains in 1947 the.
appellant carried out the repairs himself over \\hich
he appears to have spent; according to his letter,
Exhibit 2, a sum of Rs. 1,365-11-0. This claim
admitted by the trial Court as duly proved \~as rejected
by the lower appellate Court. The receipts and
vouchers Exhibits 18 to 65 would appear to support
this claim. Th ese items of expenditure have been
c.npied. and entered in his account book Exhibit 15.
Though the en~ries may appear to be fresh and
made for the purposes of this case, the receipts and
vouchers coupled with the evidence of the persons
who sold the materials and made the repairs would
be sufficient proof of the fact that the expenditure
was. incurred as cl:~imed. . .
Consequently, the only claim permissible in 'the
circumstances would seem to be the one relating to.
this expenditure incurred by the appellant over-the
making of the repairs to the roofing. The lessee,
u~der section 108(/) of th e Transfer of Property Act,
is entit~ed to.remedy the breach of covenant in respect
of the repair~ hi.mself after giving. reasonable notice
to the less.o r and recover tl~e amount exp.e nded by
88 BURi\fA LAW REPORTS. [1<JS 1
HC
19~ 0
him together with interest. B ijoi CIIa11dra Swgh v.
Howrah Amla Lif.!.hl Railway Co. Ltd. ( 1). lt is
s~.,:aerTA pleaded on the respondent's behalf th at the ter ms of the
u Jo;lisc~. agreement do not provide that the respondent was to
-
U AUNG TH,\
keep the property in proper repairs and tbat the
lessor
. GvA':', J. was not therefore bound to make the repa~rs . It is
true that th e agreement mentions that the tenant ''as
not to mak~ any new repairs or alterations without tbe
land lord's consent but this term of the agreement can not
apply to the unforeseen circumstances of this case where
in view. of ~he action taken by the Municipal authorities
to bring the condition of the buildi ng intn conforn.i t~
with the Builciing Bye-laws, the landlord was required
!p dismantle the roofing with which he originally
provided the tenant in the beginnin_g or the tenancy.
Having complied \~'ith the lawful order of th e local
Municipal . authority the respond ent was in law bound,
within the meaning of section 108 (/) of the Transfer of
Property Act, to undertake the repairs necessary
to bring the property back to that state which would
restore to the lessee his original right of quiet
enjoyment of the property let o~t to him.
Accordingly the appellant would appear to be
entitled to be reimbursed the expenses he had incurred
for making the. repairs to the roof on his part of the
building, i.e., Rs. 1,365-11-0, but as he has in his pl<1i~t
appropriated .t his sum towards the rent due by him, it
does not appear that he is entitled. to any monetary
relief in t his case. Th? appeal will in the res~lt be
.dismissed but each party will bear his own costs in
thi<s a nd in the Courts below.

(l). A.I.I~. (1923) _Cal. 5-24.

1951 J BURMA LAW REPORTS . 89

.,APPELLATE CIVIL.
Rt'fore (1 T11 11 Byu, Chief Just ice a 11tl U Ou p, , J .

MOHAMED ABD UL KADER (APPELLANT)

H.C.
1950

Xov . 15.
c. l\L A. ISMAIL (RESPO;.JDENT).*

Code of Civil Procedure,,;, -17, Orrlu 21, Rule 2-A. u appticati~n for record1ng
'"' atljuslmtn f of lite d eere.;.
Held: Where a n application for execution .has been fi led an d lhc
judgment-debtor files a n a pplication to recvrd an adju$tment of the dec ree, the
court is bound to ho ld an enqniry to find out as to 'IVhether the decree has
been adjusted or not.
Cha11di Clurran Chakravart i v. Panclsa /la/1 Paudit, (1930) I.L.R. Pat.
Vol. 9, 521 : L. Madho L ,ol au d one v. L. Duli Cha11d wd 011e, (1933}, A.l.R.
All. 429at 431; Mat!llg Tm v. Ma Mi, (19271 I._L.R. 5 R_a n . 833 at 834, followed.

R. K. Roy for the appellant.

c.. A. Soorma fo r the respondent

The judgment of the Bench was delivered by

U TuN BYu, C.J.-A consent decr~e was passed

'On the 23rd January, 1950 again_s't the appellant
judgment.debtor Mohamed Abdul Kader, who was tl1e
defendant in the suit known as Civil Regular No. 871
-of 19.49 of the City Civil Court, Rangoon, which was .
instituted by the responde~t decree-holder C. M. A.
Ismail. The effect of this consent decree ~as, inter
alfa, that the appellant judgment-debtor wa's to pay a
sum of Rs. 400 on the 15th February, 1950 'to\.v~trds
the arre_ars of rent due by him, that he was .to pay
Rs. 1,000 on the 1st March, 19501 and that the balance
..sum due by him, together with the costs .of th'e suit'
'was ~o be paid . by monthly :1ns1almeQts of Rs; 400,
--;Civil Misc. Appeal No. 20 of 1950 _against tlie o_rder ,of the 2nd Judge',
City Civil court, Rapgoon, in Civil Execution No . .205 on950, dated: the
181h May 1950.
90 BURMA LAvV REPORTS. L195 r
H.C. beginning from 4th April, 1950 and that in case of
19SO
default, the respondent decree-holdeP C. M. A. Ismr.il
M~::~:o was to have liberty to execute tbe decree which had
KAuER
1}.
been passed in his favom".
c. M. A.
IsMAIL .
Subsequently on the 7th March, 1950 the respon-
- - dent decree-holder applied for the execution of the
U TUN . t tl1e appel-~ an t JU
c.J.BYU'consen t d ecree passe d agams . d gment-
debtor Mohamed Abdul Kader. His application for
execution, which was known as Civil Execution
No. 205 of 1950,_ was granted, and he was able to
obtain possession of the premises for which Civil
Regular No. 871 of l949 was instituted. - It is said
that C. M.A. Ismail obtained possession of the premises.
in question on or about the 22nd March, 1950.
On or about the 28th March, 1950, that is after the
Civil Execution Case No. 205 of 1950 had been
conclud.ed, the appellant j.udgment-d~btor Mohamed
!\bdul Kader applied that he might be allowed to
deposit the sum of Rs. 1,800 in Court in accordance
with what the parties were alleged to have agreed to
after the consent decree was passed. He also asked
for the .CQnsent decree to be rescinded. . Paragraph i
of his application and ~he prayer contained therein
read as follows :
'' 2. That the petitioner being una61e to pay up the lst and
'Znd instalments in te1;m of the aforesaid order of the court,
approached the decree-holder through his agent for acceptance
m
of the total arrears of Rs. 1.800 a lump sum to b~ paid on the
due date of 1~th April 1950 iu Court. The decree:holder agreeq
t~ ~1ch arrangement. Relying on the assurance of the decree-
0
holder the petitioner did not apr>roach this Hon'ble Court fot:
extension of time.
* .... . * *
wherefoi'.e, the pet.itioner piay~ that an enquirybe held . as
to the ailegat.ions . i'n this ;petition and at Let due enquiry, the
amount of Rs. f,0:) be at.iowe!i ~o .be deposited arid . necessary
order be p~s~d:for rescis's ion of tb~ decree.;,
 1951] BURMA LA\V REPORTS. 91

C. M.A. Ismail, t~ respondent decree-holder, !Jov\'e\'er H.C.

1950
denied that there was any agreement to adjust the
MoHA~tED
consent decree, and he also contended that the Asvut
application which Mohamed Abdul Kader filed on the KA~.Eu
28tl'i March, 1950 was not maintainable in law. The C1:$)fAIL. M. A.
application of Mohamed Abdul Kader \:t.as dismissed -
with costs by the learned 2nd Judge, City Civil Court, u 'l'u~/~vu.
l~angoon, on the lOth May, 1950, and according to the
learned 2nd Judge, even if there had been an adjust-
ment of the consent decree, as alleged by the appellant
judgment'-debtor, it would not have been of any avail
to the latter in that the consent decree, which the
respondent decree-holder obtained, had already been
executed.
The application of the appellant judgment-debtor,
dated the 28th March, 1950, it might be mentioned,
did not indicate under what provisions of law it was
purported to have been made. The effect of the
prayer in that application appears, however to be clear,
namely, that the appellant judgment-debtor was asking
the Court to record the adjustment which, according
to him, the parties had arrived af after the consent
decree was passed ; otherwise, it is difficult to conceive
l10w the. appellant judgment-debtor could have asked
the Court to rescind the .consent decree and allow him
to deposit the sum of Rs: 1,800 in Cui.ut. It seems to
be obvious.that the appellant judgment-debtor would .
. be <llowed to deposit the sum of Rs. 1,800 only . after
the adjustment, if any, had been recorde~. It is the
duty of the Court in such a case to exami'ne the.real
nature and effect of the application, more espe<;iafly as
i t does not spedfy the provisions of law under which
it was purported tp have been made. The application
o. t he appellantj~dgment-debtor..c0uid thus be ciearly
andprope.rly 'c onsidered as an application to recorJ the
adjpstmerit which .was. alleged t.<;> have been. a_r.rived at .
92 BUHMA LAvV REPORTS! [1~51

H.C. by the parties, as indicated in p:rragraph 2 of the

1950
application.
MoHAMED
All our. The head-note in Chandi Clzaran Chakrmarti v.
KADER
t. Panchanan Pandit ( 1), reads as follows :
C. M.A.
lS~IAIL . " \iVhere a judgment-debtor contests an application for
.u TUN l:lYU, execution on the gr-ound of a payment which had be.':!n made less
C.J. than <:O days previously, it Is not only permissible but
incumbent upon the court to treat the petition of objection as an
applic3tion under Order 11, Hule 2 (2), Code of Civil
Procedure, 1<;08, and, if the application su.cceecis; the bar
imposed by sub-rul'e (J) will !JOt come into oreration."

It has, however, been urged on behalf of the

respondent decree-holder that the appellant judgment-
debtor could not in law be allowed to treat his
application, dated the 28th March, 19.50 as an applica-
tion under the provisions of Order 21, Rule 2 (2) of
the Court of Civil Procedure, after the execution
proceedings had concluded and after the respondent
.decree-holder hap obtained possession of the premises
for wh_ich his. suit in Civil Regular No..871 of 1949
was instituted. It appears to us that an applicfltion to
record an adjustment under Order 21 Rule 2 (2} of
the Code of. Civil Procedure can properly be consider-
ed to be a matter .which falls within .the provisions. of
section 47 of the Code of Civil Pr:ocedure in that a
:decision which is passed on such an application
relates to the satisfaCtion or discharge of. the decree.
In L. Madho Lal atld 011e v. L. Duli Cha11d a11d 01-te
(2), Mukerji J. observed :
" .
.. :J' Section 4 7 is applicable in execution proceedings as mudi
after an order has been passed declaring the deere~ s.atisfied :as
before a~ order has . peen m1.cte to that effect. Where a .decr:ee
has been held .t_o have tieen discharged and 'One of-the parties
-comes
. to the Court on.the ground that theorder
. . ..has' been ..wron-'!ly.
l ' j j 1J 'b Ul<MA LA\\. HE PORTS. 93;

pa:ss\:cl and should !e n::\'ie" cd cr r~, :o ns i derer! , the case \\".Jul cl H.C.
1')5;)
fall under section 47, . ti,il Pr.x~dt; r.: Code. This is clear on
tlte la ngu:-~ge of the section i:~e li." !\IOHA)! I-.1>-
..\IliJUI.
KA I>Ell
And we respectfully agre:! \rith the above observation. t~.

C. M. t\
vVe are accordingly of opinion that an application I s MAIL.
under Order 21, Rule 2 (2) of the Ci,il Procedure U Tus Bvu~
Code can also b e made, even if the decree has been C.J
executed, if it is made within the period allowed under
the Limitation Act. The view which we now adopt is
also co nsistent with the provisions of Article 174 of
Schedule II to the Limitation Act, which allows a
judgment~debtor <JO days within \>rhich he might apply
u nder Order 21, Hule 2 (.2) of the Civil Procedure
Code for an adjustment to be recorded. We do not
think it will be just or proper to whittle down the
right given to a judgment-debtor under Artic1e 1~4
u nless th ere are clear provisions of law to justify such
acti()n. .
Carr J., in Maung Tin v. Ma Mi (1)' observed :

'' If we read sub-rules (2) ~nd (3J of Rule 2 indepenclentlr a{

one another there is a conflict between them. A literal intet-
pretation of sub-rule (3j would clearly l:ave the effect of depriving
'the judgment-debtor of the right given to l1im by sub-rule (2).
Obviously this cannot be allowed. So long as the judgment-
debtor applies under sub-rule (2) within the time allowed for him
.to do so he has the right to have his applil.:atiou heard.''

Carr J._, we
may . with respect say, st?ted the law
~orrectly. The appellant judgment-debtor Mohamed
Abdul Kader could not therefore be said to have ' bee~
precluded, in the circumstances of the present case!, by
rQason of th e provisions of Order .21, .2,. Rule
sub-rule.(3), from asking the Court to have an enquiry
institut~d .under the provisions. of sub-rule (2) 9
,Rul~ 2 of Order 21 ~f the . Civil Procedur'e . <(ode. .
. . .
U) (19271 I.L.R. 5 Ran . Series, 833 ;At 834~
9+ BUR;\fA LAvV H.EPORTS, U951
H.C. The order of the learned 2nd Judge, Rangoon City
1950
Civil Court, will accordingly be sefaside with cost~, so
M%~~~~
0
far as this appeal is concerned.~ The costs in the
K.-.o~;R Rangoon City Civil Court will be decided by the
v.
c. ?of A. learned Judge who will re-hear the matter in dispnte
ISMAIL
after the records are returned to lhe Rangoon City
u TuN
C.J.
svu, Ci vi!- Court.
1951] BURMA LA\V REPORT S. 95

APPELLA TE C IVIL.
IJ<'{ore U Ttw FJyu. Clu</ Juslic.: a 11cl U On Pc, f .

.A. C. .~ KH OO~ A:"iD OX E (APPLICANTS) H.C.

1950
'l).
l\'ot. 20.
A. HABI B (RESPONDENT) . "~

.u,, ion Jndici,,ry .-lei, 1CJ43, s. 5-Valuation for lite pur pJse of appeal-
Modification of /he judgmwt of t lte Trial Court wlt ethtr such modificat iou
v.m be callCft nffirma11cc of the d ecision.
In a suit for recovery of !l:;. 34,471 a decree for Hs. 32,271 was passed in
the Trial Court and in arpeal this sum was reduced to Rs. 19,771. The
plaintiff applied for leave to appeal to the Supreme Court, and the question
arose \\'hcther the judgment of the Trial Cou rt wali affirmed by th e judgment
.of the Appellate Court.
Hiid : That th!s was not a case of affirming of a judgment with in t he
meaning of s. 5 of the Union Jt.d iciary Act.
Kumar Purne11d11 Nath Tagore aud otlurs v. Sree Sree Radltakanla Jew,
( 1949-50) 54 C.W.N. 538 at 539; A bclur Samml Ansa ri mul one v . M t . Aislw
Bibi a nd others, A.I.R . (35) (L94S) Oudh 76 a t 77; Nat!l u Lat v. Raglmbir Si11glt
aml others, (1932) 54 All. 146 at 149; Raja Hrajasundar Deb at~d olfters v.
R11 ja Rajeudm .Varayat Blzanj Deo, 28 A.l.R. (1941) Pat. 269 at 276;
.Aunajmr11a bai a11d one v. Rnfrao, 51 Cal. 969, followed .
'
M . M. R aft for th~ applicants.

R. K. Roy for the respondent.

.;

T.h e judgment of the Bench was delivered by

U T UN BYu, C.J.-The suit which A. Haf?ib, the
Jr.e spondent, instituted against the applican ts
A. C. Akhoon and Dawood on the Original Side was
:for _the recovery of a sum of Rs. 34,471, .which. was .
sajd to have been due to him in respect of goods th at
:were said to have been sol~ to the applicants. The
decree was passed in favour of A. Habib for a sum of
Civil Misc. App lication No. 15 of 1950 being application ~nder section 5 of
the Union Jud.i ciary Ad, 1 ?~ 8 for leave to appeal to the Supreme Court agai~st
jr.tdgtrent' an:! decree : ~n Civil 1st Appeal No. 54 of 19~9. dated
:7th Jl!lY 1950. .
 BUJ:\MA LAW RE PORTS. [ 19S1

H.C. Hs. 32,271 with cost. . Th e app lip1nt~, agai n st

1950
whom the decree \Yas passed in Civll Regular No. 11 5
A. C.
AKliOON of 1<J+8, appealt-:d against it in Civil 1st Appeal No. 54
AND ONE
v. of 1Y-1-9. The sum awarded to A. H abib on the
A. HAIHn. Ori ginal Side \YaS reduced to the sum of I<s 19,7 71
u TuN Bvu, only. I n other words, the amount '-'\llich A. Habtb
C.J. obtained in his favour on the Original S~de was
reduced by a sum of Rs. 14,700. This is, tht reforer
a case where the v,1lue of the subject-matter in
dispute in the court of first instance and on appeal
was not less than Rs. 10,000. It is also a case where
the subject- m<ttter in dispute before the Supreme Court
will also be not less than Rs. 10,000. I t is accordingly
a case which fa lls within clause (b) of section 5 of the
U nion Judiciary Act, 1948.
The .question which falls for consideration is.
whether the decree passed on the Appellate Side of
th e High Court can b e considered . to be a . decrl!e
which affirms the decision pass~d. on the Originar
Side. 1~ h e answer must, . in our orinion, be in the:
negative. .
. There were until recen tly conflicting d ecisi ons int
the court s in India in th is matter. I n [(uu/l1r
Purnend u Naill Tagore and or hers v. Sree S1ee.
Rad!Jakan.ta ] ew (I) the decree of the trial Court \ \ as.
vari ed by a decree of the appellate Court, and it \\'as.
t here observed as follows:
"Whether such a decree as exists in this case is a clecrC'e of
affirrnance has heen: the sul->ject of much litigatio.n: ~nclou b~
tedly, tlfe earlier view o(this Court was that it was a decree of
affirmance, thouJ!h in f::ct the aetna! decree had been varied~
Other Courts have held a differen.t view. However, the later.
pracrke of this Court is to treat a decree of this kind as a dec~ee
n ot of :\ftirmance but a decree yaryil :g .t~e decree of the tria~
Court: Sifting elsewhere I have foJiowed this later pr~ctjce of
(11 II 'J49-50t S4 C.W.N. ~38ilt 539.
1951] BURMA LAW REPORTS. 97

ihis CQurt and we are of opinion that the decree in this case H,C.
-cannot pe S<!i~l to be ~deere~ affirming the decree or df!cision of 1950

tP.~ Cot,~.rt t>elqw, anq h~t bc:ing so the proposed appellants are A.C
A KfJOOM
-entitl~d to a_ppefll as ef right." AN D ONE
v.
In Abdur Samad Ansari arld one v. Mt. Aisha Bibi A. HABIB
.q:mt o.lhers (1) th_e q~e~ ti on wh ich W(ls r-eferred to l ' TeN BYu.
c.].
the F411 Benc:;h w~s:
" Wher~ the main a~peal against th.e decision of the trial
oCourt fails but tq~ ~l,::cjsion is pqrtly modified on cross objection
and the1;~ is no sqbstantial question of Jaw, does the appellate
qecree vary the de~ision of the trial Court as contemplated b
!;ection 110, Civjl Prpced!Jre Code so as to entitle the appellant
t o go up to Hill M~jesty i n Council."

and it was ebserved as follows :

''Where an a ppeal fs sought to be pl'eferredagainst a decree
which vari~s the decision of the Court immediately below
whether the variance i$ brough t al:o<;>ut at the instance of the
:appellant or at the instance of the respondent it cannot be said
that the appellate decree affirms the decision of the first Court.
The section does no.t conceive of the decree as partly affirming and
~~rlly v~ryiltg t~ origil'!al qecision. The ~egislature appeafs t.o
bave eq.vis~ged an appejl~te decree eittJer flS uphQt{li,ng th~t
~~<;;ision or all v~rying cr rpodifytpg it and if an :(l.ppe;:tl is .,er-
~ssiole, it i s agai'n~t t.he dec ree as a whole and not ~ainst the
findin-g or adjudications on the controversies inv9Jv~d ii~ the
-suit.'~

S..uJ.~~rpan A~C~J. .. 9bs~rv~<;l i.n N alh~ ~al y

.Raaltuhi~ ~!m!~ ~nd ptfw:$ (~.) ~& t~nQ.w~:

" The .language used in section llP. of the Code of&ivjl

Proce~ure is simple and makes it cl~ar tha~ if the decree
appealed from affirms the decision of the court below there
\Wauld be no 'd gbt of appeal unless a substant-ial question oi.hw ;$
jq~Jvt9 Th~I-e is Q!l r~~on wh.y \y,e sftQI.l}d intmctype rwi
:w~~~ in t~~ ~e~ti~1;1 ~ncl li~ tl]a.t the ~lltpres~~qn ~fRflll$ f~

(1) ..
.
~;Hid~l (1~~) Oudh 7~ ;t~ 7i.
--------
7
9R BURMA LAvV -REPORTS. [195!
H.c. tlecision of the court below' 11ecess:1ril~ means 'affirms the
1950
decision substantially' or means 'affirms the c~ ecision ot1 gmunds
A. C. ot her than costs'. If the decree of the court below has been,
AKH.O ON
ANO O:-: E
v;1ried, no matter to what extent, the decree cannot be oi:e
v. of aftirmance.''
~. HABII3.

:u 1'-;;-l:Svu, In Raja B1' ajasumfai Deb .alld others v. .Raia Rajmdra

c,J. Narayan. Bhanj Deo \1) Harries C.J. also observed :
'' In the present case the propo!>ed appellants have to appea}l
tbe decree as a whole. and ;they will have a r right to ' d&
a~ainst
so if that decree as a whole does not affirm the decision of the-
Court below. The appeal is not coniined to such part o the-
decree as affirms a part of the decision of the Court below: but is.
preferred against the decree as a whole. Cleaih the decree as.
a whole does not affirm the decision of the Court below taken as
a whole, and that being . s0) the appellants, .in my view, are-
entitled to appeal as of right without sbowin~ thnt' a sub5tantia~
question of law is involved. In my view this case is coi1cluded
by the ded~ion in Aunapurnabai atzd. ot'her v. Rwtwao (2), as.
explained by the earlie r decisions of this Ccurt to which I have:
made .reference."

lt will perhaps also be convenitnt to refer to the-

c ase decided by the Privy Council in Annapunwbaf
iand . one v, R1.Jprao (2) where the value of the
si1bject-matter of the suit exceeded Rs. 10,000 and .the
.\ ialue.of the proposed appeal was said to have e?'cee~~dl
-Rs. 10,000. There the appellate Court did riot affirn;ll
the decree of the trial Court and it was held that 'it
wa~ a ca~'e wbi~h carrie within the rrovisioii's of
section 110 of the Co!:l'e of Civif Pfocedure, Whicb,t.n
supstancet are the same as section 5 of the Uniofi.
1~dtd~r.y .Act, )91~:..
:....we are .a~.so ~nable tq se~ any go.o 4. rea;~on why. :V!e
~~gh.t ~ot. ~o follow th~ o rdinary rule of . jnterpr:etati.on
.and..give to >t.l~e .'Y'".<;>rds in : se0ti<;m . 5.~:- the Union.-.
Ji.tdkiary Aet; '-1;948) !.a mean~ng whiGh those V\rords.
t'- ~ ~ ........ .. .. . . .. ~ - . :~. - ~ - -
1951] BURMA LAW REPORTS. 99

ordin:~.rilybear. This is, therefo.re a case which, in H.C.

our opinion, f~lls entirely wit'fii'i1 'the provisions of 1950

clause {b) of section 5 of the Union .Judiciary Act, A. C.

AKHOON
1948, and the necessary c_ertificate will accordingly be AND ONE

issued. There will be no costs awarded in this "

A.,- HABIB.
application. U TuN BYU,
. C~} ..
100 [{951

. .
B.ef~e U 1'u11 Bytf, 0/sic(Ju~tice ami U O.n Pe,'J.

ff.C.
l.950'
v.
'N(IJ!. is.
BA.LTHAZAR & SONS, LTD. (RESPONDENTS).*
Urbtw Rent Ccntrol Act, u. 10 atJ<I 17-Rangoon Municipal Act, s. 80.
Held : That where standard rent had been fixed and a tenant had paid to
the landlord more than the standard rent he is ~ntitled to deduct the excess
, paid within six months from the rent due.
Under s. 80 of the City'of Rangoon Municipal Act taxes are p,ayable not
only forthe hciuse but also for the land and if the defendant ereo.ts a house.
a
on . land belonging to his landlord it will have to be ascertained 'Yhat
proportion of the Tax~:s are for the land and what portion for the building.

Myint Toon for the respondents.

The judgment of the Bench wa? delivered by

V TuN Byu, C.J.-Messrs. Balthazar & Sons Ltd.,
the respondent, instituted a suit for the recovery .of a
sum of Rs. 600 as arrears of rent due for the vacant land
in question which is situated at No. 123, Sule Pagoda
Road, Rangoon, at the rate of Rs. lOO per month apd.
it was said that the arrears we.r e for the months of July
to December 1949. Thedefendant-appellailt, W.K.G.
Pillai~ apP.eared personally and filed a writt~n
statement wherein he:claimed to be..allowed to deduct
what he alleged was the excessamount ~e had paid
fqrtherent oftheprevio~s six mon.ths, namely,. at Rs. 27
per-JJlonth. The l~arned 2nd Judge. before whom the
matter ~arne. allowed the defendant-appellant a ded4c- .
tion of ~s. ~ p~r month Ior.the excess amount he had
paid ni r.e~pect of the reot for the previous six months
but dis.
. . mi's,s:
, .. e d . sum. of Rs~ 22
' his claitn. to ,deduct the
: civil 1st' Appea,l ~o. SS of. -1950 against th~ decree of the 2nd
:Jg<)gc, ..GJ~y Civil COurt, Rangoop in. Case ~o. 169 of 1.950.. .
 i95ij :BUNMA LAW REPORts. i01
per month which H1e ddendafit-appeliaht paid towards fifo
taxes due to the Corporation. The defendant-
appellant, who appeared in person,. ha-s argued his W. k.G.
PILLA!
. v.
own case and his contention that he \Vas not exduded BALTHAZAR
from claiming the deduction by reason of the prcwi . . & So~s. 'LTo.
sions of section 10 of the Urban Rent Contf61 Act, ti TUN BYU,
C.J.
1948, must, in our opinion, be accepted. The r~le\lan t
portion of setti~il 10)"-eads _~s foll6\vs: .- _ _, . _
'' It shall not be lawful for an~ person in consldetatioi:l of
the grant, renewal or <;~>ntinuance tlf a tenancy of any premises
to x;equire the payment of any fine, premium or any other sum
In addition to the rent or to demand any advapce in excess of
one fuonth's rent."
The words {'any other sum in addition to the reht:'-'
ought; in our opinion, be given the w~de . meaning
which they convey, and this is strengthened by th
fact that the wor.d" iik" between the word "other"
~nd the word~' sum" in .section lO had been. deleted
subsequently by _a n Act, pass<?d; in .: 19'18 known
as the Urb~n Rent Cbntrol (Amendment) Act, 1948~
H is also a general rule of <::onstruetion that a
'word appearing in ' a statqte ought to: be given
its ordinary meaning in the absen-c e . of .anyJhing
in the context.-:to . in diG-ate.:- t9 the . con(rary or in,
any . o~her provisions of law which wilL indicate a
~ontrary intention. We are -unable to see anything in
the Urban Rent Gontr~l Act) 1948, .OF in. any oth~t
provisions of law by which we ought to give. - ~ more
res'trictive meaning to the eNpression ~ any other sup1 '
appearing in existing sectiotl_ 19. of. the Urba~ Rent
eontml: Act. .
Secti~n l7 (1) of the Urban Re11t _Goi1trei Ad
.reads as f~llQWS. ;. .

. -_ . . t7 af:wiie~~ any si.im 11~s atter'tilecommencement Pr -

this Act been tiaiti on ~c-cbl.int or 6nti : being i -sum \vhitn is hi .
102 BURMA LAW R~PORTS. [1951
H.C. ~e,~s91~. of tlle.J?rovisions of this Act irr.ecoverat>I~, such sum shall
1950 at. any tim~ \vithin. a period of six month& .after the date of
w. K. G. payment be.recoverable by the tenant by \vHom it wa~ paid from
PILLAl tiu; l<fndlord who received the payment and mav without
BALT~AZAR prejudiceto any other method of -recovery be deducted by such
& SoNs,Vrn: tenant. from any rent payable within six mOilths by him to such
U TuN .BYu, la.ndlord,!'
C.J. , . . .. .

The contention of the defendant-appellant is that he

is en.titled to claim deduction for the excess amount
he has paid under the last portion of sub-secti.o n {l)
of seCtion 17 of the Urban Rent Control Act. It
seems "to us' to be :dear that section 17 {1) ~110\~-~ a
tenant to deduct from any rent payable by him~
within six months of tl1e excess payment made by him,
and.iJ thi.:s i~teq)t1etatien iscorreCt,:asit. appears to us to
be~ it follows then, that the defendant-appelfant can
d~-im . dedtictibri for the excess paymen~s whiCh he
madeJrom the rent due by him in July, 1949, in so
far as the exces.Spayinents made by him in February,
Match, April and May of that year were coh_cerned
although in doiilg. ~o lhere would still be :a small sum.
t'o b'C recovered.'by h.m in respe.d of the ex'e ess
~'mpui1t paid by .. him in those four moilths. This
srriall"reinaining s~in, wfth the exc~ss ' payments made'
by him in Jun:e and July 1949, could, cor the reasons
we '1iave already :stateo; be deduCted from th'e . rent_
p-ay~ble by him for .the month . of August 1949:; and
hi~ Claini for deduction, even in: respect of :the last two
e'xcess 'payments, 'm ust accotdingly .be considered 'to.
be:\vithiii timias con.templated: in sec.tioni 17 (i) .6 the
Urh~u.tR~nt control Act ..
It has,' how~~er, been con tended on behalf . of
:Messr~. Balthaz~k & . Sons, ,Ltd. that : ti1e defendant-
~ppellant is not entitled _i;o. deduet inything from ' the
~m<>.l}t:~s~~l)~c,h .;h~~,paid. f<.?~ .the :cor.p9ratioi;l taxes _in
. .. ::tl:)ps~
. that. . . ..taxes,
..... were
. ' taxes:
. . whiCh: :were .levir4. . and
..
 1951] B"WRM~- LA:VV REPORTS. 103

payable only in respect of.. the building which the H.C.

1950
-defendant-appellant was alleged to have erected on
the land and in that they were taxes which were not '';;1 ~":A~:
leviable

on the land itself.
.
The relevant portion
. .
of v.
8 ALTHAZAR
:section 80 of the City of Rangoon Municipal Act ~ so~s,.LTD;.
:reads : U , T UN BYU,
O,J.
"80 11) The following taxes .shall, subject to the limitations
~1ereimfter provided, be levied on buildings and lar~ds, and shall
lbe Ccllled Property Taxes, namely:- .
(a) a general tax of n~t more than ~weJve per cent o_f
their annual" value, to which may be added a lire
brigade tax at such percentage . not exceeding two
per cent of their annual value as will, in the opinion
of the Corporation, suffice to provide for the expenses
necessary for fulfilling the duties of the Cor-p oration.
...... .... ,, . .
It will thus be observed that the taxes are levied
rnot merely on the buildings but also in respect of
'the lands on which t~e buildings ~re constructed. A~
4east this is what appears fro~ section. 80 of the City
() . Rangoon Municipal Act. . It will ac_cor:dingly be
nec~ssary to have eviden-~e. as to whether the ~orpo
r~tion t-~es w_ere _Jeyieq both on buildings a~d land~
~nd if so, \yhat is t~e proporlionat~ amount of the taxes
so far as this case is concerned, which can be r~~-son:-.
:ably said to be attributed to the Jand only; and if this is
:ascertained, the defendant-appellant should be allowed.
to deduct that portion of the CoT-potation taxes
:at~ributable to the land from the rent payable by him.
[n this -respect, it will probably be necessary .to
~onsider whether th_e general tax, conservancy tax _ or
water-tax is or is not leviable if there is no building ~n
the land in question, and if these taxes are leviable
without any building on the land, whether in that
drcu;nstance, the defendant-appellant will not be .
entitled to claim . deduction :of- the en6re amount of
~.s. ?i per month --~--~~aimed_ qy .hi~. .
104 :8 ORMA LAW RE~b~ts. [1SJ5t
r<if~ THe jtidgfncnt and tiecf~e of the h:arned ~nci jut,lge:
- of tfie Rang6bft City Ci"Vil CoUrt; fn so far as the
~~~r Balance surti of Rs. B2 With costs is concertied are
D~~>T~AZA:R modified, al1d the f}tdceedings of the lo\ver Cduft:
~s~~~:-Llo. .Will }je sent back for decision on the: pdihts ihdk~teti
u t'u!t :B;ru, above. Each party ought to be allo\ved to add uce
c.J. fresh evidene, if des.i red. Costs in the lower Court
in tesped of the additional oi tl~lafH::e surrr wiii be
left to be decided by the 1~atned }tH:ige who will
t'e-heat ~he cas.~./sr, tf.at purpose,.affe~ the prod~e~ings.
is.sent back t~ K~rn.~- So1 far as cost.s in th,is Court are

..
c0rtcerned, \\~e ~t~if~:~; in fairness, the defendant-
'"t' 't ~ , {.

appellant ought 't(f 'oe allowed his costs because the

point on wnich. the case is sent'b~ck for decision was:
a point which apparently was not f:51~es~ed . before the
leatned 2rid Jtitlge, nor tlid he deal \:Vith it at all in his.
judgiilent. No issue was fram~d ort it; arid ih the
circuthstailce, the defehdantJappe1Htiit, W. K. G. Pillai,
tvili be entitled to liis eosts so fat as this appeal i.s.
~tlncertH~d. He has succee tled iti so far as the ihaiil.
and itrlp6rfatit poitit \.vhich Was d'e.ddelf against Him by
the learned ititi judge df :the R~ry.goon City 'Civit
Cbuft. The' af!~eal is aUoWed in the sense indiC'attd
aB6\I'e.;
 1951] BtJRMA LAW REPORTS. lOS

Al>P ELLATE CIVIL

Before U r,,,, By11, Chief l usl iu 41id l: On Pe, i.
NANA l\fEAH (APPELLANT)
v. Dec. 7.
SIDDIQUE AHMED (REsPbNDENT).i
Usfl/ructunry Mortgage mvalid for want of riJ!.istralion-Whltlter plaiuti/1
can sue for mOtzey lent 411d adta11ced.
Held: Though a loan prrma facte involves a personal liability and sucli
liability is not displaced bythe mere fact that a security has been gi veb' for the
repayment of the loan with interest but the nature and terms of such security
may negative an;y P!!rsonal liability on th e part of the borrower.
Ram Narayau Smgh v. A.dllindra Na th Mukerji, (1917) 44 Cat. 388 a~ 400,
followed. . .
An usufructuary mortgagee cannot maintain a suit for a personal decree in
the absence of a specific covenant. . . .
Gopala.<.ami v ..4ruu!lclleliR. 11892) 15 Mad. Series, 304, followca.
In lhdia a mortgage does not necessarily import a persohal obligation to
repay
F. H. Pcll v. M. Gregory, (1925) 52 Cal. 828 al 843-84~. followed.
Maung K;iv. MaMa Gale, (1919-20) 10 L.B.R. 54, distingil~~lled.

Po Aye 6t the appellant.

U. L . Das for the respondent.

The judgrpent of the Bencl~ w~ ,d~lj.yer~d b.y

- ..
U T uN BYu, c.j..-Thepiaintlff-appellant Nan~
Meah instituted a suit against the d~fendant-respond(mt
Siddique Ahmed for the recovery of ~ sum .6
~s. 550, as money lent to the iaftef en the.i 2th Jart uaryr
~~49..... it . appe~~s_ th;,t a mor~~ie. deed~ . . date~ : !Pe
12th January, 1949, was executeq in r:espe.d .o.f t~at ,
loan,
,
but it was. n6t' regisiered
.
...':. this
...
ex.Jll,ains'. why.
:-.Ci..,.fi 1~t Appeal No: 45 of t9s(J ~g~in~t tile d~ti'ce ol tn~ 2iid: judi~; City
Civil Court; Ra.dgdbriin C:ise'No. 906 of .19491dated the Slh june 1950, .
. . . . .
i06 BURMA LA\~ REPORTS. [1951
H.C. Nana Meah based his claim on what was said to be th e
1950

l\Al\A :\lEAH
original cause of .ayt,ion; ~s .. money J.ent, and why he
II refrained from referring . to the mortgage deed in the
SIOOJQUE
AHMEO. body of the plaint; although he mentioned it as a
u TuN UYu, document which he relied upon towards the end of the
c J. plaint. . . . .
The case of Siddique Ahmed is th~tt he borrowed a
sum of Rs. S.SO on a mortgage which was said to have
been executed on the 12th January, 1949, and it was
alle'ged, in' effed, fhat it was in the nature 'of a.
usufructuary mortgage. The issues that were fra, med
''-
were-

"1. Whether there . had been a usufructuary mort~n~e ns

alleged : by the defendant ? If so; is the suit in its 'presenf form
maintainable ?
2. T o what amount, if any, is the plaintiff entitled ? "

The learned 2nd Judge, City Civil Court, Rangoon,

found that " the loan was taken in the form of a usufruc-
tuary mqr.tgage " . He held that the .. suit, wh.i ch ~ana
Meah instituted, which was for money lent, was not
maintainable ; and he dismissed it with co.sts. ,_
Tl;le question wh'ich arises in this .appeal is, Cftn
Nana Meah, in the circumstances of this case, base'' his
daim on what has been called the original cause of
t 0 ...

action for money lent: The effect of paragraphs 1,

3 an<;l 4 of the amended WJ;"itten statement filed by
Siddiquc J\l~med is 'that he borrowed a sum.cof Rs. S$Q
on a mor'tgage wn\ch was effeCted ori the 12th January,
1949, that' t~e ~ortgaged property was made over td
Nana Meah ' who had collected rents .due on .t l:at
. property, that if accou~'ts_ were go~e in.to if would" pe
discovered that Nima Meah had collected more rents
fro'm the:mortgage.d property'than wliat was due to him
o-n the..mortg~ge debt .and tb;t* .N_a na -Me~h .sl)ould have
instituted his .suit iri tlfe : form of .. a mortgage "sui-t.
 1951] BURMA -LAW hEPO"HTS. 107

Paragraph . 1 of t!1e , ReF-lY to the writt~n st:1temcnt H.C.

11J50
was-.
K\:-'A 1\JEAH
uj_ \Vith reference to paragtaph 1 of the amended \Hitten '/).
Sro:I!QUE
statement, the plaintiff admits that the defendant borrowed from AHMED.
him tl1e sum of Hs;. SSC on 12th January 1 9~9 on a mortRage in
his favour but state that the said mort gage.was not registered as U Tu::-<
C.J.
.RYU,

niquired by law. The .plaintiff 'denies that hi~ pl(l,int is neither

va-gue nor not clear as alleged therein. The document relied
upon by the plaintiff at the foot of the plaint clear!)' shows in
bold fetter:> that the said unregistered mortgage \\'as mentioned
as document relied upon by lhe plaintiff.
That by reasons of the sa!d mortgage being not re~istered
the plaintiff filed the above suit against the defendant upon tbe
ori~inal cause of action for money lent and advanced to the
defendant."

It is thus clear that Na na Meah, the plai'ntiff-appeJlant,

himself admitted that th e sum of Rs. 550, wh ich
Siddique Ahmed borrqwed, was advanced on a mortgage
deed effected on the 12th Jan uary, 19491 and that it
was ~nregistcred. . .
The learned 2nd judge, City Civil Gourt, found
that the sum of Rs. 560 was made under a usufructuary
mortgage; and this finding is, in our opinion, correct.
Weare unable to see anything on the record, whiCh
wilr: l>uggest that t'here was a covenant"for'a personal
liability to repay' in the 'n1ortgage. deed, d,ate.d the
0

12th January, 1949. It was aiso not suggested before

0
0

0 'u s that there was any specific pro,visioh in the morfgage

<}eed, imposing a personalliabili!Y to repay, exp~essly
or ptherwise, tl)e money.horrow,ed. Thus t.he mortgage,
which -was effecleg on the 12th J anuary, l949, ..m,u st be
considered to"be a s imple usufructuary n;1ortgage. . . .
. Lord Parker .observed in ' Ram N-arayan s;ngk _v:
Aq.hindr.a Nafh, Muklzuji (1)-
" In consideri~g 'this qtiestion it must be borne
in mhtd
(i) that a loan prima, facie in:volves such . a pers1nardiability ~
(l) _(l.917) -44 Cal~ p. 388 at 400..
108 BURMA LAW REPORtS. (i9Sl
H;C, Ui) that such li Haeilit~, is not displac~d _l)y the m~i'e faet that
1950 security is given for the repayment of the loan with interest ; but
NiNA ii-IE.\H (iii) lhat the s:~ature and terms of such sec~rity may negative any
v. persnnal tiabiiity ori the part nf the borrower."
SiOOJQUt
AH1.tta,

U TUN BYU,
A loan might ordinarily be said to irtVolve ~ petsortat
C.J. liability to repay the loah so taken, but, in the absence
of any indication to the contrary, we are of opinion
that it cannot be assumed that there is an implied
personal liability in a usuftuctuaty mortgage to repay
the loan so advanced, becaus~ the mortgagee in the case
of a usufructuary mortgage looks oriiy to the rents and
profits ol the mortgaged property and to th e mort gaged
property to repay himself. A mortgagee cannot there-
fore in the case of a usufructuary mortgage maintain a
suit fot ~ personal decree in the absence of an express
covenant imposing persohai liabilify on the mortgagor ;
anti this \\ias what was held in the case of Gopalasami
v. Aht1iitchelia (1).
In F. H. Pell v. M . Gregory (2) .Rahkih f, as he
then was, observ~d : ._
..
'' Iti lt1di~ a fflort~age does hot i1ecessariiY imp~rt a persotial
dbligatiort to repay. Prima fncie this obligatieh is ptesent in
simple mortgages, and of courst:, ln English mortgages. Prtma
facie it is . not . present in modgagesby conditional sale and in
us.ufructua1y ~od~ages.''

Wf! are dfiaele ifi..tlH! case naw Uhd~i' appt!al'to find

anyU;iftg wlii~li wi11 lead- lis to of Uggest an mfetettce
tliat fftere must hiive b~etr an 1m plied ~@fs6ncH liability
t 6 reJjiiy ~I so. W; tlo not think it \\;in be right ot
prd\">ef ifi lhe cirelifiistanties of the pr~s~iit cas~ to.
ttga tti tn~ utlfegist~ted tnt;ftgage d~ed merely as a
record of an earlier transatHorl ot a lokn of Its: Sso.
No-rulings have been cite~r-before us t~ in~ieate that a
J?Oft~ag~e has _ he~_n.::~~~ntetl ~- personal ~ee.re e against
(I) (11192) 15 Mad. Series; ji, 304, (2) (t9z5i s% ci.I.'Stric;s, P 828 at 843-84.4.
19.5 1] BURMA. itAW R~PORTS. 109

the mortgagor in a suit based on a usufructuary H.C.

1950
mortgage.
The case of Maul'tg Kyj v. Jlfa Ma Gale (1) has been NANAv.MF.AH

referred to on behalf of the plaintiff-appellant, where it ~~~~:~

wa~ q~lq-.. U TUN BYU1
C.].
"that where money is lent and at the same tim~ a promissory
Qote is ~iVf?O tl~e,refq f, tb~ erec}itor is notdehar.r~d from
suing fo~ the mon~:r l~pt 1\;~ 01} the original contract of
loan, if the promissory 1~9te ca~nol be proved."

The circumstanc.es, v,;hich give rise to the execution of

a promissory note, do nofappear to us to be quite the
same as those which exist when a usufructuary
mqrtgg.ge i~ executed. tn the latter cas~ the mortgagee
looks wholly, in the absence of a personal covepant to
r~pay, to th~ rents. ~ml profits of the qH;>r~ga.g.ed
pro.perty and to the mortgaged property for the -repay..
ment Qf the loan, Jt is difficult to se~, in the.case pf ~
Jo<:tv for whic;h a promissory note is given, how it coulq
be said that the cred itor was merely looking upon the
promissory note for the repayment of the loan adv~q.c~q .
by him bee~ use the promissory note cannot in itself . be
regarded as affording adequate protection , to the .
creditor for the return of th~ money advan<;eq by him.
The appeal is accprd.ingly dismissed with cost.s.
110 BURMA' LA\V HEPORTS. [1'951

CIVIL REVISION.
:BeJore U 011 l'c, J.

H.C. IBRAHIM MOHAMED AND ONE (APPLICANTS}

1950

Nov. 30. v.
M-AtiNG HLA. PE - (a) -ABDUL RAZAK
' (RESPONDENT).'~~'

Code of Cu1il Procedure, Order 14, Rule 2-l'rtlimwai'Y issue- Wilen rn11sf be
.<IICJded. .
Held: That underJ{nle 2 if the Court is .Gf the opinion that the case
or any' part of it m~y h~' disposecl or on the issues of law only, it sltall try
those issues first, and for that purpose may, if it thinks fit, postpon~ the
$eltlement of the 'issues of fac;t until after the iss!es of Jaw have been deter-
mined. In deciding the q testion as to wheUter the Court shoul<;l_grant or refuse
a p:a);er t<.> 'try a preJinifnaiy iSSUe on a point Of Jaw, SOme itarmony i; tO
beobserved l:ietween the general principle that it is undesirahlt: to tr) a case
pi.:ce-t.neal. and the spec,fie and _ wholesome provisions of Order 1'4,
l{ule 2 of the <.;ode of Civil Procedure which have been enacted for the purpose
of pre'fel'lting the irljustice of a party being able to force his opponent' to g o at
great l ength into c:vidcnce when the sitnp\e decision on a point of law tnigh't
rc~:~der. the: investigation of the facts unnecess!lry.
],J ;,k; Das l!."rl-..;uotlier v. Kal11 Ratiz anrl another, A.I.R (1936) Pat. 250;
followed . -

P. B. $en for th~ applicant.s .

. .., Hla Pe' for Hie respondent.

U ON PE; J. - This is an applicafion to revise an

iderlocutory order passed in Civil Regular No. 1. of
~949 of the District Court at Hanthawaddy which is a
suit for possession of some lands and for evi~t~on and
rem~val qf the respondent and of other persons
therefrom. The interlocutory order in question w~s
passed on a preliminary issue of law which 'was agreed
to be heard preliminary to -qther.. issues which were
1'2 in nu~ber and.fr~med on 2-:J-th March; 1950. .: The
- -
Civil Revision Nci. 33 of' 1930 a~.ai nst . the 9rder of the District. Court,
.Hanthawaddy in Civil R~~tla,r ~ui~ No . .1 of-1<!,49, ~~ted the 21st july 1950.
1951] BURMA LAW REPCRTS. 111

preliu'linary issue. is isst le ~o. 1 in the case and read~ as H.C.

1959
follows : " D oes. the written statement disclose in law
JBRA HJM
a defence to the P~tilion~rs' claim in th is suit "? The ~fOII,\.\IF.D
ANIJ ONE
issu.e was heard on 9th June 1950 and 7tlf Jul y 1950, v.
MAUX.C HL-'
when the Court reserved orders on 21st July 1950. On P Ia)
that date 1 the interlocutory order, \\'hich is a diary entry ARDUL
RAZAK.
made on 2 tst July 1950 was made and reads : ''Issue
U O~. PF.,J.
No. 1 would be decid ed together with other issues ".
It is agaip~;( this order, that this rev ision appiication
has p een made on .the ground that . the karneq Ji.tdge
failed to t:xercise jurisd iction in not deciding . the
preliminary issue of law which goes to the very root of
the case and that by not deciding the issue, has ignored
the mandat~~y Provision of Order 14, Rul e 2, Ci,il
Procedure; Code.
There is a good deal of force in the contt:ntion raised.
T he l~ast the Jeatned. Judg~ should have d one, if he
was not d isposing the case on the merits of t hat issue,
was to give reasons w11y he did not d o so and his o rder
t herebY. w~uld ha~e become more explicit. Having
made the issue in question a preliminaryone which is
su fficient indication tha t th e parties in the case as wen
as the Court itself were trea ting the issue as one of law,
on which the cas6 may be disposed of, the Court should
have determined that issue. It is quite possible t11at
the issue may be one which taken by itself would
not dispose of the case altogether.' ln any case the
. Diary Order as record ed, is not the kind of Order
which is contemplated to be passed under Order 14,
Rule 2 of Ci vil Procedure Code. The object. of
Order 14, Rule ~ of Civil :Procedure Code is clear
and reads as follows :

' ' Where issues both of Jaw and of fact arise in the s1me'suit.
and the court is of opin.ion that 1he case or any part thereof may
.be disposed of on the issues of Jaw onlr, it sh:ttl try those issues
.fir~t, and for that nu~pose. m~~i if . it .thinks fit. postpone the
112 l3 ORMA LAW Rl;PORTS. [19~1

H.C. s~ttlem<:nt of the issues of fnct until ~fter ttle issues o bw have
:1950.
P.~en ~et_e~ifl~d ".
JURAHU.l
MOHAMI!:D
AN D OlliE
In ]nnki Das and another v. Kalu Ram and
"1). another (1) the following observation has been made:-
'MAUl\G HLA
PE (4}
ABDUL " In ~l~ci<)ing the question as to whether the Court should
.RAZAK.
grant or ref11s~ a prayer to .try a pre.Hrni-nary issue 0n a pqint of
U ON PE, J. i~w, son~e b~rmon~; is -~o be ~bserved between the g_ e neral
prindpl~ that it is undesir~ble to try cases piece-meal and the
specific and wholC:sonie provisious cf Order 14, Rule 2, Civil
Proced)Jre Code, which is for the ' purf)ose of preventing the
injustice of a party being able .to force his oppo11ent to go at great
lef!glh ~nto evi9!!~ce wh.en the simple deci~ion of a point of law
mi~ht r~nqer th~ investi~ation of l11e ta.<;:ts unnecessary."

I am q uite satisfied that the Diary Order made in

the case is one which is not in co-mpliance with the
clear provision of law and the High Court should
interfere. with that Order. I accordingly direct that
the Trial Judge who ever he is will try this Preliminary
Issue of law again and determine the same according
to iaw. The applicants are awarded costs three gold
mohurs.

ttl. .U.R. ttn6j Pa~. p. a,~.

 BURMA tAW REPORTS. 113
.
APPELLATE CRIMINAL.
Before U Satt Maung, J .

u BA PE (APPLICANT) H.C.
1950
v. Dec. fJ.
MA SAW YIN (RESPONDENT).*
Mahotntdall Law--Essentials of Marriage--Maiu/elia11Ce.
Held ; Where in a suit for maintenance the hu~band denies the marriage
1he marriage mu.sl be proved. In Mahomedan Law ther~ are c.:ert.iin formal
Tequir~m~nt;; of. marria!!e. \Vords of proposal and acceptance must b~
uttered by the contracting parties or their agents in each other'$ presence and
ll~earing and !n the presence a1;d hearing of two male or one male and two
fem:dc witnesses who muet be ad11lt Muslims and the whole transaction. must
be eompleted in one sitlinJ::. If this is not dot:~e there is no valid marriage. .
A.nklcma;m cssa Bibt v. M<Ih~111d Hatem; 3lCal. .849; lrJf!.tt Bil>i v. Mesei
.S(Ja1kh,6J bl. 415; Ma.t111g Kyi and otlters v. Ma Sllwe Baw, Ran. 777, 7
:f<>llowed.

P. K. Bastt for the applicant.

. U SA.N MAUNG, J.-Jn C~iminal Miscellaneous No.?
Q{ 1948 of the Sul:?divisional Magistrate, Ya~ethin, t~~
respondept Ma Saw Yin rpacie. an .a pp.licaf'ioQ ~n.d.er~
section . 488 of t.he CdminaJ Procecl ure , Co.d e, .fo.r an,
<Yrder. directing the. applicant U Ba Pe to pay a' sum of
~s. 10 per mensem as mai11itenen~e to
heras his wife
an<;! Rs. 15.pet.month for her infanfdau.g_hter Ma ThanE
as his child. The appiiqmt denied. th?-~ Ma Saw Yin
was his ,wife and a_Iso denied the paten1ity,of M:.aTh~n .E.
The lear.l)..e d Subdivisional Magistrate on tbe evidence
. b~fore him came t<? the conClusion ~hat U: :Ba Peha~
married Ma S~w Yin :according to th.c Mah.omtd<in
tites and t~1at Ma Than E was born during the coverhir~
Qf lJ Ba ~e an~. M;a ~aw.Yin . .. Heacc9r~ingly o~cler~d
U B"a.P e _to pay: M'a s~w. Yin R~. tQ pe r month. for ~er.
main.teri~nce atid Rs. lS pei month ~Qr: the .rila~n.tenance
.:>~imina! . R~~~i~~oi\:~6. ~~ ~f :i94~ :b~r~g;.l:vr~~ ~fthe or~er
Qf th~
Sessions htd~e. Mei)dila, dated 3rd Novemtier. 1949 .ras5ed in Crimiri.tl Appeal
No~ fJ2Y of 1948, '
8
114 BURMA LAW REPORTS. [1951
B.C. of Ma Than E. As against the deci-sion of the Sub-
liJSO
divisional Magistrate, Yamethin, U i3a Pe appealed to-
U JjA P~
1/ . the Sessions Judge, Meiktila but the learned Sessions;
MASAWYJN,
--.-- ]udge confirmed the order of the Subdivisionat
tJ SAN Magi!;trate and dismissed the appeal. Hence this.
MAUI\0, J.
application for revision of the order of the Courts.
below.
One of the main gr. . unds for revision is that on the
evidence on record it has not been established that the:
essentials for the validity of a marriage under the
Mahomedan Law have been complied with and i111
support of this cont<:ntion, the learned Advocate for the
applicant has cited tue cases of Anklemamsessa Bibi
v. Mahomed Hatem (1); ] ogu Bibi v. Mesel Shaikh (2)
and MaunJ! KJi-and others v. Ma Shwe Baw (3). In
t he first of these three cases, the Bench of the Calcutta
High Court observed :
"The second contention advanced on behai of the appellant
relates to th,e m~rits of the case, and we are of opinion t-hat the
appellant is entitled to ~uccet"d c n thiP ground. The. learned
Subordinate Judge has found that the plaintiffs id m~rry, the
defendant No. 1 in vika ~rll;l~ but be has no.t: found whether the
formal r.,quirements of a Mahamedan. J,l'lJirriag~ have been
complied with; as pointed out in Wilson's Digest of Anglo-
M.ahom~clan Law, 2nd Edition, page 133, <:\!though neither writing.
no.r any reli~ious ceremony is necessary to the validity of a
marriage contract, ' words of pr-oposal a11d acceptance must be-
uttered by the contracting . p:lrties or their agents in e:1ch o.tb.er's-
presenoe and hearing anql in_ the p,Feseace and hearing of two
male or one male and two femal~ witnesses, who must be san~
.u1cl adult Moslems, and the whole transactjon must be completed
at one meeting.: I See also Amir Ali's Mahomedan Law, Vol. n.
p::tl{e 283. "

In ]o.gt Bi Bi v. Mesel Shaik-h {2) also it was held that;

it is esst)ntial in a M~honi_~dan marriage that the
proposal and acceptanCe should . ~oth be expressed at
- r-"' .--
(l) 11 Cal. 849. (2) 63 Cal. 415. 13) 7 Ran. 777..
1951] BURMA LA.w REPO'ftfS. 115

the s.a me meetiqg and that a proposal made at on.e f.f.C.

1950
meeting and an ~cceptance made at another meeting
do not constitute a valid marriag~. T~1is decision was U BA P!t
v.
followect by the late High Court of Judicature at MASAwYtN.

Rangoon in Matmg Kyi atld others v. Ma Skwe Ba'Jl) (1) u SAN

J.
but Brown J., who decided this, case also held that in MAUNG,

the absence of dir~ct proof., marr.~t,.~:~~tween a husband

and wife dui..' be presurned from a long course of
cohabitation and living together- as husband and wife
and from acknowledgement of the children as th~
legal chi}d11ep.
I have perused the evidenee of Ma Saw Yin. and
her witnesses and I must say t.hat nowhere in , their
evidence it is stated that the formal r.equiremenf of
Uie Mahomedan Law have .b~en, complieq with. All
that they could say was .th.qt there.. was a marriag.e and
a
that nika was read by Moulvi. Th.e Moulvi himself
was not cited by Ma Saw Yi-n but he was produced
as a witnes.s by U Ba Pe. He. stated that-what he
actually read was not nika but .only K:oran Sheriff,
the usual 8acre:d re.c itation made .:after a funerat
C.orisidering.. that . not very ..long.. 'b6ore this alleged
marriage the first child begotten of Ma s~w Y.in by
U Ba Pe out of wedlo.c k had: died,_ it ic: difficult
to rej(~ ct the Moulvi's evidence as totally untrue.
Furthermore, in the application filed by Ma Saw Yin
before the Subdivisional .Magistrate, Yamethin, . she
stated that she and U Ba Pe who were Mahomedans
by religion had lived together as husband and wife
by mutual consent. This fact te~ds ~to corrob~rate
the defence story that there was no formal martiage
between U Ba pe. and Ma Saw Yin at all. Therefore
the order of the SuQdiv~sional ~agistrate, Yamethin,
relating to the payment. .of Rs. 10 to Ma Saw Yin as
the wife of U Ba pe cannot h~ sustained and . it ~~
II) 7 Ran. 777 ..
116 BURMA 'L AW REPORTS. [1951

H.o. accordingly set aside. A5 regards the Cb.ild Ma Than E,

1950
I have no sufficient reason to think U1at bo.t h the lower
u ~~- PE Courts~we~-e wrong in coming to 'the con<?lusion that
MA~YIN. she was the cl1ild of U Ba Pe a~d Ma SC;lw Yin. It is
us~~ an a~ mitted fact that U Ba Pe kept Ma Saw Yin as his
MA\JNo, J- mistress an<;!. that a child w3,s born to them prior to the
birth 'o( Ma Than E, This c hild died and there is
nothing to disbelieve that part of Ma s aw Yin's story
that D Ba Pe co'n tinued to cohabit with her after
the death of 'thei~ first' chi~d. ~t i~ not the practice . of
the High Court~cting as a C6urfof revision to interfere
witp the finding of fact in a criminal case unless it can
be den:wnstrated that the finding is wrong or that there.
is no admissibl'e:evidnce on record to supp~rt it. In
the 'p resent case,; .it cann9t be 'said that the finding .of
t4e Subdivi~ional' Magistrate,. Y:am~thin, that Ma Than E
wastne child.. fuf U Ba Pe 'ls dther wrong or that there
i~ no:a:dmissibfe eviti;ence on rec ord tq .sripport such a
finding~ . "For these reaso.n s .the appHcatio:n of .U Ba Pe
in so, far aS it h~l(\tes to that patt of 'the Subdivisional
Magistrate's o'rd'er awarding '~ 'suin of Rs~ lS_per month
.
to .Ma:~aw .Yin '.'f 6r themaintenance o~ . MaThan :E is.
dist.Dissed.
There will' .be.noorder as to costs. in this Court~
 1951] , BURMA LAW REPORTS . 117

API?ELLATE CRIMINAL .
Before U Atmg Tlla Gyatt, J.

K. N. CHOPRA (a) MAUNG KO AND ~N9THER H.C.

1950
(APPLICAN:rs)
Nozt,l6.
v.
THE lU'.J't-0~ .OF BURMA
. . .. ' . t '
(RESPONDENTS).*'
.

Cmninril Proudurt Code; ss. J67, 421 an(t 42-I.:::..Fail(Jr~ ~o w'rite . Prf' /Jer
~ ' j11dgme1;t.
H~!.d: Although s. 421 of the Cr-il'(linal ~roeCrut.e CoMglves tlte Appellate
Court power to . dismiss an appeal summarily that power ivust' be exercised
with judicial discr~tion . . Appeals in :wnicry complkatsd questions of Jaw and
f~ Ct are jn_Yolved should not be disposed in a suminary n:):iim~r. . of
Kai/rs!t Char;dra Ch~~rf!boriy ... King-Emferor, t9 C;I..J~ 228y_referreo to.
And eveu.th 0 ~gh t.h:e <;ourt i's not bound. to.write a judgme.n i wh'e'n an
appeal is disrriis'sedsumma'rily, yet'-as there is a possib_ilitY. of tJie order J:>ein'g
challenged by an application in revision is ' advisable that 'the Appellate it
Court should brieRy record its reasons for such dismissal 10 show that it had
applied its miiltl to the -ev_i!ien~e on the record, anct-to the l\1'C(morandum of
Appeal. . . . . .
. . Held furL her: If the Court had admitt~d t11e app~al' it wouid have~ b~en
boi.md to embody iri. lts judgment the po'inl or pohtts fot . determination, the
decisions ther~Qn a_nd the reason~ ~~ere!o.t. . r. . ... . ,. ; _,_
Wher e lhe o::i\er of the,learned Judge dQe3 riot ~sho.w -that he has read the
.copy of th~ 'jt;d~mcnt or:co~~idered tti'e' point~ rais.~d -in the -~f~mo~iuidnm6f
Appeal he exe~cise:s his discretion Improperly, the liil!h Co'tlrt'\~il! go into the
merits qf the case and gi.ve its.own decision in'stead of remari~ing,t,he .case.
Ngtl Hu Uyit v. Killg.~;,pero;, ly C.L.j. 316 ; fii<r s~;,;\. King-Emperor,
(1906) U:B.R. 2nd Qr. 49; L l B~hari , .. Ki11g..E1ff}.eror, 38 All. 393: Gurtt B4t:i
Behari v. King-En,j;i.;or, 19 C.L.J. lS l ; Ra"! Kiin Pandii v. Kiitg~Empcror,
19 c.L.J. 3o4,"refef.reti io. ... ....
. . . .. . .

Dr. Ba [Ia11 for the applicants.-

Kyaij) (~q-y~rn:n;1,e11:t 1\.dvocate) :~9.~Jhe respondents.-.

.. : . ~ - . ,.~.": -..: \ '. . . .. : . ." ~- ; i ." - ~:
.".~. . ~! : =j_; 'r) ..: ~ . . . .. . . ::up:; . ..' ..

-~ jCr.i~j~_:}l R_~vi11i~n ~R'~: -~~-s, a~~ ~~:B

or _t:~.)~bfJn"K_cev~~~ of_~~-- ~r~~r
of. Headquar_ter Magss:tcl\fe .rs.l?:); Saga10g, dated...tlle ,28th August 1950\!a~s~
ht: Crin'ihral 'Regiil~r Triad.:o: 3 of l.9?0~
118 BURMA LAW REPORTS. [1951
H.t;. U AUNG THA GYAW, J.-These are applications in
to-50
revision filed by th~ applicants 1{ N. Chopra (a)
K.N.
CHOPRA (a) Maung Ko, a contractor, and f\1a'ung Ba Thein,
MAUNG Ko
Aim the Sub-Assistant Engineer in the employ of the Distriet
ANOTHER. Council, Sagaing, seeking interference \\'ith the
11r .
THE UNJON conviction and sentences pa~sed upon them by the
OF ' ~tfRMA.
Headquarters Magistrate, Sagaing, in his Criminal
Regul~r Trial No. 3 o( 1<Jsofor the alleged offence of
cheating the ~aid District Council by dishonestly
inducing that body to pay out to the 1st applicant
Chopra (a) ~tfaung Ko, a sum of Rs. 6,089 as being due
for rcpaJrs undertak< n by nim on the Saye-Kyaukse
.Road ttnd~r a contract.
Th.e.. 2nd applicant Maung Ba Thein was also
eonvictea~of,an . offence undet seotton J~Y,;Cif tile"Peiral:
Code for signing alleged certjficatt: required by law
an
t.o I?.e sjgned knowing or believing that sn~h certificat~
is false in regard t~ the satisfactory repair of the
said Saye--l{yauksldZo~d.
The applicants were each sentenced to undergo 1 t
years' rigorous imprisonment, the sentences passed upon
ttie ~nd applicant on the two separate counts being
o't dered to run concurrently.
The appli~ants in the first in$tance lodged their
appeals in the Sessions Court at Sagaing. lp dismissing
their appeals summarily, the learned Sessions Judge
passed his order in the fol!awiog tertns :-
,, '' I.have re'td the memoranda of appeals, the. evidence and the
relevant do.cumenhry e.x hibits in the proeeedings and I co'nsider
th:ft there is no sufficient ground for in-tedeffog. Both the
app~It.~n.~ .sum~arily dismissed." .

It has now beeo. .c ontended that thi~ judgment of

the . -Jp.wer. appeliate
.. .co~rt
.. .
.d. fd:. not conform
. to th~.
tequireme,nts of law provided .in . sec~ions 367 an~ 424
of-the Code ~n? t}:lat on afair in.d i~pa.rti;tl~tihtat~ of.
 1951] BURMA LAW REPORTS. 119

rthe evidence adduced in the case no criminal charge of H.C.

l950
either cheating 0~ of making a false certificate \\as made
K. N.
<Out against the applicants. CHoPRA (a)
Considering that the prosecution is in respect of MAtiNG AND
Ko

<Offences relating to wasteful expenditure of public A~O'l'HER. 'v

:money alleged to have been committed by a public 'J.'HB UNION
:servant and. his accompl'ices, it was highly desirable OF BURM".
't hat the appellate Court should satisfy itself as io uGYAw,l. AUNG THA

the legality of theconvictions aga.inst-Whioh the appeals

were preferred before it. Although bnder settiGO. 4.2 l
<Of th'e Code the appellate Court has paw..er.lo di6miss an
:appeal summarily, that power must be exercised with
judicial discretion ; and appe~ls in cases which. are
-eomplicated both ~n law and fact should not be disposed
.of .in a .summary manner. [See KaiUs/.z Clrand-r a
.Chiii~.1-a~&:;iy>v Kirrg':fJinP.~,;ot (l)J. -It :m~y,.fupt~er b~
pointed out that a n apptllale Court in -rejeCting an
.~peal sutnmarlly under s edion 421 :of the Code is not
~rH11t> wriW a judgin~1t, but nevettheless1 in view Of
1he po~ibility of fhe .order . being challehgeq .by an
:application in tevi$ion) it is advisable that the appellate
c ourt shoUld briefly record its reasons for such
<iistnlssal to show that it has applied its mind to
the cons-h:ler~tioi1 of the evidence on the record and of .
the pleadings r aised by the accused both inthe .Court
below . and in the memorandum "t~l~~ppeat. . rs~e
the c:ases of Ngzz Ba Myit v. Kit ft..JPrtJiif~r (2); Nga
.Sein v.. King-Emperor (3) ; and. Li1C!R:t'h4ti v-, Ki11;g- .
Emperor (4).] . . .. .
.. Had their" app~als been heard arid. disposed ,pf.
.in the manner which the imp.orfance of the. charges
lbrdughfagainst the appelhints:w ould, cet'f:lainly justlfy.,.
ihen the provisions of section 424 read with section.
367 of the Code of. Criminal . . Procedure
. . . would
. render
. .

U) 19 C.L.], ~8. {3) 1i996) "t'.B.Ii. 2nd Qtr. 49. .

(2) 19 c.L.J. :316. (4) 3~ Ati. 393. .
120 BURMA LAW REPORTS. [1951
H.C. it necessary for the appellate judgment to embody,.
1950
infer alia the point or points for getermination, the
K. N.
CHOPRA (u)
decisions thereon and the reasons therefor.
All~~~ Ko Unfortunately the appeals preferred by the twO>
ANOTHER. applicants were summarily dismissed under the:
THE U~JON provisions of section 421 of the . Code, but evenj
OF BuRMA. under this section the appellate Court was bound
'U ~~!.:,}~A to read the copy 0~ lhe judgment received along withi
the memorandum of appe.al and in the order of
dismissai pa'ssed -qy lhe karned Sessions Judg~, there
is no lflenti(;>k ~of the fact that" the judgment of . the
trial Court had -:been perused by him. This defect
coupled with the wrong exercise of discr"et}tin Ill!
not admitting the appeal and heat 'it on 'the merits;
would tin)s justify the High Court either to. go into t~e
case on its own account and :exartline the e vidence
or remand the appeai 't~ th~ lower ~p~llate Court tp.b~
admitted and . he~rd. [?ee GU1'U Bar~ Behlrri v. King-
Emp~rol: (1) ; Ram [(art Pandit 'v."f(ing-Empero;I:(-2 ).]
Regard beirig had however to-the circ\ln1stan0es/)n
which the proceedings were originally iniliateil~hd the
trouble and expense to .whiCh the two appHcants "riaye
sofar.been put, it does not appear to be expedient.iill
the interests of justice that a remand should be order~cl
in this case for a proper hearing of the ap'p eal om
it merits.
The learned Judge then ~iscussed .tne.evidenceartdl.
acquitted: th.e applicant~.
 1951] BURMA LAW REPORTS. 121

(~IVIL REFERENCE.
Be/ore U Tilt! Byu. Chief lu>ttee, a11d U On Pe. J.

THE HON'BLE MINISTER-IN-CHARGE OF H.C

1950
JUDICIAL AFFAIRS OF THE UNION Dec. 9.
OF BURMA (APPLICANT)
7'.

AH TUN (HESPONDENT).*
....
Uniotl CitizeuS1Jip Act, 1943, s. 9 (2 )-A pplicali01l by .a .miuor of /vreign
11afiouai tty for citizenship tt,ltetller maintoiuai>te.
Helcl ~ That a persoil \~ho bas not attait:~ed the age of majority is not .
competent to act ;m'd cannot.ther-tfore makean ele'cl'ion to become a citizen o
the Union ina~much as. su.:h election would in effect operate ~to divest 'him of
his pr~scnt foreign ~ati~nality.
: . . . ; ....

Choon Fc)1,utg "(Go"ve.rnn:i.erit. . Advocate) fot 'the

a pplicant:

.U TuN BYu) G.J~-This referet:1ce first cArrie before

this Court on the '7th November, l950, arld, in pu:r5uance
of Ol;lr order of that date, the records of th e lower:court .
were sent back for fnrthe~ evidence to be .record,e d for
the purpose ihdicatid ~n our or.d er of the nh Nq'vembex:,
. '1950. It is now' cleat from the '{hr.t her eVideric which'
has been.'recorded that Ah Tun ~nd. Win Khwariare
~ne. and t.he. ~~~e per.s~~~ . 'bei~g Jh~ younge~t son ,of .
Ma: f\h Pein ; and 'Ah Tun .. is =ac oordingly the same
(1erson \vho \:ras meQtioned as Win khw!ili. ifl the
certificate o{ :mitu'ralizatiort; \vhkh was. issued to ' his
.in other 1\fa 'Ah .:Peril. ,. 'TWt' IciiV , i'n ffii'~ ' cdhnccfiori is
.::. . . '.: ."""!'- ': . . ...... '! .... -~ ', , ' !

. . civii R~fere~ee,~o;. l4'i>f l9So beiri~ tefeirc~c~ hiaa'~ '6).' ~he Afforn~
Gener<!l) Burtiiot;.wrder,sfction: lS iZr~lS(the:,'Union. ~it~enship '(Efei:tion) Act,
19411. . . . " . . ' .
122 BURMA LAW REPORTS. [ 1951
H.C. embodied in section 9 (21 of the l]nion Citizenship
1950
Act, 1948 (Act No. LXVI of 19H~.), which reads as
THE
HoN'BLE
f@llows:
MINISTER-
IN-CHARGE
OF J 'UDICIAL "(2.) T.he minor children whose names ae soincluc'ed in the
AFFAIRS OF
THE UNION
certificate shall be deem~d to have become citizens of the Union
OF flUR&fA. as from the date of the certificate, provided l1owever that any
v. child so included may, within one ye~r of :lttaiuing his majority,
AH TUN.
make a declarati0n of alienage and he sh-1ll thereupon cense to
U TuN Bvu, be a citizen of the Union."
C.J.

The question which we still have to consider in this

case is. whether this reference ought to be atcepted and
the order passed by the 1st Subordinate Judge, Akyab,
dated the 8th March~ 1950, in MisceUaneous Case No. 60
ofl;9:l9,"-s~.ou!d.~_e ~et a.&.i9e- _.li h~j., ,~e.e_1~, copt~nded
by the learned Government Advoc-ate, who appears in
this reference, that as Ah Tun, the applicant in Civil
Miscellaneous Case No. 60 of 1949, \\'as a minor at the
time he filed his. application for grant of a certificate
of citizenship to 11im. it shou!d. J1ave be.en rejected in
that the minor had ~.o status to apply for a certificate of
citizenship on the date the application was made.
In Civil Refer~nce No. 12 of 1949 we ob~erve~
as follows .:
11
It might be s1id generally that a perso11 who has not
attained the age of majodty is not competent to act, and this
principle bas been embodied in -section I 1 of the Contnct Act.
'!'he.election hy Panjanath-an to become a citizen ol the Cnicn-
wot:ihl ~n effect as indicated eartier, operate to divest him of his
pr;esent foreign ~ationality, and at> he is still a minor it could be
-said.Ul)~t .be_~\'9WP be un_a~l~. _
t q ;1ppr_sc_bt,e fuJ!y the impli.c ation
which woulct' .or might a~ist-, if lie were to be permitted to
renounce his present foreign national status. Thus it could in
the c-ircumstances o'f this cas~ be said thM tl1ere is good reason
for us to hold that t>imjanatban could not on the generai principle
of Jaw .be held to be a person wlio is capable of applyinn_ for a
certificate of ci~izeifsbip., .
1951] BURMA LAW REPORTS. 123

In any case as the minor had no status to apply at H.<.:.

1950
the time he filed l)is application for grant of a certificate
THE
to him, his application ought, from tbe o.utset, to ha"e HoN' BLE
MtNISTER-
been returned to him. For these reasons the order of IN-CHARGE
the 1st Subordinate Judge, Akyab, dated the 8th March, OF ]UOICIAL
AFFAIRS OF
1950, recommending for the issue of a certificate of THK UNION
OF B URMA.
-citizenship to the respondent Ah Tun, is hereby set fl.
AHTUN.
aside. There will be no costs so far as this reference
is concerned. Ah Tun made his application ptobably U Tux Bvu,
C.].
in ignorance of section 9 (2) of the.. 'Union Cit~enship
Act, 1948.
.124- [ 1951

APPELLATE CIVIL
Before U tun Byu , Clurf Jusiice, ~u(l ij On J>e, J.
H.C. KO THAN NYUNT .{APPELLA NT)
1950
Dec. 11.
. v. . .
MA UNG Ki-IIN MYINT -(RESPOKDEKT).*
Urliati R~nl< Conlrol: Act, ss. 5 mrd '17-Contra ct ed :' rent, 'greater fhau th e
Sllmda~4 Ret! I fixed ltll er-Whether /.;na t~/ e~tt if led ~o d edt( Ct. tlr~ _a nwrmt
over-~aid in paying su~stquwt rent. . 0 0

Held : Where the tenant p;~id r ent for four months at the con tr<f~t rate arid.
the l:llandard re,t was later fixed at a lower rate, the tenanl was enti.t led t<>
deduct from future rent the sum paid in exce~s during those four months.
Any sum in excess of the standard rent payable after the Urban Rent Conl ro~
Act has come into force shall be considered irrecoveraple by the landlord
S. 17 (I) of th e Act shonld be given .a liberal interpretation.

Ba Thaw! for the appdlant.

C. H. Chan for the respondent.

:rhe jt.tdgment of the Bench was delivered by

U TuN BYu, C.J.-The plaintiff-respondent Maung
.Khin M.yint filed a suit against the ~efendant-appellant
Ko Than Nyuht for ejectment for non-payment of
arrears of rents for the months of July, August and
September 1949. It appears that the defendant-
appellant I,1 ad paid rents for the months of ~larch,
April, May and June, 1949 at the rate of Rs. 30 per month,
and that th~ standard rent which had been fi~ed by the
Controller of Rents \\;as Rs. 22-8"0 per month in respect
Gf the premises concerned. The plaintiff-respondent
s~nr>a notice to the defendant,..appdlant Ko Than Nyunt,
dated the .lOth . October, 19-19, demanding payment .
for the rents due for July, Aitgust and September,
. 1949, a t th~ rate
.. of . ~s.. 22.-8-0 as n~<"ed . .by the Rent
..
* Ci~illsl Appe:tl No. Si .rif 1950 a~'lin~t t'le decree of tile 4th Judge, City
-
Cjvil Court of Rat;goon in Civil R eaular N'o. 940 ofi949,
.. . . ' .
. .
.
 BURMA LAW REPORTS. 125

Controllec; and . the defendant-appellant replied ~~~

through his lawyer to the effect. that all that was due ..
fr..>m him as rent for the months of July, Augu~t and K~J'o7:
September, t 949 was R'>. 37-8-0, because he was entitled MAu"~ Ktui-i
to deduct from the rents due for these three mQnths . MYJNT.
t he sum of Rs. 30 which he had paid in excess u TuN avu,
towarq& the rents of the months of March, April, C.J.
May and June, L9..J9. The learned 4th Judge held
that section 17 of the Urban Rent Control Act, 1948
was not applicable to the case iri view of the provi-
s~ons of section 5, and he aecordingly. gave a decree
for ejectmen,t with costs against the defendant-appellant
Ko Tb~.n Nyunt.
l'he point which fall~ , for consideration in. this
appeal is . whether the defendant-appellant Ko Than
Nyunl can claim deduction in the circumstances of
this case. a.s contended for on his behalf; It has : beerf
contended .on behalf. <?f the plaintiff-respondeilt Maung
l{hin Myi~ t that the . provisi.o ns of sectipn : 1.7 (i) . of the
Urban i RenLControl. Act,: 1948 cannot apply-,to . the
ci('cumsta.nces of . this . c~se i~ v.iew of the: provision8:
of s.ection 5 .which reads. as follows : .. . J . : .: '

. ;; 5 ..'I) Subje~l t~ tb~ pr~visiod~ of. t~is A~t,' \~~e~e ~~l; ~-~n-~. .'
0~ ally p~ex:J1iges has)>een Or is h'~r~after ~urinf{ ~he' ~OQti~uan6e
of this' i\ct' lncieased 'above' the "st~~9'ard ;rent,: ~the . ~mo;,:nt.~
by vd1iCh .. such i'r;eteased ~r.ent' cx'ce'e'd s ; the sfanCiard' r~nt'
shall;' : notwith~>tanding ariy! ..agr~eme .
nt .. to .lfi~.: .C.on-t'ral'}',. he:
irrewverable : : , . . ' . .. : . , :
Pcovided th~t rio thin$! in this section shall apply;.... ,,, :. ;
(ci) to any reQt w.hich.:became due before the:.commence-
.
l_lle_l}t o~ t bis Act;... ,
(b)
.
.~o
..
any
periodical.incr~nient
. . .I .
. of rent. ;tccruing_
.
nncler
. .
any agr~~ment 'e ntered i~t<? before the first qaY. of
' September 1939 ;' o'r: . - .
'(c) tO rent payable under any }ease entered tntO before
the first . day o September: }939. which ..has nof
. :expired ori the.sa.id. qate/'.
1Z.6 (f9S.~
H:c. It has been urged on b:ehalf of Ut~ plairi-tiff-respon-
1''15Q
dent that the words "being a s~in which' is by rea_son
Ko TH.\Jol.
N YU NT of. the pr~wisions: of this-Act. Irrecoverable" in sction
v.
MAUNG J{H~N
i!_'( 1} should be constru~d to mean orily that sui!i of
M .YINT. mone'y which was specifi~d as irrecoverable und:e,r the
u 'I;uN Byu, ~ain provisions ~f se~tion ?:(f)._: We regret that we are
C ..J.
unable {o acc~tpt this cont~ntion. T~~- _Qr<?..Y.~-~o. _(p)_''to .
section 5 (1) indicates by implication that ~ lan(tlord
C:aj~inot recover arty rent ~-t:s in' excess~orthe
~ ~t~p_dQrd tetlt alttr the COID11leJ;lc<mt;nt _o (__ffifs~:Act.
I1;1 other words, if renh: were due in exceiis of the
standard .r~nt for the months subsequent to the
c_omrnencement of the Urban Rent Conttol Act, it
cannot} by implic:ttion, he recovered, and this excess
of rent ""'ould be. the amount whicb hadbe'e n rendered
itrecoy~rahle by i~1pl~cation unde r the proviso: (a) to
section 5 (1) of'the li rban Rent Control Act. 'I Hollows
t_tl'er~for:e~ tliat the.e~qess of~ rent pafd ..over and - ~bbve
th~ s'tandard. rent co~tid. be consi dered as'' a sum irre-
C(l).Ver'a;ble. by reasoffl of the provisio:ns. of the . Urban
~ent C.ontrol Act, 1948. Moreover~ section l6 ma~~s.
it clear that no Court, to which this Act applies; can
entertain a suit for the recovery of rent unless it is
accompanied by a certificate of the . Ren-t C6ntroller.
c.ertif'ying what the s~andard rent of the premises is ;.
an<i. ,\rh~D, tbe provjsion of ~ectioi;l 16 is rea(1 _witrr
s.~Hon 24 whi~h allows that a person: who knowingly
receives any money in ex~ess of the s-tandard rent to.
be punishe<h it.seems to us to be: clear that any sum
.
of money
. .
in: excesa. .of-... lh~
.
standard rent
' ..
the Act has come into for.ce, should' be c~nsidered as .
.
payable after

irrecove~ble. _In any c~se it appea_rs t? us that the

words ''being a s um .. which is by r-eason -_ of the-
provisions of t.hi& a.ctirr.overable.~; . in,Sectio.n .17 (i) .
ofth.e. Urban Rent Control Act shqulE\ be:.given a more
liberal construction
. ..:
than what .
has. bee:n>contended
. . on
1951] BURMA LAW .REPORTS. 127
behalf of the plain-tiff-responde nt Maung Khin Myint. H.C.
195'0
To read otherwise- would appear to us to make the
Rent Control Act less comp.rehensive ; a!l_9_iL appears ~Y~~~K
to us to -~~-~J!.IY..m:..<?~~~t a tenant shou!9.!>.~ ~!!~~ed llhut-:~ K luN
to-deduct t~_e_ SUit}_ tb..?L h~ _bad .J2!'li_d in excess of the MYINT.

in
staiiaar<Irent from the rents clue b~-him. -subsequent U T;;;-Bvu,
monfhs''l( it 'was made wfthin the time aUowecf ..in C.J.
s~fion 17 (1}-- So far-as- 'case
-this is. conce.r necf fhe
clai 1Ti to dt.'duot the excess rents paid for the momths.
of March, April, May ~n.9 l1J.n e, ...19.49 were made
within six months, ~jllg~~sl..!!tlslec~.b.e_ pro.visicins.._of
sech.o n 17 (..Q..!.t
--TT1e.appeal will in the circumstances be allowed as
it could not for the reasons we have stated be ~ard that
~here was any fault on the part of the defend~'Ut
appellant to pay the rents for the months. of July, 1\ugust
and September to the plaintiff-respondent Maung Khin
Myint. If is clear from the correspondence . \\'hrch
passeq . in thil:i case that _th~ .cief~n,dant-apt?'~Il~nt
Ko Tl)an.Nyunt attempted to pay the amoun~ which
was due to him legally -1\nder law and that this was
refused by tbe plaintiff-respondent Maung Khin Mymt._
the appeal is allewt.!~ and the d~cree and judg~ent
of the 4th }lldge pass~d in Civil Regular_No. 940 of
1949 of the City Civil Court, Ran~oon, ~ill be set aside
with costs.
U ON Pg, J.-:-I agree.
1.28 BURMA: I.:,AW REPORTS . [1951

.
:APPELLATE CIV.I L

H.C. . KAN AMA tAPPELLANT)

1950
Dec 11.
v.
HUSSEIN BUKSH KHAN {RESPOND~NT).*
Urban RerJt Ccutrol Ad, s. 16-Failure to attach ctrlificnte with the plaiut-
. Cldi~ for recOflery of reut.
Held: Th,at the wordings of. s. 16 of the Act is imperative and the c hil
Courts have no jurisdiction to entertain a plaint for recovery of rent un\ess it
is accompanied by a certificate of Standard Rent granted by the-Controiler of
Rents. In the absence of such certificate. the plaint should: be. rejected.
Woodward v. Sarso~ atld Sattler, f1874-75) L.R., 10 C.P.C. 733 at 746;
BMku v. Palm; ,., (1881-82) L.R . .8 Q.E.D. 9 at 11, referred to.

Ba Than for the appe~lai:it.

:
. '
'J:'he .judgment_of-the Bench was delivered by

: UTuN Bvu, C.J . -.The plaintiff-respo~dent Hussein

Bu~sli Khan ~laimed to .rec.over a sum o(Rs. 2;>0 as
arrear~ .ofrent, ~pich was sa.i.d tp, be . duet~him.by the
defendant-appelhi.nt Kanam<\ in respect of the prern_ises
at N'P 14, Lakshm~ Strc~t. Myenigon, Rangoon and.
hi~ claim .as against the d~fendant-;:~.ppellant Kanama
was decreed with costs. .
The record shows that the plaint was filed in the
trial Court without the certi fkate of the Controller of
Rehts as.required under seCtion 16 of the Urhan Rent
Control Act, 1948 ; and it was not until the 16th June
195~, i.e., over five months after the plaint was filed,
that the certificate of th.e Controll~r of Rents wa~
brought on the re cord of the case~ The point whi~h i~
:raised
.
on' ~-ehalf of Klnama in this appea~,. is tha-t the
Civil l.at Appeal so: 46 of ~ 950 ag'ainst the decree of 4th Jud~e. City .
Civil Court, .Ran~oon in s mall Causes Suit No. n-13 of i949, dated uie .
20th June 19So: .
 CIVIL REFER~N CE.

Before ll T1111 Byu, Chief JttSfi{t,1 U 9tt Pe and U Bo Gyi, JJ.

REVEREND CHIT PE {APPLICANT) H.C.

19~0

" Dec. 18.

B11rma Divorde Act, ss.lZ,l3, 1'4 tJJUl17-Da:orceou admission not nllowed-

puty of tire C~urt it~di~aff4.

Hel!l: Th~t Pr9visions of ss. 12, 13, 14 and 17 of the Burma DiYorteAct
in_dicate!Cl.early lp~t i.t !s not prO.(l~r in l'l case for a dls~olution of ~:Parriage pn{:j~f
the Act to grant a decree ttisi on the mere admission of the parties. The
Judge must first ascertain whether, on the facts of the case he has jurisdietio~
to entertain ~t for the purpose of pron9,unqng a decree ttisi and in ascert~~jng
whether the Cou.rt bas jurisdiction, the Court wiU have to as~ertain what the
1:1omidle of the parties are. Even though there be a statement that there is no
collusiO!l or Cl)nnivance between the parties such statement will not absolve
1h~ Court from its duty of aiCCrtaining wh$:ther in the circ\lmstan~ of a
'Particular case there was no col.lueion or connivance between them. Tlie
Court will then ascertain whether it fs a proper case where a flecree 11i~i ought
~0 l?t: ~f'lt~.

'J'utz. M_Otf~g for the r~~po~dent.

The judgment ofthe Special Ben~h ~~~-(ieliv~r~~ by

u TuN BYu, Q.J. -This reference is fot the c'onfir:..

mation of a d~cree nisi as required under section 11 of
the Burma Divorce Act, and we are of opinion that the
order for 'dtcree nisi passed by the District Judge,
Mandalay, in Civil Regular St,tjt ~o. 5 of 1950 must be_
set aside in that this is a case where the learned
District Judge has obviously miscenceived the puties
whieh Jay upon the Court and whieh the Court must
coasider befqre the decree nisi is acicerded. The.
provisions of sections 12, 13 and 14 ef the: Hurma
. .
... !.ci:iI-Rd~;~~~ N;. 1. ~ !Q~O ~~~ ~ --r~~-,p:~~e~~~c. ~ tb~ p~~i~t
<::our.t. ~a~~IJy, tinder s~tion Jl-2r th~ ~~~ J?ivon;e Act.
i32 BV~R!MA 'LAW R.~PORT,S: [1951
H.C.
1950
Divorce Act indLc.at,~ clearly that it is ~ot prop~r in a
case for a dissoiuH~n of marriage under the Burma
REVEREND
cuLT Pi Diverse A.ctjo. grant a 4ecr~e~ t~i# on the- mere admis-
fl.
MA KHIN
sion of' the . p~rties': It l!i''ob~lo'~s- that the learned'
SEIN Judge n,i!l&t: ~rs.t ascer-taiq wb.ethec, .. on ".the- facts of
Atm'0NE.
the case that come before ,.pim, he has jurisdiction to
u Tt~j.Bvu, entertain it for the purpose of _pr9n0t1ncing a flecree
nisi ~fid 'he:inust also ascertal.rt'. on 'tiie facts whether . it
is-.":~pr.!)per , ca~e ;,W_h,~.m~~--a.. d.r:crf!e .<~~i.si p~ght; :i~ b.~
accorded. The petition which was filed by Re.vererid!
Ghit Pe, <the t1usbafid;!does ; nut. specify .dearly ~h~r~
or .wh;ehjhe a'd'ult~ry ..w~s :exa9tly .c9rumltteil. .-:ThC:&~
Ts ai;~. nothtng in .t he. p~tit.i0n to indTc~te wbethe~- th.e
parties ljacf"been p~opetly .m arried under tl\Ei C hristian\
l-.ta~r.iitge'$ ~~(or.: 6tl~~~~vi\;>e.1 wh~ch ~<;>Uld h~ve enHtle&
Reve rend lGhit F6:to appl y.:f?r- a dis~ol ution::of:rnarriag~
Qridex:--th'e Bt\t~~ Dlv6rd! 'A'c.t: : ~ . . . . . . ~ .
: :.. P<iragtap-11.' :0. oLth..~ pe~Ui.on., it 'i s ,tr:ue, stated that.
there was no colh,1si'on or connivance oetwe'e'ni
Revere~d Chit Pe a~d.~i~ w~fe Ma Khin ~~in, put .this:
will not abso~ve the-c6urfftoih- the duty of asceitai~ing
~li~.il:l~r, ;i-n ~,tbe c.ixcurps~_afl:Ces of a. P~t:ticul(\f: f:.a se it
~ouid ' be said . there .was or'
'tio collusion . cortnivance
pet.ween .the . p_ar.tie~. ln .. a:;ce~t(!ining, .. wp~~her the
..
c~~-ft'. has ..j.uri~dic,tlon,: . ~he C.O,ur.i. will .~lso . have ..t.o.:
. a~-ce;t,ain wh~t. the. dqmicii~ p( the. p~rW~s are. .~ It' i~
~i~~: -~of'.:Ci~r fro.m .... th~ p,e.thio.n .. fll.ed... befo;e . the
Di-~triet:o;~~t . as . to the ..P.l~.c~. wb~re : .Rever.en'~
ciut .P~:an4h.i~ wie Ma~hi~ $e1~.'h.st .re:side~rtog~.th'~r~
,~: 1; rr~iJ~~ tb.~i~:t9.r.e..~c~s~ w,per~,~h~~. c~~rt.. is :.~i~~;~~..
p;Q\fin_,~q:>.qsit.~qn ~9 c9~fu:IP: the dec,ree ..ttisr passed:, py
Jh~ P.i~trict J,udg~ qat~d . ~he 1St~?.: M,.ay; .. ~9SP7:i Tb.~
~~rt.Hka~e;of. ~arriage h.ci:s .n.ot a,lso. :he~n; tiled;._:,c~.Jid .. if
.t.h'e ~af:riage -was soleJ;Itni~q . by. a Pastor .'t here -w~s
.fi'~hint( r0 :~~iO~ t~'i~t}~~~ ~~-s~or. ~~~.'::_r?.~ p~~:.<.>l,i~~~
W'lS auth.o rized fo solemmze the marnage; Tfie decree
 ~951] B:.URM.A LAW. REPOR:TS.~
. ' f -

-nisi passed by the learned District Judge on the 15th H.C.

19.10
:May, 195.0 is h\!reby set aside and the lower Court
HF.VP.RENO
;proceeding will be sent back' to the Court of the Cnrr Px
.District Juctge, Mandalay, for the case to be re-tried in v.
!>lA KHJN
:accordance with law by him. The learned District SE!N
AND ONE
.Judge after the .record is returQ~d to him should ........,_
U Tn:,.<Bvu,
-consider, icn -viei of the order pas~ed by this Court, o...J-
whether he considers it ne-cessary that the petition.
'Sho.u ld b:e amended. and iL so, fie should afford <in
opportunity to Reverend Chit Pe to amend his petitton
for the dissolution of the mcirriage. There will be no
<eostsso far a:sthis reference is concerned. Costsin the
bi.~.trict w-ifi be lef~ to b~ determined by the District
Judge :aft~r"the case !s re-heard~
 BURMA LAW RE-PORTS:

APPELLATE GIVtL,
Before U Ttttl Byu, Chiej Justice, aml U On Pe, J.

u;c. tJ NGWE (AFPELI-ANT)

1950
...,l;.Q
Dec~ zo. '1),

BA~A TAGUN COMPANY -AND 6Nt tRESPONDENTS).

Code of Ci'IJif..Irr'o'~~djtre, Order, 9, Rule 9-Sufficient cause.

/l'~l{l:Tb<lt G.oarts -~~fit :s~;> that people wro have c~~es can havc.those-
cas.es heard ano dete'rmti)ed;' ' 1t should never be the intention of Courts that a
ulan ihbuld' be d~pri\-ed 'of a hearing utiless there has been someilling;
equivalent to mi~conduct or gross negligence oti. his part or son:tething whic~
cannot be put right, ns far as the other side is concerned. by making the mam
to ~?lame pay f?r it.
Even if a person is rude or disres.pectful to Court that would not be
ufficitnl to deprive him of-benefit of the provisions of Order 9, Rule 9 of the
Code of Civil Procedure, Where a medical ctrtificate is pro.:luced showin&
that a party waa advised ust ~nd it was proved that he fie\V .to Hongkong th~t
fact alone d9es _not prove that the -medi'cal certificate was untrue.
Where ~a ~arty has to be abse~t on ..very impo~tanf personal business .
tra'nsactlori tha~'~a-y be a aufficient .cause for non-appearance.
U Aunt Gy?..~: :rh~ G<;vefnment of B11rma, (1940} Han.- ~12, Cllstinguiahed. .
R. A. Aruttnclltln Ayyar "C. Subbnramiah, <46 Mad. 60 at 63, followed.

Leong_for the appellant.

Ba Tu:n .fP.r. the respqndent 1.-

~un MQ.,ung -~or the :res_p ondent 2; ...

'he ju~gmeti~ of t4e B.~ngh \V~~ qeliv~r~d by

. p' ~uN .'B_Yu,. c:J;-U. ~.~~~' the , plain~i(f-app.ellant

fik.4 a. spit for t~e r.ec.Overy of a .go'4own an~jor. ~esn~
., . . . .
. : 'civibriisc.'Aplieal No. 23 ~o9so againat t~ o;der ~fthe Clty Civii COut:t..
~n~oon in civii ': Regul~r :S~it No. 4~0 of 1~50/dateil '28th J~rie 199>.
1951) BORMA LAW RE~bittS.
. . 135
.:
I

profits, which wete valUed at Rs. 4,000. I_t 3;ppears ~~fo

that the case wa-s. ripe for. he atirig even Before ~ tbe -
u NGWI:
21st February, 1950 and that U Ngwe and his Advocates .
asked for adjournment of the hearing even before the B~~~~~;u"
21st February 1950. When the case was cailed for AN~ oNE.
.
.
hearing on the 21st February, 1950, U Ngwe was no u 'ToN BYo,
longer in :Rangoon as he had flown by the B.O .L)..C.
- C.J.
piane to tlongkong; and to put it in brief, his case
was dismissed for default, although he was represented
by an Advocate on that day. Subsequently, U Ngwe
applied under Order 9, Rule 9 of the Code of Civil
Procedure to set aside the brder of dismissal of hissuit
passed on the 21st February, 1950, .and the iearned
2nd judge, after setting out his re<lsons, dismissed the
application of l1 'Ngwe with costs.
The question which has to be considered in such a
case is whether there Is sufficient cause to explain the
absence, from Court, of U Ngwe on the 41st F ebru.ary.
1950. it has, in this case, been argued strenuously for
the respondents both by U Ba Tun and U. Tun Maung
that th1s app~al ought to be dismissed in the
circumstances existing in the present case. H has
been aileged 'that the ground which U Ngwe sef but
earlier through his A.dv9cate was not-. only inadeq11ale
u
but it \VaS also not correct in that Ngw~ W~s able,
on the 21st February, ~9SO, to Ay to Hpngkong and
~hat .. ~n--aily . cas-. e~ ~e is guiity- of a dis~~~e~d t.<;> the:.
1
Court. We mtght say at once that the mere fa~t
that a dient might have been guilty ot a rude or
disrespectfu1 conduct which rn~ght ma.ke hi.m amenable
to ihe other provisions of law will not in Itself be .
suffi~ient ~.to deprive ~1m of the bepelit , of. Hie
provision~ o f Ordef' 9, Rule 9 of lhe Code of ivil
Procedure, if . he <;an bring his case within Utose
prov~si~~s. A.. d.isrespect to the Court, even in as
minor . form, . must ..ht:J'~ev~r ~e deplOred and, if
 [f95~

~~fo ~e.~e.s.~~ry, pt~n~,s~~~ . As r~~~F~s the.Jne<ji~al ce~tifi~ate

u~~~ w~ d9,. .n~~ -- ~~e._: anyt!1~_ng -~~ ~h.~. re_f~r4 . \~!1ich w_ill
:~.\1.: : ple<1;~ly tnd1cate.. that b J~g~~ :d~{,.n,(;>t r:e_gll~fe rest a_s
.~A,MA-~AGU~ indicated in.' fflaf 'cettlfiia;te:. The facf":fhaf he had
<.lOMP,\NY .. , " ..... l , ... .
~-~m <>.~:~ .~o-wri ~~ . f:I9)iiJ~~Hig ~~Y 1.h.~ .!.8.9.;1\.:C.: P.l~nie under
y 'll~?Y_!:!, ~i.rcufnstarf~~-~, iii9i's<~,~9 1,~1~tl~i_s . ca,s~,- do~s: il?t, ,_in 9~~t
9Pi.nion,,,. i:ais~' al1y 'Cididi'te ihferen'ce lhalthe ihedical
c~rfific~\e.;~~:~t ~~~~/~~~h, p~.ci~s~a:qy: f~ls~_bf i~ch~reGf.,
1

)?~c~~~~ .P~r~~-2 s'.'?! p1~1?e::~~tli': ?.ave., ~~so been see~ . to

:~,~~ie_ ft'r;wn~l~Y...~J~t~.~ :'to_, ot~~~' -c?~r::t~j~s)~~ frop:i.,oti:er
codutriesrk ''B "r .. a; . . '- -
: ,_.i:'I~r6f.Ts?. ittg_:t~i's : ca~k~ n;d dbubi 'the...'fad th;1:t
;it~i.\\i~~~g:~~~~Kti.9.r{'th;~ 2\s_
. . i .
t Febtuar)r~ '19SO a nd
. ' . I . ~ t ~ ~ .r

'thaf'lfe was.absent'hl circumstances of imp'Ortat1c'e . ~-s

:he ~1ad:! t:6-:'I'Jate '~'fo'~- ~ ff~~,g~~l]&. ix( :c~~n~~ctioh ~ith :~
bu.smess transaction' vahied'at.about Rs. '1,30,oop. It
itas.'been ur~~.a 'her&re us' 'tB~f tn!s ap'piicatfon should
.be distiiiS':e d ir{~i~~ ibf the.:de~isidn of th~ .Full.Bencl\
~. . t :., . ; !... \ .. ; .. : , 'l ' ;

:case ~(f!.~:,U..~t/!Yf.~y_:..T!t~ Go'l.'el't1-ttten( of Bunit'~ .!.lf.

Wenltist"'saf.afonce,t hat we do not see Qnything 1t1
th~t i:a~e ~- {6- 'iWtiibafe why. . an: applic~tiori" . iu1cter_
pt.d~t: 9~ :)~i<<."?.-Af' .~i1'e Co4,~ ~-- pf Civ~~ J?rhccd u:~
ought not to.'' be'! Gon's idered 'iri ac.co'rdance with .
..
t'j1e " di-ciitb~'ta~cek:. :6"' ~-iHr ea~e.:- . lfL fhe c~ts.e.' of
;~q. :A:;Ji?.~:dY,~~;~~~t~e: ;q~~~'f?i'!i_~:e~('~ilj~?'{.~q,:_r~ }, .it ~~-p~ar;s
:t~~re;(~~~~(t.b(A4tv~9l~-<was l~tt: .~Y ?,;v~.--mtt)}-!ter.~~~e,r
_'!~}~ ca~f:'~:~~:~r,.s~ll~d, , .~~~t d~s~i~~d 9~ th'~ , Court,
:a.fid 'h e 7'd fer. not ',make ' any
1
'arrangemerit . whatev~r

3
f6t: _, ~~~~:' r5gprlt~~htaW6ri'. ih Coux+; hor.~ did~-~~_In.:y
wf)e :. 'l~~
-~1tb}rn'.0t ..<ii:F! e ;~esJnf:
r " >" ' ' " '" ><' 1~>-)' " ..
n:ts I :clfent 'ii(
... . , .., '">'
cotirt~'.: :.~t
" > ~ , .; . . . , .., . .... '
tffe c 'se~ 'wa{ .tined.
.,~- . , ... ~~ .. t:l~ . ,. .. , .a,.,, ., .. , ... . .. . . .., .. ". .~cir.
~:tm1e :!1\~- -' Thii~; 'tl}-e- . ..~,tJm'-
.. ~ .
:s~nc~s-' ~N.i~1i"fb~!~t~d'~~.n J~at . -~a~e . can:no't: .J?( ~-~,i.!~
:to:be':.' the: -~!'f&e ,a&' tl).bs~ ~n . ~e .,.ca.se . now . tit1"ae'r
i. . ,..P.~~..~~aC.i ::~l?fu~('Wn t~th~ :z-t:~t .Fe:i>rti~r -~ r9.5'0.i' {hJie
r f<~i1"-~ ~ ' ' ~ ~ _. Y. . .:. ...; ' .,, .:
vwagt~ aii t kCivocafe i't1 the Court .. Jeprese.rit1(ig ft~e .
< "l . .. . l ,.. . . .

:-:: 1~ n~ ~..,... -trt; .-:.:J .:.t..qi (,. -~ 'l , ~ .:. . ..... . ... t.l: . - ... ,

$ ({) (1,9,~) ,RaiJ.: ~~f..

 BJ)RMA -:L~ W.- .R.El?QRTS,~
. : - / to ~ .. .. ., .,J ' .
137
.. '
P,lai1jlt~ff-app~ll~mt, U N_gwe. , U N~we in his affidavit H.c.
1'950
stated--as
' . . :
follows
fl.
"6. I say that after I had sent the medical certinc:tte to my BA~U T A.G.UN
.Advoc;ates, I \\as pr~ssed by the . Ci'(ir S\1ppli~s Qepartment for COMPANY
inf~r~ation re.g1.rcling ~he ~uppiy of sugar fo1 which I had
AND ONE .

a lrl'ady paid duty of :Rs: s ;20 J to the u~i on Government aPd the
price of Rs. i ,~O;OOJ .to "the. shippers at _Hongkon~.
~.: 7. 1 say that the s ui:!ar was be 'shiprecl from H oo-gk_o t;g to.
. not ~ater than the _15th February ti:J.So, out n.o information ~,-ks
receiVed from the ~hipprrs re~arding shipment. .. '~=
8'.. Csay th<lt thi a'mbtint invested by~me in tl1e' said ~{~gar
'd eaf represented ne:trfy the entire fc rtune 'I 'posses~ eel aiid r was
~raid 1o .Jose. ~t."

. . . There i~.. nothin,g in 1.he '.rep,ly . affidav-i t_\yhi~_h. will .

~ti~gest that the sta,teinent ..c-o n.ta1nyP in tJjose three
-p~ragraphs of the affidavi.t of u are no.t .likely to Ngwe
. be corr~ct
. or tru.
.
e.- We
, ...
c;:tn-.
the~efore.
. . ; {n . 'the
~
circum
. . .
~ . - .
_stances of this c~s~
. t:
!iaY. t.~at . U. ~gw~ )eft Btirflla,on.the
I,, " " '' ' . ' " '. .

;~~st February, }?.~9. <?:i.l :an ~Jl.lP.9rt~nt.pusiness trans<!C:- .

Jion, involving . almo~Lthe who~e .pL" ihis.Jorttme,
.._ ~ : ._ I ... t " !
! ,_J.
. if.' n.o.t
:. "' t .. J .l

,all. Can his aQsenc~ in tha..t. cir.cumst~~c.e .bt~.onsider~9

;to ;be.unjus,tified su)n_~uffici~nt? It:app~~rs, . tP :.~~~ '- f~
.the circum.stapces .qf this case, tha,t .the . ~nsw~r -m~.st
-~~- ~r{,~~h~ a~rJ~;tiy~, {iart~~~~~riy. i~<lv.~~~ ,~f)~ e.: ft:}~,t
~th'!-~-, t~~: v~~~e .. p~ t~J~~: suJ.t..~rr&H9Vl t~_ 1{!q m,ox:e, ;J~,~
~~w~t J?~ . 4,q~o~ 1r~f:..f\j olJsr:rFa!J~-n ~y)Iifll: ~!~wah~ <;,Jr,
ina de in. R. A. A~tjf!fJC.Ifr/fl.-..AY.)la~ ~':i;::~~{b~~Ofr.J!o/!-J(~)
is as follows : _. .

"It is not tight in cases of thi~ kjp_f! that th~..m~.n sbou!d"

.h1ve his case disposed of without bein!! heard. These Gourts
a~e
'
here so that. people who hwe cases can have' 'those ... cases
. .. .
heard and determined; and it should never be the intention of
the Court that. a man should be deprived of a heari.nlt unle!)s . .-
there
. ha~. been something
. . equivalent
. to misconduct or' ~ross
. .
. .
-~~r~:~~'-;lr~~:-
 BURMA LAW REFO'RTS. [l9Si
, #.e. hegligehce orli lils patt 'i!ftso metpijj!t- W~i~h..cannot ~;Ye- pit ri'gh t.
i95o as far as the' other side is concemed, b.v "lnakin~ tht mart lO.
UNG\vs blame pay for it."
tl.
tl~tiA 'I'AGUN
co~Piiiv In the case of U Aung G}'i v. The Governrncilf of
A~b oNE. Bun1u1. (1 ), it might be said that the Advocate \as
u t~j. svtl, g~iilty of gross negiigence in n6t attempting to have
some one to repre~ent him there, either by means of
his Clerk ot by the ihedium of sorn~ other. person. _It
:does not- appear to 'tis that the piil'iritiff-appelhint can in
this' case be properly.. said to ,l;ave been guilty of a.
misconduct or gross negligence nor is this a case where
the respondents could not have been compens~ted . by
means of costs. We are, in the circumstances of this
case, of opit1ion that there is. suffiCient c<i'use lor the
ahsence of the plaintiff-ap{iellant from Court oh the
i 1st February, 195o. .
. The appeal will be aHowed and the order of the
iearned 2nd Judge 'dismissing the case of u Ngwe f~r
default' as well rts 'the order disiriissing his applicatibh
u nder Order 9, Rule 9 of the Code of Civtl P'fbcedute
,vm be set aside. We, h<hveVer, thiitk th~t in. this
app.eal the ~laihfiff~appellant tJ Ngwe . shoi1iti' pay the
c6sts of 'the tespondents who ate represeht~d by
different Advocates, with a cost of five gold mohuts
each, atid that tJ Ngwe should also piy all the. costs of
- ~he r~~.P..t>rtq_ertl$ . iti the lo~et _ ~OJlrt fot what they
have already ittcutred~u~ to th~ tray~ . .
 1951] BURMA LAW REPORTS. 13~

APP ELLATE CIV I L.

Before U Tuts Ryr~. Chief h1Sficc, tmd U 011 Pe, J.

H.C.
Al3DUL MAJID AND FIFTEEN o1'HERS (APPELLANts) 1951
v. Jan, S.
M. KUNDU (RESPONDENT).*

Limitatiolt Aci,' Article 181-APPlicatiou (IJr fiiritl decru...;.C.oss of record-

RecotJsUrtttiou of recortt~At>f>licatiotJ filed. treyourl lime-Courts 1Emer-
ge11cy Provisions) Act, JIJ43. s. j..;_I:tinitatio,[ Ad; s. 4.
H'eld : Article 181 of Limltation Act apprlcs to an application for fimil
decree in a mortgage suit for sale or the property. The facts that an
applitation for the reconstruction had to be fil.-d and that record haci to be
reconstructed are no grounds for not filing the applicalion within the time
fixed by Artide il!l ol Uie Limitation Act.
Aml'ook ehiwd P'a;rack v. Sarat Chunder Mukerjee, (1911 )38 Cal. 9i3 at
92t ; Jeiiti'gkl KalidasSIIall v. Gnngadhar Mahadeo Karnndiltar and others,
A.I.R. (193S) Rom: 354: Ramatsalhall Chetty v. Alagatla Chetty and others,
(1930) 53 Mad. 378 at 3iiS; .Premomal D'aOmal v. Klludabux a111l others, A.I.R.
11Q37) Sind 273 at 277: MUsui Bussan K<~uhah 'Ltd. v. Firm of Totariun
Blwgwanda:s, A:I.R. (1921) .Sind 166; Sakarchatrd Narsidas v. Yaet~b, A.I.R.
(i923) Sind i4 : M.A.L.M, Chettiar Fhu v. '/Jlauna Po Hmyin and vthus,
(1935) 13 Ran. 325 at 328 ; Hoe Shwi Fotlg v. E. I . Altta, (1949)' B.L.R. '394 at
39~. followed; ..
. S. 7 of C9urts (Emergency Provisions) Act1 i943 provides that the .Civil
Courts in Burma will l>e <leemed to be ..:losea fi'cS1h tlie sth of December 19:41
tinfil .~lrt March t94v which was 'the (late fi:teCI u'nCie'r s. 7 61 tl\e Act
and s . 4 of the Limitation Act simply preacribes that where the perio!l of
limitation exp~res on a day when the Court is . closed the !luii, appeai . or
application h1a'y be in$iittited or pr~erreil or 1mlde on the tl~y ~hen the t:ourt
reopens. And s; 7of C'.>ui'ts' (Emergency ' .Pro'viaions) ACt, 1943 do.e s n6t
pur.p~rt to. revive a ri~ht which has. a!ready beco~e extinc~. ,Qr int~rfere w i!h.
a vesfeii'.fight:,lt~'i:loe8.-i\Wexlend::tn'e ~~Hod of lisnilatftfnor. th:Ji;jie>for
pa~menl <l tlie decretal amdunt In~~ Coutt Hy j~dgirlent;ifebt&r: :
There1s no general dis~etion apart froni tlie stahitdry disCic.t ion given
under ~. 5 of. the Act.for extending th,e period'of limitation. . . ' . . .. ,
Maqbui Ahiuul ti'i1J rthe;iv. P(ataJ J.,iarain Sing/, altd otheri, I.L:R. 57
All. 24i ti' t:J ; lleia v: J?f;tl, (isii6) 3i cii: )).. ~~it 4cn; f'o.llo":~d:

Hla Pe fer the appellants, .

. P. l1~ ~Jn .toi- Hi~ i~spo~den~.
o o ~ :;.~ ~ o ~: . -. - 0 o o o 0 0 lo ... I o ""

. .Ciy.l l!t :~P~I .~~-~3 ot_t.?4~ a~ain~~ ,t?e ~e,~ee CJ!. lJl~ .?!ill_u~.~i~e
of this Court in CiVil Regular ~uit ~o. 2.s'<> of 1940, dated the 1~ July 1.~~.
 8 U.R!vT A :_:k:A\tV . REPORTS.
H.C. The judgment of the Bench \:ras.delivered by
1951

~~~:'oL U TpN Bvu, C.J.-M. Kundtl, the plaintiff-respon-

.ANo FIFTJl:I!:N
OTHERS
dent '
insiithted a. si1it ~g'ainsf All;mad Ebt~him in the
..v:.. f.I-i~l)_ Q~9:urt ;of l~_dic~ture at Rango~n, in _,<;:ivil,:Re:gula.r
M.;ttuNou. Suit No. 250 of 19401 f.or recovery 'of a sum of
Rs. 10,000 .91),e _on a ITIOrtgag~ . ... The parties sub-
sequently carrie to a coin promise, . and a preliminary
mor.tgage .decre<:rw.as drawn lll{ in Aprild94L.
The fecords of: Civil Regular Suit No. 250': of 1Y40
:~er.~ -. lost during ':'th~(Iast ' Great \Var. . New r~~~rds
ha\e been reconsir_u cJed with a copy of the ~~iai'nf.and
.tha(c>r Ui_e preliminary _ mortgage dec~ee pas~e~. -in
Apl-il 194'1'. Ahmad Ebr~_hi~, the, defend4nt, die_q _ in
~1945 .:. It has . been: said -.thaLwben . M. Kundu,, _the
~e~re~;.:hold~r:_ ~wp\ied ,f or, t~e _re.coristi-udio1l' ~f . tl1e
.record!5 :of..Ciyif R~gul~r . S~il ._No. 250 of 1~40 . o n -or
about the: 18th March 194-7; he doi:d ~ot know ~ab~ut the
d~-~tti '6 :A'hhiad: Eb.r<ihim ; add 'ihat~ 'f1is . dealt~ led to
~eonSider.aJiie:- c;iel~~ in :the'\ii~p.~sal ~~ 'the. applitation
for the reconstruction of the records of Civil Hegular
_S~it;l~9~~:<?!~Q: pf. ,194~~-: 'in_ti~at. th_e ._Pl4.f.1\H;p-~t,~_sron dent
;had. !great - difficulties in ,bringing .- in alLthe leg~l
:repfes'enta:tives 'o f Ahmad J<;brafiim onto- the records.
~tl:i~:. :~ppe.li~!1ts' :are . ali 't hheirs ~n4 , lP.g~l represbjta~
1i'ves,'0ft-he -dec.eased:.Ahma'd Ebnthitn . .: - .. .:
;_:; -,}~hf(}iRP-H.sit.i,<;>)~- of ' M. ){l111d~ ~!i~' ~r.~<>n~.~r(!~:"
Jof:..
tion .of th.e;ft'ec.o.rds __ -:Was ., .aJlowed-..o.n: _-_or .ab.o tJt. the
~t s:t~ A;pril~;:i 948?-~m~ h_e- :apptied for the 1pass_in _g of a
~~rwi"n.c;s~eet (~f.~~le pn~ .91, a~_~t~(!~.e s~~ :AP..nl) 94-S',_a
'chi.t~~rv.iitQ,l1~;\N~~'': Ci~.r ~ri~~--;eai:: a.teh t11~e-:P.~;o.v~siP:n~ .Qf -
section .7 of the Courts (Emergency Provisions) Act,
1943, had: ceased to be dperitt~e:/ rf h~s -&ei~'- -~stib~ .
mltj~d ~n behalf ~f tq~ _-_ pl,~~~t.i~~~~~P~rien~ JhaJ. tl?e .
.Limita.tlDD:-----AcL_doe.S.~il.Dt' :-~i)ply~~1o.''_~th e ' .c_ase:.~nQw -
1

t:t},<;fpt?:~R~~~J~ "~~'tl;J!p,fl~:eqt.feht~f}trfjcJ~:: ttr~. 'li,~-s -~ ~o

1951]

application~ and the.t..t.he resporia:e.nt~decree-ho~~:ler <.:~_rft . w:c.

at any.tirne, apv.ly f~r' th.e passing. of the final ~n.ortg~ge . / 95 1-.
decree for sale. We do n ot think there is any real . Aaou c
MAJID
substan~ce in this contention , and tbere is a s.eries 6 ANo .:F.r1'TRF.N..
decisi ons from the various Higb .Courts on th is- poinL :: oT~-~R~
Jenkins C.J., observed in Amlook Cha11d Pa rrack v. M. KoNou.
Saraf Chundtr :ftffikerjee {1) : ii .Tu~=:svu:
C.J.
"011~ object in viiw when the _present Code w~s passett
was to end, as f~r a's possible, the-conflict of decisiori s.-,;,.hich
embar~ l~~ect' the courts, anet af!lOilJ{ tti&se confli~ting decisions
Were those w!Jich dealt \Yit6 hVO points :-J:irst, wbetl1t~1 an
application for ' an order under se~tian 89 c '<the Transf! r.-of i
Prop= e rty Act ,\as' an application in extcution C'r -not ; anct
secontlly, viu~ther, H it was not an application "in ~~~cutiOii,
Articl-e 181. ~t)~stitufed a b-u on the gr6und that" the a~plicatioi-i
was one not-contemplated hy theCode ( f Civil Procedure. And
_so i t is now provided ~hat the :tpplication \\ihich follo,vs -~
preliminary clecree fo"i sale~' is i_10t ~01 an order fc- t s1le ba t"fol. ~
decree f~r Slle.-~ 'And with 'the saJ4e end in vie\ Ule piovisioris
a s to mortJ.(age suits h-we. he~n r.emovett from t_he Trah sfe1~ d
Property :Act to the civil Procedure Cotle; 1 that it i~:-no longer so
possible to . oontend that these applicatHms are' not unCier thC!
provision~ ofthe 'Civil Pro~ed'ure Code:'
. \ . . . . - . . .. . . . : . .

It- was also held in]eslngt(Jl KaUda5.Shaiz -v. Ganl}adlz'a_r

Ma.h~a.r!eo. I(a_r_{l,(ka ;a~~- otlzfrs.(2lthat ~h~,~imUatiop .
Act ~ppJie~ t9-~Hl\ ~PPU~,at~~n-. (QX: a _fipal.4~~r~e ,{or,~~~~~
_and there the observatio~ imide in Ramanatha_n. (J/z.ejJy
v. Alagappa Chetty and others (3) was aiso quoted with .
approval-, which was as follows: . ., . ,.

.. Metore. goin~ "through some ohhe' cases cited .for~tb:is .

i>ropositio~ . I \vi(I allbde \o. tlitr~p~ti.a1 case of ~;ortgage suits~
.:rt has.
ho...
.~loubt'bee. h heici'ih~t:
. ,. . . l
~t;~ric~tidn's for aci~cree ,_'absd)tife
. i ' . . . ...... .. . . . . .
.
. .. .. .. , _
and for-a personal decree, u~der Oi-aer 34; Ri.iles 5 and 6
r-e:-~-pe-ctT"ei~;_:.ti-e~itibfe~tio~A:;ude_.:iB.i ~-th:~-'d~;~~~hoi_4~:: ~~st
-~:: - ~ ~ : ~
.::.. t !' . . ., .. . .. (., .. .. .... . .... , .. .. .. :

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

: .", 4,. ~ =~ . .. .. ~\' . . .. .. -..... ~
; . '

_(1, (191.l) .31! .~: S,~f!_es. 913 at 921. 12) A.I.R. (1938) Bom. .Series, 354.
(3) .(1930) 53 Mad. 378. at 385.
 fi.U:R"MA .. LAW REPORTS.
H.C. apply withip three years. * # . * * * * ~ The
1951 rules under the Code made express ptovisio'n for such applications
ABDUL and the Court has 110 duty ca:.t upon it in the absence of them."
MMtE> .
ANI.> FIFTEEN
OTHERS Davis J.C., in Premonzal Daomal v. Khudabux a.nd
v.
M. Kt1NOt1 others ( 1) also o?served :
U Tt!N BYU,
C.J. . '' I will take first the arg~l11.~!1t that Article 181, Limitation
Act does not apply, because to bold that an applicatiott uncer
Otder 34, Rul~ 5. Civil Proc;~dpre Code, is tjm~-barr.ed is
tantamou.n t to the extinguishment o ri~hts and liabilities fixeq
\lJtJer a preljmi9ar:y de~r~e ~nq that.~uch r~ghts and li~bilities
<;ann?t be extil]\lished~ His of coqr!!'e .P,ossibl<;! say that the to
words of Order 34, R~1Je 5, Civil frocedure <;:ode, are so explicit
a.n d peremptory th:~t np qualification is rermitted to '1:-.e made
upoJl their generality and that wben~ver an application is made
under Order .?4, Rule 5, Civil Procedure Code; it must be
granted and a final de~ree tp:pst be p~ssed. To hold this woulq
be to give to proceedin~s i~ such suits no limitation of time
what~v~r. They could . continu~ i~depnitely. There is no
reason to ~JJppQSC tliat the Limitation A.ct poes not apply . to
~ppljc;ltioQS tipcler Ord~r 34, Rule 5, <;:ivil Pr0cedure Cede; 'as t~
<;>tp~l; appiications, apd . that being so, l can see no reason te
diff~r fr.om th~ ruling of this Court repqrted, not as the le~tned
J~dge: Rupchand ..A. J.C. says in . fr!itsui Bussan f(ais.hph Ltd. v.
J:li~t/1 of Totaram Bhagwatzd"as (2\ b~t in Sakarchmtd Narsid~s v.
Yfl~tf~ (3) that ArHcle 1~1, f-irnitatiol1'Acl applies."
! :

The observation of Page C.}:; in M:A.L.M. Chet-tit;r

Firm v. Maiin~ Po Hnt}ifi and others (4) was as
f.i:)tlows- ,: ..- : :. .
. .... .. .
'' Is the appiication for a, f1flal decree ~P ~u~~ a case. ~n
application to enforce the preliminary decree that ha~ already
0

9~en pass~d ? In my opini'?n it is ngt ; because in orqer to be a

~9<fe 9.~ e~f<;>t:cin~ the prel~~inary ~ecr~e it !'lllist1 in my opinion,.
b~ ~n apt>ii~~Hori to enforce a. r!ght t!lat il~roeq t.o U~e ino~tg~e~
-g.nd,~r
-:
th~
. pr~?liffiinary
... . c::lec~~e.. In lhe 9ld or111. 9 ll!9rtgage
. .. . .
... : : t . '.
(f) A.l;R. (19371 Sind' .Series, 273" at277 (J) AJ.R. ll9.23) Sind, i4.
. (2f A:lltTf9"21f
.
S1'iic'l;l66.
.. .
. . : . 14) (i935) t3 Ra~. 'seiic::s, .
~

s-ts a~ -lzi.
 1951] BURMA LAW REPORTS. 14~

decree under secti~ 88 of the Tr,1nsfer of Property Act the H.C.

19.H
.clect'ee directed that jhe property should be sold on default being
made by the mortgagor, but under Order 34, Rule 3, of the Code Asout
MAJID
.the pr~l\minary decree does not direct that in case of default the AND FIFTEKN
property shall be sold nor d~$ auy right of sale thereunder oTHERs
:acc~ue to the mortga~ee. The ri~ht tQat is given unqer the M. K~Nou.
-preliminary decree to the mortgagee is ~right, subject to any -
<>rder that may be made in r~spect of redemption, to a}:ply to 0 T~J.Bvu,
the Court for a final decree for sale of the property."

It is Clear, in our opinion, that the old law which

was laid down in the:rransfer of Pr.o:perty Act has
been alter~d ; and we shall .have to exail)in.e the
prQv.isio.ns of Order 34 of the Code of Civil. Procedure
in ord~r to find out what the law at the present
really is ; and it will be necessary to conform to the
provisions of Order 34, Rule 5, of the Code of Civil
Procedure, if the decree-holder desir~~ to have a final
'{fecree f9r sale passed in his favour. Ruie 5 (2)
~!early requires ~u94. appHation to be ro~d~ ; and tht?
pre.liriJinary mortgage decree, whic.h was dr-awn up in
April 1941, also requires that such application:.should
be made to Court. Thus, Article 181 of the Limita-
i.i9n .A~t mvst be cqnsidere9. tu. apply ip the ~l)e-. now
und.~r a.ppc;~l~ . ' , . . .
Th~. ill.lpo~tant q.Y,est~o~, whicl) 'is. jpvQlved i~ . tl1j$
.appea.J_, is whether t4e. ~pplication 9f the d.~~r~e.,:fl<;>Jq~r
for :R<\~$ing a fina.I de~ree for sal~ '!,l.nder . OF~er ~4,
~u~~ 5 <;~n be ..Yqn~id~r~d t9- .b<:\V~ been oaJ;r~d by
]im,it~Uon of tirp(( ip the.. ca~.~ QOW 'I.Jn,<ier app~al by .
reaspn~i .of .t he prq,v~ions of Articl~J~l of-the Limiti-
. tion .A;ct ? Artic~e 1"81 r~quires the ~pplic:ation .for. ~
~naJ 4.r-9r.e.~. ~o be mad~ within thr~e ye.~r't! .frpxp. the
d.at~ ~he right to appty for ~he fitlill 'deqe~ a,ri;s~s. It
ha~ be~n arg).J~d ~ .beh~lf of th~ q~~;fy~.,h<;>lqer t..l;ta~
ev~m if th(} Li.\'n~tation i\.ct is. a.ppli~a.~~ ~, .th~ . c~~~
nPw tina~r avp't(a,l, t~~ ,;l~h~ 9f_ tti~ .~eq~e,~-Jl~,i4~R-lrPllis!
 H.C. not be s~i:d 'to QflVe aCCftl~d un~i\, tl.;e 2nd Aprjl i~'47. ,
1951
in t\1at t~.e judgpJ.e.phdebtor, Ahmad Ebrahim 1 should
ABDUL MAJID
t.N.U . FIFTEE~
be considered to still ' have the right under thG
OTHERS
V;
preliminary: mortgage. decree in question,:read witll
~. KU!WU. the provi.~ioils of seCtion 7 of the eourts \Ei11ergep'~y
.Q . TUN : BYU, P:rov.ision~f A.ct 1 .194~, to deposit the dtcret.al arnQ.un}
C.J. up "tn lhe l"s( 9~Y. of "AJ?ril1947. It will .be ~i~c~~~sary
for this pnrFose to reproduce the relevant portion of
thy. preljrn.in~try mertgage decree pass~q i~ ,A:prit 1940,
W~l-ich rta.c1~ . ~ ....

. " It is de~fared that t.he amc unt due to the plai~tiff by th~
ddenchnt is the sum of Rs. 11,270 being the balan2e of accoilni
as show:n in the Schedule A hereto and 'it is further declared that
the pla~ntiff sh!lll he. ~ntitl~d to apply for ap.d obtain a final decree
for sale of. the p.roperty shown in the Schedule B hereto :
Pro~ici~<;l that the defe~d:mt may _appi)r for aocl obtain a
<lec~:ee f~r:;ed.emption of the mo"rtgage on .payment into Court o
th'e a'm.out'tt ~0 declared' to be due "on or "before th~ 31st da:_\rof
D~cemberi 1--9~1, and o"ti cQhlpliance \\ith all further orders of
the Coudand on payment of such further -sums as tl)e Court may.
deterQ1in~ to be .payable .on fi1:ally ~djus,ting the=.account' up tu
... . date. of paymeut.'.'
the: . ,.. ... . ..

.<:. n . will be observed that it is contemplated--in the

preliminary mortgage decree that an applitaflon for
passin:~(~ or a final decree for : sale '"~ill ' be made as
requited :'t1riler Order 35, Rule 5, of. the Code of
.civil :pr0cedure; ana th~d the right of ' the decree-
bolder to"ap~11y :forthe final decree for sale :will 'a rise,,if
the decretal amount r~ quir-t:d to be paid in under the
preliminary mor.tgage decret is nht pai'~ in tot-he Court by
the 3-.t.st.Dectmber, 19H ;"and in fact no payment was
riiade into G0urt at any tifue by the judgment-debtor.
The 31;st: day ' of .Qecerriber.~ 1941, and the-1st ciav 6f
JanuirY.;= 1()4?, .f~ll j 'jm_- tlie days whe1~ theOo'u~ ~'as
dosed ' 'and-
. . .
Anmad'. Eprahim
. . .
, 11he;iudgnie:ht-deb{6r'
,J ,
iC.eo'tdl},Ii~ty>J~ad' tirhe ,v.tn<L::appert1init)i :i rntil- th~ .
1951l tlURMA LAW REPORTS. 145
H.t,;.
:2nd January, 1942 \o pay the decretal amount into Court 1951
if he desired to do so-?-ide section 19 of the Burma ABDUL MAJID"
General Clauses Act. The right of the~!judgment- A~c FIFTEEN .
debtor to deposit the decretal amount in Court was oT:.B~<s
therefore extinguished on 2nd January, 1.942, and M. KWNDo.
M. Kundu, the d ecree-holder, must in the circumstances u TUN BYu.
be considered to have the right to apply for the passi11g c.J.
-<!>fa final decree for sale on th e 3rd: January, 1942.
The qu est~on arises, has anything occurred to
.interf~re wi{h or stop th.e decree-holder from exercising
\his right to apply for p;1ssing the ~nal decree for sale
on the 3rd January, 1942? None has b een suggested,
.and we cannot see anything which could be .said to
have prevented the decree-h older trom applying ~o
the High Cottrt for passing the final de~~&e on th~
:3rd January, 1942. The High Court was functioning
on the 3rd January, 1942, and all its offices were opened.
No Courts I E mergency P~ov isions) Act oi Ordinance
.had been passed 'or promulgated on the 3rd January,.
.J.944, .nor was any law passed on the 3rd Jam~ary, 1942,
to the effect as set out in section 7 of the .C ourts
{Emergency Prov~sions) Act, ,l943 ;. and our attention
has n,ot been drawn to ~ny such legislation. The
judgrpent-dehtor Ahmad Ebrahim must, in t.hose
..circumstances, be considered to have lost his. right to
d ep9sit !he d~retal amount under the preliminary
mortgage decree after th e 2nd January, 1942, which in
effect means t hat the right of the decree-holder
.M: Kundu to apply for passing of the fin a~ decree for sale
under the preliminary mo'rtgage qecree. arose, itt fact,
.on the 3rd J a~uary, ~ 942. In other words, the period
of limitation for applying for the passing of a final
decree, so fa(' as M. Kundu is concerned, must, in fa~t,
be considered to ha~e accrued on the 3rd Januar.y,
:1~942.' In H_oeShwe Fong v. E. I. Atlia (1), decide.d by
Il l {19-19) g~. R. l94 2t 395. .
lO
l46 [1951'

a Bench of this High Court, of 'Nhicp.I was a member,.

i~ was observed:
~\lDUL fdAJiD
AND FIFTEEN - " . ' f .
oT~KRs It appear~ that the nght o tne appellant Hoe Shwe Fang-
. ~~ to apply for a final decree accrued at the en.d of Decembei 1941,.
.rd_, -~,UNDU. and under Article 181, of the Limitation Ad, he wotild ordinarily
U TUN Bvu, . h~e .-ha~- 't-htee yeat'S
from' the end" of' Dtt'ember :19\t;. witb'i n.
C.J. w~ich he 'coQid hwe made the. ~pplication'--7vide M:A.L.M.
cii~ttiar F,r~n v. Matmg .Po Hmyiu 'tiiut olirers '(1/ and . Maqbuf.
Ahmad a_1f({ othe;s v . . Prataf> Narain SingII ~nd dllzers (2)~
However; in ,view of the provisions of section 7 q the Courts.
(Emeriehcy Provisions) Act, 1943, Hoe Shwe Fong had time l)p.
to the lst of April 1947, within which he could have . made the
f!.pplicalion for: a 61'\al decree ; ~ .

and fhe..above ol?ser~at~<?tC".as ~? thy same effect a_s ti1e

observation which U T~,rW-:Maung J., expressed when
the- case first came before hi~ on the Original Side,.
where- he st~ted as follows; . . '
' J ~ ~: ' t: ' ' I

'" "So lhe . I ight to apply foi" a final decree accrued . on the:
3Jst December i94J and the application should have been made
within three years from that date. However, under section 7
'of. th~ CO'urts (Et'(lergency Provisions) Act, 1943, the Civil Cour~s
in. 'B~{ti~h-Bnrma must be deemed to . have been 6ksed within
the meaning of section 4. of the Limitation Act from the
Sth December . 1941 ' ti~l the 1st A,pril 1947. Updtir tbese
Circumstances the application for a final decr.ee would not hav~
been time-barred if it had been filed on the 1st April 1947, but as.
ai947. . . _ .
matter of fact the application was not filed till the 5th August
. . .

- It' i's-difficult to appreciate how . M. Kitn'du, the

decr~e-holder, could proper~y dispute that his right to._
-applt for the passing of the .final decree under the
-compromise ni'Ortgage:decree arose, _ in fact, . on 3rd
..Jan~ary, 1942 in the 'ci~cumst~nces ex;i~ting in: t~is ~a'se;
. we,
.. and .
might
.. . add J1ere that the:
'
Circums.
- . : o. f. the
t..'ances_ . .

. ci1 {J93Sl 13 P-an. 3:iS.~t ~28 -.' .:,

(2)i;l:i.R. "57_All. Series/~~2 (P:C:): -
 1951] BURMA LAW REPORTS. 147

present case are 'Similar in circumstances to the case of H.C.

1951
Hoe Shwe Ff)ng"v: E. I . Attia U).
th e effec t
t , m ord er t o .examme
I t w1-~~b.e convemen ABDULMAJID
ANo PrFTnN
of section-7 of the Courts (Emergency Provisions) Act, on1ns
'IJ.
1943, to repr.oduce it, and it reads: M. KuNou
., -
.U TUN Bvu,
" 7. The _Civil Courts of British-Burma .shall be deemed to t;;.J.
be closed, within the meaning of section 4 of the :LimilationAct
from the eight day d Dece~ber i94J until such date as::the
Governor may, b),: iiotilicalion, prescril~e." ' _. , ~ ,

We onght also in this conn~ction to reproduce th'e

provisions of section 4 of the Limitation .Act; - \~hich
reads:

" Where the period of limitati9n prescribed :'for any suit

appeal or -application expires on a day when the Court is closed,
the sl:it. appeal .or application may be instituted, pre'ferreCt or
made on the day ~~at__the CO!Jr.t re-opens."
. . '.
It is.only wher1 the provi~ion_$ 'of se~tion ~ 9ft~e Cqurts
(Emergency Provisions) ;Act, 1943 are examined in the
light of-the provisions of section ~ of the . Limitatibn
Act that w~ will'_be ~bl e t~scertain the real scope-and
~ffect of section 7 of.the Cpurts (Emergency Provisions)
Act, 1<J43 ; an? if section 7 of'the Courts (Em:erg~ncy
Provisions) Act, 1943 is read in that light, it becomes
'dear that it.is. oniy the .right to which the . pro-v isions
of sectio.n 4 ol the-- . J_.,~mitation Act applies, whi~h_ -will
be _effected by the.: provisions ~f sedion 7 of the Courts
(Emergency .~roy.isions) Act, 1-943_. If wiJl not -;be
cqrrec;t to give to section 7 of th~ Courts lErnc~ency.
Provision_s) Act, 1943, a wider construction than: it
- r~ally possesses ; arid it cann.ot, i11 ou_r opi-nion, be re~d .
. independent of section 4 of- the . Lip1itation_ Act. The
allusion in- se<::Hon 7 . of . the Courts__ . ~En)ergericy
- . . .
Ill (1949)_B.L.~. ~94 at 395. .
 BU,&MA LAW REPORTS. [1951

H.c. Provisions) Act, 1943, to section 4 of the Limitation

~. Act is against th~ wider ~orr.struction wh.i91:1 has be~n
A,~ouLM.uto attempted ~to be placed . upon it on behalt of the
A,. D. .FIFXEN . .
oTHERs ~ecre.e-holdel" , Secfi9? 7 :of the Courts (~mergency.
M. II'~sou. Provisions) Act, 1943. ~o.es not, in our opinion,- purport
u TuN.Bv u; to revive a right which had already become extinct on
C-1. the date the Courts (Emergency Provision'S) Act, 1943
was .enacted and over which a new right had bef'ln
created, whether by the act of 'the parties cbncerned
or through.the medium of the Court'; and sectiofi 7 of
the Cour~! (~I_ller~ency Provisions) Act, 1.943, should
not, in o~r opinion, be construed to interfere with a
vested rig_ht, in view, particUlarly, of the general rule of
law that on'>.~. the period of limitation commences to
run, it will conti~ye to run and no subsequent inability
would stop it-r-v1d~ segion- 9 . of the Limitation Act.
The observation of Lord Bowen L.J ., in Reid v. Reid
(1), gives the ._ caution ~ which should 'be exercised
wpen wear~ ~onsidering wl~t,is .the retrospecti ve or'a
statute is-
"Now the particular ruli::.. of construction which bas been
referred to, but 'Which is valuat;>le only whe~ th~ . words of ari
Act of Parliament. are not plain, is embodied in the . well-known
tiit~ m-~~in~ om'm"s nqva cotzslituiio fu turis fqrmam imp~nerc. debet
tlOtl fra~lerilis; t\13.t is, th:tt except in sp_ecial' cas~s the ne'w law
ought ter be construed so as to interfere .~s Jittle 'as po~sible with
vested rights. It seems to me t1iat even in construin~ an Act
which i's to i certaio _extent ret~ospective, "arid in . construing ~
section whi:ch is : to a .certain extent retrospective_, we oug~t
neve~;theless t~ qear in mind _tha~ maxim as applicable whenever.'
0
we reat:h 'the line at which tlie wo!ds of. the section tease to he
pl:rin. ~That i~ a neces~ary. and iogical C9fO.IIary :of the gener!ll
proposition that you bught not to ~ive a larger retrospective
power- to _a section, e~e~ in.: an Act wbich is to some extent'
. ioten.ded to be :.retrospective,: than you . can plainly see .the
Legis}~tu~e m.~t.'.' . . . . . . .

; 111 (1886) 31 Cha~ery _.Ditision, 402'at.c08:

 1951] BURMA LAW REPORTS. 149

what the pl'Ovisions of section 7 of the Courts ~Ji

(Emergency Pro~isions) Act, 1943, purported to do is -
.. more t l1a.n to extend t h e ng
not h mg . h t o f t h e d ecree- A:BDULMAJI[)
AND FIFTEEN

holder which ha.d .already accrued before that. A\Git:,was. Q;T~Rs

passed, to apply for passing the final decree so far as M. ~uNou.
the present appeal is concerned, up to the 1st April, u TuN Bvu.
1947. . . . C.J.
The provisions of section 7 'will, moreo~~; have to
be construed very strictly, and if we btfar ~his in mind,
it will be observed that by reason of .the provisions of
section 4 of the Limitation Act, section 7 of the Coutts
(Emergency Provisions) Act, 1943, will apply only in
cases where a suit or appeal has to be fil~d, or an
application has to be made, in Court, and in ho other
cases. It .is not disputed during the arguments before
us that it is not' necessary to fileany applicaqon in Court
to cnabl~ .t~e judgment-debtor to deposit the. decre:tal
~mount in C.otiii, and in fact the.terms o(. the prelimina~y
mortgage decree expressly ail ow him to do. s~: at any
timeup to the 31st December, 19~1. It fo}low.s ; that
.sectiqn 7. of the Courts {Emergeri~y Provisions! .Act,
1943, wiH not fipply to extend the time for payment of
.t he detretai anioun't into Court by.the judgment~d~btor.
in' other .~ord.s section 7 of the cour.ts :( Emetgen.c y
Proyisiqns) Act, 1943 does. ~ot _apply t~ ex*~<;l -~, tim~ ..
i~ 1tlfe. preseat-..
~ )
ca~~'

f.br pay~~n~,,,
- ....
9fthe

decre,t.abim:eunt.
..
.~nto ~9urt. The right.of A.hmec}.Ebr:ahim, th~.jud~lll~n't-
c}ebfQr., to pay the de~retal ~mot,mt - into.,, Court c:an.n ot .
aiso be gon$1dered to have been' eniarged by reason . of
the provisio~s- o~ secti9n 7 of the courts. (Emerg~~n,ey
Provisio_n~).' Act, 1~43., in .that this -right was ait.~ady
..extipcf ~~d superseded.- when th~ . Act o( 194.3 w~s
. . ) l . .

'passeq: . ',tl)e.application of . M .. I<u.ndu for pa.s sing the

:finaf. ~ecr~e, which. was . not .n iade unt.i l 8th .,ABril~
.'1948~ mus.t . therefore-.. -be -con;idered--:fo be barred
by ni nitat_iqn of tihie.- ' 'This.' 'c~ndh~ion _ may appear .
150 aURMA LAW REPORTS. [1951

H.f to be hard , so far as the decree-holder is concerned,

~ but a hard case will be no excuse f(}r making a bad
~!~~~~~~:~ law. In Maqbul Ahmad and others v. P1'alap
ol'!~~s Ncur!!:i~ SinJ!h and ot1;e,:s (1) Lord Tomlin observed
M. Kut~ou.. (at p~ge 250) :

" In their Lordships opinion it is impossible to hold. that,

in'am~~tcr which is .gov~rned bx the A.ct, an Act which in . some
limited respects gives th.~urt a statu.tory discretion, th ~:- re can
be implied in th~ court,ol:l'ts~d_e, the limit~ o(the Act . a g enera.!
discretio'n t<i dispense \\:.ith its:provisioriii. It is to b~ r oted that
thisrview is supported by the ract that .section 3" of the Act is
peremptory and that the dut g- 9~ the Court is tt>' notice the Act
and give effect to it, even u~ou~h it is not refetred to in the
pleadings.~'

T he Act referred to above is the Limitation Act.

' ~he pr9visio.n s, of s~b~s~ction (2)" of sectjon 17 of the
Li!.ni1at\oq..Act, which was. referr~d t,o on be.half of the
~~~r~~'~oia.et:, ~do n~t :~ppl); to the...'.cin;:umstan<:es q.f
f~~~ ca~~ ~~bw und~r.:~m>e~i;~.in that t~e .iJgh~ . of decree-
n9~9er~~aP.ply . fd~ ,tfle R~~~ing .of . th"~ fh1al d.ecree
~roMA~p~ ?ef?.r~}~~ :4.~~\lj, ..~( t~e )~.~~~en t:debtor
Af:lmi\d E:.br~b~m, who ~~~~ . 9nly 1Jl.1. l.~!J:S. , The fact
.~htJ;h~. q.(fi"ci~l. :Re9eiv~r ~~as .be~Pf. ~l?J){)~\tt~~ Receiver.
tQ:tak~ . pps~~$~ion. qf..~ th~ propt;rtY; . w1:1ic~1 fo~ms th ~ .
~u~j,e,ct" ot
tliy mortgagy h1 ..respect of wNch Civil
.~e~ular .su~t No. 2~0.. oJ 1~40~--~4~.: .i.~~#_t~~d,.. wi.l l n?t
-~lso pre,vent" the peri<:Jci-~( li~.ita:tip~i fo.r . ~pplying .for
_ j~;is~_i"f!g the fipa.f dec~ee ru~ui.iQg ~gain~t ) he decree-
h~la~r-:. aft~r tli~ ?~d- Januacy' .1 ~4z:! w f! '-.~r~ als<?
:~na~le to.e~tertain t~~.: suggestion5$~de:op b"eflalh'~ the
de'"'cFee holder that the time sp~pt . ln 'pursuing the
'application for 'the re~on~truction _of ~he records of.yivil
~egqlar. ~tV t .No. 2S6. of ' 1940 or for . l;)ri~ging all the
Jegcll, represenfat~v.~~:()f tpe q~"Cea~~: Ahmad Eolflhiap
4 ,, ~ "- j .... ' -"" ... .. .. .. . .
 1951] BURMA LAW REPORTS. 15i
into the records should be excluded in computing the H.C.
period of limitation against the decree-holder. 1951

U Thein Mauago J., observed as follows in the ABOU[. MAJID

AND FIFTEEN
judgment which he passed in Civil Regular Suit O'!'HI!T<S
No. 250 of 1940 : "
M. KUNOU.

"The application for a final decree need not be acconJpanied U roN BTU,
C.].
by a copy of the preliminary decree. It is not essential for the
plaintiff to file an application for reconstr<:ction of the record or
t_he preliminary decree. What is ess~.~tial for him is to file the
:application for the final decree within the period which is
:prescribed b.-A,rticlel81 o~ the Limita~tion Act.!:
. ., ~ . . .
And we respectfully .agree with the ebservation
.-expressed by U Thejn Maung J., above.
For the reasons that have been set out abo\~e;' 'the
:appeal will be all<;>wed and the order of the learned
Judge on the Original. Side, d~ted the l~tl1 July; _1949,
passed in Civil Regtit'ar Suit No: 250 of 1940 wil.fhe se.t
a side., and th.e ~pp.lication for passing the final decree
tiled by the plaintiff-respondent _M. 1\undu will ;be
dismissed with costs, both in this Court and on the
I ' I

:Original Side, Advocate's fees willbe five gold motlllrs

s o fa'r as the appeal is concerned and four. . gold
mol}urs in connectioii' witn the he:iilng oii ~he Qriginal
Side~
152 BURMA LAW REPORTS. rt95

CIVIL REVISIO~.

Before u Ou Pe, J.

'H:C.
.. 1950 DAW ..TIN AND ONE (APPLICANTS)
. Dec. 8. v.
P. P~ANANTHANARAYANA IYER lREsPON.DRNTt'""

Cde-oi Civil Pro'eeliu;e,:_;S .. i4i;Order 25, Ruk!{.;_AJI~!itatioit.:for .. 'securilv

' fot;;osts a gaitzst a decree-4fclff'cr who is rcsidetJt outside Burnla-WhetheP'
such af.PlietJtiot~ lies.. : :, .. ~:t~J;,
. Hel-d : That Order 25, Hule 1 has no applicati6n to the Ex.:cu.tion.
Prolt'eedings against a decree-holder, ' ..
S. 141 of the Code of Civil Procedure does not apply to Executionr
Proceedings. . . . :
. t . . . . . f
Htrqlal Rams11kh v. M.o11ghibai, Chimuaji, A.I.R. (1931) Bom. Sli'l..
refer-red to.
'Ma Th'a1tS~ill d~zd others v~ Ma Hla Yi,
(1941) R.L.R:-:t~6 ; Siraj 'Kuair
v. San't 'Smth and oi1e, 28 A.~.R . .tJ941) All. 219: (ollowed.

Ba .
t~ for
. .
the. appllcants~ .

/(. R;Vink'at;am for the respondent.

U ON PE, J.-This is an application fo r~vise. the:
order of the District Court, Bassein in Civil 'MisceJ-
l~neous No. 1~ of. 1.949 arising out of C,ivil , ~-~s~el.:...
, ,_.L~!ti~:Ers:.No:. 9 of.. 1'949aj.lCiciVii:EJi:ecuti6i1 'N:Q';1:0'' 1949
.of .t he sa~e Court. dated the 20th Septemb-er~ 1919 and
.~ismiss!ng .t he app~ication_ for. s.e curity fo.r costs. .In;
CiVil -Execution No. 1 of 1949 of that cour't, the-
applfcants -~ade an applieation to. tl~~ Court to call
upon the <:lecr~e-holder to furnish se~urity for the:
~osts of: the exec~tion proceeding on. th~ g~ounJs set .
. ~.. Civil Reyiaion No 79 Of 1949 against the order' of .the Distri~t Court
Of B'asein in __ciVil Mls_\.'~llane9us No. .11 of J941}; .
 1951] BURMA LAW REPORTS. 153"

out in the affi.dayi-t of the second applicant. One of H. O.

1950
the grounds reads as follov.;s.:
DAW TIN.
AND ONE
"I say that"it is manife~tl y unjust anC. unfajr that I should be t-,
P. P.
put to the expense, trouble and bother of proving that the ANANT HA-
Rs. 8,00::> did reach the hands of t he A~ent N. Sundaresa Iyer, NARATANA
lYER .
w1thout having any possibility or probability of recovering the
cost of such pl'oof from P. P. Ananthanarayana lyer. '' U Ot-~ PE,JJ

P. P . .Anantha~$_l.rayana Iyer is the de.ct=e.e-l)older.

The appHcarits' case in the execution proceeding is
that they haye satisfied the decree fully by makin'g
a subsequent payment of Rs. 8,000 to . tl}.e Agent,
N. Sundaresa Iyer.
The decision of the lower Court is riow attacked
on the ground that it erred in law in holdmg that the
provtswns contained in Order 15, Rule 1,. Civil
Procedure Code, are applicable to the case and that in
not exercising the po~ers under section 151 of. the Civil
Procedure Code it has acted illegally. It has been
strenuously argu.e d before me by the Counsel for the
applicants that the Civil Pf.oc.edure Code . \s not.
exhaustive, and that, where there are circumstances in
which, for. q1e ends of justice or to prevent ab1,1sive
proces.s 9f the Court, the Court should use its in.herent
pow~rif should-do.so. Jie quotes 1Ji1:alq,l Ram~ukh v.
"jl;Jonghibai Chimnaji ll) where 'the following 11ea~-ri.2t~
apj:l. .er;s-
. ::.;.!!,.:. "'&... ~ '\~~{ ~: ~ ,~..~'i~.!~ 'f~~: .,~-~~ .. ,~.: .... :,;~~!~~ .~ :: J: ..? ,.....-~

.!'Although there is, no specific. provision either ..in. the-

. P.r ovincial Insolvency ,Act or
the Ci~il Prc'c edure de,. whi~h Go
proyides for ari ordeJ.. of securityfor .co~ts in reg.1 rd . to n ~~vision
application made under. section 115, Civil Procec1 ure Coc!e. or
under section 75, "i.;rovincial Jnsolvency Act, on th{ gtcund . th~l
.the appiibant i~ not residing in British Indi~ and ha; not: any
inrmovable Px-cil3ertY: iriIndh, it is competent t~ the' i-Jigh cnrt,
0
on an applicationby the. opposite p 1rty for secut~ty for costs, tO:

(If .\.1.R: (193S) B~in~ .5.10.

154 BURMA 'LAW REPORTS. [1951

make an 0rder fot security of costs of the, nature provided in

DA\V TIN
Order 25, Rule 1 in the exercise
.
un~~er section 151, Civil Procedure Code."
.
of its inherent jurisdiction,

AND ONE
v.
P. P. The followi.ng passage in the judgmc}lt may -aptly .be
ANANTHA .
NARAY'A NA
quoted:-
IYER.
'' It is well"knO.\~'n that the Code of Civil Procedm-e is not
U ON Pr;,J.
.exhaustive Tlle legisl::.ture could not be expected to
provide for
ever) order which may be necess-:ry in . the inter.ests of jttstice or
to prevent ahuse of the pr('~ess oi the Couit, or for the proper
administration d real aocl sulstanti 1 justice by the Courts, and
it is for this pur~=;ose that section 151 is en1cted. It is true tl~at
tbe powcrs ut1d':'r section . ISl have to ,be exercisedspar;iigly."

By. applying this principle to the provisions of Ot der 25,

Rule 1 of the Civil. Procedure Code, it may be
posl'ible to extend the provi . . ions of Order 25, Rule 1 to
all oth er proceedings in any Court of Civil Jurisdiction
as c~nh"'mplatedin s~ction 14.1 of the. Civil Procedure
C9de. Section _t41 reads:
... ; '-' The:.procedufe pro'vided in -this Code ih re~nrd to'
suits
sh.all be followed,. as far as it can be made appli'cable ir, aiJ
1?-r;oceedin~s in, any .Cou_1t of. Ci'vil.jul'i~dictipn.':
. .
'This sedioh does not apply to proceedings in
execu'tiori . ...
. ~ ', . ' ... . .
._. '\ " - .
tn 'Mtz' r lzan Sei11 mid oth'ns v. MaRla'. Yi ll) it has
been held:
>'file provisions 'of section 141 of the Code of Civil Procedure.
do 'not appl~' to applicatio~s for execution, but cml;, to ori.g inal
mattera in the n:\tu!e of suits . such. as proceedings\ in probates.
g.uar:<!i~ns~i~? di\;_i:>rCe and insolyet_lCy." : .
~9~ci~r.z5, ,R~:~ ~ {;. ia;s- 9~~n. s're.cifi~ provi'~h:>.ri~. ~here;
.a.t.any stige oft:fh-e suit, sec~rity for , co~ts shauld be
givetf~rid.. .byi.Whoin.. .Order'~1, Rule . 10 .lays
: . ~ .:.. .
. down
. .
. . . . .. . 1
._.(1) (1941) R.~.R. 246.
195'1) BUR.MA LAW REPORTS. 155

specific provisiot1S where the appellate Court may H.C.

1950
demand from the appellant security for the costs of the
DAWTIN
appeal, or of the original suit, or of both. No where AND 0:-IE

has it bee:n pr0vided in Civil Procedure Code that v.

P. P.
security for costs l~as to be furnished in the Execution A!:'A~THA
NAitAYANA
Proceedings. In Suraj Kuarv. Sant Singh and another lYF.R.

( 1) it has b~en he.ld,as follows: U ON PE, J.

"When the Legislature has enacted specific provisions for

the takin_g of security fr.o m a plaintiff in certain cases and in
<:ertain sets of circumstan~~, no discretion. is left in the Court
for taking such security in any case or in at']y set of circumstances
otht>r than those.specifically provided for. Had the Legislature
so in ten qed, it could easily l1ave provided for seem ity to be tal<en
in cases ~where it appeared to .the Court tint the plaintiff had
been put forward by-other persons intereste(} in the ~~it; c-r it
cruld have . enacted that security might . be demanded 'for any
other suftjcient cause."

I.t .i s clear that it is a -case: in. which the iligh Court

should not interfere in revision. Nohvithstanding
what the learned Judge' has interpret'ed as regar'ds the
principle laid down. in . ~-~r;oj lf'l.f;ar. .v: S(f;f!:~ ; Singh .and
another ( 1), the application ~ustfail on its O\vn merits.
The application is disn\i-s_s~q..J:>tJ\ the.re will b.e no, order
as to costs. . '. . .. . .. .
.156 BURMA LAW REP.ORTS. [195ll

CIVIL REVISION .
Before U On Pe, J .

H.C.
'1950
s. M. AHMED AND ONE (APPLICANTS)
.,
*
Dec. 8.
v.
BAKRIDI (R~SP~J:lPENT);*
_:r . , . . . . . . . ..
Specific Relief Act-S. 42-Suit for bare rf.:cl"r"tion that order o1 the Reuf~
Co11troll er assigmt1g the tenancy void-Whether site! su.it l(es.::...r"risdiition
of the Civil Court- If ousted.
a
Held : That where a tenant sub-let a room to sub-tenant and the sub-
ttnant failed to pay the rent and the tenant ~ave notice determi.nim g the sub~
tenancy and thereafter the sub-tenant applied lo the Rent Co~;)~roller for
assignment of . tenancy to him and t'he Rent Controller pass~d an order
assi gning th e t~nancy withor.t any notice to the ~enant, the tenant is eniitlecP.
to file a s.uit for declaration that the'order is void and not binding on him .
Under such circumstances, a suit for bare declaration lieE. Unless the
jurisdiction of the Civil Court has been explicitly or by necessary implication,.
exc:Juded, a Civil Court was entitled to entertain a:' suit concerninj:! the Civil
right of a litigant. The Urban Rent Control Act does not exclude the juris..,
diction of Uie Civil Court.
Secreta' y ot St-te v. M.asf!, & Co., A.I.R. (1940) (P.C.) 105, followed.

G. N~ Banerji c6r-the appli'cants. :.

Aung f.itin for the respondent.

U ON PE, J.-This is an application to .revi~e the

, ~j~~ment~ am~t'!l:.tie<::~ or~:the ldi't'rie"lf';4th :Judg~:of the..
City Civil Court, Rangoon in Civil Regular No. 212 of
1949 of the Court, in which declaration wa.s given that
tlie order of the Rent Controller, Rangoon, pa$sed in
Ren; Proceedings No. ;~ of ~948 for sub~letting and .
1

assigning the tenancy in respect of a stall at No. 275,

F_raser Street, Rangoon, in favour.. of the second appli-
ca~t. was ~lf1~a 7'ires an<!, theref<;>re void. The
,...;...._.....;... __
. ; Civil Revi.s ion No. r .of 1950 agains,t' the..~~ree O.r tpe 4u1.'judg~ of City .
Civil Cou~t of RaAgoon in Civ~l Regulat No. 2'i2 ?
1949: , .. .
!1951] BURMA LAW REPORTS. 157

Circumstances, leading to the institution of the H.C.

1950
declaratory _suit b)f .the respor.dent. are these: Th e
S.M. AHlofED
:respondent was the lessee. of stall No. 275, l"raser AND O~E
v. .
Street, and he let it to the first" applicant who BAKRIOI,
;therefore became his sub-tenant . . on a monthly
u ON P, J.
tenancy. The . latter fell into arrears in payment
of rent fro~ lsl February 1948 to . Nove~1 ber 1948,
which resulted in the respondent giving a. . notice
.dated the 19th Novemb~r , 19~8 asking to
quit,
vacate and give up peaceful possession of ' the
stall by the end .. of D~cember 194$. To that
lflotic'e, a reply through a lawyer dated the
26th November 1948 was. given, ,which infer alia,
:says as follows: "That since my client ha-d been
,p ermitted to occupy the stall in question by the Rent
Controlfer, City of Rangoon, as tenant of lan<)lord .
with the lattc:;r.' s consent (vide Rent Pro.ceedings
No. 53:1~ 1948-49) your notice need~ no sp~cific
:answer.. " Iri the Rent Proceeding 'No. 1-W-210 6
:194:8, 1st applicantS. M. Ahmed :applied for permission
to be given to him to sub-let the st.all t~ 2nd re~pon
dent B. S. Mohamed .Eusoof on 24th Dece.m bet i948,
:and the Rent Controller pass~d the f<?ilo'-Ying order
.dated the lOth January 1949 : -

'' Issue permit. ,Assign tenancy fron( lsf January 1949 ori
,production'.pf re~ t ::eceipt fot' De~:ember J948. ~ .

'The; r~sp<?ndent app~ied by . his .pc:;tition : dated the '

17_th Febru~ry 1949 to the Rent Controller to .inquii.e~.
irito the . matter and c~ncel . the. permit issuect . fo
lB. S. Moha~ed E.usoo. That pet~tion was rejected .
.by the 'Rent .Controller on 24~h February 1949.-. The
:respo nderit. thus .' in~titut~d the suit. Civil .Regular
No. 212 of : 19~9-ask(ng for dt!cl~ration that the 'order
:of the ' Renf:Co~tr.oller
. ' '
.passed in.Rent ;P roceedings
.
152 BURMA LAW REPORTS. [1951

ij.c. No. ';~ of 1948 allowing the 1st applicant to sub-let to

w~ .
- the 2nd applicant the stall in question was void, illegal
s. :!/:.~~Eo and not at all bindin'g . The learned 4th Judge decreed
BA:~mt. the suit as prayed.
u o:-~ PE, J. T,he resp,on4ent's ca~e ,is tbat th~.Jyn~n.~y_grant<;~
by him to the lst applicant had beP.n duly 'deter.:Oined
by. him by a notice to quit and that only after .the
determination of. the ten~ncy, the ord~r of the' Rent
Controller allowing the 2nd applicant"to become the
sub-tenant of the 1st applicant was passed. The or.d er ~
it is urged, is therefore illegal and has no. iegal efi'e'c t
:lS the same was made when th~r~ \vas no relationship
of lancllord and tenant, between the respondent .and
the 1st ~pplicant and .as the same was made without
issuing a notice to the respondent 'as required under
the Urban Retit Control Act. The lo\ver Court held
that the tenan cy betwt<en the respondent and thc 1st
applicant had been duly terminated t:.nder the Transfer
of Property Act and .that as no notice was issued to
the respondent, -the landlord; undtr section 19-A (1~ of
the Urban Renf<:;ontrol Act, the order of the Cpntrol-
l~r was made withqut jurisdiction and .gave tb'e declara-
tion sought for.
Before me it. has been urged that the lower Court
er.r~~ in law in entertaining a su,i~ for bare declaration
without prayer .for consequential .relief by way . of
pos5ession of ~tie stall in question and that it also erred
in_, questioning the validity of the order of the Rent
"'C ontroller _passed under section 16-A. of the Urban
Rerit Control Act, 1948. A good many authorities
have been cited to ,s h0w that a .mere declaration
cannot be asked for \vhen a fur\her relief could be
claimed. These cases~ however, are easily distin-
guishable fiom tbe I?res.e nt case, \vhich ~n my view, is.
one where nothing more is 'requiredto be done for the

-
 1951] ~URMA LAW REPORTS. 159

purpose

of secud'ng

to the
plaintiff-respondent all the H .5=.
19:>0
nght~ that he possessed 1n respect of the Rtall. The -
. h. t ot. th e respon d ent .10 th ts
ng . mere 1y t l1at o f a S AN~
" case ts M AHilli.l>
o~E
tenant which need fl:Ot necessarily be one of possession. BA:~,cl.
That right could be one of merely collecting rent fr<?m u ON Pl!
a sub-te~ant-,as was the case l:>etwe~n the responden.t '
and the. l~t applicant, so. that further relief to get actual
possession would not be necessary. It would be wrong
to think that only a party in. physical possession of
property can bring a mere declaratory suit under
section 42 of the Specific Relid Act. That section
says nothing of the sort, but it speaks only of a possible
consequential relief. As a landlord the respondent
will )1ave a claim either for rent or for damages for u~e
and occupationJ and if he wt!re to ask for recovery of
surh rent or damages as further rel.ief that would be
misjoining causes of action in this suit. The lower
Court is quite right in holding that a simple declani- .
tory suit lies.
The next contention is that Civil Courts have no
jurisdiction to question the order of the Rent Control-
ler. Aqthorities have been cited showing that dec~
sions and orders passed under- Special Acts cannot be
questioned in , Ch~il Courts, apd it is urged that order
passed by the Rent- Controller under section 16-A of
.the Urban Rent Co.ntrol Act qmnot be questioneq in a
Civil Court. On the qu.estion. of the exclusion of the
jurisdiction <;>f Civil Courts, Lord 'rhankerton has.
made the following observation in SecrelaJy .of Slate v.
. Mask & Co. ll ) : "It is settled la~ that the .exclu.sio~
of the jurisdiction of the Civil Courts is not to be
readily in'ferred but such exclusion must either be
explicit~y eKpressed or clearly implied. It is also. w~ll~
settled that even . if jurisdiction is so ex<;luded, the
;<?ivil Courts .have Juris~iction to examine in~o cases
(i) A.I .R, 11940, (P.C.) 105.
~ 160 BURMA LAW REPORTS. [1951

H.C. . wh~re the. provisions of the Act have QOt been complied
1950 witli; or the statutory tribunal has not acted in confor-
~S. M. AHKEO mity with the fundamental principles of judicial
AND ONE
v. procedure. " That was a case where s.ection 188 of the
BAKR!Ol.
Sea Customs Act, 1878 was under consideration as to
whether the finality clause was not so worded as to
exclude tlie j-urisdiction .of the Civil Courts. That .
s_ection _provides that every order passed in appeal
under this section shall, . subject ' to the power of
revision conferred by sectio.n191, be 'final: 'It \'vas held
in that case that " a precise and selr'-coritain'ed code of
appeal is provided 1n regard to obligations which are
created . by' the statut~ itself, and it enables the appeal
to be 'carried to the supreme head of the executive
goveniment ; " and the Subordinate~ Judge's . order
dismissing the suit on the ground of want' of htrisdic-
tion was upheld. Applying this principle, I ~m of the
opinion that in the circumstances of the present case,
the jurisdiction of the Civii Court is not ousttd to
question the :validity of the Rent Controller. As
regards the' fincfing of the lower Court on the question
-of lad{ of- nbtice under section 19 A'(T) 'of the Urban.
Rent Control Act, lam in agre ement with the decision
:arrived at on the qu~stion . that tl~e provisipn re.gardiQg
:issue 6 notice is mandatory. The result is that this
:application must be dismissed with costs- : Advocate ...s
iee l:hree g~kl mohnrs.

<G.U.U.C.P.O.-No. 49; IJ..C.R:, 20-i~54--t,74o.:_l~.

 9511J BURMA LAW REPORTS. 161

FULL BENCH (CIVIL REFERENCE).

,J

Before U Ttm Byu, Clue_( lrtsl icc, U o ,, P, nud l' IJo Gyi, JJ.

MA THAN YIN (APPLICANT) H.C

1951
'l) .. Feb. 16

TAN KEAT KHANG l.nl TAN KEIT SEIN

(RESPO~DENT) . *

Corle of Civil Procedurc-S.115-.';:c-"isi.lll 7il!tcl hcr tres agaiust a11 .:rr.,uecus

order regar.liug C-Ju rl-fees.
Held by rite Full n ct;clr : That an order demanding Court Fees
erroneously from the ddendant on the ground that the claim for adju~t menl
made in the written staleme11t is tantamount to claim for set off-is not open to
re,i$ion by the High Court under s. 11~ .or the Code of Civil Procedure.
llmir flassa11 Khan v. Sh(o Baksll Siugll, (1885) 11 Cal. Series, 6 at 8; 11 LA.
276; Bnlakrislma Udoyarv. Vasudeva Aiytrr, {1917) I.A. 261 at 267; U Ba Tllwttl
v. Ma:mg Ba Slteir1. (1932) 10 Ran. 517; K.N.S.P.K .N.K. Firm v. U Ba Chit.
(1935) .-\.I.R Ran. 158 ;Jllaunt: Ba Ha11 v. S.M.A.R.M. Firm, (1934) A.I.R.
R.m. 230:S.C. Das. v. A. B. Drlta,(l934) A.I.R. Ran. 233; She'ltiProsadBunglz.
sltidltur v. Ram Chuudcr Haribr1.-r, (1914) 41 Cal. 323 at 337-338: DcvidM Maroli
Bl)ke v. Nilk.mthr,ro ~ara\atrrtro Desllmukh, (1936) A.I.R. Nag. 157 at.I59.;
Keslwlal v. f,,,..:maurafl; (1940) I.L.R. Nag. 659 at 668; Badrr Ntrt/1 v. Ram
Cltnt,-drtl, (1939) I.l,.R. 14 Luck. 442; Gu'l~a & Co. v. Krrp.l Ram Brothers,
11935) 57 All. 17 at 22 (F.B.); Ma11i Lat v. Durf.!a Pr,rs.rd, (1924) 3 Pat. 930 at
940: M~ha11t Ram Bh11sMr D.;ss v. Bacllu Rai, (1935) 14 Pa~. 2zo at 222-223;
Hariday .Vntll Roy v.Ram Clumdra Bt~rna Sarma, . (1921 ) -4S Cal. f38 at
149-150; llfollamed Cl;oofoo aufl otlzcp v. A/Jditl Hamid Khan 11nd others,
(1933)- 11 Ran. 36 at 3~, fpllowed.
R<~mkllelawatl Saltu v. Bir Sureudra Salti, 11937) 16 Pat, 766 at 777, not
folloo,yed .
. Rtl11iKula1friaiveln Nacitiar and aunt her v, bidran Ranzaswami. Pandia
Titalayan, (1928) ." ~~ Mad. ~64 at 9<)9-6?0; .shaiiendranath. K<11(dt& v..
Surer~~ranafll S. 1r~t1r, (1935) 62 C!il. 417 at 418, distinguished.
M~Zillt;jull Bi11 S!zidrctmn~Pn. Pas~rc ~.'Xarh,i~i .Biu'Shrvappa, 7 I.A:
216 at tiS; Bttlakris/11/a Uday'ar v. Vnsiidetfll:if6ar, (1917) 24 ' l.A. 261 at
2~7; Paka/a Narnyan Swams"v. The Killg-Emp::r~-1", ('1936) I.L.R. 18 Fat. 234 ;.
Bha(.ch.atrd DagAqusaa~td ot11ers v:S!~reiqryojS!-Ate for India., 54 I A. 33?
!It ~~7; oltrndar Si,,gh aud ~noll!e.,r: .v. l'h~ _Ki.Jfg, ;Sl Cr.J... J.l~S3, at 14~
Nandamani v. Hari Krisft.tur. Bhima Deo, A. l.R.{123.9) ..Pat. 564 ;.DI1ari J mc.
v. Gp.~raug~ : Gl!ara!' s.ah~.A.l.~.,(l940).P!I,t: ~9dollowed. : :, ( :.: .

Civil Reference No. 12 of 19.50 b-emg ( t~ference made by Jusl1ce

U S~N MAO,_G u.nder ~ule 25 of the Appeliate Side l~ules of P.~oce5!_u!~ (<;.;i~il)._
Lt
162 BURMA LAW REPORTS. [1951
H.C. The following order of refererrce was made by
195~

MA THAN
U San Maung J., in Civil Revision.No, 9 of 1950 : -
YIN
'V, ''In Civil Regular Suit No. 1 of 19-+9 of the Distnd Conri d
TAN l<EAT
KHANG (a) Pyapon the plaintiff-respondent Tan Keat Khang sued the
TA.N KElT defendant-applicant Ma Than Yin and seven others as hei1s and
SEIN.
legal representatives oi the late Tan Shu Yon for the reco'l1ery of
Rs. 13,500 being house rent collected by Tan Shu Yon as an agent
of the plaintiff. One of the defences raised by the defendants, of
whom the appl.icant Ma Than Yin was one, was to the effect that
one of th~ two houses entrusted to Tan Shl'i Yon was completely
burnt Clown in the Y~? r i935, that th~refore the deceased
Tau shu Yon built a new one. on the .said site at a cost of
Rs. 14,149-3-6 and that this cost should b~ adjusted against the
rent collected by Tan ~hu Yon. On this pJeiding an issue was
.raised as to whether thi.:> claim amounted tp a claim for set off
which required payment of Court-fees. This issue \\as decided
by the learned District Judge in the affirm1tive and the defendant
Ma Th~n Yin being agg1ieved'thereby has now filed this applica-
' tion 'for revision of the.lea:rnci:l ;District Judge's order.
. A pre,li!1,1~1)acy 6~je~ti~n was r~is~d by. t~1e learned Aclvoca~e
for the t:~popdent to the maintainability of the application under
section 1:15 of the Civil Proc~dnre Code. The leatn ed Advocate
has cited the .'~ase of Gupta & Co. v. Kirp'a Ram Brothers (1 l in

si:Jpport
.
<H his .p reliminary
I
ol;ljection and he )1as refen-ed ll'e to
the case of U Sein Slum and
thrr:e others v. Daw Kl'a Butnt
I
and
sev~n others (2} whete the learned Chie[ Justice of this Court
followed this . decision ancl held th.1t such an application for
revision did not lie. On the other hand, the learned. Advocate for.
the.applicant l;Ias refeired me to the case of Ramklzelawan Sahu
v. Btr Surendra 'Sahi (3) to tbe Contrary and this is the decision .
which ivas dissented from by the learned Chief Jusficein U Seitz
Sha;,;s ~ase (2). As th'e question invoived is of ,ge~eral interest
to
~ };lavi: 'P9n~e~ed ~:>V~r the matter and have come .the .conclusi~~
that tlle question deseryes fu-rther corrsideration 0

. ..T!1eJ:e is. g~eat ~eight .of"autltority ip suP.port oHh~ P.C<;>Posi-

tio;:r:tliat ap order d~nding, ini.propet Court-fee; i>t unfavout-3.b'le
tb. the .plai~tiff,, is open::to r evision by ' the High Court under
\..
~ . ., . . . . .
(1) (l93S)'$.i A)!. 17a.t22 (F.B.)."' {2) Civii R~Yision N6.<'1is:of-l949
. of. the High Court,'.Rangoon.
(3) (1937) 16 Pat. 766 at 777.
1951] BURMA LAW REPORTS. 163

section 115 o the Civil Procedure Code. I n Vithal Krri ''ft v. H. C.

1951
Balkrishna ]anart!an a11d others ( ! j it was held that a decision of
a subordinate Court on a question of valuation , determining the l\lA THA:ol
YIN
amount of a Court-fee, is, notwithstanding its declared finality, v.
subject to t:evision by the High Court under section 672 of the TAN KEAT
KHANG (a)
Civil Proce:Jure Code, 1882 (corresponding to section 115 of TAN KElT
the present Code). In R(mi Ku/anda i;:elu Na chiar mzd another v. S EIN.
l11dran Ramaswami Pat11fia Tltalavan (2) it \\as held that where U SAI-l
the lower Court passed an order directing_ the plaintiff to pay lVIAUNG, J.
additional Court-fees on an erroJeous vie,, of th.e Cou1t-fee
payable, and retusecl to ptoceecl with the suit unle.ss such sum
was paid, the High Court will entertain a revision petit.ion to set
aside the order. although an appeal would lie later 'on on the
consequential order that might be pa~sed by the lower Court if the
additior{al stamp duty was not paid. I n this case the learned .
.Judges obseived :
'I t' seems to us that, while Courts wo.uld not generally
interfere in revision where an equally efficacious
remedy is open to the party, they have in several cases
-interfered where the remedy l>y way of appeal would
enhil unnecessary hardships on the party, involve
multipljcity of proceedings or would no.t give the p~rty
.as complete and effi~cio_us a 1;eli~f as interference with
a~ interlocutory qrder and the case satic;ped the
;the requirements of section 115, Civil Procedure Code.
tn ihe present case the plaintiff wiU haye to pay.an
.additional stanl.p dut~ _o f c~er Rs. 1,0_0.~ a_t:~d ,th~n raise
the question in appe.al from the decree which the
Subordinate Judge may pass as to the stamp duty
leviable or r~fu~e to pay the stamp duty ordered
~hich would entail the necessary consequence of
_g-e tting the snit .dismissed .and 'then appeal to til~
High c o nrt. The . appeal will have t9 .be stampe~ --
. with _t.he ful! . st~mp d~y and if thp lower Co~r~ ~as
!
wrong,
i..
they
.
wouJd\. 4ilve to apply for . . a- refqnd .
.and get it later-on. It. may be that the pa'rtv is npt'
~ble to pay the . addltiqnal staJtlp .duty re4ui'fici. in
which case he wiil ha~e to file the appeii ':\Sa: p~upe~.
It. is difficult to ~ee why ~-tile. case is one _o ( d~9li~fng
~o exe.rdse . )~r~sdicfion _an9-. th.e . requ~re,ffi.~nt . ot
164 BURMA LAW REPORTS. [1951
H. C. section 115 are otherwise sati~fied, lhe Hi ~h Court
1951
should dec! indo interfere when by timely interference
MA THAN
YIN
it will save a great deal of unnecessary hardship. We
v. think the mere fact an appeal would lie later on conse-
TAN KEAT
KHANG {a)
quential orders passed by the Subordinate Judge if the
TAN KEI1' stamp is not paid, is no g1.0und for refusin!! to enter-
SEIN. tain the petition lo revise the order demancling an
u SAN erroneous Court-fee and declining to proceed with the
MAUNG, J. :,uit unless the sum erroneously demanded is paid. '
In Slta:lendra11nth Kundu v. Surmdranath Smkrtr (1 l \'I.' here a
similar preliminary objection was rai~ed the learned Ju cl~es
observed:
'A questicn was taised on the side of lhe bpposite party
in the Rule that the case was not one, in wbkh the
revisional jurisdiction of the Court could be allowed to
be invoked in favour of the plaintiff-petitioner in this
Coud. We are not at all impressed with the view
presented before us on behalf of Ihe opposite party-
that, because there was the right of appeal by the
plaintiff in the suit, aftet his plaint has been rejected
on not comph;ing with the Court's order in the matter
of payrnt':nt. of deficit Court-fees, th.e Court should net
interfe1e in revision, if we were convinced thnt the
order directing the payment of additional Courl fees
was not suppor-table under the law and was passed in
the illegal exe1cise of jurisdiction by the Coud be to..,,.
In Lakshnu N a rain Rai v. Dip Naram Rai (2)it was. held that
a r evision against the crder of the Munsif demanding the payment
of an ad val()rem Court-fee on the plaint was maintainable as the
determination of the question whether an additio~al Court-fee
should be paid or no_t marked the termination o'f a definite stage
of the roit and settled the cqntroversy between the p?.rties on the
~patiiCl!hr point an_e th<"lt the order, t~refore, amounted to a.
'~a.fe decided ' within the meaning of section 1 rS of the Civil
Procedure..
Code and .
the order direding.. l
payment of an additional
Court.{ee was really an order decbning to exercise the
jurisdiction of entertaining tHe suit unless t'he payment was made.
Further, on th_e question of there being anotl!er remed open to
the app~ica.t:~t it was doubtful whet\ler In all' the circumstances the
applicant would .llav.~ anofl:l~r. re~egy ~. if hi .paid additional

~1) (193.5) 62 Cal. 417 at 418. {2) 55 AU. 274,

r
 1Y51] BURMA L AvV REPORTS. 165

Court-fee and w:ls successful in his suit and th1; other side did not
H.C.
appeal, the applicant woulrt have no re1~1erly for the excess 1951
payment, although ht; might fail to recover his costs from the
MA THAN
d efendant. This decision of a Bench of the Allahabad High YiN
c'ourt was over-ruled by a F ull Bench of the High Court in v.
TAN K'B.AT
Gupta & Co. v. KirPa Ram Brcthers (l l, the case relied upon by KHANG (a)
TAN KElT
the learned Chief Justice in "L ScitJ Shan's case (2). One of the SEIN.
grounds u!)on which the F ull Hench over-ruled the decision fn the
U SAN
previcus case ,,as tllat the order of a Court as regards p:1yment of
MAUNG, J.
Court-fees was only an interk cutory order \\'hich could not be
revised. The other ground was that the Court below had
jurisdiction to decide the question regarclini,! the payment of
Court-fees and that even an err0neous decisio n of the point of
law would not furn ish a ground for revision.
Howeve~, this High Court has persistently held that an
intedocutory order is in suitable cases open to revi:;ion. See
L. P. R. Chettrar Firm v. R. K . .Bar.1'zerjee \O.R.) (3) where
Otter,}., dissented from the decision o a Full Bench of the
Allahaoad High Court in Buddltu Lal a11d mzother v. Uewa R_am
(4l and held . that the expression ' case which had been
decided' in section 115 of the Civil Procedure Code is wide
enough t'o include an interlocuto1y order and even though
there may be an appeal from the final decree, that conside.ration
will not prevent in a proper case interference in revision.
Therefore the first g(ound upon \~hich the Fulf Bench of the
Allahabad High Court in Gt~j)ta &Co. v. Kirpa Ram Brother~
(1) over-ruled the previous Allahabad case must be r egar ded
as unsustainable. As regards the second ground that an errone-
ous decision on a point of law would not furnish a ~round
for revjsion, there is sufficient a uth01ity. for the proposition
that in suitable cases an erroneous decision o.n a point of
law i.voulcl f~rnish a groi.md for revision. In M olratTfed Chootoo
and . others v. A bdul H amid Kha" and others (S) Page C.J.,
observed:
'In my opinion the Hig ti Court has jurisdiction under
section. 1 15 to revise an interlocutory order passed
by a Subordinate Court from which no app~i lies
to the High Court. But, as I vent~red to p~int
Ul . (1935) 57 All. 17 at 22 (F.B.) . . (3) 9 Ran. 71.
(2) CivJL Rev i$ic-n N o. 38 of 1949 (4). 43 All. 564. .
pf tl)e High Court, ~angoon . 15) (1933) 11 Ran, 36 at 38.
0 .:
166 BURMA LAW R EPORTS . [1.951
H.C. out in Salam Chaud Kanttrram v. Bhagwan Das
1951
Chilhama (l) r in my opinion,. it is only when
MA THAN
YIN
irremediable injury will be doiJe-, and a miscarriage
fl. of justice inevitably will ensue if the Court holds
TAN KEA'l'
KHANS' (a)
its hand, that the Court ought to intervene in
TAN {$:ElT current litigation', and disturb the normal progress
S~If Of a C:tse by revising an interlocutory order that
u SA.N has been passed by a subordinate Court '
MA.UNG, J.
rherefore, the question now resolves into this, is an inter-
locutory order relating to the payment of Court-'fees such
as wquld result in irremediable injury and a miscarriage of
justice if the High Court hold its hand. T he decision in
Ramkhelnwan Sahu v. Bir Surentira Sahi (2) proceeded on the
ground that in deciding the quest~on o{ Court-fee the Co'i1rt
decides an issue not" as bet~veen 'the plaintift and the defendant,
but decides an 'issue as between the plaintiff and' the c 'rown
and that if the decision be adverse to tile plahitiif it amounts
to a decision to , refuse to exercise its jurisdiction to try the
issue and as slicb sobject. to the revisional jurisdictio~ of the
High Court. . It is certainly a matte~ for consideration whether
thi~ view of the quesfion. is really sound. However, what
commends more to my mind is. the alternative view express.e d
in Lakslhn{ Narain Rai v. Dip Narain Rai (3) that it is doubtfu.}
whether rn all circt~Ihstances of the case the applic~nt who
comes before the High Court to have the . qrder .. of the
Shbbrdinafe CciUI;t" t'egardin~ otirt-ees .revised \y~uld .have.
another re medy . . H he paid th.e additional Court-fee and:
was Sticcessful in his suit and the otht>r side did not appe'al.
be would have no remedy for the . excess payment, although,
he might' fail to recovet his costs fiom the other sid.e. Take
the present case as a spe~ific in:;tance arid assume that the:
. cO'urt-feb( dein~nded from Ma Than Yin is reilly not payabJe..
If. Ma i' han Yiri; fails tb tiay :the necesS'ary Court~fee:s upOll'
her \~ritten statement, .her defence relating' to ~be claim fo't
adjustmen.t : of. the sum of Rs. 14,1-tS-3-6 wouid . be st mck
otf, -in.w'hich case she could Iaterc apoeal or agitate t~is quesi ion
: i th~ .suit i~ decreed against her.. Ho~vever, if. she pays the
.Court-f~e:? . and subsequently wios her case in the 'lo,;verc ourt,
'she wo:Jld- ''have . no remedy whatsoever in 'r~gar<l to. the
-"~~ru.s3 ~.-767. a~:;7,7s.': . . ....
. (3) 55 All'. 274:
.
<2J.h93;; l;.;a~ -i6~~t! 111..
 1951] BURMA LAW REPORTS. 16-7

Court-fees paid by her if the other side did not appeal and H.C.
1951
is also not in a position to pay her costs. For these reasons
I con~icler that t"t.e followi11g question of hw shr uld be MA TH AN
YIN
referred for decision of a Bench of two Judges or of a Full v.
TAN KEAT
Bench as my Lord the Chief Justice may direct:- KHANC; (a )
Is an order demanding improper Court-fee from a defen- TAN KElT
SEI:-1.
dant on the ground that the claim for adjustment made
in the written statement is tantamount to a claim uS AN
MAUNG, J.
for set off, open to revision by the High Court under
section 115 of the Civil Procedure Code?
The reference is made accordingly as provided for in
Rule 25 . of the Appellate Side Rules of Procedure (Civil) as
published in the High :ourt (General) Notification No. 4,
dated the 27th May, 1949."

P. N. Ghosh for the appellant.

T. Wan Hock for the respondent.

The )udgrhent was delivered by

U TuN Bvu, C:f.-The plaintiff-respondent Tan

Keat Khang alias Tan Keit Sein, claims to recover
a sum of Rs_. 13,500 with reasonable interest thereon}
from the date of the suif up to the date of paymeiif,
from the defendanf-re spondent Ma Than Yin ah~
s_even other. pe'rsons who are s~iq tq be _fhe' hei~~
and leg~l . represehtatives . of . one tan Shu Yo_n
wh,o died in December, 1946.. Tan Shu Yon was
pl~ced in charge of two hoti~es in: Pyap.O'n, whici~
wbr.e said to belong to the plaintiff~respondent ; and
h.e wa:s said to ha_v e ..collected rents . from th~ !\,~0
houses;. and afte.r. allowing 'for..the taxes paid anti
~h~ .cost: of th~ repairs incurre4 .in, r~specl or' \h~ie
tw0 ho'uS!='S, a sum of Rs. . 13.500 ' was sai"d .to be
l~ft remaining wit_h Tan Shu. Yo~- as balance pf the
rents c.oUected by him. Ma Than:Yin .a nd five. other
defendanfs.filed a common \v"ritt~ - .~. staterrie~t
. . whe'reiri
.: .
.
168 BURMA LAW REPORTS. [1951

H.C. they alleged inter alia that one of the houses, which
J')$1
was krwwn as Ah Choon shop, \I.'as burnt down
MA T~IAN
YIN in 1935, that Tan Shu Y0n rebuilt a new house
v. on the same site at a cost of Rs. 14,148-3-6 and
TAN KF.AT
lOrANG (a) that the rents received from the two house~ had
TAN KElT
SEIN. been used . partly in paying ta:xes and partly in
U TUN 13YU, repayment of the sum of Rs. 14, 1+8-3-6, w.hich Tan
C.J. Shu Yon spent in rebuilding the new house.
These defendants accordingly denied that any rna.ney
was due to the plaintiff-r~spondent by the est(!.te
<?f the deceased Tan Shu Yon. Certain preliminary
issues were framed, one of which was :

"9. Whether the sum of Rs. 14,148-3-6 mentioned' in

paragraphs 9 and 10 of the written statement amounts to a
set-off aqd tequires Court-fees ? "

The learned District Judge, Pyapon, after hearing

the arguments of the Advocates for both sides, held,
so far as this issue is conce.rned, that Col,lrt-fee was
payable. .
Ma Than Yin, the defendant-applicant, next filed
an appliCation in revision in .t he $igh Court to set
aside . the decision . of the learned Distrist I udge,,.
ordering payment of the Court-fee in respect of the
sum of Rs. 14, 1.48-3.6. The learne4 Judge before
whom the revision case came for hearing 1eferred
the fo11c;Hving question for decision :-
" Is an . order demanding improper Court-fee from a
defendant on lhe ground that the claim foi:' aJjustment made
in the written statement is tantamount to a claim fqr set-off,
~peit to revision by the High Co_utt under section 115 of
Civil"
.,
Pr<:edure
.
Code?"
' .

It . ba~. nof b~en : sugg.esfed .be'f~re ~s ' that the

lear,rfe.d District Judge, in deciding the question as
to v~hether Court-fee was pa-yable or not ir1 resp~ct of
 1951] BURMA LAW REPORTS .

the sum of Rs. 14, t 483-6, had acted perversely; H.C.

1951
and as the question about the payment of Court-fee,
which the learned D istrict judge decided, was a M A YIN THAN

question which he had jurisdiction to decide, 'vve TAN v.KEAT

are of opinion that the words '' Is an orcin demand- KHANG (n)
TAN KElT
ing improper Court-fee " in the first line of the .SI!IN.
question propounded for reference should be amended U TUN BYU,
so <1.s to read as " Is an order demanding Courl-fee C.J.
erroneously", and we propose to consider the question
propounded in the sens~ as amended by us.
The answer to the question under reference will
depend on what is the true meaning of se.ction
115 of the Code of Civil Procedure. Tbere have
been numerous decisions .in the different High Courts
in India relating to the scope and meaning to be
placed upon the provisions of section 115 the Code of
of Civil Procedure, but unfortunately those decisions
are not uniform. The relevant portion of section
115 of . the Code of Civil Procedure reads:

. " 115. The High Coud may call for the record of any
Clse . whi~h has been decided by any Court subordinate to
the High Court and in which no appeal lies thereto, and
if such subordinate Court appears-:-
(a) to have exercised a jurisdiction not vested in it by.
. law, or .
(b) to ha:ve failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise 'of its jurisdiction
illegally or with material irregularity,

* * * II

. It will be observed that the wording of se~tion 11.5

indicates clearly tha;t the power of revision -ynder.
section 115 is somewhat' restricted, and that it can
properly be .exe~Cise.d only in cases i.n wh'icli no
.appeal lies to the High Court, and only when they
. c~.n be pro~gh t \vithil1 the a,mb_i~ of one .of tl~e . thr~e
f70 B U R IV1A LAW REPORTS. [1951
H.C. clauses set out above. It will accordingly be necessary
1951
to enquire as to what is the exact scope of Claus.es (a),
!VIA THAN
YIN (b) and (c) of section 115 of th-e' Code of Civil
'II.
TAN KEAT
Procedure, and it appears to us that the best mode of
KHANG(a)
TAN KElT
approaching this matter will be to first consider what
SEIN. the Privy Council has said about them.
U TUN BYU, Sir B. Peacock, in dtlivering the judgment of their
c.J. Lordships of the Privy Council in Amir Hassan khan
v. Slzeo .'Baksh Singh ( t ), observed :

" The question then is, did the judges of the lo\ver Courts
in thjs case, in the exercise of their jurisdiction, act illegally
or with materbl irregularity.
It appears that they had _perfect. juris:Hction to decide
the question which was before them; and they did decide it.
Wh;:tber they decided it rightly or wrongly, they bad jurisdiction.
to decide. the case ; and even if they. decided wrongly they
did not' exercise thei.r jurisdiction illegally or with material- .
irregularity.''

In Balakrishna Udayar v. Vasudeva Aijar (2) Lord

Atkinson. in delivering the . judgment of their
L<?rdships of the Privy Coun,cil, also observed as
follows:

-" As to ti~e preliminary objec.tion, ~ection 1.15 of the Civil

P~ocedut::e Code enables .the High Court, in a case iri which
no !lppeal lies; to call for the 1eco:d . of any case 'if the
Court by wqicb. the case was decided appear.s to have acted
i'n the exercise of a jurisdiction noi: vest~d in' it by law,
or to have failed to have exercised a jurisd~ction vested , in it ."
or to have exercised its jurisdiction illegally qr with material
it-regufarify-; and fui.-ltlier enables' it to pilss such ah order i~1
. the ~ase: is the . Cbu.r t: m1y thi~k fit.
. .. It wm pe obsetved that the)' section applies :tQ judsdkti9n
alone, toe !rr.egular exercise or :non-exetcise of 'it, orthe. illegal
....:.: . . . . : .. . . . ' ..
. . . .. . .
: .\. \ ~- . ": ;, :. . . .... . . . .
{11 {1885) 11 Cal. Series, 6 at. 8 ; 11 I.A. p. 276.
m. (19t7l
. . 1X at
. 26i... i67;
 1951] l3URMA LA\V REPORTS. 171
..
assnmption of it. The section is not directed against conclu5ions H.C.
oi Jaw or fact in iVhiciJ the question of jurisdiction is not 1951
i nvolvecl. '.' MA THAN
Yrx
It thus becomes clear that section 115 of the Civil v.
TAN KeAT
Procedure does not apply. to any wrong eon elusion, KHANG Ia)
TAN KElT
wheth~r in law or on fact, \vhere the question of SEIN.

jurisdiction is not abo imolved. Jn other words, U TUN BYU,

where a Court h~d jurisdiction to decide a question C.J.
which came before it and did decide it, it could
not be said that the Court was acting without jurisdic-
tion or th,at it was acting iHegally or with material
irregular.ity in the exercise of its jurisdiction merely
because its decision was wrong on a point of law or cin
fact.
The headnote in U Ba Thwin v. Maung Ba Shein (1)
which came . before a Special Bench of three judges,
reads:
"Under: rules . inacle pursuant tq the provisions of" the
Burma Rtll\al Self-Government Act (IV of 1921) the District
Juclg~ passed orders rel:tting to the validity of the ~lectiolil
of certain. persons as members of the District Coun.cil of .
Myingy~n.. The District Judge had jurisdiction to pass them
and under Rule 39 they were final.
. Held: Dismissing the applic:ttion, that, a5suming the District
Judge ~vas acting as a Cour-t subordinate to the Higl1 Court
\~ithin seCtion 115 of tl:ie Civil Procedure Code; th~ orders
. wen/open ~o revision only if the District Judge- was acting
without jurisdiction. "

Dli.pklt:iy . f;, aJso. observed . in K.N.S.P:K.N:K. Firm

v. tJ B4 Ch1t (2} as follow:s:
. ..
. ,, W.P.er~a Courfhas juri~dic;tion. to determi~e -a, questio~;
it.cannot be' said that it has acted in .th~ exerciset 0 it~ juris'tlib~
'tion illegally Or with mat~rial it;r~it~ladty b~cause it h~s come.: to
an ~rroneous deciision, whetlier that decisipn . be on a f!ilesticn of
fac:t or e:,en o~ a pQin.t .of l~w.t'
i72 BURMA LA\V REPORTS. [ 1951
H.C.
1951 Dunklt:y J., we might add, expressed the same optmon
t\h TH-'N in t\.vo earlier c2.ses of M au11g Ba Han v. S. M.A.R.M.
YIN Firrn (1} and S.C. Das v. A. B. Datta t2), \vherc the
V-
TAN KEAT decision of the Privy Cou ncil in the case of Atnir
KHA~G ;a)
TAN liEIT Hassan Khan v. Sheo Baksh Singh {3) was also referred
SEIN.
to. It will thus be observed that the decisions of the
U TUN BYU, High Court of Rangoon, which !nve been referred to
C.}.
above, are also to the same effect as the decisions of
of the Privy Council.
The observation of Jenkin C.J., in Shew Prasad
Bunghshidhur v. Ram Chunder Haribux (4) is to the
sam~; effect-

" But how can it be fai;:ly s:1id that the Court . failed to
exercise a jurisdiction vested in it by law ? It dealt with the
matter ; it was prepared to exercise its jurisdiction, but the
learned Judge considered as a matter of law that there Kas no
relationship o~ landlord and tenant. The Court \Yas entitled
to come to that conclusion even if it was erroneous, and
if h did come to that conclusion it cannot be s~id that
the. Court has failed to exei;cise a jurisdiction vested in it
by law. . . .
In so far ~s it is st1~gested that the Ccurt acted in the
exercise of its jurisdiction \./ith material irr'eguJarity, I confess
I am 'unable'to follow the argument:.
It was suggested hefore us in the course of argument that
the Court acled in the exercise of its jurisdicti~n ille~ally in so
far as it came to an erroneous conclusion of Jaw. Tha t, ho-...'\lever,
is a contention which is not made in the application. But ~ven
if it had bee n made it could not have succeede~ and I am unable
to s-te any kind of ground on which it can be said that Mr. Dobbin
acted in the exercis'e of his Jurisdiction illegaily 01' with materiai-
irregularity within the me:ming of section 1 15. It appe~rs to me
Jhat section 115 can only be called in aid when the failure of
:
'j ustice
0
(jf any)
.
has. been clue t o one ~r oth~r of the faults
.
of
l?roc~dui:e in~icated in that section. If. there was an error

(1} (1934-r A.i .R. Ran.'P.. 230.

(2) !1934)- A.I.R. Ran. p. 233.
(3 ) (18~5) 11 Cal. Series, p. 6 at 8 ; 11 I. A. p. 276,
[<I) ( t914) <1;1 C?-1. p. 3i3 at 337-338.
1951] BURMA LA\\. REPORTS. 173

c ~:1mittecl by 1\Ir ' Dobhi !~, it

was ' ll error of 1.:1 ,,. nnd not of H.(;.
1951
procedure . and in my orinion l\lr. Jnstice Fletcher !':ad no pouer
to . terfere." M.\ THAN
Y1:-;
t .
TAN KF.AT
In lJevidas Maroli Bokt> v. Nilkll'IJ./hrao Naraya11Yao KIM =' G ta l
TAN KE11'
J)(shmukh (1) it was also stated as follo\<YS : SF.IN.

U TUN BYU,
" So there can be: nc question that the Court had jurisdic- <.:.].
tion to decide, as it did, and the only question is whether it acted
illt-gally , or with material isTegulc.rity, within the meanin~ of
set:tion 115 (c), Civil Procedure Cede. Here also I am clear, the
matter is circ umscribed !Jy the decision of their Lordships of the
Privy Council in Balakrishna Uda'jar v. Vasude~a Aiar (2).
E\en Cla11se lc) c.~nnot be invc ked v.:hen the question of jurisdic-
tion is not in1"olved ; or at least a question of procedure, as
expl.lineJ by Sir Lawrence Jenkins in Sltew Prasad Bunghsllidlmr
, .. Ram Chu1tdcr H aribttx (3 J at page 338 ; for example, proceeding
in the absfnce of a necessary p:<rty to a ~ui t : 54 Cal. 338 at-344.
It must be something independent of the decision itself ; an
irregularity or illegality in the manner of arrivin~ at it, not in the
conclusion reached."

The observation made 1n Kesh1lal v. Laxmanrao (4)-

also reads :

" Even if the decision of the lower app~llate Cout't were

erroneous thJt would not be. sufficient to enable me to interfere
with the decision in revision, see Dcvidas v. Nil)at~tbrao (l).
Their Lordships of the Calcutta High Court in Kah Charatr
Sirtiar v. Sarat C!zu11der Clwwdhury, ( 1903). I. L.R. 30 Cal. 397l~id
down tl)~t t.he High Court cannot interfere (in revis~qnf merely
becau.s e the lower CQnrt .h as taken jn the exercise of its. jq;isdit-
ti<;>n a mista1~~1l view. as to ,~b~t d~es or does not. co~titvt~
misconduct. The scc.pe of revision under section l J5 'is very
limited and.nothing ba~' been argUed before me whih wilf bnng,
the case 'for interference within that limited scope."

111 (193~l.A.I.R .. ~ag. p..tt:7.at1S9.

t2h(l9.L7) I.A.p. 26t. at267.
(3) (19l;4). 41 Cjii,. p. 3~3 at 33.733?:
(4).1.L.R. (19~0Hiag. p. 6~9-at 668.
174 BURMA. LAW REPORTS. {1951
H.C.
, 1951
vVe respectfully r.gree tbat the scope. of section 115 of
the Code of Civil Procedure is narrow and restricted.
MA THAN
YIN The later portion of the headnote in Badri Nath v.
v. Ram .Chandra (1) also reads :
)'A:<~ KEAT
KHA% (a)
:TiNKEIT
.SR!N.
" No revision lies against an order refusing permission to
an official receiver of the Estate of an insolvent to ~:ue in f orma
<U TUN BYU. pauperis for when a Court has jurisdiction to decide a question
C.J.
and decides it whether rightly or w:on~ly, there c:m he no
revision. under section 115, Civil Procedure Code, as even if the
Court decides the question wrongly it does nat exe1:cise its
jurisdiction illegally or with material irregularity.~'

It Wilt be observed from the cases referred to above

that an error, whether on law or fact, to fall properly
within
,
~\
the. ambit
.
of section 115 of. the Code of Civil
Pro'cedure must be such an error as wiH fall strictly
within one Qtthe three clauses of t~at section. A Cour;t
. cannot, 'in _deciding, a question. of law or fad wrongly,
be properly said. to have refused to exercise its
jurisdiction in a question which ca;me b~fore it, where
the question was one oyer which it_clearly had jurisdic-
'tion to' decide one w~y or th~ other. Conflicting .
decisions have arisen in connection with the provisions ..
of section 1i 5 of the Code of Civil Procedure, if we
may be permi'tted with respect to say so, because
Judg_es have unconsciously allowed. th.ems~lves to be
.iq.fluenced or pe.rsuaqed in their con~ideration of the
.cases that come before them by the question of hard~
ship,_inconvenience, trouble or expense in com.idering .
whether a particular case or decision fans within the .
_pu.rvtew of ~~cti?n 11~ of the Code of Civil Procedure,
Of. nof. We must be careful not to allow Ourselve.S tO .
be. irifl~ence.d. by any of those extraneous considera-
tibt:lS i1l a ttempting to.asc.e rtain wha.Lis . the tr.u e scope
-~nd meaning of section .1.15, because ~o 4._ o :ot herwise
(1) I.L.R. (1939\ -14 Luck. Series; p. 442.
. ..
1951] t~U R MA LAW REPORTS. 175
would, likely, lead us to con fusion or uncertainty and H.C.
1951
in that way to induce us to give a much wider
!\fA THAS
constr.uction to section 115 than it really states. If VI~

the meaning o( sediou 115 is lo be strai ned beyond TAN "KEAT

what it ordinarily and strictly convey~, \Ye cannot KHA.I\G TAN K EJT
(al

possibly expect to have any semblance of uniformity SEIN .

of decisions in rerpect of the provisions .of section 115, U T UN Bvu,

C.] .
even among Judges of the same H igh Court.
We of co urse appreciate the inconvenience whi ch
the order of t he learned District Jl'dge might cause to
Ma Than Yin, but we c1re unable to allow the circum-
stance of houbl e, hardship, inconvenience or expense
to influence us in attempting to express our views as to
the tru.e construction of section 11:l of the Civil
Proced ure Code. Nor can we allow the consideration
that the q~estion involved is intricate or difficult to
influence u s in considering as to what is the proper
scope and .me aning of section 115 of the Code of Civil
:Procedure. It appears to us to be quite clear that
section 115 concerns with jurisdiction a nd that it
cannot properly be. read divorced from that considera-
tion. T he. fact that the learned District Judge had
not fq.lly appreciated t~e difficult or intricatelaw which
he was asked to d ecide would. still, in our opinion,
am'o unt 0nly to an erro.r of law as th~ questipp was one
which was within the jurisdiction of the learnyd Judg~
to decide, and which he did decide. We are unable
to se e how it' ~ould pr~perly be said that, beqmse the
1earrye<;l pistrict Judge decided a d!~cl:llt or intrica_te
.poirit ol law erron.eously, he liad failed to ex.er~i~e
jurisd.i<;:tion: on a question which he . had: in . fact
decided after he had he.ard both _parties.. It ;is not.
alleged ~~for~ . us ~ha.t the le~rned Distdct Judg~ h~d
acted.. pefve~sely in deciding th~ questiqp. whether
t ., ' ' I

Cy,~(~~fe~ . w~.~. pay~J:>.l.e .. t(l .~_e.d. . .Qf J..h.e ..:w:t;itten

statement .
.. . or no,t. .
;

176 BURMA LAW REPORTS. [i951

H-. C. The observation of Sulaiman C.J.~ in the Full Bench

1951
case of Gupta & Co. v. Kirpa Ram Brothers ( 1)
MA THAN
YIN
appears i.o be appropriate, and it reads :
'II.
TAN KP.AT
KIIA:NG (al
"* * 0
the Court below bas decided the question of the
TAN KElT amount of tbe Court-fees that is payable at a slightly earlier
SEx Sr.
sttge, _but it is nevertheless a decision on one of the points 'that
U T UN" BYU, may well be in controversy. The Court had jurisdiction to
C.J. decide this point and if it has taken an erroneous view of thtt la\V
il has committed no irregularity. I do not think that it can he
said that the Court below, !Javing decided this point, is nc w
refusin~ t.o exercise jurisdiction to entertain the suit." .

Mukerj i J., in the same case also observed

'' * * *' A. Cvwt hearing a suit has jmisdiction'to decide

whether the Court-fee paid is sufficient or not. It may ~ecicle
rightly or it may decide wrongly. In either case, the decisiqn
is within the competence of the Court, and in t his view it cannot
be $aid that in deciding tJ,at the Court-fee paid was instifficient
the Court exercised a jurisdict ion not vested in it by law. T he-
.High Court, in revision, does not correct a mere error of law."

it 'seems to us to b e clear from the c ecisions .that

liave been refcrred to above that a deCision on a
question of Court-fee , where no question of jurisd iCtion
is really involved , does not fall within t he pu rview of
section 115 of the Code of Civil P rocedure. We
realise tliat there are dec{sions to the effect that the
superior 'Court will interfer e in revision cases where . in
the subordinate Court purports to give itself jurisdic-.
tiop .or ref~ses to exercise jurisdiction under an
erro~eous construction of l'aw, b ut w~ do not think
.that those 'de<,:i~ions afford any h elp in con sid.e ring, tlie
questiari u n&k J;eference:. becau~e i'ri t11.e ca?e n ow
under. cons1~erat.io n the karried n1:~trlct Judge had
from . ~he dti~~t j'uri'sdiction tq 9~2ide the . que&~ion. of

(1 ) (l935) 57 All.? 17 at 22 (F.B.).

 :1951] BURMA LAW REPORTS. 177

Court-fees, \Yhich' wa::3 placed bef::>re l1im, and he was H.C.

1951
'bound in law to aecide that question when it was
MA THA:-1
:raised before him. Y IN
In Mani L al v. Durga Prasad (1 ) it was observed: v.
TAN KEA't'
KHANG (n}
'' * ~
an improper order demanding llnjustifiable TAN KElT

-
x- .,._
SEIN.
Coml-fee amounts to telling the plaintiff that the Court will not.
;proceed with the trial of the suit on merits although the plaintiff U TUN BYU,
has, in fact, paid the Court-fee. This \Yill be a refusal to exercise C.J.
ju.risdiction which upon ti1e sufficiently stqmped plaint the Court
was bound to exercise. * * * * * T o d eny t he power of
'revision in the Court in such cases would be to allow the
subordinate Courts to pass \\~himsical orders and thereby refuse to
rtry t he suit oncl exercise jurisdiction and there might be no
remedy av:1i!able to the plaintiff as was pointed out by their
Lordship<; of the Judicial Committee in the case of Ealakrishtta
;udtiyar v. Vasudeva ,1yar (2), though a case of different nature."

\Vith respect, we agree that if the order is really

whimsical, which in.effect is perverse, it might in very
clear cas~s be implied that the G~mrt had refused to
exercise jurisdiction in the matter b-e fore it. It is
difficult~ ,-howev.er, to appreciate how . a . Court, in
deciding a question of Court-fee, which is raised before
it and. which
. . it has
.
i urisdiction
'
to decide,. and
..,. . . ~ . where
.
thy- order pass ed _by it cannot be said . to be clearl'y
whimsical or perverse, could' striGtly b.e s~i~, :eve.n
irnpliediy, to h(;l.ve r(!fused to exercise jurisdiction on_
.t he . question decided by it, altho~gh wrongly..;- The_
case ofMani .Lal- v. Durg:~ Prasad ~'1') was foHowe,P
in a subsequent case of Mahant Rci--hi'1Jhusan.'Dass v.
~'B{lck.u. Rai {3l where it.was observed :
.. . .. . .. ~ : . ! .

.. "'It hisbeen suggestecl'from "time . ~o time that tlie P.roper

<eourse .for the. pJaintiff:as to a dec~sion of this_char-aQter agajnst_
'h~m is to S\ibm~Ho I:t!iving his suit 9is~i-ssed: on,:J;!l_is:gr?l)nd :and
. . . . e~ercising
'thet:t .. . . .. his right
.
of appeal . '..
..... - -
. . . .. \, -~ . .' . . ,- . (

pi (19,24) 3:.Pat.'p. ~30 at:9.fO,

.czi ct9t7.). 1;A. .~ .26l~at zpz. . .
(:'!) U935nr.Pat. o...zzo;it 222-223.:
12
178 BURMA LAW REPORTS. [1951
There being that temedy by way o\' appeal the Court
should not exercise it in revision. To aplfly that reasoning in~
MA THAN any hard and fast manner seems to me to be taking a very-
YIN
'V ;
nonow and pedantic view of the law and to accede to it would.
TAN KEAT be to nllow a triumph of fol'ln over substance.''
KHANG ia)
TAN KElT
SEtN . With respect, we feei' that it is difficult to conceive
"'!""'P.'
U T!:N Bvu, how a Judge could . be said to adopt a narrow of'
CJ. pedaMic view of the , law in attempting to follow
strictly w~at it meal)s and where he did not attempt to
give t(>' section 115 of the Code of Civil Procedure a
construction wider than what it really conveys, because
to do more would be, in effect, to legislate -and not to-
administer the law as it exists. If any real })ardships.
or in.convenience is caused by adopting a construction
which the wording of a statute conveys that obviously
is a matter for the legislature to correct, and not for the
Court to interpose. .
It was observed in the Full Bench case of
Ramkhelawan Sahu v. Bjr Sitrendra Sahi {l) :
''The Court is givell' power to levy taxes. upon certain.
classes of cases only which are specified in the Act ~nd upon
each class at the r;lte specified in the Act. If the decision of
the first Court is to be treat~d as final in any particn1ar case, it
might possibly happen that all the M'unsifs might adopt a uniform
but entirely erroneous view of the taxation auth.o i'ised by the
Act and the maHer could never be remedied by the superior
Court, because bn the principle: that the first C~:>urt had the
pr~vilege of deciding rightly or wrongly the ma~ter; the matter
c<;IUld ne'?er...be raised in any case."

We do not think, with respect, such cbnsideraliori

shou,d be allowed to influence US in attempting t()
decide the question which is raised in this r.et'erenc.e
a$ we are' likely 'thereby to .give to tne pr~visioris: of:.
.section 115. of the Code.:. of
Civil Prqc;ecJure a wi<let
_w
c~ilstruction than what it. r~ally is. . <: . are .a lso :
Ui (1937) 16-Pat. p. 766 at 777.
1951] BURMA LAW REPORTS. 179

.
u nable to see how, when a Court decides as to which
category a case fall~ for the purpose oL.Court-fees, it
H.C.
1951
M A THAN
must be assumed that it had refus ed to exercise: its YIN
jurisdi ction if the question which it decided was TAN v.KEAT
erroneous, although it was a question which the Court KHANG (al
TAN'KEIT
had jurisdiction to decide and which it did decide SEIN.

when it was raised before it. Th e case of Rani u TUN BYU.

Kulandaivelu N achiar ond another v. Ind1'an C.J.
Ramaswmni Pandia Thalavan {1) is on the same
line as the Patna cases, where it was also observed :
" If seems to us that, while Courts would not generally
interfere in revision where an equally efficacious remedy is open
to the p'\rty, they have in several cases interfered where lhe
remedy by way of appeal would entail unnecessary hardships oo
the party, involve multiplicity of proceedings or wo~;~ld not give
the party as complete and efficacious a relief as interference with
an interlocutory order, atzd the case satisfied the requirements of
section 115, Civil Procedure Code. * * "' it is
difficult to see why if the case is oneof declining to e~ercise
jurisdiction and the requirements of section 1-15 are olherwise'
satisfied, the H igh Court should decline to interfere when by
timely interference it w'ill save a gn~at deal of unnecessary
hardship." .

W e have: italicised the word "afid/' and if will be

observed that the Madras High Coutt also full'y
appreciated that the r equirements of sc:ctibn l'i5 nl'ust
be fully complied with before a revi'simi lies: against
decision on a question o! Court-fee~, which had been
decided by a subordinate Gourt...- The M-adras case
was referred to in Ramkhelawan''Saitu v. Bir Sii rtndr'a:
Sahi (2). In Shailendrntitk Kundu v. Surl!'ttdtamik.
Sarkar ( 3 ), it .was also observed :
II We a re not af all im~ressed with Uie view presented
~1ore ulr on b~alf of the opposite party-that, because there
. .- ..... .... ~ ..... ! . .,

Ut (19281 Sl Mad. 664 at 669-670.

iii (1937) 16 Pat.Series, p. 766 at 7'/7.
at
{f 11~.5) 62!eat p. 41~,. ~r&: '
180. BURMA LAW . ~.EPORTS. [1951
H. C. ~as ~pe right of appfal by th;e plaintiff in tM. suit, after his plaint
1951
has been rejected on not complying with th~ Court's order in the
MA. THAi: matte~ of payment of deficit court-fee~,. _this court sho~ld not-
Y~N .
v. inferfere in revision: if we were convinced that the order direc-
TAN KEAT ting the t:ayment of additional Court-fees was not supportable
KHAN~ {a.}
TAN ~ElT
under, the law il.na was passed in the ille_g al exercise of jurisdiction
SEIN. by. -the Qourt below.''
u TUN .BY.U,
C.J:
The wP rd '-' and ...' has been italiCised by 'tis. It is
thus:.also clear that the Calcutta High Court also fully
appreciated that for an order directing payment of
Court-fee~ to be subject to revisi9n it must also. be an
ord~r wh_ i ch was passed in the illegal exercise of
jurisdiction by the Court making that order and that-
the mere fact that the order was not in accordance
with law will J?.Ot be sufficient for t}?.e purpose of
sectiofl. 115 of the Code of Civil Procedure. If an
order wrongly demanding. Court-fee or additional
Court~fees can be co.nstrued to mean that the Court
was refusing to exercise its jurisdiction .unless the
Court-fees were paid, it is difficult to understand how,
when a Court wron.gly decided to accept 'il).adequate
Court-fees, it could not also be argued that in the
latter circumstance the Court was wrongly exercising
jmisdict'ion in that . no Court ought' to a-ccept any
applicatj..o p of pl~int filed befor.e it uhless the proper
Court7fee has been paid, .and .yet in the latter category :
of.cas~s
:_ ,... . it ,hasl.-J:>een
.. held : .in certain cases that' no .
rey~sion lie~.:- It will beappropriate here to reproduce
tti~Rbs~r.va~~9n 9f-?dpokerjeeA\C.J.,:'jn Hariday Natk.
Roj!.v.1:l?Ptft Cb.a1:1d ']~. B(lrna 'S~r_ma, (f) ::
 195.1] BURMA LAW REPORTS. 18i

involves the power to acl at all, while the latter involves the H.C.
1951
authority to act in u{e particular way in which the Court does act.
The boundary between an error of judgment and tbe usurpat.ion MA TH).N
YIN
of power is this : the former is reversible by an Appellate Court v.
within ~ertain fixed time and is therefore onJy voidable, the latter TAN KEAT
KH~NG (a)
is an absolute nullity . . Whim parties are before the Court and TAN KElT
present to it a controversy which tbe Court has authority to SEIN .

decide, a decision not necessarily correct but apprcpriate to that U TuN B YU,
.question is an exercise of judicial power or jurisdiction. So far C.].
as the jurisdiction itself is concerned, it is wholly i~material
whether the decision upon the particular question be correc.t or
incorrect. Were it held that a Court had jurisdiction to render
only correct decision, then each time it made an erroneous ruling
or .decision, the Court would' be without jurisdiction and the
ruling itself void, Such is not. the Ja\.v, and it matters not what
may be the particular question presented . for adjudication,
whether it relates to t.he jurisdiction ()f the Court itself or affects
substantive rights of the ,parties litigating, it cannot be h~ld that
the ruling or decision itself is without jurisclict'iqn . or i~ beyond
the jurisdiction of the Court. The decision may tie erroneous,
but it cannot be held to be void f~r want of jurisdiction. A
C.ourt may. hav~ the right and power to determine' the statuS' of a
thing and yet may exercise- i'ts authority erroneously. ; after
jurisdiction attaches in any case, all that follows. is exercise of
jurisdiction, and the continuance q jurisdiction is not dependent
upon the corre<;:tness of the determination."

More~ver, where a .party can appeal from a .deere~

passed against him after an in.t~rlocu.tory order was
passed, and if it can also . raise the point about the
payment of the Court-fee in the m~m'onindum of appeal,
can it be properly said . that the party aggri~ved is .
without remedy. The answer must, in ouropinion, be
in the negativ~.' We cannot . also properly ailow
ourselves ' to . be . influnced by any. consideratiop of
trouble, hardship, inconvenience or expense; which
t~t?.: order might -cause.,.. and that is a matter whiCh a
lit~gatit has often to meet with during the cour?e. Qf ..
l(tigation. Tf appearsto.be obvious that if the question
as to whether a ~~urt-Iee is payable or not .. c~n be
,182 BURl\~A LAW ~Ef.ORTS. [1951
H.C. reagitated in an appeal from a decree, which was passed
1951
subsequently, it cannot strictly be said to be a case
where the party aggrieved was left \~ithout any remedy
MA THAN
. YIN

"
TAN KEAT
to redress the ~njustice done to him. The contention
l<.HAXG {1.1) that a wrong order ca.n lea<;!. to much waste of time,
TAN KElT
SE~N money or labour does t:J.O.t, .in our opinion, really help us
U TUN BYU, in construing what is strictly a question of law, as to the
C.J. real scope and meaning of section 115 of the Code of
Civil Procedure: Vve are accordingly of opinion that
the mere fact -t!JaJ a subordinate Court decides a
question of law or fa,c,t, o,r bqJh, wrongly, unless it also
il)vo.lves a quest~on of ,jurisdiction,' will .riot bring the
Gase wit.bin the ambit .of section 115 of the -.Code of
Ci v:il Pr.oced-t!t-re.
'It is troe -th~t>' it 'has been repeatedly held, so far as
the Courts inBu.n:na are concerned, that the High <2ourt
has powyr ~o e.o tertain in revision in interlocutory
orq.e.rs, subjpct to certain res,t rid.i ons; and Page C.J., in
Moht;.med Chootoo anti .others 'ftl. A.bdul Hamid Khan
and others.(!) stated:

" In my optmon the Il'igh CoLll't has jurisdiction under

section 115 to revise an interlocutory order passed by a
Subqrclinate Court from which no appeal lies to t]}e High Cour.t.
But, as I ventured to point out in Salam Chand Ka.nnyram v.
Bliaguan Das Chilhuma, (J.IJ26J J.L;R. 53 -Cal. 767 at 775' in my
opinion, it is only when JN'etnediab.fe injury will be done, and a
niis.car-riage of justice inevitably wiJI en-s.ue if the Court holds it~
hand, that t~e Cowt ouglit to intervene in. current litigation, and
disturb the normll progress of a case by revising an interlocutory
order t~ has been' passed by a suiordinate Co~;t. ' .
~ in my-opinion the Court- ought not to gra~t the applicatiorl .
now ~undet considera~ioo. Non constant that when the .ca~;e' _i~ ,
he;wd. by -tl;te P.istrict Court .tb.e plaintiff wiU ;succee(l; On the
other h,arid, iJ th.e pta-inti'ff's .st;tit .i~ di!\,mi~seu.the ora~r rejecting
~h.e N~plj~~~io_n Jo.i : ~ro~:nc~ln'l.~nt ~9~. u,.nc\e! c~nsider~tion ..c;an p~
challenged
. .. .. .Irom
. . . .. in' ~o. _appeal . . .deer~ e... Y ..
. . the
~
. . ... :
.. !ll _(,193,3)) 1. R~. Po.~~. at ~~
 1951] BURMA LAW REPORTS. 1'83

The word " irremediable " has been italicised by H.C.

1951
u s, and we do noJ. think we ought to go beyond what is
MA TH:A.N
stated in the above observation. The decision about YIN

the payment of Court-fee in . the case now under "

TAN KEAT
KHANG (a)
-reference is however a matter which can be raised TA'I *EAT
.in appeal after the decree is passed. There is also SEIN.

:nothing on the record to suggest that Ma Than Yin U Bo G1,].

cannot affor.d to appeal, or that the estate of Tan Shu YOr!
is not solvent. Moreo:ver, each ~:Se should be
-considered in its own ci-r cumstances. :"P.he answer to
the question propounded -for reference, in .the sense as
.amended by us .will therefore be in the negative.
. .

U ON .PE, J~-I ha.ve had the advantage of readin!!

the judgment of the learned Chief Justice and it:
:appears to me clear that the n;fe.r.ence, as amended, by
.substitution of the words lt Is an ord.e r demanding
~ourt-fee erroneously " in the place of Jhe words " Is
:an .orde-r :demanding. improper 'Court-fee, " should
b.e answered in .the negative.
\ ..

U Bo Gvr, .J.~The ans.w.er to the question.

!propounded would s.e em to d,e.pen.d .upon .whether .th.e
language of section 115 .of the Cod.e of Civil Procedure
is to be _c onstrued in its ordinary and natural sense
or .whether it should b.e giv.e n an extended meaning.
is
lt conc~ded by applicaJnt's l((arn~-/At\~ocate that the
of
. ~drder ,the Distriet C.o urt of Pya-pon,dit:e.ctin.g payme11t
-of Court-fee on -the written statemeri:Hu~ts_ Civil EeguJar
.No. 1-of ~949, which o,rder is th,e subj.ec.t-.of thep.r.ese.pt
~efer,ence, may f.a n, if at aU, only within .Claue ~(:4\ .
pf se.ction .115 .of the Code of Civil Pro.cedur;e. . I~ is !l.Ot
.c ontended,. indeed .it. cannof ,i n. the circums.tanGes
J1.f the ,case .be contend.e<;l~ ;that .th.e.r e has b~en .rui.il.l egal
:0r :irregular exercis.e ;of gu)j~dic.:i0:n ~V.ithinthe meanin,!
of Cla;use
. .
he
-k) 9i .se.cti9..n,' ll.:S. oft
. t,9q,~.:.
. .',f.he .~Q.stthat
. . .
184 BURMA LA \V REPORTS. [f95Ji
,I:I.C.
195"1
Gan be said of the o.rder of the District Court is that it i~
wrong in law. .
MA T~AN
YIN Now, merely because an-erroneous decision.has been-
'~
TAN K~A"T arrived at is no ground for holding that the Court.; in.
KHANG (a)
TAN K.RIT
coming _to the decision it did,.e xercised its jurisdiction
SEIN, illegally or with material irregularity: However sad th ~
U :Bo GYI, J. mistake,.' " a. Court has jurisdiction to decide wrong _ as:.
1
well as right ' -Malkarhm Bin Shidramappa. Pasme v ..
Narhari Bin Shivappa (1) ; and decisions regarding:
matters.of law or fact., where no question ot jurisdiction
is involved, do not fallwithin the terms of sectiop. ~15
of the Code of Civil Procedure.;_Balakrishn_a .[ ,dayar. V-
Vasudeva Aiyar (2). Prima facie, therefore, the District.
Court in passing order on the issue of Qourt.-fee cannot
be held to. have failed -to exercise a jurisdiction vested.
in -it b.y law ; f.or the Court did in the exercise. its. of
jurisdiction adjudicate on the -issue which had co'me-:
up 'for determination.
It is urged in these_circumstances that since the:
erroneous decision on the .question of Court-fee woulc\.
be follo\\'ed by a cansequenti~l - order striking off the-
written statement in .-whole or in pail , as the case inight
require, unlessthe Court-fee was paid, it sh0111d be held,_
in anticipation of such an order that th~ Court . :refused!
toexerdse.a jurisdi~tion vested hi it by law; To hold.
so would; in my opinion, be to do .vi<)~ente to the-
.lang.uage. of :1ec~ion 115; .. Clau~e tb-l,: . 6Cth~ Civil
Procedure code in_asp}uch as the -Court. has not passe'd
.a coQse q.1,Iential0rder aifd: before that:event takes place
it cannot;on .th~ plain me~u:iirig of sect1on liS, Ciause
(b) ~f . :the ; Code, b_e. said .that .tl1e Court has . ref~sed
to adj udic;ih~ on . the. Claim or.'.defen'c e arid, thus .has
refused .to.~exerdse the ju'dsdicti'on vested iri it by. Jaw..
Wtietbiercsoch a. consequenlfal orde:r, when. passed/
\:V6't,ild. come within Clause{b) qf sectionHS
. .
oft})~ .Code
 1951] BURMA LAW REPORTS. 185

does not under. the terms of reference fall to be H.C.

1951
detenrined in thii> case. MA THAN '
In Maxwell on Interpretation of Statutes, Kinth YIN
v.
E dition , the importance of interpreting statutes in their TAN KEAT
KHANG (a}'
plain and natural meaning is emphasized in the follow- TAN KElT
ing passage occurring at page 5 :- S.EIN.

t; Bo GYI, J~
'' In construing wills and, indeed, s!alutes and all written
instruments, the gr:\mmatkal and ordinary sense of the words is
to be adhered to, unless that .-.ould lead to some absurdity,
or some repugnancy or inconsistency with the rest .oi the instru-
ment, in. which case .the grammatical and ordinary sense of
the words may be modified so as to- avoid that absurdity and
inconsistency, but no further. "

This corp.monsense rule of interpretation has been

approved by the Privy Council in Pakala N araym1
Swami v. The King-Emperor (1), where their Lordiships
further observed that when the meaning of words
is plain it is n.ot the duty of the Courts ~o busy
:themselves with the. supposed intentions of the
1egislature~ And. in Rha~chand Dagadusa and others
v. Secretary of Sfa!e for India (2) the Privy Court
in speaking oUhe Code of Civil Procequre said : .'.' The
Act, albeit a Procedure Code, must .. be read in
accordance with the natural mea.n ing of its.words."
Considerations of hardship that might be entailed
on the parfy against whom. an adverse. decision has
been given on the question ~f : 'Cou.rt-fee have been
.c anvassed before us; On fhis : question, 1 cannof do
better .th~n quote a.gain Maxweli. on Interpretation of
Statutes where referring to the .~bovementio~ed.rule. 9'
interpretation the learr:I~d author ~ays at page 5: .. .
.
- . .
.. . .
.
. .
.
..
. ~ It had b~e~ stated by Lord Ctanworth (when Chancellor;
as:'.a CardiQ<~J Rule, ' from which, iCwe depart, we sbot~id Ja~ncb
into a se'l.of difficulti~s not easy to C:'\thom ; " .
.. (1) . (1939) I.L.It isPat. Zj4. (2) S<t I.A. 338 at 3?7.
186 BURMA LAW REPORT. [1951
H.C.
1951 Again, at page 214 of the treatise theJearned author, on
MA THI\N
the strength of eminent authorities, mentions the
YIN following propositions : -
v.
'fAN KEAT
KHAN> (11)
TAN KElT " It is to be borne in mind that the injustice and lnrdship
SEIN.
which the Legislature is presumed not to ii1tend is not mP.rely such
U Bo GYI, J. as may occur in individual and exceptional cases only. Laws are
made adea quae !reque11tius acddttnt, and individual hardship not
infrequently results from enactments of general advantage. The
argument of hardship has been said to be always a dangerous one
to listen to. It is apt to in trodn~e bad !a w and has occasionally
led to the-er-roneous interpretation of statutes. The Court ought
not to be influenced or governed by any notions of hatdship. It
must look hardships in the face rather fhan break do\\'n tbe rules .
of law, and if, in all c ts~s of ordinary occurrence, the law.
in its nllltural construction, is not inconsistent, or unreasonable, or
unjtlst, that cox'istiuction is . not to be depai"ted from merely
because it m~y operate ~v~bh. hardship pr injpstice i.n som~
par,icular <;as.e ."

Besides, the undesirability of straining the language

.pf ,a statute t0 meet the .supposed justice of a hard case
-is stressed by their Lordships of the P~vy Council in
Mohindar Singh and another v. The King (ll where it
was observed:

" They fully appreciate the importance of avoiding so far as

the wor~s and conteJt;t fairly atid .re.asonaqly permit, a con!?tl-"u~ti<:m .
~vhi~h would lead to anomalous or.Patently. unreason::tble results.
On the other hand it . is to be remembered that the
desirab)lity of avoi.ding SUCh result~ .nl:ust net l.Je aliO\~-e~ to g~ve
to the Ianguage use1 a me'lnin'g which it cannot fairly an~
reasonably b ear. If the Legislature has used language which
leac~se 'to .such .r esults it is for the Court to give effect. The
iuoction of the C.o urt is interpretation, ~ot. legi~latiou.. The limits
thus ini.posed on the Co~rt prevent the. twis-ting of words and
phrase:> into a sense that they ~an!lot fairly andieasonaLly hear.''

dJ si Cr.,;:). t4Sl~t .14$4..

 t951] BURMA LAW REPORTS. 18:7

In Nrmdamani v. Hari Krishna Bhima Deo (1) and H.C.

1951
Dhari] ma v. G~.u.range Clzarna Sah'u {2) Harries C.J.,
!VIA THAN
and Rowland J., did not allow themselves, rightly as I YI N

respectfully think, to be influenced in their decisions TAN v.KBAT

by the fact that it was a very hard case that confronted KHA~G
TAN KElT
(al

th~m and the learned Judges refused to interfere in SEIN.

revision where the Court had no power so to do. u Bo Gvr. J.
I am of the opinion therefore that the order of the
District Court which is the subj~~t of the present
Teference is not open to revision by the High Court
under section 115 of the Code of ~ivil Procedure, and
1 answe.r the ques.tion accordingly.

..
-,
. ~i, ;: r.'n: (lf>39i:P~t.j~~~- ,. :.~:(~.).A.:~; .( 194~> P~\. 119.
,__.....,....,.,-..-::,_.,..~_,.,..,.,.,..,~..,.,.,.,..-:::-;-:.,..,..,....,.,.,..,---,.,_.._,....,...~,....,.,.__,.,..,...,.,..-.,.,...,..-
188 BURMA LA 'vV REPORTS.

APPELLATE CIV{L.
Before U Tn11 Byu, Ch icf f11stice ,. aud U Ou . Pe, J .

H.C. KO WA NAH (APPELLANT)

" i951
Dec. 11.
v.
KO TUN SEIN . AND TWO OTH'E~S (RESPONDENTS).
- . '

Urban Rwt Control Acl; s..11 (1) (bl -Owuer requiridg pn;mises for bona fide
erecting a imi ldi1fg .
H eld :"That where the previous owner has allowed a person to cons truct a
perinanent substant4al building on the land without granting him any lease or
any riJ::h t over the land and then sells the land to another person and the
purchaser requires the land bina fide for erecting a building, he is en titled to
eject the defendant. The fact that the defendant has built a permanent
substantial structure is no ground for not passing a decree. N<' title to the
Janel o~ the value of more than Rs. 100 can be created withOl!t a registered.
deed.
. . .
Kallltaiy,t L~l aml another v. Abdr~lla, {l936)A.I.R. All. 385, referr erl to ..

~ung Min ll) for the appellant.

Tun I for the respondents.

'
The judgment- of the Bench was delivered by
U TUN BYu, C.J.-The plaintiff-appellant Ko Wa.
:Nah instituted a suit for ejectment of the thre e
defendaiH-respondents under Clauses (a) and (d) of
s~::ction 11 (1) of the Urban Rent Control Act, 1948 ..
Th e learned Registrar, who first heard t he case, framed
seven issues and, after he had recorded his finding on
'these tssues, decreed the plaintiff-appellant's suit for
the ejectment of the defendant:-respondents under
Glause (a) of section 11 {1) of the Urban Rent Control .
Act, i 948, but 4~ dismiss.e d the claim of the plaintiff-
appellant to eject the defendant-resp ondents Ko Tun.
Sein, Daw Tin.Hia and Daw fila Khin ut1der Clause (dl'.
of section ff{1} .. .
. .. Civil .I st Appeai No.. 39 of'1950 against the decree o( the R~gistrar, City .
Civil.Cort, l~zngooh in.'C1vil RegUlar No. 9'50. o( 1949. ... :'
 l951J BURMA LAW REPORTS.

It .has been can tended in this appeal before us that H.C.

1951
the learned Regis-trar \x.:as wrong in not allowing the
-claim of the plaintiff-appellant to eject the defendant- Ko WA v.
NAH

respondents under Clause (d) of section 11 (1) . We K~TUN SEIN

AND TWO
~ight mention that the def.endant-respondents have OTHERS.

:also filed cross-objection in the present appeal. We u TUN BYU,

are unable, bO\Yever, to see any ~~al substance in any C.J.
of the grounds that had been sd out in the cross
objection.
It has been urged. before us in this appeal . that
Clause (d) of section 11 ( 1) oft he Urban Rent Control
.Act, 1948 will not help the plaintiff-appellant, in that he
-desires to construct a building for himself arid not for
the purp9se of letting it. There is, in our opinion, no
:substance in this contention. Clause td) appears to us
to be clear, in that it also allows the owner of l~nd to
have back the possession of the land. which had
'been let out to a tenant if he requires it bOna fide .for
-erecting .a building or buildings thereon,. and no 1
:restriction is placed on the purpose for which a building
might be ., constructed, so f<l:r as Clause (d) is
<:oncerned; . . ... .
_: It has also been urg_~<J .on pehalf of the. defendant..,._ ,
-respof!.qent that the plaintiff-appellant ~hquld not,. on
_:equitable grounds,_be aliowed .to.. ejeCt tbe . ~dendant-..
-respond~nf$ :f~_om t~_e land .i'n question, :.in. that the .
-defend~nt-re,spondents had l?een ~llowed by the pr:eviou~
-o~ne~ ,of _.the .lan4 in questi9n. to C9_1)_s truct.a_-permanent
substan~i<l:t' .btiil4~ng on th~ land : in qu~stioJ:l, which!
w.as wort.h ;about Rs. _,4,000 o,r:- Rs. S,QOO; af?d cer~hi.
rulings h~d been cited .for bhis ;purp9se, ~u~ we d<J pot .
propose; s~ far as this ap_P.eaUs co.nce.r~f3.d,-: t~ .refe~ - to .
ihi: E,nglish c:ases lhat had .been. cited before U$.>.. is- a !

-clear..in this c<;>9ntry that, po equita_bl~ -do~triri~ c-~n b~

.:a~iq~ed to, p,revail,.py<?.r _any,:specific provisions o'f.,law
toncerhed" . I.t -is .,cl~ar: .(ro,m_: the.. pi-ovisidps . of the .
0 ~. ' 4
 BURMA LAW REPORTS. [1951
H.C. Transfer of Properly Act that the tenancy in question
l951
cannot, in la\\., be considered to be anything more than
Ko ~~ NAH a monthly tenancy ; and it could 'hot, in that circum-
Ko TuN.SE!:o~ stance, be said that there was a tenancy existing between
AND TWO . .
oTH~Rs. the plaintiff-appellant and the defend'a nt-respondents,
u TuN svu, allowing the latter to occupy the land so long as the
c.J. building stands on the land. A photograph of the
building_in question- has been fil'e d in. this case, and we
are unable from the photograph to agree wi'fh the
contention that the building, as sl1own in that photo-
graph: is a pe rmanent and substantial building, in that
Exhibit 3, which has been filed in this case, shows that
it has fhatcned roofing, an~ the evidence also shows that
it has mat wallings. 1t is true that the valUe of the
building has beeri e~timated to b~ over Rs. 4,000", but
it is common lbYowfedge that tl1e prices of building
materials are very high at the present. It is said that
the bnilding was constructed in February f946, and it is
therefote dear that the defend-a nt-respondents have
no\v been in occi11)atioh of fhe building fbr over four
years. In that circumstar'J"ce s, we are una ble to see
how, on any _equitable consideration~ the defeild~nn
respond'ents can claim te> remain iri the building in
qu~stion for a very much -Ie>nger period, if the Court:
were to come to fhe conclusi"On' fhat this is a case where
a dectee ought a'lso to h~ve been given tb the P!~li_ntiff-
at>pt"lt'ai1rt6~~ejec~ Hie ddeii'danf-respondents from the
land in question un'clet Clause ('d) of s:e tfion 11 (1) of
the Urban' Rtmt Contrbl Act, 11}4'8; ahd we riuisf say
$6'- fuf as tnis pornt is concerned, that we agre with
the l~f.ned' R:eg isftat ih his firid1ng that th'i"R is a: case
where the pla.fntiff.:a-ppemrnt Ko Wa:.Na:h- cah be said'
to r:~qui~e tfie-- l~hid: in questioh .reasbfiaBfy antl .1fo1ia
fidt f<>r theere'Cti'o n of a btiiiding t-he~eon~ .: .
.Reli:ancEr was placed by the ~e~rnedi Advocat~ wh:o
appears- fotr lt~e - defendant-rdptm'dffi'ls on-the_cas of
1951] BURMA LAW REPORTS. 191
Kanlzaiya Lal a11d another v. Abdulla (1) for th e H.C.
1951
purpose of indicating that where a permanent building
J\o "\VA NAH
had been constructed by the defendant on the land, v.
wl1ich bad been let out to him for erecti ng a building, Ko TuN SEIN.
Al\0 TWO
he had a right to remain ip the building so constructed OTHERS.

as long as it stood there. This case, must however, be U TUN Bvu.

C.].
read in the peculiar circumstances of its own case, in
that that case occurred al a place where apparently
the registration law was .not in force.
The judgment and decree passe::d by the learned
Registrar, Rangoon City Civil Court, in his Civil
Regular 1\o. 950 of 1949, dated lhe 25th May 1950, will
be modified, and the plaintiff-appellant Ko Wa- Nah
will be granted a decree <ilso for the ejectment of the
defendant-respondents ~{o Tun Sein, Daw Tin Hla and
Daw Hla Khin under Clause (d) of section 11 (1) of !he
Urban Rent Control Actt 1948; and the plaintiffappel-
lant "'ill execute a bond wjth one surety foi a sum of
Rs. 5,000 tRupees five thousand: only~ ~hat hewill erect
a building thereon . within a period of one year from
th~ date of the vacation of .the land in question by the
defyndailt-resp0ndents and that he will, if the building
which is to be constructed is to be used for the purpose
of letting after it is constructed, give the defendant-:-
respondents the first option for occupying the same.
We will not, howe.ver, be doing any real injustic~ to
the plaintiff-appellant if we allow the defe.ndant~respon-.
dents a further period of three months. from th.e
date of this judgment, during which they are to vacate
from. the land iu question and remove anything standin~
thereon belonging to them. The appeal is- aliow~ in
the sense indicated above wii.h costs~

.. .
-....._ '

(i )(1936). ~.I.R. ~1J. SSS.

192 HURl'v1A L AW REPORTS. [1951

APPELLATE CIVtL
B, fore U Tun Byn , Chief lttSf ir.e, attd U San Ma~tng, J.

H.<.:. RANIA:\AND (APPELLANT)

1951

. Jan. 17. z.
u. N. MENON (RESPO~DE}.JT}.*
Arbitration Act, ss. H (2 ,, li, 33 a11d 39 (1)-0l>jectioll to the liW<Ird-
Noticc a/.Jo1't tile filittg of til,; .nmrd.
Held: Where:: arbitrator made his award and Court passed a decree in
accordance with the:: Awanl no appeal lies against such decree under s. 39 {!)
of the Arbitration Act bnt the Coart may in proper cases treat the appeal as an
application fo1 Revision.
Vvhe~e Arbitrator filed his award in Court and the Court failed to issue
notice about the filing of the awar'd to the parties and it was proved that the
.Arbitrator when he filed the award tiad given notice about the signing and
filinl! of the award to the parties and' parties had file'd objections in COltrt the
award cannot be set aside simply owing .to the failure of the Court to issue
-formal notice.
Under s. 33 of the Arbitration Act read with A:rticle 158 of Limitation
.Act as amended by the.T hird Sc!'iedule 0f the .~rbitration Act a party h:~ s 30
.<Jays for filing an application to set aside an award or to get an award relllit-
ted for reconsidera.tion and only when that period has Cltpired, the Court can
a
under s. 17 of the Arbitration Act make decree, in terms of the award.
Whee tbe Court pa~sed a decree before such .period. expired the decree
:should be set aside.

H. Submmanyam for the appellant.

P. N. -Ghosh ;or the respondent. '.

U TuN BYu, C.J .~U. N. Menon, the plaintiff-

-respondent claims in Civil Regula-r No. 24 of ' 19+9 of
-the Rangoon City Civil Court to recover .a sum of
Rs. 6~816 which was alleged to b~ due.: on a. promissory
"Dote which was executed on the 31st January 1947.,
wit.h the inter.est due thereon, which was said to
Civil Misc. A~peal No. 6 of lQ50 a~ainst the o:der ot' th'e Chlei Judge,
-cit\: ' Civil Court of Rangooil in Civil Regular No. 2~ of 1949; dated.
:l6til February 1950.
 11951] BURMA LAW REPORTS. 193

..amount to Rs. 765.and, in the altern..ttive, ne ciai~~ JI.C.

19.51
.the above sum as money due to him by the appellant
R.AlUNAND
defendant. The plaintiff-respondent sets out in his v.
:amended plaint the circumstances under which the U.N.
MENON.
pronote was said to have been executed. Ramanand,
U TUN Bvu.
the appellant-deft:ndant denied, infer alia 1 the eXCCU- C.].
'fion of the said promissory note, and he also stated m
paragraph 4 of his written statement the circumstances
which were alleged by him to have ta.ken place between
him and U~ N. Menon. The parties later agn::ed to
have their dispute settled by the mediation of
v. R. Pillay., Higher Grade Pleader, and he was
.accordingly appointed to mediate between the parties.
He .was, h0wever,, unable to bring about any setUemerit
between the parties. S1,.1bsequently, the parties filed '
.a petition in Court in September 194Y, whereby they
agreed to refer their dispute to arbitration of a sole
.arbitrator, m.amely, the said V. R. Pillay ; and the
relevant portiom of the order passed in t his connection
-reads :
" .. . , . it is ordered that the followjpg matter in
-dispute arising in this suit, namely ;....,...
'Whether the Mdefendant owes to the plaintiff a . sum of
R~. 7,5St. due on a prOmissory note or alternativ,e ly as
money due. ' . :
.be referre~ for the determination of Mr. V. R. Piil~y,
.Advocate.
The arbitrator is hereby required to make his award
... ... _ :on tfie 2nd day of Novembei-194.9."

The. arbitrator .filed his . . award in .e i8'th

\..' Court on th .
January 1~50., wJaereby Ramanand wa::; dir~cte d fo pay
: a sum of Rs. 7,518 to U. N. Menon ; and each patty
~~s directed to li>ea.r its o~n c osts. Botb U. N. Menoh
:and .R~m~~~nd .lfiled ohJeetion.s .~gainst ,~qe ~~ard ~f
. . 13.. .;..and. Ram~nand. in .his ol;>jection
.-.the arbitrator . . ~sked
~
194 BURMA . LAW.' REPOR"fS.
H:C.
.
for the aw~rd to be remitted to. th~ .arbitrator for
.
1951 .
reconsideratio~. Un the 16th February 1950) that is,.
&\}!ANAND
t/. in lt::ss than a month from .the :dat~ on wh.i ch. the a~var.d
U. N. was filed the learned Chief Ju<;lge of the Rangooq Ci~y
:'M!!NON.
Civil Court passed.his order accepting the award ~11<;1:
U TUN BYu,
C.J. directing the decree to _be drawn in accordance witbt
the award, wh~rein he also obser\('ed as follows~ ,~
:' . .: , !.. ' . ' ...
Obje~tions have been .filed bo~h oy the 'clefenclarif and the-
plaintiff. against this decision an_d.today \~h~n th.ey afe to be'hear<i
the learned counsei for the defendant 'withdraws hi~'' objection
'stating fra~kly tha't l~e .ca.nnoti support his objection;" : .' .:!

Ra~anand next fiied -th~pr~s~nt ~ppe~i to s~t ~side

the said orcler of the. l earned - Chi~f Judge, :Ra.ng9d.b
City Civil Court. It appears to us to be c:fe~r' th~t ~=o
appeaLlies in t~~ present ~~se i_n v~ew oJ:~li.e P.f.<?V.isi<;>n~s
.of . section 3.9 (1) of the Arbitration :Act;. l944 'iti"th3:t
.t hjs :is :n(i. ~- cas~ w~ich. can prop~rly : b~ bro'ug ht
'wi!hin .any of the clauses me'n tioried J.q section.' . 3~ (i).
1

of the Act. We liave accordingly . been askep" to

consider the present appeal as an applicatibn 'Hrr
' revision, and' we, in the circumstances of this 'Caser
. allow this ~PP.e~l to be treated . as an apphc ati-on fQ.r
revis~oh. . .
It is dear, in view of the-observation of the learned
C\lief Judg~ of tl~e _Rangoon.. Cj~y '' Civil Gourt, which
. has been quoted. earlier, the defend.~ht-appeilaht must
. be consid(}red. t0 have waived his. obje~tionrto: the
. award, and he cannot; in the circ~ms~:nces,. b~ !lo~
1
.p.ermitt.e d to reagitate the pojJ?,ts raised in his objec-
... . .. , .

:__.,~Qn~ fi~_eq o.~. the 30t~ Jan?ary .~95~ I~r l~e ~urpose ~f
::f.l:~~~~g.~t~e ~wa~d .remitt~_d .~o~ re~o-~sj~etat_i~rCby :the
'irbitr,3.tor.
"')I ' ;
Tt
.
\.vas
.. .
contended
. ._., .
bn
.
behalf
, .
of tl:ie. de
. . ,
fen:.
4ahk~,Ppe~la.n~ .:~Ji~t: the or4~~ o~ '*e;l:le.arii~d =: -cnref
J~clgeP~ed_,on . u~~- ::tpth l'eb.r il,aJ,"y : 1950,... s~.oiild- 'l>e
sa . aside "in--:t'hae heh;:i<i f~iJea td:is~ue ; notioe: .
abdut
. i951) 195

the fliing -of the award, to the parties in the present H.C.
1951
case. There is, in our opinion, h o real merit in this
R4MANA~D
contention. The note made by the arbitrator when v~
the award was filed shows that he gave notice about ~iN~~-
the signing and filing of the award to the parties on -
U TUN BYU,
or about the date the award was filed. Moreover, the c.J.
patties were able to file their objections to the award
on the 30th January 1950, that is, within12 days of the
date on which the aWard was filed .: in Conrt; and it ~
must,. "in the citcum's tances, be consider~d that it was
not at all necessary or desirable' in.tlie present !(:ase to
issue ~ any notice, about ; the filing of the award to. tJre
parhes concerned, even :if it can be.brought within the
provisions of .sectiorr ' 14 (2)' of the Arbittat1on Act,
1944.f ', . 'j

The point wh:icli requires .fuHer consideration is

whether the learned1 Chief :Judge' of the Rangoon . City
' . . . ii:l
Civll Court: could, in -law, have passed the order. d1r.:ect-
ing <f, decree to be drawri up in
accordance 'with the
award, without wai'ting. for the : pedod. o(~O daysto
expire~ within which. a -party to an arbitration ct:>uld
~pply. t~ $et aside ari -award> under :sectiofi ..33as is
re~.uired under s~ctio~ 17 which- read~ i -

. : '! Where the Cour't sees no. cause to remit tlie award or any
af.the matters reierred:to:arbitration for reconsideration. or'td :set
'asii:le :.the .~ward, the Court shall, aft~r the. tjme fot maJcJng :an
~pplication_
. .. . '
to.set aside
, r
th~
.
award
,
has .exP.ired,
- . J ' :.
.or: such.
: ,
applica-
.~

tion hav!n,g. ~ee}l made, :af~~r r~n~ing, )tJ.PJ:OCE}e,d .' t9, pr<;mounc:e
judgment according to t~e. awat,Q, 'or'upon'. the . judgment . ~0
.:pr'onourieed a decree 's hall :follow, andno a:ppeaf 'shiii' iit'~ i{)tn.
such: aeciee: ~x"cept ori the grouno',thafit:is''inexce.sirt>I; orcnot
'Of}lerwise i'il:.a ccordance witb'tbe award~ ~ : .
. ::
Thus, section 17, when it is . re~d:: with . lhe;tThif.d
Schedule of the Act allows a party to. an arbitrafiori. a
period of 30 days frotrt fhe~d.at~_,of: tl)~ sM~id~~Bf ilotice
196 BURMA LAW REPORTS. [1951
H.C. of filing of the award to file an appJication, if he so
1951
desires, t.o set aside the award ; and it cannot be dis-
RAM~~AND puted in this case that the learned Chief Judge of the
~~N~~- Rangoon City Civil Court has not allowed a period of
30 days to expire before he ' passed the order, dated
u TON
c.J.BYU,
t h e 1,.ot11 F eb ruary
' 1950. T here 1s
. a1so not h'mg on the.
record to indicate that the defendant-appellant or his
Advocate had at any time stated that the defendant-
~ appella~t did not intend to file any application to set
aside . the award under section 33 of the Arbifration
Act, '1944, As Ramanand is..given a peiiod of 30 days
by law for the purpose of filing an appli~ation to set
aside the award, if he so desires, it appears to us that
the or.d er of the learned Chief Judge of the City Civil
Court, which was passed before the period of 30 days
had expired, is clearly contrary to law, and it must be
set aside as having been made without jurisdiction. .
"he right which a party to arbitration acquires under
section 33 read with the Third Schedule to the Act is .
.a substa.n tial_right, and it cannot in the: absen.ce of ~ny.
provisions of law to the; contrary be. whittled ..down to
a shorter period i and the wording of section 17 clearly
lends support tothis view.. :
The order of the learned Chief Judge of the
Rangoon City'Civil Cou rt passed on the .16th F~bruary
1950 _a nd the de~ree made in,imrsuance of that order are
accordingly set aside, and the case will be. remanded
to
to 'the trial Court for disposai and enable Raman and
~i;o file an application for setting aside the aw~rC! . . A
for:m;.l notice should be 'issued to the parties' after the
proceedings ai~ received back in the trial Court and
Ramanand should 'be allowed a period of 30 davs f or
.. filing an application to set aside the award. Cost~. will
be ~osts in :tlie. cause.

Ij SAN MKu~G J"-. I agree.


19511 BURMA LAW REPORTS 197

APPELLATE CIVIL.
Before U Tuu Byu, Chi&/ !t~stice, and U OH Pe, J.

MAUNG TIN AND ONE (APPELLANTS) H.C.

1951
v. Tan 23.
u PO NYAN Ai~D ONE (RESPONDENTS).~'

Transfer of lmm011eable Property (Restriction) Act, 1947, ss. 3 and 5-Union

CtliattiSIIIP Act. 1943, s. 6 (2)-Purchase of immoveabl1 ~roterty by a
forei[!.mnvlto had tu>l yet obtai11ed a certificate at the date of purchase-
Effect of sullseq11e11t gnmt of cerlifiC4te-Codl of Ctvil Procedttre,
Ortfer 41, Rule 27 -Admission of document.
Held: Wher~ the plaintiffs purchased immoveable property on the.
23rd March 1949 before they obtained Certificate of Citizenship under the
Union Citizenship Act of l94l!, but obtained such Certificate during the pen-
dency of the suit which mentioned that he wu a citizen of Burma from
4th January 19~8. the sub~equent grant of Certific:lle would have retrosp~::ctive
.effect and would validate the sale on th? 23rd March 1949.
Where a Certificate Wlls not produced by a party and which \'\'as granted
after institution of the suit. the Court would receive that Certificate under
Order 41, Rule 27 of the Code of Civil P~QCedure il the Court thought that
such certificate was necessary to enable it to prononnce its judgment.

Ba Nyunt for the appellants.

Ba U for the responde~ts.

T~e judgment was de_livered _by
U TuN 'Bvu, C.J.-It is s.a id that on the 23rd.
March 1949, the defendant-appellants Maung Tin
<;lnd Ma Kyin Sein . pur~hased a piece ' of land, whi~h
gave x:ise to the litigation in the present appeal, and
ip the'connected appeal, Ci:vil 1st Appeal No. 49 of
1950, u~der a registered sale deed, a matter which js
not disputed by the plairitiff-respondenb U Po Nyan
. and Daw Nwai who are in possession of a po~tion of
the land_in question. and w4o hav_e built a house
. . ''Civil 1st .Appe~l ~o. 48. of 19.50 11gainst th~ decree of the 2nd Ju4ge,
City_ '~ivil Cour t of Ranl!oon in Civi! Rel!ular Suit No. 852 of -19,49, .date.d
26th ~~e 1956..,

19~ [ 1951
H.C thereon. Daw Mai Htai; who is the plaintiff-respon-
1951
dent in Civil 'st Ap'peat .NriA ~49 .o1950, is also in
MG. TI"l AND
oNB possession of a portion o f the l(!.nd. -i.n qt,J;estion, and
u Pov.N~AN she also ,. has built a: fio'u\~td!~-.r~oh. . :The ph1ntiff-
ANIS~dNE. responderrts,.,,ri,n;: .th.e , tW.Ol . <:a-~.~S : ]laVe .. l:;blJgh;t for a
'9 ~Bw, declaration that the sale of the land in question to
.C;J:: Maung Tin and Ma ~yin Sein wa~ vpj<;l, on _t1,1e_ground
that ~-ta'{ing :T{n a-rid: Ma' k~iifsH&,- .w{h ~te hh:si?and
;w.4 _w_if.e., m~ .f.o~~~gp.er~,.-. <~;g9, qs~~~~~h .th.~ :Pl~.rc.ha~e ..of
-the land ~in '-questiO'n by: them~ wa.s- void in v"iew, of the
)~:t6)1.~\o#.~:~Jo~ ..-s.i~~.i-~~~\~:~-~-~qp: _\~-.~ -of - ;the 1r'~r1~te,f.< of
1

Immoveable Prooert~ ..{Restricti.on);.A-ct;; .1-947, which

read:
.. . >?;.-~ohviff~staJ]dii1i(,:~oxtfi.irii!; , 9o!l.f~ii1~~~ - ~.n q~n.y ~.t.ller. Jm.,~
~91' ~p,e,,_ time_ being j;n.,. fpr~_e, no~ : tl.'!l!:\f~t :of. auy. immoveable
pr()p~rty; odea.Se~ of -immoV.eaJ~Ie pr-operty for :any tth;m' exceerli n~
one year' shall be: a
tfiacle by :afiy persoil 'i'n:f:avour ;o f fb'reigri er or
ariy :.~ l,;let'SOri" Ofi- :his :!behalf\ by: ' i.Vely, of; sa"le; gift; mo-rtj.!a~e or
<itper~i~: l: .

5. All transfers of im:novcable property and o. lease of

i mmoveable property . conttaty ;to;.~he f)jrov.i1ioils- 'o'f"- this: Act
shall be void, and the Pr~~~?.eJ~~. ~~~r_.,. 1 b_Y, , ?r~~-~ i~ )~'~{t_ing,
declare such property or any 15ortlon --tn~feo'f to be torfetted
to the State:
 t95t]
.H.C.
to be a citizen of the Union of Burma with effect from 1951
the 4th day of January, 1948; and this declaration is illG. TIN AND
consistent \.'vith th e provisions of sub-section (2 J of O~E
v.
seet1ori 6 of the Union Citizenship Act, 1948, \vhich U Po NYAN
AND 'ONE.:
:reads :
u TuN BYI1,;
C.J.
.6 (2 1. Such cedificate sha ll be conclusive evidence as
to :existence of . such citizenship Jnd the person in respect of
-w ~qrp it . is .~rantec~, shall _a s from a date for tbal .purpos~
to b~ . ~pecified in the certi~cate, be deemed to h:~.Ye been
:a Citizen: o( .the ' Union : prov.idecl that, Lhe . certificate shall
~di r,~ regardecl' as 'an admi5sion that he . was not, i'niviou~
:td t h e dale sospe'cified, such a citizen. "

l t: hec'6 mes clear . therefore: that section 6 . expressfy

a
allows retrospective effect to be given in the Certifi-
cate of Citiienship issued under section 6 of the Union
tCit~zenshjp Act, 1948. In other words, a Certificate
bf-Gitiienship, which is to be granted . under section 6;
-could. prope-r ly be made with retrospective effect
Matmg Tin. could;- inview of the -C oitificate..of.Citizen:..
s'hi-~ grim ted .l.indersection 6 of the Union :C itizenship
Act, 1948, be considered to have established that 'he
haid/ atleast,; beco'm e :a. citizim of the Union of Burma
byi tile 4th da:}r :of Jan{\~ry,: 1948 . The purchase of: the
: 1~rid; frt. question ::by- hirri, w,hid(was effect~d ;: on . the
.23tci'o Matdh, 1949i : intist .,therefore be consideted to
:havei.beeh made -to. a .Citizen of the Union of Burma
.a-nd::.th~ Ma:rt-sfer: to M'ati.ng Tin was: therefore;proper
an'd Je:gat :r;he.learn ed 2nd Judge) R~ingoop City Civil
Co.o it? ha&, itt~ ~ur -0pih.ion, . ohiitted to :consider the
~'ffect;ofrttie' ~rti'f1cite: of Ci'tizenship issued:to Ma'!lrig
'Tin ::under;. 5ettidtl 6: of -the Union ~Citize'nship.Act;
1.948;iand1 if'-tli's :attention: had beeP.-dr-a\:o..'Il t6 the--effect
(>fr,uit> e ertlflt-!ate-- ~ot:<ti:t:Iieti~llip;. issued to . Maung Tin,
wer have~ 'iici
1.l ~'' of. .
-'dotibt..:.~hat :: hi$ - 'dc-Cision oh t,his point.
. ' ,
.v,leukl. . <lHt.ve been.!
~ . ~
~00 BURMA tAW REPORTS. l195l1

~9fi Maung Tin in his examination in Court also stated.

- tb.at his wiie Ma Kyin Sein had also applied for a .
MG.~~~ AND Certificate of Citizenship, the result-- of which was not.
u p;NYAN known then. Ma Kyin Sein lJ4s in this appeat asked
AND cr.<~. the Court to consider the Certificate of C:itiz~nship
u T uN BY:. granted to her under section 6 of the Union Citizeri-
p.J. s h"
1p Act, 1948, and that she might b e allowed to.
place it before the Court for consideration in this.
appeaL Order 41, Rule 27, of the Code 0ft Civil.
Procedur~ make~ .i t clear t,hat i~ is for the appellate
Court to consi9-,et :~hether it' really requires additiGnaL
evidence to enabJ~. iJ tu pronounce a proper juclgm~n_t...
It appears to us that after Mating Tin had stated in.
Court that his wife Ma Kyin S~in had also applied f~r
a Certmcate of C1iizenship under the Union Citizenship
Act; 1948, the trial Court ought to have CJ.djoumed the
delivery 'o f judgment until the result of Ma Kyiin Sein's
application for a Certificate of Citizenship was kngwn1
in v.iew of the fact that' the Certificate of Citi2iensh.ip,..
if granted, could ~ also be m4de with ret,ospectjve
effect- .. 2.oide section 6 (2). of th~ Onion Citize.JJlship Aqt,_
194.8-.
It is clear now that Ma . l{yin S.ein h~~ also beel.ll
granted a ~rtiiicC\te of Citizenship under the U. niop1
Citizenship Act,. l~8. and it be.-<;om~s ne.c;.Q~~4.rY in th~~
appeal to. also eQnsid~r he Datu~ Qr {}ffeE~t of the
Certifii.c ate of O.iti.?.ens.hip Qbtained by h"er to e~a.~le
the appellate: Cou~i to do s,ubst~ntial justic~, b.~:a~S'~
if !ill~ wa.s really a citizen of the, Un.i'Qn of :6unna.
qm1 . or b.efo.i"~ the. 2.3 rd Mar~h, 1949, it be.c-0we_s.;
~te~r that the saice. o the 1St8d i:R qu.e stjqn . {Q he.r
on the ~3::rq Ma.rob., 19~9, will al~q: ha.V. to be
considere~ tO.- be,. leg~.. . A ~~~l Qf the CertiJiqtt~
to
p.f Citiienship -isS:~~d. Ma. Kyi;n ~e.in: U:Qi;l~r ~e<itl.Qn 6
sh;o.ws' .th~t she w..;-$. alsg d~~lare.d. to Pe 1\ citlz~n. o.f the
:Union. of Burma. at le.'\st, _from .t he 4th Ja:nl;.l~l)!, l948.
1951] "BURMA LAW REPORTS. 201:

This can therefore be said to be a case where it is ~9;i

necessary to ailow Ma Kyin Sein to produce a -
Certificate of Citi'tenship to enable the appellate Court MG.;~~ AND
to pronounce a proper judgment in a c~se where u p;NvAtk
the substantial question which arose before the Court AND ONE.
was, whether Maung Tin and his wife Ma Kyin u T;;Bvu;.
Sein could be said to be person& who were citizens c.J.
of the Union of Burma on the 23rd March, 1949, when
they purchased the land in question. The Certificate
of Citizenship, which Ma Kyin Sein obtained, undoub
tedly has a definite and important bearing on the main
issue in the case. This is therefore a case where it
is necessary for the appeliate Court to examine the
effect of the Certifi'cate of Citizenship granted to
Ma Kyin Sein to enable the appellate Court to
pronounce a proper judgment, and the Certificate
which Ma Kyin Sein obtained is, therefore, made
an exhibit in the case now under. appeal. This
Certificate was indisputably not available to Ma Kyin
Sein before th.e trial Court pronounced tqe iudgment
which is now under appeal. The purc.h.ase of the
land in question by Ma Kyin Sein on the~_~l1rd March,
1949, must also be said, in the ci~eumstarices of
this case, to h~ legal.
The appeal is allowed, and the judgment and
decree passed by the learned 2nd J~dge, Rangoon
City Civil\ C<;>urt, in Civil Re.g\rlar NQ. 852 of 1949~.
are set aside. As neither Ma Kyin Sein nor her
husband Maung Tin formally applie4. to the learned
2nd Judge, Rangoon City Civil Court, to adjourn
ti1c delivery of his judgment until the result M
Ma Kyin Sein's application for..a Certificate' of Gi(iien-
ship unde~ the Union . Citizeris~ip ACt, 1948, -was
known_, it seems to us. that each party should .bea r
its. own.cos.ts in both cou.rts,
:202 B U.Rl'viA LAVv RE-P.O.RTS. [1951

APPELLATE CIUMINAL .
.. .
Bejo1e U Tu11 Byu, -Chief Justice, a~Jd L 0" Pe, J.

H.c. f 'UT'T' 'T'U..T. ( _, C'T J THl AND .ONE . {APPELLANTS)

1951
V.
Jmr. 31.
THE UNION OF BURMA (RESPONPita).*
Code of' c;;;uiuai Procedur~, s. -!OJ_.:.A;ms' !Temporary A:n;wilment) A~t.
1949, ~. 19-A-:-Conviclion tmde.r 's. 19-A of the ,A.riu!-_ Acl.:_Subs~quent trial
for offence under s. 122 (1) o/ the Pwal Code-Whelhcr convicliou ;1,
the PJ'evious cas~ b ;rs snbseqJ;CIIt acltoJi. . . .. .
Held: Where a person.has been Convicted under s ..19-A of the Arms Act, as
am'ended QY Arms (Temporary -Amendment) Act }il 'ln. earlier-trial ~n~ was
sentenced to transportation for-life, he cOtllci stil.l be tried aJtd convicted for-an
offence under s. in' of the Penal Code. s. 403 '(21 read {vi'th Illustration (bl
attaclted to. that section .ano\vS a trial io~ ~ Q;sfinct offence.. . :: .
' The point for eonsideration is not wt-icth.er the offenc e in the subseqt!~nt
tri:tl arose out of the ~arne transaction in which the offence .- for whicb he was
tried in the previou$ trial arose, . 'bu't.. whethir it 'could . be said that the
cotwiction or acquittal in the former ' trial "tiecessariiy. or i~1pfiec1ly ilwolved
also' {l ~:onvict ion or acquittal of the chQrge made in 'th~: subsl}quent trial.
Rcmz S.tltccy R;;m v,_E~;zpcror,- (192Jj 48.CaJ. Series, ~1 ~t 8~. ; R ..v. Btl~~o~.
'(19141 2 (I<. B.) 570; Abdul .Hu.mid v. King Emperor, (1'936-37) f4 'Ran. Series,
24 at 28, follo~ved. . '' . . '
The question as to whethera particular trial 'is. .b..U.r:eq. ..by reason of
previ)US pr.,seculi()n e~ding in cQnYidion or acql!ittal is a question. to be
determined 'c:iti facts and circtiri)stan~es 'of a particular ~ase. ' ' ' .
Jitwdrn Nnlh Gupta nnd one v. Emperor, Ai-R : (t9J7)' C;\1. -~9 at 1}3,
followed. : . ' ..
' .
. Ju.d ged by th-e above test it is c.Jea'!' thaHbe conviction for offence under. the
A.rt_ll:i t\ct did not imply conviction und~r. s. 122 of.the Penaf C~d~.. .

Ba Shun ; f.or. .the appellants.

./~ .. Ch~'on.. Foung for'th~.' ie~pondeh.t.'
Tl1e: j~dgment.. w~s :delivered by
:U XiJN 'Byv,' q;J~~~-~i:e< " ~'ccus~9;. ~ame~y, 'the
.~wo. app~'llarits Cp~~ Tit:!' alias_ s~ T!ti ~ti_d .:Kyaw w~_h,_
~ .. #' . ; .

' *' Criminal Appeals N~s. 21 and. Zi, pf., .t?H, f-ro.n(tA~: ord!<r .p .f "ih~
1st Special Juclge of ' Tavoy, dated i3rd:jje<sernber i950:.P"~ss~a'in ' ctimi'tia'l
~~gular Trial No.5 of 1950. . .
 1951] BURMA LAW REPORTS:

.and one Aung Nyein, \\ho \Yas discharged in the trial H.C .
1951
(:ourt,. were sent up for trial in Criminal Regular Trial
CHIT TIN (a)
No. 5 of 1950 of the Court of the .1st Special Su THI A N D
ONE
Judge, Tavoy, in connection with the attack b.y v.
~he .Communists on the adjoining villages of Yange THE UNION
OF BURMA.
:and Kamyaing, which are about . 3 or .4 furlongs
U TuN BY'O,
apart. Both Chit Tin and Kyaw Win. were: convicted CJ.
under the present section 122 (1) . of . the Pemd
Code, and they were each sentenced. to d~ath. . The
-evidence of PSO U Po Kyin (P\iV 1\ Maung Saw U
{P.W 2), .Maung Sein (PW 3), Maun g Aye (PW :4),
Maung Han Nyunt (PW 5), Maung Min Shwe (PW, 6);
,!\hung U Thin (PW 7), Maung Lin Pe .:(PW 8},
Maung Than " Shwe (PW 9), Maung Po.. Hmyin
(P\V 10}, Maung T,un Th~ (PW 11 ), Maung Hme
{P~V 16), Maung Kbin Shwe (PW 17) Maung Tha Ba
({>W:J8), Unoos (PvV 19), Maung Than Gyi (PW 20',
Maung Mya Si (PW 22) Maung Ba Si (P\V 23),
:M_aupg. :Paw U (PW 24), and Maung Ba. Aye Slnve
(PW2.5)., shows t~at . about 100 or more. Communists
fl,ttac:;ked:.Yange ahd .Kaniyaing villages on the H)th.May.
19S.O, (lt about 5 a.m., that PSO U Po Kyin and his riien,
!),~ith the help of SQJl?.e of. the vjllagers, :resisted the
a~tack of th~ Cbmmuhists and wer.e able to drive them
~wayt with the tesult 1 that the ' Communists :were
~ompelled to.. retreat'at about 10 a.rh. Ori:. the.same day ..
9ne of the i.nsurge.nts was found dead, and ap.parenUy
he was the m an who Wfl.S shot- b.y Maung Han Nyunt
{PW. 5) . during . the . attack by the ins_u.rgents~
l\iaung Lin Pe tPW,S), a .villager, also re9.eive~ a
.'SUperficial :gu~shot WOtind on :hiS:back. : -T.her.e_ can
be .~no : doubt that il was an . organ iied ;,.atta.c k-: by
the; ::-:insurgeJits . so: far. as .this ~ca::.e . is.. :<;pJkernea.
a-nd:: that . thos~ :who . took .. part : ~n~ .the .. a~trck :}'on
:ange :1~d Kamyaing.. j tvillage~: .:m'Ust:.; ' Have:~ kl)o'wn
that ':~mem~e~s ~- of:- the .ieolice ~ ;E'O'rce.:~:.were.. being
.
204 BURMA LAW REPORTS. [ 1951.

H.C. stationed at Yange at that time. This explains why

1951
the insurgents commenced their attack by firing a..
t ~
y ange vt11age; and a }} persons
CHIT TIN (aj
su TAJ AN o mo~ ar at wh o JOllle
. . d
o:.E in the attack on Yange and Kamyaing villages-
THE UNioN must, in the circumstances of this case, be considered.
OF FI URMA. t
- o h ave comm1tte . d an o fftnce of hig l1 treason wtthm
, .
u ~J~Yu, tbe meaning of section 121 of the Penal Code as.
subsequently amended.
The appellant Chit Tin was said to have beent
arrested during the attack by the insurgents, with an.
American rifle in his hand. Some ammunitions, a .
bamboo water-bottle and a badge were also recovered
from him ; and he apparently had gone intb the village'
area when he was arrested. Chit Tin also gave a .
confession on the 22nd May, 1950, which was marked
as "23". It has not been suggested; in this case, to
any' of the witnesses for the prosecution that Chit Tin
had beenilltreated or induced to make the confession ..
Moreover, he admitted in his examinat~on in Court
that he was present in the attack by the Communists
on Yange and Kamyaing villages on the lOth May~
1950 and that he was arrested on that day, although
he denied that he had anything more than a bamboo-
water-bottle and a packet of food with him at the time
of his arrest. There can, in our opinion, be no doubt.
that he ~as also found to be . in' possess.~on of an:
Amedcan rifl-e and some ammun.i tions at the time he
was arrested. In view of the fact that the-attack on
the villages lasted for about s hours, if _n ot more, it is~
only proper to assume that Chit Tin must have beet},
on~ of the insurgents who joined in the attack one
Yarr~e and Kamy~ing villages for him to be found in
the . yillage area ~t. the time the tnsurgents retrea-ted..
We-are, il) the circumstances of this case, unable tO.
accept Chit Tiris)uggestion that he was taken forcibly
by the Commtiriist~ to join them in the attack on
1951] BURMA LAW REPORTS. 205
.
Yange and Kamy~ing villages because if that were so, H.C.
1951
we would have expected him to have made his escape
CIIIT TIN (a)
"before he was arreste d , or at 1east to have thrown su 'IHt
:away his rifle and ammunitions. There is also no ANDv .oNE
.evidence to show that Chit Tin ever mentioned to any THE UNioN
OF BURMA.
-one after P,e was arrested on the 1Oth May, 1950, that _
he had been forcibly compdled to join in the attack u Tu;lyu,
-on Yange and Kamyaing villages. It is also not likely
that a man who had been compelled against his will to
join the insurgents would be entrusted with a rifle and
ammunitions for use during the attack on Yange and
Kamyaing villages.
It is clear from the evidence o( U noos ( PW 19)
that while he and his companiqn were pursuing the
insurgents who were retreating, they came across the
:appellant Kyaw Win a t about one furlong outside the
village, whom .they arrested. Kyaw Win had a dah
with him at the time. Maung Tha Shwe (PW 9)
stated that Kyaw Win was wea~ing khaki short pants
:and. a shirt with short s)eew~s. at the time he was
~arrested. Kyaw Win also made wh;:tt has been called
:a confession, marked as "~ ~, but the alleged q:mfession
'Was more in the nature of exculpatory statements.
'We are also unable in this case to accept his. stat~ment
1that he had been forced to. go alo~g with th~
)9~urgents wh~h they attacked Yange an<;l Kamyaing
'Villages.9ecause if that wer.e so we would f?.ave;expected
him to ha\.~e. : run away far from the scene . of .c rime
:before he W(,ls'arre~t~d, ,which was only abot,It 5. hour~
:after the attack co~rri.encect .... Jt is also 110t. suggest~d
that he made any; ~tatement to any one at. tll_e ti.me he
was arrested or after h e was arrested that he had been
Compelled by the insurgents to acco~p~ny th~m
.against his wm. He has also called no witnesses.to
. proye that he was forc.e d to' a~company f4e insurgent~
.an .. their . att.a~~ on Yang~ :a~d. Karq.yaii;Ig . vit'la;ge~.
206 BURMA LA'vV REPORTS. [195!
H.C. Thus, the only reasonable infcr~nce in this case
.
1951
appears to us to be t11at Kyaw Win must also haY e
CHrr TIN (a) . .
so THt ANu JOine
d t h e msurgents
. vo 1untan'1y. Th e f act that he
o:E had only a dah with him does not necessarily suggest
THE UNioN that he must have b een compelled to join the
,OF -BURMA.
insurgents because we cannot expect all the insurgents
u T~J~vu. to be all armed with rifles when they attacked a village
in large numbers. Moreover, Kyaw Win was found
to have worn khaki short pants at the time he was
arrested, '\Vhich are not garments which villagers
'ordin4r:ily wear. We al~o find it difficult to imagine
that a villager who has been forced to join the insur-
:gents in the attack .on Yange an'd :Kamyaing ' illages
would not. have had an opportunity to make good
his escape during the progres~ o'f the attack on
tljose villages, particularly when the attack began
at an hot1r' when there .was:: not much light and when
the attack was shown to have lasted 'for about 5 hours .
before the ins1Jrgel)ts retreated: :
It has been contended on behalf of Chit Tin 'that
:he had been convi'c ted undersectiqn 19A of the Arms
ACt, as amended by the Arms (Temporary Amendment}
Act, 1':/49 1 in an earlier trial, which was known as
Crimi.nal Regular Tri<>.l' No. 8 of 1950 of the Court of
the Second -Special Judge, Tavoyl in which he was
sentenced to transport_ation for 'life_aud that he could.-
not again be td.ed for an offence tinder _section 1-2-2
of' the Pem~J Code in 'vie\J/ of ll1e provisiotfs of secti~lll
A-03 :Of. the Code of. Criminal Proced'ure. It will, for
-'t~is_purpose, be necessafy~f()"':e~;mine the provisi9ns
:Of sub-sectioi1' (2)' of seCtion_ .:403 of the Code of
.Criffiinal "Proce~fnre, which is~ .. . . .
! , ;. :: . , :. ': r;, '\ , , :. ) , ~ . . .. 11 . . , , "'
. -" (2)><\ i>er~<?n acquitteq- or: c~.n'l{icted.of a~y offence may be
,,a~te.r\v~f,ds:. t,~ed )~r. ~ny d~stiri~t: ~~~~~~- Jprwhich a . s~p~r~~e .
:cliarge.in,ight .have been. made against 'him on the"formei 'trial'
ti.ncier stctiort"-235; <>nb-stlction q>r
1951] BURMA LAW RERORTS. 201

It will also be ~onvenienl to reproduce Illustration H.C.

1951
(b) to section 403, which reads :
CHIT TIN (a}
SU 'fHI AND
'' (b) A is trierl upon a charge of mmder and acquitted . ONE
There is no charge of robbery ; but it appears from the faci s that TH E v.
UNION
A committed robbery at the time when the murder was com- OF BURMA.
mitted ; he may afterw:uds be charged with, and tried for, U TUN BYU~
robbery.'' C.J.

It is thus clear that when section 403 (2) is read

with Illustration (b), it aJ.Iows a trial for a di~tinct
offence ; and the real test which should be applieti is
not whether the offence for which an accused is tried
-in a su'bsequent trial arose out of the same transaction
in which the 'offence for which he was tried in a
previous trial arose, but whether it could in the circum-
stances 6 the case be said . that the conviction or
acquittal in the former trial necessarily or impiiedly
involved also a conviction or ac qtiittal of the charge
made in the subsequent trial. Mooke'rjee A.C.J., in
Ram Sa ha t' Ram v. Emperor (1) stated-
" Th~ frue test is, as Lord :Readi~g observed in. R.' v. Barron
(2), not so much whether the facts are. the same both trials asin
whether theacquittal on the first .cbarge necessarily involves an
acquittal on the second charge.,

And the observation of Mookerjee A.C.J., was

referred 'to with approval in Abdul Hamid v. King-
Einpero1.' (3). In ]ifendra Nath Gupta an_d. : one v. .
Emperor (4) it was also observed : .

~\ :rh~ qu~stion as to whethe~ a_ ~rticular trial is barted by
reason of pre\!ious prosecution. ending in conviction or acquittal is
a question .t o l{e determined.on t~e. facts and circumstance~ of a
. ~art.icul.ar case ; one ._of . _the . te~.ts the . ~Qmmiss!oners . of the
(I). (1921), 48 Cal. Series;.p. s1 at .p.83. '.
{2) (1914}, 2 IK.. B.l 570. :
c3i .(t936.3ii, 1.4 Ran: Series, p. 24 at.p.28.
14) A:tlt (f937)Cal. p. ?9at p.Hi .
 BURMA LAW REPORTS. [1951

H.C. Triibunal in the case befo1e us have observed in their judgme nt is

1951
whether hcts are the ~ame or not; but the t"rue test as has been
'Ciiir TIN (a) said in cases decided by this Court is not so much whether the
~su THI AND
ONE
facts are the same in both trials as \Vhether the acquittal or
'lJ. conviction from the first charge necessarily involves an acquittal
;:THE UNION
OF BURMA.
or conviction on the second charge :"
tU TuN B'lu,
C.J, So far as thfs case _is concerned, it will be necessary
to also reproduce the relevant portion of section 19-A
of the Arms Act, as amended by the Arms (Temporary
Amendment) Act, 1949, which reads :

'' 19-A. Whoever, with the intention ~committing an offence

punishable under the Treason Act, or murder or dacoity, and,
in contravention of the provisions of section 13 O!." section 14 or
section 15, goes armed with, cr has in his possession or. under
'his" control, any of the following types of arms or ammunition or
military stor~s, .namely : - -
(i') Sniall arms, such as,-
' .
\a) Rifles;

* .*
:shall be punished with death or transportation for life :
.. . . .~
Provided that, notwithstanding. anything to the contrary
-contained in any other law for the time being 1n force, it shall be
presumed, until the contrary is proved, in a prosecution under
this section, that the person found going armed wfth, or in
_posses-sion .of, or having under his contr.el any of the arms,
~.ammunition or milit~~:y s.\ores specified herein l:lad the intention
of committing an offence . under the Tre.a son Act., or murder or
dacoi'ty." ' .

It will be observ.ed that section 19-A of the Arms

. '
.Act, as amended by the Arms (Temporary Amendment)
.
_Act, 1949, so fa.r as this ~ase is ~oncerned, purports to
provide p~nis,hment fo_~ an offence which is entirely
distinct from the off~rice' of high treason. within the
~meaning o~ ~ection 121 of the Penal Code. It is true.
;that the.Treason Act is mentioned in sec}ion 19-A, but
1951] BURMA LAW REPORTS. 209

the proviso to tha-t section:makes it clear that the Jaw H.C.

1951
under section 19A, allows a presumption as to the
purpose for whkh arms were possesst:d or carried to ~~~~~:NA~~
be drawn, without having to prove any overt act of oNE
v.
treason or of having done anything in connection THE UK1oN
\:l.' ith any treasonabIe act. I n other word s, the offc:nce OF BURMA.
under section 19-A of the Arms Act, read with the Arms u TGN CJ.
svu,
(Temporary Amendment) Act, 1949, is clearly distinct
in character, and separate, from the offence of high
treason punishable under section 122 (1) of the Penal
Code, and a charge of high treason was a charge
which could have been, under section 235 (1) of the
Code of Criminal Procedure, framed separately from
the charge under section 19-A of the Arms Act read
with the Arms lTemporary Amendment) Act, 194-9,
even if Chit Tin had been sent up for those charges
in one trial. The appellant Chit Tin must accordingly
be considered to haye been properly convicted under
section _122 (1) of the Penal C~de in the subsequent
trial.
. The convictions and sentences of d"e ath passed
upon the app~llants Chit Tin and J<yaw Win in
Criminal Regular Trial No. 5 of 1949 are therefore
correct.
If has been urged before us by the Advocate for
the appellants that this is a case were clemency should
be exercised ~n favour of the appellants, particularly
.in view ofthe.observation which the learned Sessions
Judge, Tavoy, who tried. the case in the lower Court.
as.the First Special Judge, made. towards the end of.
his judgment, ~hich. reads :

"Although the two accused appear to be ignorant followe.rs

. merely, the law provides only ~ne . penalty for the offence
c<;immitted by them: u -is to be hoped, howeyer, that clemency
would be .shown to them bY the authorities concerned.'' .
14
210 BURMA L AW REPORTS. [1951

H.C. We must . also say that we ar~ unable to see

1951
anything on the record which will indicate that either
CHIT TIN (a)
Su THI AND
Chit Tin or Kyaw Win acted ~sa leader in the attack
ONR on Yange and Kamyaing villages or that either of therrl
'11.
T HE UNION was guilty of any act of cruelty or that they participated
OF BURMA.
in setting fire to a house, which occurred at the time
U TuN 13YU, of the attack by the insurgents. On the other hand,
C.J.
the evidence in this case indicates that they readily
surrendered wh en they were asked to do so, without
attempting to run away or r~sist arrest. This is,
however: a case where the Court has no option to
pass any sentence other than a sentence of death.
The appeals of the appellants Cnit Tin alias Su Thi
and Kyaw Win are therefore dismissed, and their
convictions and sentences of death are confirmed.
1951] BURMA LAW REPORTS . 211

APPELLATE CIVIL.
Before U Tun Byu, Cllief Justice, .wtf C c' :z P.:. J.

V. A. S. AROGYA ODEYAR (APPELLANT) H.C.

1951
v.
Feb. Z6.
VR. RM. N.S. SATHAPPA CHETTIAR
(RESPONDENTS '.*
Fo..cigner-WrtltttJ stt~ temenl lhroug% agent claum11g exemptiotJ from
jurisdiction-Point decided against llim- /njuncl1on to restr<lin a
foreignrlecree whet her could bz gr anted.
A obtained a decree against B in the Rangoon City Cidl Court and took a
copy of the said decree to India and obtained another decre e on the same in
an Indian Court and 8 the\n tiled a suit for mandatory i!ljunction against A
~.:straining him from t:xecuting the decree in his f:wour in India. A appeared
through his aJ!ent and conte~ttd the j uris~liction of the Court and also
claimed that no inj unctbn could be issued \against him. The Trial Judge
.in Rangoon answered both the points in favour of the prese11t plaintiff and
dismissed the suit.
011 appeal Held: That when a defendant was served with process by a
"foreign Court lie had the alternative of doing nothing or appearing in Court
.and contesting the claim. If he. did not appear the Court might give a
judgment against him but unless be has some property within the jurisdiction
-of the Court the decree could not be executed a~~ainst him. nut if the
defendant appeared through agent and contested the suit on merit and also
-questioned the j~ri sdiction of the Court, he really submits. to the jurisdiction
of the Col,lrt. Once th e suit is decided on merits he canpot challe.ige the
decision on th'e ground ol want of jurisdiction. The fact lh~t he appeared
through agent does not m.ake any difference.
Parris v. Taylor, (1915) 2 K.B.D . 580 at 587-588, 592; Rama Ayyar v.
Krishna Patter, (1916) I.L.R. 39 Mad. 773; T. Stmdaram Piflai v. Katklaswami
PWai, (1?41) A.I.R". Mad. 387; A. latloo Hassau Sail by his aut !tor;sed agcni
Dada Beg MulJamm4d v. M.S. N. Malzomed 0/zutlzu, (1924) I.L.R. ' 47 Mad~
fd77 at 880, followed. . . ; . .
Where a defendant is residing in a forei~n country ancl ha~ obtainedit
decree there it is not in the inter~t of ju.stice that he should be restraineq
from executing the decree he has obtained fn "the fore_ign Cllu.r't by a.perman~nt
inj unCtion even though the decree that be f1as obtained is on the basis of :i
jodgment qbta.ined In Burma. . . . :. ;. ; :. ,

.
, ' , , . l , I ' "'~ -- -
t'
Civil .lst A.ppeal No. Sq of 1950 ali(ainst the de~ree of the City"Ci( i( Uu'q"r:t
1' : ., !

Rangoon _in Civii'~egular S"uifNo: !24 o 19SO; dat~d 'tli~24th Jul{ -19JO': , :;
212 BURMA LAW REPORTS. [1951
H.C. Tlte Cart' lrorl Comta~y Proprietors v. James !Jlac/arct~, Hcr~ry Dawsot~,
1951 E. H. 1"ibbats Stai11/on, 111!551 S H .L.C. 416 at 442;" Vulcan lron Worlis v.
V.A. S. Bishumbhw. Pros,rd, (1909) J,L.R. 36 Cal. 233 ;rt 237 ; Jumna Dass v.
AROGYA HatcllaranDass, (1911) I.L.R. 38 Cal . 405 at 407, followed.
OoEYAR
v.
VR.RM.N.S. ] . R . Chowdhury for the appellant.
SATHAPPA
CBETTIAR.
A. H. Paul (a) U Hla Pe fqr the respondent.

The judgment was delivered by

U TUN BYU, C.J.-The defendant-respondent

VR. RM. N.S. Sathappa Chettiar obtained a decree
against the plaintiff-appellant V. A. S. Arogya . Odeyar
for a sum of Rs. 3,100 with costs, in the civil Regular
Suit No. 1381 of 1946 of the City Civil Court,.
Rangoon. V- . RM. N.S. Sathappa Chettiar next:
instituted a suit on the basis of the decree obtained
in the Civil Regular Suit No. 1381 of 1946 against
V. A. S. Arogya Odeyar in the Court of the Subordinate
Judge of Devakottai, Ind.ia, which was known as the
Civil Regular Suit No. 123 of 1949, for the recovery of
the amount .which was decree d in his favour in the City
Ci vi1 Court, Rangoon ; ~nd a decree. was also passed
ip his f.avour in India' on the 29th December, 1949 .
V. A. S. Arogya Odeyat subsequently filed a suit in the.
Rangoon . City Civil Court, known as the Civil
Regular Suit No. 124 of 1950; for a mandatory
inju f\Ction to prohibit VR. RM . N.S. Sathappa Chettiar
from execu~ing the decree which the latter obtained
in his favcn.Jr in India for the r~asons wbic'h were set
t>ut in the plai~t. VR. RM. N .S. Sathappa Chettiar is i"u
Ind~, and h~ has apparently not been to Burma after
he iri.stjtut~d P.i~ suit in the Court of the Subordinate
Judge, D.eva~ottai , India. : He, it is said, .has a duly
constituted Agent in Rangoon1 ~nd this Agent filed a
~ritte~, sta~e~.~ri~, ~ont~$~~9g f}le . suit instituted by
V. A. S. Arogya bdef~r: . iri -=the ." Ciyil Regtil~r ~ui_t
 1951] BURMA LAW REPORTS. 213

No. 124 of 1950, (l.nd paragraphs 1 and 2 of the v.1 itten H.C.
lCJSl
:s tatement read: V, A. S.
A'ROGYA
" 1. The suit as framed is not maintainable and is barred ODF.YAR
by the provisions of section S6 (a) and (b) of the Specific Relief VR.RM.N.S.
v.
Act. S4TUAPPA
2. This Court has no jurisdiction as no part of the cause of CHETTTAR.
.action arose within its jurisdiction and the relief sought being U TUN Bvu,
one in equity acting in personam the defendant should actually C.J.
and voluntarily reside or personally work for gain within the
jurisdiction anc!' service on the agent through wlwm the clefendant
-carries on business will not avail or give jurisdiction."

Eight issues were fr.amed by the trial Court in the

Civil Regular Suit No. 1~4 of 1950, and two of the
issues were -
" 1. Is the suit maintainable in its present form and no~
,barred under section 56 (a) and (b) of the Specific ~elief Act?
2. Has this Court jurisdiction to try this snit as
-contended in paragraph "2 of the Written Statement?"

The _learned 3rd Judge of. the Rangoon City_ Civil

Court answ~red the above issu~s in favour of
VR. RM. N.S. Sathappa Chettiar, and. he dismissed th~
suit o'f V. A. S.. ..\rogya Odeyar, with costs.
VR. RM. N.S ... Sathappa Che.t tiar is, as we have
{)bserved above, still residing in India.: I t has however
been strongly urged on .be-h al( of V. A. S. Arogya
Odeyar that VR. R M. N .S. ~at,happa Chettiar should, in
view of the fact that his Agent in Rangoon has fileq a
written statement on his behalf contesting the s.uit o{
the plaintiff~appellant, b e considered to have submitted.
to the jurisdiction.of the City Civil Court, Rarigoo~, so
' 0

far as the Civil Regular Suit- No. 124 of 1950 is

-concerned. ln tlie case o~ liarrls v. Taylor (1 ), the
defendan~, aftet:)le yvas ser~ed :wi.t h a writ iri England,
persoiuilly appeared, alt~o~.g~ co~ditioi;}al.ly l .b~fo~e tlie
(1) (1915) 2 -K.H.D.,'SSO at S87-S88: :592-.: . .
 BURMA LAW REPORTS. [195l

H.C. Court of the Isle of Man and applied to have the order
1951
of service, which was served upon him. out of
V. A. S.
A~OGYA jurisdiction, set aside. Buckley L.J., stated :
0DEYAR
v.
VR.RM.N.S. " When the defendant was served with the process he had
SATHAPPA th~
alternative of doing nothing. He was not subject to the
CHETTIAR. jurisdiction of the Court, and if he had done nothing, although
u TuN BYu, the Court might have given judgment against him, the judgment
C.J. could not ha-ve been enforced against him unless he had some
property within the jurisdiction of the Court. But the defendant
was not content to do nothing i he did something which he wa;
not _obliged to do, but which, I take it, he thought it was in hi&
interest to do. He went to the Court and contended that the
Court had no jurisdiction over him. The Court, hO\ll.ever,.
decided against this contention and held that the defenqant was
amenable to its jurisdiction._ In _ my opinion there vras a
voluntary appearnce by the defendant in the Isle of. Man Court
and a submission by him to the jurisdiction of that Court. If lhe
decision of the Court on that occasion had been in his favour he
. would _ have taken advantage of it; as tl.e decision was against
him, he was bound by it and it became his duty to appe;~r in the
action, and as lJe chose not to appear a"nd to defend the action
he mus~ abide by the consequences which follow from his not
having-done so." .

Bankes :L.J., in the same case also observed : -

"The fact trat the defendant h~s sm~ght the protection of
tlie Court .imposes upon him an obligation to obey tl,e judgment of
the C0urt if it should happen that it is given against him. It is
in my opinion an entire misconcepti0ri. of the principle applicable
to these cases to say that "there is (l. voluntary submission to the
.. jurisdiction of a foreign Court only when the defendant by.
appearing in the ~~ti~n- in the technical sense has consented to the
juriscliction."
. . ~

. . ~0 . . . : ~ . . .

- The case of H[lrds v. Taylor (1) was followed in the case

o,f Raina Ayyar v. Krishna Patter -(2), where-it was also
held.. that the
. defericiant should be deemed ..to . have.

.{1)(1915) 2 K.B_.D. 580 at 587-588: 592. '

. . . (2) (19J6) I.L.E. 39 M_a d. 77_3 . .
 1951] BURMA LAW REPORTS. 215

submitted tb the jurisdiction of a foreign Court where H.C.

1951
he appeared and. defended the suit on the merits, V.A. S.
although he protested against the jurisdiction of the AROGYA
00EYAR
Court to entertain the suit againsfhim. The case of v.
Harrisv. Taylur {1) was again followed in the case of VR.RM.N.S.
SATAAI'PA
T. Sundaram Pillai v. Km1daswami Pillai (2), the firs! CHETTIAR.

paragraph of the headnote of which reads : U TUN BYU,

C.].
"The action of a defenda~t in filing a written statement in
Court and attacking the jur.isdiction of the Court amounts to
subm:ssion to that jurisdiction as he is asking the Court to decide
a point in controversy between hjm and the plaintiff."
In the present case VR. RM. N .S. Sathappa Cheltiar
did not appear personally before the City Civil Court,
Rangoon, but hi's Agent had fikd a vvritten statement
on his behalf contesting the suit instituted by V. A. S.
Arogya Odeyar. Can it, iri the circumstances, b e said
that the VR . . RM. N.S. ?athappa Chettiar had not
submitted to the jurisdiction of the City Civil Cour-t,
Rangoon, so far as the Civil Regular Suit No. 124
of 1950 was concerned? In A. ]anoo Hassan Sait by
his authorised agent Dada Beg Muhammed v. M.S. N.
M ahamed Ohuthu {3} it observed as follows:
. '' The firs.t question for consideration is . whether the first
defendant had submitted to the 'jurisdiction of the foreign Court,
and on this point I must agree with th.e learned District Judge
that he did so by executing the power-of-attorney in favour of
~bdul Rahiman. empowering the latter to conduct litigation in
the Ceylon Courts, namely, in a place where the agent was
conducting l;msiness for his principals, and it is dearly a contract
binding I:tim to appear in those Courts and amounts to submission
to tbe .jurysdiction of tliose Courts.'' o

0
It seems to us, that where a defendant,. who Jives in .a .
foreig~ count~y, conducts busine.s s in Burma through
{1) (1915) 2 K.B.D. 580 at 587.588; 592.
(2) 11941) A.I.R. Mad. 387.
(3) (1924) I .L.R.. 47 Mad. Series, 8?7 at ~80.
216 BURMA LAW REPORTS. [1951
H.C.
1951
his duly constituted Agent, who has heen ;empowered
also to sue and appear on his behaLf in the Courts of
V.A.S.
.'\ROGYA Burma, he could at least in a case where the Agent has
0D'Y:A.R
v.- contested the suit on his behalf' be regarded as having
VR.RM.N.S
. SATHAPPA
impliedly submitted himself to the jurisdiction of the
CRETTlAR. Court in Burma.
U TuN SYU, The question which arises next is, does the
C.J.
conclusion, which we have c'ome to above, necessarily
conclude the case so far as the preliminary issues are
.concerned? It appears to. us however, that the mere
fact that VR. RM. N.S. Sathappa Ch.ettiar, who is
residing in India, could, in the circumstances of this
case; be considered to have impliedly submitted to the
jurisdiction of the Rangoon City Civil Court, .does not
necessarily indiCate that this is a case where a
mandatory injunction, which is sought. for, must
necessarily be issued. The question whether 'the
Court ought to issue a mandatory injunction against
VR. RM. N.S. Sathappa Chettiar, who is still residing
in India, w11l thus have to be ~onsidered. We ought
here to reproduce the obSefvatians which . :t:ord
Cranworth made.. in tbe .case of The .Carr iron
Company Proprietors v. ]ames Maclaren, Henry
Dawson, E. H. Tibbals Slain ton ( 1), which read :
"The Company has real property in London and Liverpool,
and in the County of Cumberland. The question is, whether
this connexion with England makes it fit that the Court should
interfere to prevent the Appell~nts from exercising their right
of proceeding .in the tribunals oftheir own ccuntry. I confess
I can discover no foundation for such a propositiqn. The
circumstance th~t the Appe11ants hav~ property in . this country
which may be attached or sequestrated, enables the Court to
. make any injunction it n:iay issue effectual j but 1 do not see on
what principle it c1~ rriake ttie. issuing of an lnjun.ctioi'! just or
exJ,:edient, if it .would.hive:.be~n unjust or inexpedient, s-upposing
there had b~en no proPertY. capable of bdnir sequestrated.
<11 (1S5SI s..:H.t.c. 416 af44z...
 l<iS 1] BURMA L AW REPORTS. 217
But here the A~pellants not only had property m England, H.C.
1951
but agents fo1 the sale of goods. How does that vary the case ?
The existence of such an agency may, in some cases, enable V. A.
AI!OG
third parties to sue the principals, though out of the jurisdiction, 0DEYAR
by reason of their being for certain purposes represented by v.
VR.RM.lli.S
their agents. But I can discover no principle which would SATHAPPA
justify the Courts of this country in holdin~ that the existence of CHETt'IAR.
an agency here for the sale of gcods can deprive a foreign U T'uN Bvu,
princi~al of his rights as a c reditor in his own conn try." C.J.

We agree, if we may with respect say so, with the

-above observations. The decision in The Carr Iron
Company Proprietors v. ]ames Maclaren, Henry
Dawson; E. H. Tibbals Stctin/ott (1) was followed in
Vulcan b ;on. iorks v. Bishum.bhur Prosad (2), where
Fletcher J., observed:
11
It follow3 in my opinion that the jurisdiction of this Court
to restrain pwceedings i n Ccurts outside its jurisdiction is
governed by the. same principles as thosefthat govern Comts of
Equity iil England, namely, the party, whom it is sought to
n strain, is within the limits of he jurisdiction of this Court so
that in the event of an injunction being granted against him and
being disobeyed he would be subject to process of contempt.';

In ]umna_ Dass v. Harcharan Dass (3), where the cases

.-of The Carr Iron . Company Proprietors v. ] ames.
Maclareit. 1 Hei1ry Dawson, E. H. Tibbals Stainton (1)
.and Vulcan Iron Works v. Bishumbhur Prosad (2),
were also referred to, Stephen J., 9~ed :
. ''In Vulcan Iron Works v. Bishr~mblwr Prosad . (2),
Fletcher J., after referring to T~ Carr Iron co. v. Maclaren
{1) , comes to the conclusion that a Court of Equity can only.
Testrain a person from proceeding with a spit in a Foreign
-court, if he is within the jurisdiction of the Court. It has ~ee.n
-sought 'to show that this conclusion w's not properly deduced
from the authority refe ~red to on the ground that that case was
(1) . (1855) 5 H.L.C. 416 at 442 .
{2) (1909) I.L.R. 36 Cal. 233 at 237.
C3) (1911) I.L.R. 38 Cat. 405 at 407.
218 BURMA J.AW REPORTS. [ 1951
H.C. decided on the merits .of the case, and t hat ij the Court that is
1951
asked to issue an injunction can make any o~de r that would affect
V. A. S . the person whom it is sought to enjoin, if, as is said, the Court
AROGYA
v. can reach him by attaching or sequestering his property, it has
VR.RM.N.S. jurisdiction to issue an injunction. I do not consider that this is
SATHAPPA
CHF.TTIAR. so. TheCourt in Tlze Carr Iron Co. v. il-Jaclaren (1), proceeded
not on the particular merits of the case but on the general rule
U TUN B YU,
C.] . that a person livi ng entirely under a foreign jurisdiction must be
left to obtain such reliei as his own Courts may afford, and that
being so, the case is an authority for the proposition put forward
by Fletcher J."

We are also unable to see any cogent -reason why

the Court here .should ~xercise its discretion and
grant a mandatory injunction, which is an action in
personam, against a person residing in a foreign country
to restrain the latter from taking out execution of a
d ecree which he obtained there, and over which the
Court of _that country has complete and proper seisin.
It is true that 1the decree which the defendant-
respondent obtained in India was based on the decree
which he obtained in Burma,.bu.t this is a matter which
the law allows him to do. A foreign decree <;:an also
form the basis of a suit it) Burma. W e do not think
that it will be proper or right to allow any consideration
of hardship, if ariy, to influence our consideration in
this matter.
The 'appeal is- dismissed with costs.

11} llSSSI S H.L.C. 416 at 442.

 1951) BURMA LAW REPORTS. 219

CIVIL REVISION.
Before U 011 Pc, J.

BISWANATH CHOWBY AND ONE (APPLICANTS) H.C.

1951
v. Feb. 21.
JANAW (RESPONDENT).*
Car1sc of action-Witet/Jcr ackna:.:Tedgme1d of accotwl slttled gives a fresh
cau sc Of acl ion.
Held: That :~cknawledgment of account stated which was not a mutual
account does not in itsel constitute a fresh contract.
Kenkani nn.-llwo others v. Mazmg Po Yin, 1 L .B.R. 190; Gmt eel Prasa d v.
Ram Dayal, (1901) 23 All. 502, followed.
But where the accounts have been settle<! and agreed upcn between two
parties. and one oi the parties has promised to pay the amount, a suit can be
filed on such promise.
ilftumg Chit U v.ll1a1111g Pya, I.L.R. 6 Ran. 538, followed.

San Hlaing for the applicants.

S. R. Chowdhury for the respondent.
u ON PE, J.-This is an application to revise the
judgment and decree passedby the District- Court of
Henzada in Civil Appeal No. 2 of 1950 of the said
Court, ~etting aside the decree pa!ised by the 1st Subor-
dinate Judge, Henzada, passed in Civil Regular- Suit
No. 67 of 1948 of the said Court. The suit is n<fmed as
one "to recover Rs. 499-10-9 on accounts stated or in
the altern~tive on original consideration." The claim,
made in the plaint, is as stated in paragraph 2 therein, .
that il on ~Oth April 1948 there was a settlement of
accounts and it was found that the defendant owed
: Rs. 499-10'.;9 to the pl.aintiffs in ~II including the origi.n~l
. dues ofl~s. 210-7 (l mentioned. in the previ!=>us paragraph.
The sum of Rs. 210-7-6 was said to be the amount
p~yable.by the defendant on 20th S~ptember 1947 when
there was a previous
. .
settlement of .accounts:,
. ..
... * CiviJ Revision No. 25 of. 1950 against 'the decree of the District C ot.irt of ..:
in
..Henzada CJvil ~ppeal.No. 2. or 1950, .d:~ted the. 31st March 1950. . .-
220 BURMA LAW. REPORTS. [1951

H.C. Issues were framed which were all confined to

1951
settlem~nt of accounts between the plaintiff and the
BlswAHATH defendant and the amounts payable by the defendant
CHOW BY
AND oNE ori su<;h settlement of accounts. There is nothing
JA:~w. mentioned in the pleadings about the claim being
u 0 ;-FE, J. made on original consideration and no attempt has
been made to prove the claim based on such considera-
tion. The part~es went to trial for recovery on
accounts stated, and this is made clear from paragraph 3
of the plaint which is as follows :

''That the cause of action arose on 20th April1948 being the

date of final statement of accounts at Henzada within the
jurisdiction of this Court.''

The learned Subordinate Judge decreed the suit,

believing the evidence of Baratu tPW 3), Siv'darson
Lal (PW 4) and Ramphal (PW 5). Be rejected the
evidence of t~e defence, saying that the defence
witnes~es bore grudgeagainst the plaintiff Biswan.a th;
as nearly all of them had received notices from the
plaintiff for the loans that they had taken from the
plaihtjff.
Tp.e_iearned District Judge too.k the con,.trary view
and dismissed the suit. In doing so, he rai~ed a legal
point that the plaintiff had no cause of action, relying
on the ca.se of Kenkani and two others v. M aung Po Yin
(1). There, it is held that an
acknowledg,m ent on an
~ccount sta:ted does 'not in 'itself constitute . a fresh
contrac.t, breach of which would be the foundati.on of
a cause of adion. Sirrlilar view' is laid 'dow~ iix
Ganga, Prasad_ .v.. Rant IJa_:val' '{2) whe~~ it was" held'
that a IIJ.ere 'acknowiedgmenf.6n. s'ettrement of an
accoun:t, which is not a:.niutual ~.cco~ml could not alone
be the b?Sis of a suit. . : .
. . -: .. .. .
(ll L.B.R. Vol. 1; p~ 1?.0. (2) (19oi) 23 All.'p. 502.
. .
 1951] BURMA LAW REPORTS . 221

It has been cpntended by the learned Counsel for H.C.

1951
the applicant, rely.ing on Maung Chit U .v. Maung Pya
BISWANATH
( 1) that where accounts have been settled and agreed CHOWBY
upon between two parties and one party has promised ANDv.ONE
to pay, a suit can be filed on that promise. But that JA~AW.
is a case which deals with a settl~d account of mutual U ON PE, J.
dealings and is therefore distinguishabl.e from ~he case
of Kenkani and l'WO ofhc:rs v. Maung Po Yin (2}.
An account stated is not the same as an acknow-
ledgment signed by a debtor in the account book of
his credit. Their difference has been brought out in
the case of Ganga Prasad v. Ram Dayal (3)". The
relevant passages on this. point may aptly be reproduc-
ed from the judgment :
" An account st~ted in tl~e true sense is \there several cross
claims are brought into account on e~ther side, and are set off
against each other and a balance is struck. The consideration for
the payment of the balapce is the discharge on e;tch side . . . :
A mere acknowledgment signed by a debtor in the (lccount book
of his creditor showing a bllance shnding against the debtor on
an account; which is not a mutual account, is neither an account
stated, nor is it. evidence of a new contract which can be the
basis of a suit. "

The prese~t suit is dearly not ba~ed.pn accounts

stated but on acknowledgment and in the light of the
authorities cited, this case must fail as the ack~ow
ledgment relied on by the plaintiff cannot be the basis
. of a suit. It_ may be mentiQned in pa~_sing that the
. plaiQtiff by not complying with Order 7, Rule 17 of the
Civil Procedure Code when the plaint was fileq, had
given good ca~se to the opposite _side to s~y th(\fhis
shop book,. which is pow unfortunately not available,
could not have been. a genuine one. In the re.s ult this
appiication
. . .
~ -
is. dismissed ~ith costs.....
. . . . . .. . . . . .. ..
... .
. . (1) J,L;R. 6 .Ran. p. 538. (2) _L.B.R. Vol :l, p. 190 .
(Jl t19.0 li 23 ~n, p. so:t;
222 BURMA LAW REPORTS. [1951

CIVIL REVISION.
Before U A ung Khi11e, J.

.H.C.
1951
u SHWE YA AND ONE (APPLICANTS)

Jan,I2. v.
SITAREE (RESPONDE NT).*

Burden of PI'Oof-S. 102 of Evide_t:c~ Act.

Held: Where in a documenf the executant has admitted the -receipt of
consideration and if he alle~es in a suit th'at he did not receive the
consideration, the b\)ra.e n of proof is on him or her to prqve the non-receipt
of the consideration. ..
R~;,Chand v'. Clthl;tmi Mai, (1925) I.L.R. 6 Lah. 470; Mrs. N. Johnstone,
etc." Gopal Singh attd others, A.I.R. (1931} Lah. :31_9 at 328, followed.
Where the burden of proof has been mis-placed and case has. been
decided wrongly the High Courl can interfere revision: in
Rasu v. Ka(lara; I.L.R. (1924j 2 Ra~. 202, fo!lov.~e~.

s.. T. Leong for the ap;'licants.

Kya1t' Htoon fur the respondent.
U AuNG. KHINE, J.-On the Uth August 1946 the
d efendant-respondent Sitaree executed a hypotheca~ion
bond,by which he pledged three cows and acknowledged
rec.eipf of Rs. 250 in cash from the plaintiff-applicants
:U Shwe Ya <1.nd Daw . Thin U and _pro~ised to pay
them in~erest at the rate of .per cent per m~nsem~ ?
The plaintiff--applicants D Shwe Ya and Daw Thin U
later filed a suit for th'e recovery of the. amount .
advanced together with interest at the rate of Rs. 2:8-0
per meris~m, in all amounting to Rs. 337-8-0.
The defence put .up by the .d.e.fendant-respondent is
that the bond was execot~d by him With a view to
defraud
.
on_
..
Pan
e: . . .day and that , no consideration
.
passed:
. ..
* Ci~i1 Revision NQ. .69 of 1948 a~ainst the decree of the District-Court of .
Hanthawaddy in Civil ippeal' No. 13
. . . ~ .
o
1948, dated' the 10th July 11)48.
. . .
1951] BURMA LAW REPORTS. 223

The plaintiff-applicant U Shwe Ya gave evidence and H.C.

1951
testified about th& payment of Rs. 250 to the defendant-
re!:.pondent. According to him the amount was made U SnwE YA
AND ONE
up of three sums of Rs. 100, Rs. oO and Rs. 90, the v.
~ S I TAREE
last of which was paid on the day the document was
U AUNG
executed. In support of his .claim the plaintiff-appli- KfUNE, J.
cant examined three witnesses, U Ba Shwe, U San
Nyunt and U Ba Tin. U Ba Tin is a pleader and he
wrote the document. To him the defendant-respon-
dent acknowledged receipt of t he money before the
bond was executed. T he defendant-respondent did not
go into the witness box to substantiate the plea he had
put forward. The trial Court passed a decree for
Rs. 250 with interest at 1 per cent per mensem from
the 11th August 1946 to the 11th December 194/ in
favour of the plaintiff-applicants. On appeal the
learned District Judge, on the grou nd that the plaintiff-
applicants had failed to discharge the onus of proving
the consideration, allowed the appeal and dismissed
the suit.
It is now contended on behalf of the plaintiff-
appii_canfs that the burden of proof has been wrongly
placed an.d since the exe~ ution of the bo~d was
admitted lt was incumbent on the defendant-re~pon;
den t to prove that the document was only a sham one
and as a fi?.a tter of fact he d'i d not receive any con-
sideration from the plaintiff-applicants. It is further
contended that section 102 of the Eviden~e Act is
applicable in this case and that Illustration. (b) in
section 102 is alinost on all fours with the present case.
Illu~tration (b) ru~~ as foilows:
"'(6) A sues B for money due on a bor.d. The execution of
the bond is a.dmitted, but B says that it was obtai~ed - by rand,
which ~ denies._ II no evidence were given on -either side,
A would su.cceed as the bohd is not dispu~ed and the fraud is not
pro,e.~ . Tb~ref01wthe burden of proo is on B." .
22~ BURMA LAW REPORTS. l1951

H.C. In support of this contention my atteJJtion was drawn

1951 to a Full Bench case of Ram Chand (Plair~tif!)t
U SHWE YA Pelilio11erv. Chhunni Mal ( Defendant), Respondent, (1).
AND ONE
11. It was held therein that :
SITARliE

U AUNG "Where an unregistered document, the execution of which
KHtN, J. is admitted or proved, contains an admission of the payment
of the consideration the o11us lies on the person executing the
document to prove that \.vhat he himseH admitted to be true
was, as a matter of fact, false and that he did not receive the
consideration."

In another case Mrs. N.] ohttslone, etc. (Defmdants}

Appellants v. Gupal Singh aud others (PlatntLjfs)
Respondents (2), it was held that :
" Where the ve-ndor admits rec~ipts of full consideration in
the sale deed, the burden lies heavily on him to explain the
admission and pre ve non-receipt of consideration."

If in the present case no. evidence was adduced by

either party, the trial Cou.rt would have to decide in
favour of the plaintiff-applicants as the execution of the
document is admitted and the declaration about receipt
of consideration therein has not been proved to be
false. The principles propounded in the above cases
are well founded ofl natural reasons and as they are
based on law as well, I have no hesitation in following
them. In the result I must hold that the learned
DistrictJudge has erred in placing the onus of proving
the passing of consid~ration on the plaintiff-applicants.
To my mind the judgment and decree of the trial
Court should not have been disturbed.
However, the defendant-respondent has now
claimed that this Court has no power to revise the
order of th'e District Court as it had not .e xercised its

(1) I.L.R. 6 Lab. 470. .

(2) A.I.R. (193!}, L~h.~19at 428.
 195 1] UURMA LAW REPORTS. 225

jurisdiction illegaily or with material irregularity. It is H.C.

1951
true that ordinarify the High Court does not interfere
{; SH\VE YA
in revision unless some grave injustice or hardship AND ONE
would result from a failure to do so. In this case v.
S!TAREE
however, the learned District Judge disregarded the
provisiqns of law to \\'hich his attention was drawn ar.d
obviously he did not apply his mind to it. He has not
given any reasons whatsoever why section 102 of the
Evidence Act was not applicable. Such being the
case I am of the opinion that a ground for revision
exists and that the applicati9n must be allowed. I am
fortified in this view by the decision in the case of
Rasu v. Katfara (1). In the course ot the judgment
Young J., said :

"In 2 L.B.R., pages 333 and 340, it was held that where a
Court has apr-lied its mind to the law and decides wrongly, then
there is no ground for revision, .but where it disregards some
provision of law and has not applied its mind to that provision,
. then there is ground for revision . . "

In the result the application is allowed. The

judgment and decree of ' the District Court,
H anthawaddy, is set aside and that of the trial Court
restored. with costs throughout .

(S
226 BURMA LAW REPORTS. [lt.JSl

SPECIAL BENCH.

Bcfortt U Tuu Byu, Clt ;,f Jus/ice, U Aung Tlta Gyaw atul U Bo Gy1, JJ .

H .C. u ON KHI N ( PETITIONER)

1950
v.
A ug 11.
THE U NION OF B URMA (RESPONDENT).
\
*
Press (Emergeucy Powers ) Act, s, 4 (1) td)- Whether a politicalt~c~rtyts a
c!a,<S or s:ctiot~ Wtlhiu the meaning .,f s. 4 (I) (d)-Priucipl~s on whtch lite
mnrler slto.tl cl be dccidcd-lntcrprttatiott of Stnttti~-Duty of Jttri11.c-
Meaniug of /he W<Jrd "GIJVenzment"- C:msltfu/ion t-/ Burn1n.
1/cltl: In a Co.trt of Law or Equity. what the Legislature intended to be
done: or not to be done can only be lc~itimate\y ascertaint!d from th:tl whi~h
it has chosen to enact, either in express word:; or by reasonO!blc and nl:cessary
implication. and the lan~uage of ~tatutes is to be interpreted accordln~ to the
recogni~ed canons of con'str Jt'tion laid down and the Judges are not entitled
tr. read W\)rJ:; into an Act of Parli;uncnt unless Clear reasons are to be found
wi .hin the four CQ('u~rs o,. the Act itset.

Solumo" v. Solomon, 11897) A.C. 22 a t 38; CM v.' Ha kes, (t890J 15 A.C. 506
at 528 ; Vrck~rn. Evatis, (1910) 79 L.j. (K. B.) 9.5'5, followed.
The dll ty or the Ju dge is to en deavou r to appl y the 'taw correct!; a:; he
li nd~ it, and in' a lilberal spirit a nd without any bias .
It is not the province of
a Judge to inquire into the wisdo m of the legislature. He is to adm inister the
law as he fin ds it and he is not to be infl uenced by his own person al
conceptions of propr iety, or non propriety, of th e piece of le gial:~tion that
comes for consider~tion before him. Th~: Court should n ot give , igid
definition of words r.ot defined by Legi.>lature.
The Soci.11ist P arty in Burma has large repesentative~ in the Parliament of
the Union of Burma and has numerous, members or adherents in c:i Aerent
parts of the count r y and it is not that-c.lass of political party whkh is likely to
disappear or become defunct when any of ib leaders leaves it or dies. It
follow, a certain political ideology wh ich is different from the ideologies
followed by other parties in the country. It is a well-kuown political
organiration wilh three of its members in the present Cabinet of Ministers its
members form an ascertaina~i~ portion of the residents ol Burm.t. Therefor~
the Socialist Party is a s~cti:on : of pe~sons resident in Burma within the
meanin!! of s. 4 11) (dl of Press. {Emerge~cy Powers) .Act.

Ci~il Misc. No. 172 of 1950.

 1951] BU RMA LAW REPORTS. 227
Rctj Pal v. Tit.: Cru<in, (1922) 3 Lah. ~05 at 4D : ' la11a: kti" <f Sllliet a11d H.C.
others, (1932) .t>..I.R Cal ..649; EmfHor , .. Miss M.u!ll ibc n L. KctYcl."l1933 l 5i 1950
Hom. 25.> ~~ 2~9 : /..'a mal Strca r v. Empctor, (193i) A.I.R. Cal. 691 at 69~ : t.: 0~ KHJN
King-Emperor \'. Bcno"tali Mnharann, (l9-J3) 22 P;~t Series, -IS at 53; Empero v.
v. Miss Mnn niben . I.L.R 11933) 57 Hom. 253 ; Rr. "The Co-operalite Cnfilal THE UNION
OF BURMA.
Pr'-S!," L ahore, 11949) A.l.K Lab. 2HI at 2:'8; Annie Besant v. Arlvocafe-
Gaternl, .lladras, (1918-19) 46 I.A. 176 at 195-196; 43 Mad. 146; B. Ram
Sarau D,ts Joltri v. Emperor , A.l,R. (1934) All. 717 at 718, referred to .
.Vctrayan Vas;ufev l'lladke v. Emp:: ror, (1940) A.I.R. Bom. 379 at 381 '; In
Ute ,1/altcr of Nawni WaqfDnil_l ," Lahore , .. Th e Crotl'll., (1947 ) 28 Lab.
Series, 497 :lt 514 " nd 561562;" Daily Zctmiml.rr"" Lahore\'. Ewzperor. (l'J47)
A.l.R. Lah. 340: The" Zamittdar, ' New:;/lap.; r, Lahore, ti9Jq) A.I.R Lab. 219
at 226, view of some judges d~ssented fro:n.
In lite !JI<~ll c:r<Jf'' Ja11g-i-A:adi " , Laltorc.(l948) r'\ .I.R. Lab 6, referr ed to.
The htention ol the a:tth >r fur the purposes of the present case is <n tirely
imllli\leria!. In co:1sidering the qneston it is the duty of the Court to have
regard to the s ::rrounding circumstances ; for instan.:e, the context in which
the wo r d~ appea, the persom to whom the words were addre~sed, the
p.>!itic:\1 ahnosphere in whio:h the word;; were delivered, :~nd the place wl:ere
they were published.
"Narc-ai Wa :Jf Daily ," Lahore v. The c :onm, l1947i 28 Lah. ~97 at 514
561-562;Re." .4nandalazarPalrikct,"{I933)60Ca1. 408; In t he Malter oj
.. Tlte Srm P. e.s" Lim ittd, (19351 !3 Ran. 98 ; In Re. "Saptah " and In Re.
Ueno} f{umar, (1949-50) 54 C.W.~. 334; S. N. S. Mudaliar v. Tl1c S_ecrctary Q/
S t ,tt efoJr Judia iu (;()U:tetl, ( 1932) 10 Rm. 165 :~t 169, followed.
' .
Honest or legitimate criticism in a democratic country is not onl y desirable
but it may be regarded as ~ source of stren~th in the be:tlthy growth of a
democracy. It is in the interest of the public and of the Government, that a
w:iter or a c~itic should be free to write on all subjects or'topics so long as he
do;s it te:ng.er:~tely though he may use strong o.r severe expressions here and
there.
Every free man has an und >ubted ri ght to lay what sentiments he pleases
before the public, to for!>id this is to destroy U1e freedom of the Pr ess. one
political organization is entitled to criticise anti even attack ~nother political
organization hut such criticism and attack must be legitimate and not
prohibited by law.
. 4miie Besaut v , A:lvoealc-General, M.1dras, (1918-19) 46 J.A. 176 at.
195-196 : ~3 Mad, 146 ; ~ia l(hin 1'/tatl v. The Comnriss:oner of'Police, Rarrgo.m
dt~d OIIC, (i<?49J B.L.R.li at 16, followed. .
The general e-ffect of the article in question must be COnsidered to be
on e which tends. indirectly at least to ' cr~ate :1 feeling of hatred or conte1i1pt
against t?e. Socialist . Party in B:mna.
Under s. 114 read with s. 56 of .fhe Con stitution,.the Cabinet, of wh1ch the
p, ime Minister is the head c)nstitutes... tht Go vet nment for the p'urpose of
4 (1) of lhe Press . (E.ti'lergcilCY. Powo:rsl Act The article was not dir~cted
a~ainst the Ministry as a \vhole..
228 BURMA LAW REPORTS. [1951
H.C.
.
PerU AUNG THA GYAw, J.-That th e words "class or sect ion in
1950 s. 4 (1) (d) of the Press (Emergency Powers) Act cfo not include any political
U ON KHJN party like the Socialist Party in Burma.
v. Read in the light of the principle; laid down in decided cases referred to
THE UNION the article does not come withi n the provisions .; s. 4 {1) {cl)' of the Press
OF BURMA .
(Emergency Powers) Act. Read as a whole in a liberar and detached spirit,
what an ordinary reader would understand is that the predominant political
party in U1e country was going to assume complete control of the
Government machin::ry and that certain unfavourable and undesirable conse-
quences were likely to happen if such an eventuality took place.
!n th' Matter of the Indian Comtanies Act VII of 1913 attd of/ he Traders'
Bank Ltd., Lahore, 36 A.l.R. (1949) Lah. 48: ln the Matter l>/"The Co-opcrtitive
Cap1t al Prc ~s," Lahore, {1949) A.I.R. Lah. 218 at ?.27 : An11ic Bcsat:t v.
Adtocate-Get:eral of Mad1a's, (I920) l.L.R 43 Mad. 146 at 163-164; 46 LA. li6;
Raj Pal. v. Emperor, 3 Lah. 4CJ5-28 Cr. L.J. 721; Jaswa1tt Rai, 5 Cr.L.J. 43};
Cilll:mutat.i, 13 Lah. 152 (S.B.) ; Muushi Sing It, 10 Luck. 712 ; In R<. Joonala-
gnrlds Ra11lingaya, 119371 Mad. 14 ; Ma11oltar Damodar Palil a11d a1UJlher
v. Tht Government of Bombay, (1950) Cr.L.J. Bom. 8.29; In f(otr.tgad:ls
Rajagopala Rao v. T he P r()'llt i/Ce of l!fad,a~. (19491 I.L.R. Mad. 149 at 157;
' CooPel'aii;e Capital Prrss," Lahore, 11947) I.L.R. 28 Lah. 497; EmPeror v.
Miss Ma~mi'ben, I.L.R. i1933) 57 Hom. 253 ; /11 f/1e Matter of the Nc71Jspaper
"T1te Dail.Y Pratap ", 51 Cr.L.J. East Pun. 725 at 727 : " Tile Co..opemtive
(,aji.'al I'tcss," Lahore 11934) A.l.R. Lah. 219 at 225; Urd.t Daily News-
Pater" Fratap ", N(w Deiht v. 1'he Crown, 36 A.T.R. (1949) East Pun. 305 ;
1'11 tile Matter of'' !a11g-i'-A: adi," Lahore, 35 A.I.H (19481 Lah. 6; S. Gurbakhslt
Slllgh v. ~mperor, 34 A.I.J1. (1947) Lah. 361 ; Mrs. Annie Bl'.sant v. EmPeror,
'tt916) I.L.R. 39 Mad. lOSS.; Manomohatt Gltosc v.' Em(>eror; {1911) I.L.R.
38 Cal. 253, foi!Qwed. . .
* * * *
In the well-known paper'' Bmuak/Tit" the editor U On 'Khin
used to write on political topics under the name of MOGYO and
the followin.!! a~ticle appeared in that paper on the 28th February
1950 :~ .
~~GOlOOo:><n6:_0'J oe~o '{~~ GGooTo1~oo J 0 6\c(jo- j -~0 )'
~loSoo&;.Goo~:0:] S:G~Go:>?Gtn ~ }<cc~GOJG ~.;>0<?~~-:~u
G6}:0jl ~:ffi:11
oo-ro:>ef5~ ~~q8-a~cy6 ~~~ ~c80lCG~'JCmG00:1 @:oS:~~
~~Gq;jjS5~mGco:~d?~roto~~'f>:D'a~Ol~0ml ~c:@t~ .~aS
.Go:Go:>'J _9~~:~[0o:>Olb~~ GO:leP~cb~ 0'J:Y.>o5o~o:ic~ ~o5S
.Gd:>'JC;~o5Sffi~o&~~:>tu cf?~23'J~o5(),26 ~loSoo~o?g@:~ ~~
.o~@:Ol~@~;~') ..~!oSro~~:OJGOO'Jf:~~G<JtOO:?.>I S~m.. ~8otS!i .
' .y:bSt6:l8@8:~'J@~45-:>.8~ GGT@o 1~~o:>tu ~G01/23'JciJo506to6
O~~.~~~Gf>f'~~G'Jb:GG 'foo'J~o:>tn . .. .
 1951] BURMA LAW REPORTS.
H.C.
~JJQC~ii G:Y.Jl8'J'\IoS~GC:O?oS~ Gi>'JoSooS o~~:l&lGcj>Ef>OJC 195(!

~luSro~~'):~oE ~g Q~oo'):~t~o1m ~~~':ll ~~a VON KH!~

v.
G<JfcbGon c;>~~~l~~:ooOQ~C\jjt ~)05ro9J?:OC~~c8~~aut C\l~t: THE UM!O~
OF BURMA.
02oSoo?:Gro::ntn
~Ef>06C ~105ro~o1~~0JS:~ ~~~:~S:d3~6)::nt~?l ~o?~
~O{cb:XJ JrooS~o~~:n'd~~ 0 1J3G~GJJ?OJ~:<{QCO~:n'd?:o?:~ ~a)~
@:, ~lOSro~o1d5oSn'd~: 61 ::n~::n~~~a=6!~ ~!t&:D~~ ~s~~s:
Gcj>JJ~~GJJ?:x>oot:~@P:6)0J@~n'dCXJi:~SGo:x>tu
g)}~~c:~Cij!CaJ~?G6)=0~~~:ooCI ~?:G6):o~ffi:~:~~:G<9
~~C\j?coS~:aJ~S:~n'd?:otoSo&lc8~~t 11 ~:aJ(lS:~~G6?~~cf. ~'JOOC
~ ~dJCJ6~~G~GCU~U ~:OJC~~~:~~:G<9~~'i? n'd:xl')$0J? ~c})~cf)
G~?:~OjjS cxto5ooc8~Gtn ~o)~ otcb~Sf:>02C GOJ?Coo~:G8~
o~ ~:~?:51~ffiEi)Cmci::x>?:o ~~:~p:~o1otG~n o ~0:~[0:x>QC~~~
oto5o~c89GtGO{cbo)u ~0n'd~;JCG::\1j?cf) ~o5~oS~?~Gn'd?C8CGS
BaGf~<9~d3:G~c89~tutd3~6)::ntn :x>O>C~ ~o5~c~G::n5 ~CSGcj>oC:
.sa':l:o~m=~t8n'd@~@9 oo?:~tbltloS~tn .
~o)~~~ro~~?:~ n'd~oSGt']S::x>~<9~d3:f58:n'dG~~:
'JC~~OOy9J :x>ep:d3~~~ d3~: ?O ~02oSn'daJS:~~::n? ot~t
@~~:G6)8GC:~: ~:C)bGG':JCCUcbl~ rrd026:o~ @::x>':JDC~ D'DG23?tg
~G?GO>cm~<9Toto5G6}:m:c~G&~of~~Gro:x>tu ~:O>tG(;)?ErooS
~')! ~s:o8:c:~. ooo3iC(flCOO~~:'ifJ:~ :xlGO'nOjl~Gro:x>tn
~G?~ @:~cGG?troo5~n'd':l.: aJS:~::x>t~9oo~E;>rE :x>6?:oto5
Sa~ ~o50J':JGC :x>C)cooE~~ ooa:j:Gro?c @~aJtS:~~o1 rorErooS~..
~S:~&~:x>t~~~~ ~~ 0>?~9G~ :x>Q>C~rooSG.Cijj?~~
:x>en ~d3~o,28 ~~uSro~?:n'd~M>oGro:x>ta ooGro?m~tcxtS"t?:
Ge;pt:~?::x>~n'dP6cf) oo:YJSe~b)OO':>J OJy ~;Ge;prEG;>~~?:~?rota
OO?:~:oE ~~~?:&l:x>@~ g)~~ ooS:~E:&'[X1# G::.l1C!GOC>?c
GOO?O ~~:~[O:xlQC~~9 ooo3:<{groo ~~g'=!P:~~uSro&J~ojt ~G .
~CGOO?GOll . . . . . . .
. .~dii>J~~coo?:. <{fi~ !) ~~ooS:ro?:~ -oxp:~o5Goo5C!J[O. m
::.~~~rEE:oo~oSrot: ~luSro~?;:x>~ ..G~~6}8~6@~~6:x>t1i .
 BURMA LAW REPORTS. [1951
H.C. Gl:GCY.>'JoSg~rot: G<j>')cbro5ro~S G~~S:~oS~:~OJ@~
1950
U ON KHIN ~~uSroS"H'J:OJt ro~STo~t: ~ooSc,p~C\{SGtc.Y;lGOJ') OJGo:>')~~
v.
THE UNIOlf ~~00tS:@ro~c,pOJtn
OF BURNA.
~ro:Bo10JroE:~ ~:ffi~G6j:OJ')~~E:~p SSoffic,p: Gqjd36)Gro
G~')t::S6)0J~~ ~c:@t~G6j:OJ')~O?t(9~5:G')~OC @SolOJtn
GotoS'='~~C\{S0~ ~lo5roS~jp:~ ~5:Htro cr~:G0GO??~GOJ')
g.p~~~SGOJ') G00J<j>')~:OGo1n ~lc.SroS~p:~'): ~S,@tm
Ci~:<B:~c,p~oS:~:~:ro Goto5G~~C\(O~G6j:OJ'):6j~OC ~GtGcoCo1tl
Oilo~~~~~o;l~'):G~010J~II ,
~OJOJt:~ G6j:OJ'):~o5t:n<~ ~:ffi:~Go-:>:6J~~~iP:'):ro')
G')S:~ro~: GOO')C:Gro')S:~o10Jtu ~q::028 OJ~16)0?Gp:~
GOO')t:2p:SOO')~BtOJ~ G"t~C2001u GOJOJGfl ~:OJGflOCU
G:sT~OJ')OJoo6:~~6: ~j1d)roS~'):OJ~' Ga;S:OJS:gt
~m ~S.:~~OJ~c1:o1:oo:>r o5ro')0tv1G~')cc8~Gtn ~G')~
~~~ ~6:~~'): ~f0'):S:~r ~~ro~~:OJt ~Ga;S:~
oooSrooSGa_;>S:Grrn68a5otOJ'):~c,pGGpcG0C!jCO1o:-tr. .
~ood)olo:>oot:o:>t ~:ogotcfg~~o1ot OJ')o~~~roG'):
~C131Ct oS~:~Go1co:>trooS~:~:OJEo S:o:>')O1~~G~II
~lo5roS~:p:OJt ~a:ioSo1 o:>oo8:~~6: ~~=~~:g~~m
GOO')Coo~:;>o5'=!p:m~@3GtGCX>')If ~~~ 0G~Cijj~O':>')@Sgft~~ll ~~
~lo5roS~~=6J ~~cC\j)61 ~bc88-~oo~o?~ro Go:gtroro@SGOJ')
GgG:oooSC\1cf.i~o;?~~~6J6GtGro')ll "'6J~C\j;t OJ~*~~ ;;x: cqso5
(GtGro')ll OJEi)O~OOrorb~Gtro'):n a:><f.i~~C'3)t ~G')Bto:>oS~G
~o5G~t~: 0~0J')GG:g~:'f': GoT(\)')Gt@S::>J~ ~:ffi:'lro~:oooS~
~:-o.2:9@So10J tn
., ~lo5ro~:OJt~roo5o1 ~g~go~f:tG-Jo5G~')6ffi:0o:.
~3~~61 qt:~o1&5~:~ro~: 'OJ~l6:~gE@f6pl o~~:~:.oc:
rot rot~ ~~~lC=()065 :~')o1o C06'):c8~~tV?rotd3~6):nta
~oo&x.oof5~~ooSo:ld59. ~~oo~~:m~\;~~d3~:~'i~~g}: G''l~
OJ'):9.o1~e:a'):a ,
 1951 ] BURMA LAW REPORTS. 231
H.C.
A fcee transl:ltion t)f the article in Eaglish is ghen below:- 1950
THE SOCIALISTS A[~E TAKI.\"G A N~W STEP.
u ON KH!N
THE ~ULI. PtA-.; OF THE SOCIALIST~. v.
THE UNION
(Tf7rilcr MOr.YO) .
OF BURMA.
1. Newspaper read ing public will t emember the statement i$seecl by the
Prime ~lini.ter Tll~kinNu to lite country. at lhe tmc of the re-arpointn ent of
Soci;~li sl; Bo Khin l\1aun~ Gale, U Win and U Kyaw l\1yint (junior) as
Ministers in the present Government. In thO't statement he mentioned that
such appoinbr.ent >f three Sodali:<ts ns Mini~lers was not at the rCI'J.uest of the
Sociali~ls but that he himseli look them hy the neck and sent them to celestial
abode ". In that statement it was also nH:ntioned that there were still two
vacancies in the Ministry.
2. Judging from that statement made by Tliakin !\'n no one will be
surprised if two Socialists are again appointed in the said two vaca!1cies in the
Ministry. Everyone thinks that if two Ministers are again appointed they
will be Socialists.
3. But according to what Mogyo has learnt from enquiries mad <:: from
within the Socialist Party-that was ma so (i.e., situation was different). I arn
greatly surprised to hear that after removal of the non-party (lndepender.t)
Members from the present Cabinet a purely Socialist Pa~ty Cabinet will be
formed.
4. If tllis happens l<'inance Minister U Tin, U Tun Pe the Minister for
Information and U Ha Gyan, Youth Minister will be thrown out. As for
U Ba Gyan he has been urged to put in hi~ Jetter of resignation shortly. As for
U Tin and q Tun Pe if they do not resign of their own accord they will be
thrown out. The Hill Regiori Ministers and Karen Minister wifl not be
included in such purge. As for Prime Minister Thakin Nu he will not be
ousted. But such situation will te created that he will resign of his own
accord. If T.hakin Nu resigns it is planned to make Boh Ne Win, Prime
Minister.
5. One of the reasons why the Socialists have faken this new destructive
step, is because the "Bamnlthil" has written about U Khin l\1aung Latt.
Commissioner of Civil Supplies and Secretary U Tha Diri who were arrested .
for pay;nent of 3:> lakhs of rupe~s for sugar. T'he Independent Ministers
agreed to the arrest of U Khin Maung Latt and U Tha Din. Immediately
after the arrest of these two, it \vas planned to arrest Tha!:in Tin, Chairman
of the Board and Secretary 0 Ba Nyein. But for reasons not Jcnown,
Thakin Nu did not take .such action. The Socialists .are much hurt by, this
action; As the people -~ho were recently arrested for selling" Cott~ Yarn and
who arc now. before Court are all Socialists, the Socialists cannot fqrgivlf
P~ime Minister Thakin Nu and the Independent Minist_er who were re.spoh
. aible for ordering the arrest.
6. The Socialists were dissatisfied ~hen Bo Yan Naing who had 11eim
detain~d under section 5 was released by the Supreme Court. .
. . .
7. As the elections have_- be~n. postwned for.~nother year they have thus
.. come to such a plan with the idea t!lat they would do wh_a t th~y- like in one.
year.
232 BURMA LAW REPORTS. [1951
H.C. d. ~;ogyo !l:as writlt"n tl.e above news because he c!oes not want to fail in
1950 his dnt) to put hdore the country all that l:f:: knows: (1) have no intention 10
u ON KHIN plot again$! tht: Svcialists by publishinl{ f.alse new..s and making the country
v. hate the Serialists. Mogyo thinks that it wil l not be necessary for him to
THR 'GNION plot a~ainst them to make the country hate the Socialist~. Thev are {!oing on
OF BoRN.&.
with their own momentum. l\Jogyo appreci:1tes fully well that danger to his
personal safety is increased in writing this article but ls he knows well what
the Ll!w of Mutability is he is undaunted. Person is bern only It:> rlie.
9. H the Socialists were to carry out their design which has lieen re\ealed
to the readers tit<: country will be utterly ruined; it is for that reason that
the country is being informed about their design so that it mi~Zht have the
effect of deterring the Socialists from carrying out their design.
Mo.{~o will be happier than nne winning Pae lottery of one lakh, if th ose
responsible will answer that the news is totally untrue. .
II the Socialists will C.'lrry out the plan as stated in the ;~bove news, wilt
the Hill Regions t.1ke things lying down 1 What will happen lf they do not
take it thus,
If the Socialist Government is thus formed will British and American aid
in arms anc! money, whi.c h is about to be J;(iven, be forthcoming ? If we do
not receive th;s aid, will we have relations with Red China ? Will Red China
accept us? I( they accept what wi'l be the fate of Burma? These are the
questions whkh will arise and Mogyo dare not think further.
11 the Socialists succeed in their plans they will also pur ge their party and
it is learnt that Minister U Win will te one of the first to go.
Mogyo llare not write what the desit;n of the Sccialists in connection
with Burma Army is.

P. [(. B~su for .the applicant.

. . .
[,. Choon. Foung for the respondent.
The majority judgment of the Chief Jus tic~ and
U Bo Gyi J., was delivered by
U TUN BYu, C.J.-The Petitioner U On Khin and
liis wife are the owners of" Bamakhit Press," Rangoon_.
The Petitioner applies under s~ction 23 (1) of the
Press'(E6.mergency Powers) Act to.set aside the or?er of
the President directii.lg him to deposit a sum of
Rs. 3,000,
0
as security under section 3 (3) of t hat Act ;
anc;l the relevant portion of the notice issued to the
Petitioner reads :
..,. I am directed to s3.y that the President_' considefs that the
artjcle onqer the headline '~ ~~u5robG'9S:cmi:~5:~"i~~ " .
1951] 13 URMA LAW REPORTS. 233

published on pa~es 1 and 2 of the ' Bamakhit Daily ' of the 28th H.C.
1950
February, 1950 colltains matter of the nature described in
section 4 (1) of the Pt-css (Emergency Powers) Act. l: ON KIIIN
1>.
2. Under section 3 (3) o the said Act, therefore, the President THE UNJO);
hereby orders you to deposit with the District Mc;gistrate. OF BUNMA.
Rangoon, a sum of Rs. 3,000 (Rupees Three thous:wd only) or the U TUN Bvu,
equivalent thereof in Securities of the Govemment of the Union C.J.
of Burma as you may choose. The deposit shall be m1de to the
District Magistrate, Rangoon, within 15 days of the issue of this
Order."

The relevant portion of section 4 (1) of the Press

(Emergency Powers) Act, so far as it relates to the
present proceedihgs is a~ ._follows :
''4 *
24 (1) Whenever it appears to the President that any printing
press in respect of which any security has been ordered to be
deposited under section 3 is used for the purpose of printing or
puhlishing any newspaper, book or other d::>cument containing
any words, signs or visible representations * * *
* * *
or which tend, dil"ectly m' indi_re~tly,-
(d) to bring into hatred or contempt the Gove'rnment
established by Jaw -in the Union of Burml or the
administration of justice in the Union of BunnC\ or any
class or section Qf persons resident .in the Union of
Bnrm'l or to excite disaffection towards the said
Government, or
..
(f) to encourage or incite any person to interfere with the
~dministration of the law or with the maintenance of
law and order,- or to
.
commit any
.
offence, or to refuse ~

or defer payment of any land-revenue, tax, rate, cess or

other due or amount payable to Governmentor t-'> ~ny
local authority, or any .rent of agricultural land. or
any.thjng recovera~le as arrears of or nlong with such
rent, or


. '
234 BURMA LAW REPORTS. [1951
H.C. (h) to protnote feelings of enmity or hatred between
1950
d ifferent classes of persons resid~nt in tl~e Uni on of
u ON KHI N Burma, or
. v:
THE UNION (i) to prejudice the recruiting of persons to serve in any
OF BURMA. of the Bu-rm'} forces, or in any police force, or to
U TuN SYU, prejudice the training, discipline o"r administrati0n or
C.J. any such fon:e, or

* * .

The learned Government Advocate rightly and

properly conceded 1 during the arguments, that this
article would not fall within Clause (h) of section 4 (1)
because it is obvious that Clause (h) contemplated two
classes, whereas the above article was directed against
the Socialist Party only, even if it were considered to
constitute a class within the meanipg of Clause (h).
In our opinion, the article does not also fall within
either Clause (f) or Clause (i), and-we do not think it
will be nece~sary to dilate on these points. There is
no reference in the article to the administration of
law; nor does it purport to deal with law and order;
_nor is there any allusion to the re~ruitment, training,
- -disdpline or administration of the armed' forces in
Burma. We c-a nnot also conceive how the article can
be said to have any prejudicial effect on rec'r uitment,
training, dis~ipline -or administratiop of any of the
armed forces in Burma. The last paragraph of the
artide refers to someth_ing too. reniote for any reader
to imagine that it is likely t o disturb the mind of the
members of the . arme-d forces
. . in. -Burma.
. .
The lea_rned Governmen~ Advocate has submitted
that the article -has a tendency to produce the
mischievous effect described in Clause (d) of section
. .4(1-) ofthe .Pres.~ (E.mergency Powers) Act, and he has
. con tended that, . iri any case, the- Sociaiist - Party in
- Burma falls wi~hin the exp_res~ion Cl~ss or ,section of
t(

_persons resident. in the Union of Btiri:na." It might

1951] BURMA LAW REPORTS. 235

be observed that the wording of Clause {d) of section H .C.

1950
4 {1) of the Press tEmergency Powers} Act is wider than
the provisions of "section 124-A o f the P(-nal Code, m U QNv.KHIN
that it is sufficient for the purpose of Clause (d} of TH~: UNION
01-' BURMA.
section 4 (1L if tt1e article complained of has a -
tendency, even indirectly, to create feeling of hatred or u Tu~J.BYu,
contempt in the mind of its readers against the
Government or against a class or section of the
residents in tbe Union of Burma, or to excite feeling
of disaffection towards th e Government.
We have listened with attention to th e able
arguments of the learned Counsel for the Petitioner
as well as the able arguments of the learned Govern-
ment Advocate ; and we are grateful to both of them
fot the assistance they have rendered in thb case. It
will be more convenient so far as this case is
concerned, if we proceed to deal first with the point
as to whether the Socialist Parly in Burma, against
whom th e artic1es is directed, can be said to properly
fall within the expression " class or section qf the
residents of the Union of Burma.'' We ought to
obse.r:ve here that a.simi]ar expr-ession nas not" received
a uniform interpretation in
the Courts of India.
In Raj Pal v. The (;rou.1n (1) the articles relates to
only a few poike officers, and not to the police force as
a whole, a nd it was observed :
' * a cl:l.ss .01 scctkn as' contemplated by Clause
(c) connotes a well defined group of His Majesty's subjects; and
I do not think that a foi:tuitous concourse of one or two Inspec-
tors or sub-Inspectors and.:l few policemen, who happened to be
employed at a p~rticular place. can be designated a sectir:>n ot
His Majesty's subjects, much less a class thereof. The ex,pres-
sion sectio11 of His Majesty's subject-s ' signified a dis~iJlct
portion of His .Majesty's subjects and it would be straininJZ the
language
' .
to describe
.
the afore.said
.
group of officials
. by that phras~."

hl.'cl9~2) 3 Lah. 405 at 413.

236 BURMA LAW REPORTS . l1951
H. C.
1950
T he same view was adopted in !11 tire M(rf/er of
"]a11as~ti" of Sylhet and others (1), \vhere t~e article
U ON KHIN
v. deals with an incident in which only about 9 police
THE UN!O~
01' BURMA.
officers were concerned. The earlier part of the
U T UN BYU,
observation, which has b een reproduced abo,e in
C.T. Raj Pal v. The Crown. (2} was quoted with approval.
It has not been urged before us that a group of
persons, whose numbers are very small, can constitute
a class. or section for the purpose of section 4 (1 ) of the
Press (~mergency PO\.\'ers) Act.
The case of Emperor v. Miss Manniben L. Kara
(3) arose out of two speeches made on May Day, the
first of which was unobjectionable. The second speech
exhorted the labourers to unite together and destroy
the capitalist system in order to establish a labour raj ;
and it was held that the expression ''capitalists" \.Vas
too vague to constitute a class, a conclusion v.:ith
which we respectfully agree. There, Beaumont C.J.,
observed:
" I think that any definite and ascenainable class of His
Majesty's subjects will come within the section , although the
classes m~y not be divided on racial or r.eligious [7round~. But
I differ from the learned Chief Presidency Magistrate 'Arhen he
says th.a t capitalists are a sufficiently defined class. 'Capitalist'
in the literal sense of the word is, I suppose, any one who
professes any accumulated wealth, and prac~ically every one
possesses some accumulated wealfh 1 though some p~ople do
not posiess very much. On that definition practically everybociv
will be \Vithi~ the capital_ist class."
Nanavati J:, also observed at page 262:
" It is not likely that the term capitalist 1 in the speech o(
the cv;cused was meant to include poor people holding a ve1y
sml3ll amount of capital. Yet an attempt to restrict the term in
some way presents-very great difficulties."
. .
11) (1932) A.l.R. Cal. 649. . {2) {19221 3 Lah. 405 at 413. .
{3) (~933)_ 57 Bom. 253 at 259.
 1951] BURMA LAW REPORTS. 239

against their mast~rs or exploiters, and it was observed H.r..

1950.
there-
U ON KHIN'
" The \\ords 'ma.;;ters or exploiters are too wide and vague THE v.
UJo;ION
to denote a definite or ascertainable cla!:>s so as to come \dthin oF BURMA.
Clw;e (d) of section 4 (1) of the Act ; See 57 Born. 253. The u T oN Bvu,
Aclvo::at-.!-General vety ptoperly concede:! that he could not C.}.
serioasly contend that the p::>em comphined of came within the
mischief of section 4(11 (d) of the Act.
We respectfully agree with that observation and the
observation we have made about the capitalists will
apply to the expression ' 'masters or exploiters" also.
The effect of the decision in King-Emperor v.
Ballo mali 1lfalzarana (1) is that the term " class '' in
sectivn 153-A of the Penal Code contemplates that it
musl not only be clearly defined or separable but it
must also be sufficiently numerous to constitute a .
class, and that a small and a limited group of zamindars
does not constit~1tc a class. There Me~edith J.,
observed:
F .>r the pu~po~es of the present case it is not necessary to
decide whether the exp;ess!on ' :zamindars ' or the expression
' landlords , used in relation to such people as a whole can be
l1eld to designate a c:ass \titlain the meaning c secti('ll 153-A."
We ought to observe here that the word "section"
does not appt:ar in the provisions of section 153-A of
the Penal Code. .
In the Matter of" Nawai ~Vaqf Daily,'' Lahore v.
The Crown (2) it was held by Muhammad Munir and
Mohammad Sharif JJ., that a .Muslim League is not a .
Class or section of His Majesty's subjects. Muhammad
Munir J., observed as follows :
The wotds ' different classes ' in the Clause refer in t:nY
opinion tj . reli~iott.>, racial, social, tribal and pqssjblY. economic
. or functionat, but no: to political .c\asses. like ~he. Congress; fhe
..
(1) !i943J 22 ~at. series; 48, s3.
12j (1947) .28 L:i.h :ser~es. 497. at-514 and 561-562.
240 BURMA LAW REPORTS. [1951
H.C. Hindu Mahasabha or the Indian Nation~! Congress. If the
1950 feelings of hatred are engendered cr tend to be engendered by
U ON KH!N t he publication in a religious. raci~l ot social class as such, the
v.
THE UNION
publication would be hit by the Clause but not where such
OF BURMA. feelings are engendered or tend to be engendered not in any
U TUN BYU , sncb class as a whole but among the admirers or follow ers of a
-C.J. particnlar person, . to whatever religious, racial or social cl?.ss
they mi~ht belong."

The observation of Mohammad Sharif J., was to the

same effect:
' 'The expression 'classes' as used in section 153-A cf the
Indian Penal Code and in section 4 of the Press Emergency Act
is difficult of exact c!efinition. It certainly covers well deiined
religious denominations and racial groups_ really ascertainable
where there is some element of permanence and the group is
sufficiently numerous [E1:11>eror v. Miss Ma1:niben (1)]. Beyond
that it is not safe to specuhte and each case tnust be decided on
its 0\\'11 bets. But it cannot cover a political p~1ty or group held
together by the community of interests. to achieve a common
objective. Political parties come and go and are' susceptible to
rapid changes in their complexion and composition. To hold
otherwise would lead to strange and inconvenient results.''

We are, with respect, unable to subscribe to the

observations of Muhammad Munir and Mohammad
Sharif JJ. W e can see no really valid or adequate
reason why .a. group of persons, if any, with its organi-
?:ation spread over different parts of the country and
which also possess-es the necessary attributes that go to
constitute a class or section of residents in Burma,
should be excluded from becoming a cbss or section
of the residents for the purpose of section 4 {1) of the
Pr66s (Emergency Powers) Act, merely because it .
happens to be a political organization. It seems to us
that itls pcissible for a group of inhabitants of acountry
_to be . held together, \~i_th some semblance _or touch qf
permanence.
. , under
.
certain common political ideologies.
. . . .
(1) (1<)35):5? Born. 253 at 159.
 1951] BlJR~1A LAVv REPORTS. 24 1

The number of adherents or members of such group H.C.

1950
may vary from time to time, but t his will not take it
tJ OK_KHIN
out of the expression "class or section," because not v.
THE U NION
every such group will necessarily become defunct or OF BURMA.
fade away, merely because some of its members die or
U TUN BYU,
secede from time to time. Each case should be C.].
considered in its own 'peculiar circumstances. Achhru
Ram . J., in a ~issentien t judgment, however observed
as follows, at pages 527-528 :

"I a well :defined group or collection of persons, of

sufficient importance numerically, beating one common and
exclusive name, is bound' to~ether by commou attrib utes or
characteristics, I do not see aQy. reason, on principle, why it
Clnnot be regU"ded as a class within the mean in~ of section 15~-A,
Indian Penaf Code or section 4 (1) of the Indian Press
(Emergency Powers) Act, and why feelin~s of enmity or hatred
between two such group~ can be promoted or attempteli to be
promoted with impunity, merely because the common.attributes
or charact.eristics which bind them together consisi~ ;o, their
respective political programmes and.
ideologies, particular}~ when
' . ~ ' . .
tho.s e programmes and ide?l~?ies a~e diametric~lly . oppos_~d ~o
each other, and have been pursued by the groups with such
vigo~i: that they have come to :iie regarded, and to .'r(:igafci
them~elves, as tw.o ih.solutely host'it~ and wholly - irreco~cilable
group~. Both tli<(prqvisions of the hw mentioned .above :ate
IP-f:lant for preserving the public peace, and I. can see ~o
reasonable ground at all for assuming that the legislature
i~tended to hit promoting or attempting to promote feeiings of
h'ltred or. enmity between those groups of bodies of persons only
which were bound to~eth
er by common religious, .. racial, social.. J
tribal, economic, or fiinctional attributes ; my lear.ried brother is
prepared to extend the definition of ' classes ' to all such groups,
but bad no intention of preventing s~ch feelings being pronigted .
or attempted .to be pr~mote~ between groups, however great tb~ir
importance numeri~lly and howeTer sharp the .line diViding
them {rom each other, 'w here each of them is bound to~ether only
by. comrp.on attnbu_tes:c~nsisting of a common i>olitical pr~~ainme.
or i~~o10gy ; a~tb.ou~h . the need for . preventing such feelings'
being p~~):~oted betweeri. thew may be the greatest."
16 .
2+2 BURMA L AW REPO.R:r:S. [1951
. H,C.
1950
.J.n b t the Malter of" Daily Zamimjar, '' Lah ore v .
Emperor t 1), it "'as also held ,that a political party
u ; . KHIN li~e the Congress did not constitute a class of His
0

0~H~~;~~~ <Majesty's subjects. ~he observation, which we have

, ,. . ~ mad~ in .-reference to the case <?f 'ln the Matter of
u us BYU,
c.J. "-Nawa.i ~Wa qj . -D my,
'[ " L.a h ore ,y . T,he Cr.own
. . (2), will
appLy requa~ly to the case of -1ft t~e 11;1atter of'' Dat'ly
-rZamin-da1, " -Lahore v. $~nt-ero.r .(1,). It '\\'ill be illogical,
and also not strictly consistt}nt ~ittl good 1:eason, ' if. we
are' to exclude an organization~ which_has the. nece's~ary
attrihqtes .that go -to -constitute a d~ss qr .section, from
beingconsider-ed a -~lass or -sootipn -for .-the :purpose .of
the ~~ess ~(ffimar-gency 1P.ow.e:ts) .,AJot, :mer-ely because
~~~-~~ .~;.~t:~i~~!icHi .a~~~m.~s :t~~ ~~~r~t'!!dr, ~f -~ ifjt>~itical
o.r_gam~~ ~~:>n . . . .
~- :i11-~~~~~ ''Mf1it~/.f{~#~-rtk-'f:.{t.zgf!.~," 1ffhore .\~); -~t l
was ,h:elfi tlhet U16~:v.i~~C)-l {W.l~ .g~rs; whp djp nqt
foJ:ti\. ~1Terentir.e ~ice1fqr~e7 \tl.id pot.oonstft.utea olass
of ~e~tioti :r(;~ H~ '.ffiij~~!s ~Ubjt?cts; ' tBhandh~Pf J.,
Iio'\;.re\fifrl>~~m'veil ~tfi1rf 1h'h=:~pt$t8v~~a'd(~tl1e 'v1e-w~ hikeh
h.' ~g-~-t'A ~raa;.r,:~fl1_n: lheltfii.ittrb ~ 'ht'f!z~ "Zfitritf(ciu:r ,,
/i:~~fa~r, ;i;~f~:q~;~~~1); kpl;Pc:-.: t.r~Yr. ~~as.c;r' ~~8 giy~n
for ~adopting .!the .dissepti-_(fnt -v~e:w . r~a~n 9i. :~ #lgfl'a.
Hilidlir~ . ,,
.lh Ih:the t('littet'i. rJj'")PJfeiZ?J'fninllur'' .'Newipi;tp'Cr.,
idJior;~~L4)' 1 th.e ~a'ttlt!Je t=~~I~t~ll' r~ . ~-~ ~t>dfi~-e 't~:t~e -:in
i}~~tf~I,"~w~h~ ;wer~~~~eie~,. ~io. ~~v:e ~P.~~~~r~~-<1-~ --~.~f~~Jp
<}etest~ble -acts,~Jl4i~-t w~s. h_eld . th;~.t , the ,p01ice ~fofce,
as :a whole, fdrmed a Well -defined ;groqp of_ !:fis
Mlij~sty's''stil5jetts. -~ha 'H aUla'r :Ji, in ,a- cdissenti:ng
-Jo-agm~iirh6v.e\ttr~aiti
"c ~' ~ ' '-..
-> ~
t
:
.... .,
,
. :

. ~ I. \'!(0,\1;1~1: ~~9tct .\h~_t fl,~ ~ )Yo.r:ds.. ,~~~~~~:?~,;f..~~~~~n.' .i_?- ::.H!is .

copte:xt
.
s_igni.f..Y lar~ej. poruons
' ..
._of .-the PO.P~!~t~.<?,n
.t ~ - ~ . .. ' ...
_of. Hts MaJesty's
f ~..__
"" \. :

. . tl)'fi947) A~J::R I La!f..::t~O. - t3) (.lS)'A~I;.~.I. f1948)t Lah. -6.

(2) \19471: 28 Lab. .Series, 497
at 514 a11d S6lS62. (-tl -(1934) ii.R.... r.ab
:.
. 219, .2~6;
.. .
 1951] BURMA .LAW REPORTS. 243

subjects in Brit ish India and those portions .shoulcl :be determined H.C.
not by any artifiCial or-official designation but by some natural or 1950
spontaneous process "\Yhere large masses of population are u O N KHiN
groupe~l inl'o separ<rte cate~ol'ies. J-n ather \Hl.rds itre expression Ttn: v.UNION
as i.t oocurs in the sub~sootion mncl.er consideration , refers t o OF -BURMA.
permauent.and .distin.ct .-elemenlll of societ.y "'~hich -are to be found U :I'ON BYU,
in the counh:y .and which .exist <lnd ~vould con.tinue to exist C;J.
irrespective of any action of the Government. "

vVe :~.:.egret that we arc u:mahle to -see any real

justincatio.tt for placimg a much narrower meaning on
the expr-ession "class or section'' 'than' what this
expres"sion :o rdinarily conv~ys. According to Murr.ay
Dlcfib"nary, the wot:d ""section " means-'' .a separable
pQrtion of any collection or aggre_g~:te of persons, i.e.,
of the p'dpulation of a country ; <\""group distinguished
by i:i spect~( ?f(iriety or o_piti{on; -formi~g ,part of a
poli~ic~l or re~i~"i'dus :party ;": ..~.erHiin ,\:qtds.ha:vc been
ita:lici~ed'by.'Ui.'
-
.
.. ( J\ \ ~ I \.

The .first .pad .of 1h.e headn.ot.e in B.. R atn .Sar.an D. as

}JJh~i N~".Empe;or (1-}-.reads.:
... t
.

"A _plmpblet .definite~y refened -on the one .sic!e .to the.kisan
labourer~ :in 'tb~- dlstcict - of Mnttra who labour in .the fields an.d
ffictdr~s. iod 'On 'thevother 'ha'nd ihe tidh persons, !he taniinoars,
t'te b:ni'k6rsJa~~~tlle:~tlo/ ~~~ls:
Held: That the Classes .referrecl":to m i:Ire pampHlet were
sufficiently well de lined f.or th~ ,purpose of -section J 6; " .

.And .it w.as ,observeq,;at p~ge 7.18,--a s.:foows:

Th.e ,pam,phlet how.ev.er -~efinitely .refers-.on .the on~ side .t~
'
1

the .kisan lab.our.er,s iu the distric.t .of .Muttra .who-labour i n .the

n~lds .audJactocie~, .ancl .on .the ,other .ha:nd io the ..tich person~.
the zamindars, the bankers and the petty:sh~p-ke~pers. I .do.not
think .that there is an_y_ .diffi.c.ult.Y. in . holdiqg t_h at the classes
referred to in the pamphlet ar.e s.uffi~ienti:Y well defined fa~;
the
. purpose
. of the section in question.~
. :; . -.
":
.. .
244 BURMA LAW REPORTS. [1951
H.C. The decision in In the Matter of." The Co-operative
1950
CaP.ital Press, " Lahore (1) was to the same effect as in
U ON KHIH
v. In the Matter of "The Zamindar" Neuspape1', Lahore
THE UNION
OF B URM.o\. (2) and in B. Ram Saran Da.s ] ohri v. En:;peror
U TUN BYU,
(3), and it w.as held tl~at Pakistan Army con~tuted
C.J. a class or sec.tion of his Majesty's subjects. There
Cornelius J., observed :
'!When this large body of persons thus bears all the
external lmarks of an easily distinguishable class among the
.subjects of His Majesty in the. Dominion, is there any good
reason why they shoql!f not be consi,d.e~ed. as falH,ng within the
l'l!e.a ning of the expression 'clas~ or section of. His Majesty's
SUbjectS I in clause (d) ? '.'
. . ?
The effe~ts of.. thosy last . three cases, especialJy if
those cases are consider~d . in the light of some of
the observations that have been made some of in
the c~ses that were referred to eadiefin this.judgment,
is that an ascertainable group of the residents in this
country, which is. sufficiently numerous aP,d vyhic~1
also possesses some semblance 01: touch of permanence,
coulci be considered to f~ll '}Vithin the expression
tr ~las.s or s~cti'on:" This c.o nclusion ~s alsd consistent
with .the ~bservation m~~e in the Privy Cou.n.c il. case
. 'o( Anni~ Besani v. Advocate-General, Madras (4)
where it was observed :
"As to Clause (c) the majority of the Judges in the ~igh
Court were. brought to the conclosion that the attacks on
Angl~lndia or Anglo-Indians or the 'bureaucracy, as the
case may b.e, were calculated, whatever migqt have been t~e
primary object 9 the writer, to bring into hatred o~ contempt
perso11s forming a class or section of His Majesty's subjects,
namely, English Clvil 's ervants in India, jn s~me cases English-
me~ in Ind.i a ~e~erally."

A.r.R.
(1) (1949) 'L~ 218, at ~28;
(21 .11934) A.I.R. Lab: 219 to 226.
13) ' (1934) A..I.f~. All. 717 at 718, . .
t4l (191'8'-19) 46 L.A. 176 at 195-196;43 Mad. 146. .
1951] BURMA LAW REPORTS. 245

Clause (c) referred to above is in substance the H.C.

1950
same as Clause (d) of section 4 (1) of the Press
(Emergency Powers) Act. . u OlJ.,.KHtN
The fundamental duty of a judge is to endeavour to ~~Ea~:~:
apply the law correctly as he finds it, and in a liberal . -BYu
spirit and wtt . l10ut any b'tas. I t .ts not t h e provmce
. u TUN
C.J. '
of a Judge to inquire into the wisdom of the legislature.
His duty is clear. He is to admini~ter the law as he
finds it, and he is no! to be influenced by his own
personal conception of propriety, or non-propriety., of.
the piece of legislation that comes for considerat~9.n
before him. It is a common knowledge tha.t the Sodaii'st_
Party in Burma is an organized political party, wi~h its
headquarters in Rangoon. It has risen into pro-
minence for some years ; and it has become . ~ large
political party. It has large representatives in the
Parliament of the Union of Burma, and it con,sequently
has numerous members or adherents in different parts
of Burma. It is not that class or political party which ,
is likely to disappear or become defunct when any of
its leaders leaves it or dies, and it could thus be said
to be a political party which has some semblance or
touch of permanence in it. The . Socia-l ist Party
follows certain po~itical ideologies; and its ideologies
are' obviously not quite the same as those entertained
by 'Other political . parties, but which ideologies,
however, link the ineg1hers or adherents of the Socialist
in
Party this country into an ascertainable group. The
term " socialists~ might be said. to b_e too vague and
indefinite to form any well-defined. group of- citizens 1
but this cannot be said of the Socialist Party in Burma,
' in that the latter is a well-known political organization,
with three of its members in the present Cabinet of
. Ministers. . The members o.f' the- Socialist Party _in
Burma, qy reason of their organization, can be said to
.form_:a n ~sc~rt'ai~abie p~rtion o(. ~.he resident~ of Burma.
 s:(!]RMA LAW REPO'R'fS. [.1951

H.G:. The SeH::i:aIIi~f Party in Burma: coufd', tf'ler-efore, be

1950
considered: to constitute at least a: secHon of the
u., .o~..Ka~N residents of the Union withirr the rne~~ing of section 4
~~-~B~~~~ (1') of the: Press (Emer-gency Powers} Acf. ff' must be
- .
U 'liUN BY U,
remembered that the words "dass orsection " are
C .J!. wide terms. .
It has-been . su bmitted on behaff of: the Petitioner
during the ar-gument N1at,. if it were FI:eict. t~at the term
"da:ss 04: sectfon." in Clause td}' of sectiorr 4' (1) of the
Press-; ~Emergency Powers): Act irrcludes a pol'itical
o_r:g~l1.liJZatiol1X:, it 'wm:l'Fcl, in effect, stiHe .. aU a.d'verse
C1'i.ti.cisms: o; -the. ::a ction or ennduct of a: . . political.
orgaJIIl:i2!atipm~. .:and ~Frat WOtlld- be getri~men!~l to the
heaijhy;. growth of democratic instil'utioirs in this
coontr.y.:., .. ' . .
-W-e do not-sree ~ny real; 01~~e .f.n thi:l' ~lliggestion.
CJ~n:t~;.{d~-El:oes- net. .penalise any ' legitimate adverse
et~t.i~Gi:;nlJt. ;of th~~ crcliofll; eondm:t or-. mef hdd of a
po~itti'a:l Qigam;zaii~n iiri p<:YW~r. .ft- purpqrts to:, deter
G<liily:;Sll~~;p.ubtioatti01"r as;wi:tf 'fe~, dir~tybr. ind1rectly;
ttJ, "fa~. , fel1lir.rg.... of. :fu~tl."ed. ' ~ . contte~P.~ ..~inst the
G0ve~4r) o.1-1-a. -~Gtien~ of the nesidents ~m f~e U:nioti.
oB ,B\!.rma;.:~-'wi\kfu. wiiL. ~en~( dire~tiyori'~dn:'ecdy; . to
r:ea..t(!.~fe,e:fimlg oe d .Lsaffectf;on aga~nst d1e Govern~ent.
Jn: 0thef: .wmr<:cl~,i i~.? peaa:rise~ o'li;Fy; su~h- ~bf~ation
01 wdtilng,. wl)iGh -nasa: tendency,..direet'l'yor .~ndir'ectly~
to ptrollWtei.f:ee~rng:.vf . nafred, cun~empt or disaffection
mthe mind; ofth(n:c:t-adetrs f~wfr~m -~trcft p~bl'!catrori
(\11::-writi~g,is; :-il]tende-d; and whetiler the pnofic~tion or
JVrit~n~g.,has t!futis. ~bjecfionable;te~dency is
a qu~~tion
whjjch wiilillia\fe f~f. be. decrded inl-the ligllf of ffie faCts
~n.d.~Jrc~taooes~f ea(;:l't ease. Cl:mS'e (dj- r~ no.t direGt-
e~ agail}tSt.any-f.mbti:cation or...wrifing; wfii~.b': migh~ hav.e
' Glily.a,r~mo~tendeney' to- create or protilot~ f~ling ~~ '
hati~dt eont~pt. &: dist~~fieetion. It is. aimed against
only;SUieh.l'ublica:tirotr or writl:t}g a:~ isJ~~~Iyto p~du ~e
 195"1] ~7

th e pernicious effect in the fllli!nd of its read ers, which H.C.

1950
is envisaged in thQ.t clause. u ON KHIN
Honest or legitim4te cr,iti-ci'sm can, in a de mocraiic THF. UNI II.
ON
in stitution, be considereq; to be. not only desirabl~:, OF BURMA .
but it might also be reg~rd'ed as a so~rce o( strength i'n U TuN Bvu,
. . ') .' . . . C.J,
the healthy growtn of a d~m~c'rati'c in stitution. It . is
in the intereSt of publi.c good:, and! or c :ove.rn ment, th~t
a writer or. a c ritic shotild b~ .Nee to \yrite on ab
subjects of t.o!Jics so long as ~e _d<>i~ _i!,on the whofe:
temp.~. rat.ely, although
'
he Jm'igf1't
... ...
empl'dy. strong or

sever.e expr~ssi'ons or phrases here and there. Sir
William. Blackstone in. ni'S Conimen:taries ( 1) lai-d
d own, nearl.y two centuries ago, what the raw of tli.e.
Press was:
.
"' Ev.erY. freeman has .an undoubted ri.gh't . to lay \-vhat
~n~ii'Jl~.n~ : h~ ..P.teas es., b~qr:~ tpe: f'}l!>Jic, . tq fqt;bi.4: t!;l~ i.~ tq
destJ:q t~~Jre~_9ptp,.:Rf:, t_ q_e P~~ ::, bu,~ ~f. h~ l?RP.li~hes, 'fb~\
~~-il~pt:?~1f ,1?JJF~jev,~us,,. or .ill.e~~~' he: m,.4~J. t~k~ t):l.~ CQJ.l.~~Q~.f!!lG.e.
of hlS own. tem,~(lty. ".

'the ~aw te:Ia~fag to.-tllle l'iber~y- of- th_ e P~s~

i:n . ttHs: c0~atty has been, ~~.Jnct-fy,. ~xPt~s~ed :i:n
v.
Ma. Kliin- T~li# 1Jiie oin:niis5t'bnen iJf Polit e, Rangoon;
and One t2Y W,hieh c.\,me bMote- tbe Suprerlle ~oarl,
as '0Uows :
..
~' Th.~ Af.P+;Ji, !s f, .Jjl.Ql\ti~t .QEi~~i~ti?-.~.~I;ld,.t,be ~om~.ni:st.
I?.a~ty,: tlnd. ~be:_ f.~A.. .~r.~ _ot~.~~ ~~cJ?,.. or~~-9j11;~~k>p.s ~~-~.. ~-?.~ Q~11i:o.l}.
It... 1s of the. essence
.; ... .~- ,.
of . democratic
.
,Government tha\ . one P.o)itical
,..._ J\ ' ...' rr-
ot ~ J.t' :-:

organiiajion i:s entitled tq cdtj,ci~e. a nd a.t.tac.~ ario,th~f 'politiC.i.t.

.
organization 5.0 rorig as sueh crltieisrh and. attack .
is legitirilate and. 0
is not prohi'li>~te:d .li>Y law. .''
. ,. ... , .... _.._ ;. , ...... c . :.
And .~he Pre~~..<.~.~~~~~E~Y.,.f~.~~r~L!\~~ J~... 9.n~}>.( s.-q~l.l
law, which th~ ,w~;it~r OJ; .~r:itA.G : Q u,g_l;l_t_n.Qi. tQ transgi~ss

.fl) u9JS-19) 4!5 I.A. t76 .at> 195~196 : )~ ~aa. i4~.

t2 (1949) B.L.R. 13 aH6: .. : .
248 BURMA LAW Rl!.PORTS. [1951
H.c... so long as that Act remains in. force. It appears to us
1950
to be clear that the Press (Emergency Powers) Act
U ON KHIN ,
v. does not intend, and could not have been intended, to
~~~~~~~~~ prevent wholesome, honest or legitimate criticism of
u T Bvu the conduct, method or action, or of any ideology of a
~~J. ' political organizatiqn, even if they are couched in
severe or pungenllanguage here and ther~, so long as
th ey are done, on the whole, temperately. The
. '
criticism should reflect the honest or legi timate
:>pinion or view of the writer or critic, an d they must
not be urged or prompted by personal ill-will or
malicious motive, as it has to be remembered that . a
writer or a critic is privileged to write or criticise for
th e good of the public, and not to gratify his personal
feelings.
T he intention of the author, for the pmpose of the
present case, is entirely immaterial, Yide In the P.-fatter
of the "Nawai Waqf Daily," L ahore (1) and I n Rc.
"Anandabazar Patrika" (2). lt _is also immaterial to
consider as to whether what has been viritten is true or
false ; nor is it neoessary to enquire into the object of the
article, vide In the Matter of '' The Sun Press" Limited
(~),aqp In Re, "Saptab 11 .at1d,Jn Re; Be,oy:J{urnar(4).
We ought also to bear in mind the cardinal prin.cipl~ Qf
Criminal Jurisprudence that, if there is any dot1bt as to
whether any part~cular writing Jails within the purview
of any of 'the clauses under section 4 {1) of th e Press
{Emergency Powers) Acf, the benefit:_of the d oubt
sho!-lld, as t he Act is penal in character, go.in favour of
the subjecfs. This cardinal principle must, in our
opinion, .prevail in the construction of all statutes that
are Ji>enal in character.
. '

(11 (1947) 28: tab. Series, 4'97 at 5 14 and 56l -S62.

(2) (19331.60 Cal. Series; 408.
(3} (1935!. 13 ~an . Seri~, 98.
(4) (1949-50) 54 C.W.N; 334.
 1951] BURMA LAW REPORTS. 249

It is the effect or tendency of the words used that ~9~o

we are to consl~er, and th ey should be considered. u ON Knls
i n the light of the observation which Sir Arthur P age v.
C.J ., made in S. N. S. Mud aliar v. The Secretary of State ~~~~&~~~
f or India i n Council (1): u TuN avu,
C.J.
" I n considering this question it is the duty of the Court
to rave regard to the sunoundin'g Circumstances for instance, the
context in whi.:h the words appear, the persons to whom the
words were addressed, t he political atmcsphere in which the
words were delivered, and the place where they were published.
Such matters as these are ad rem, and must be borne in mind
when a problem of this nature is ~nder consideration. "

W e: are thus conce~ned with the effect of the words

u sed by the writer, and the question !?~.comes whether
the article, reading it as a whole, and reading it fairly
and i n a: liberal spirit and in the light of the back-
ground or circumstan ces under which the article
wag published, is open to the objection sel out in
Clause {d) of 'section 4 (1) of the Press (Emergency
Powers) Act, without enquiring into the. intention of
the writer for the p~rpose with which it was. written
It is not the provir:tce of a Court to iilVestiga'te into the
intention of t he Legislature, and then to attempt fo
b end the mean ing of the words used . to suit that
supposed intention. If we were to dOSO, we would be
in effect legislating, and not merely inte'r pretipg the
provisions of a Statute. Lord Watson, in Solomon v.
Solomo1! {2), obser\red :

~ . . In a Court of Law oi Equity, what the

Legislature intended to . be done or not to be done catl only .
be legitimately ascertained from that which it has chos@~ to
enact, .either in express words or by reasonable arid necesSary
implication."

(1) (1932) 10 Ran. 165 llt 169.

.
'(2)' (f897[ A:C. 22"af'3'8 .
. ~ . .. .
250 BUR-MA t.AW R'EPOR'TS. [1951
H.C. And Lor-d Herschell in an earli:e r case of Cox v.
1950
Hakes (I} observed:
u ON ({HIN

~- " . . . it must be admiJte.cl that, if the: lang.u age of

TtI E U:-110~
OF ~-U~MA. the Legislature, interpreted according to the !ecogpiseq ~anon~
U TUN BYI.J, of construction, involves this 1esult, your Lordship must frankl y
C.J. yield to it, eve n if yott should be satisfied that it was not in the
contemplation of the LegislatJJre."

Lord. Lor'burn L.C:, in a more recent case of

Vickers v. E7.:ans f2} also observed :
" We are not entitled. to. read wor.ds into an A.ct of Par!ia-
ment unless. :dear r.ea~on {<:)r ii: is to be; found within the four
corners of the Act itself."

The headi'ng o,f fhe arii:de shows that it rel':lfes to

the Sociafi'M
.
Pa~ty
.. -
i'~ \.Bur~a, - an:d
. .
that
- _.
it is tdirected
- ..
against the S'odali's t P~ity b.ecornis tran'sparent' as \'e
pen~.~-~ t~~()u~~; ~he arti,ci:e, p)aragf~~~ -~.Y ,paf~g~aph.
It contams much more t.!'tan a mere.. pubhcahon of
1
sellsa#.'ont~t )1 ~-~s. p~rag,r~~h i )!J~i~~(~~ . ih.at_, this
arti'cle. was bas'e.d on whaf the wdfe'ir waS. ait~e'd fo
have learO:t -fro'i n s~me t?.erS'ori. tn if1i Soe-i'at?si :Party.
The ~rti_cre
<f 1
.w.~s th-~~ ..biJ~d:: oii. sohietli~hg ~hid-ir had
been miparted
~.
" 1 ~
to
, .
, t

the wri'tei SeGretly: If . fne arficl'e

t \. - '

had stqp_ped. wirh

paragr_~pi;s i ~#d ~-, it ~i~ht b_e 5aid
that wf1ai had been done wis me!'ely to set out as
.Sellsational'. ;.;ews what the write r had acquired ftqm a
confideritiaf soJrce. . . . .
ttl~ --~Iiter p~oc~~a-ea set _ out 1h. P~tair:ipti 3 to
what he heard the Socialist Party woi.-itd do-; a:fid . in
1;arag~~I?P ~,)~e,.:Set~~O.l}~ _the,n~~~~?~~ - w~ich, accotding .
to h~n;t,.,.i~p.ell th~ ,Sp.<:;.i~!isL~~rt~ ~t<?)~t}iU. ~their 4~.s~~~
to c.~q>.p~l. Ule, _Pr:ime. . M.in.~t.~:r Taa.ki.B , :N~~ -~~CiL#l:~
iod'e:pen-deHt Mi!niste-.rs eJ. the p.resent-Ca..b inet to.resign,.
The writer also informed his rea~ers that the SOc-ialist
~ ' r , 1. ~ ~ ~ , ... .. , ~ , ~ , , ~

Party was very m~c.l;l _.al'lJl.O~~...d , ~~Y~T.}h~ . Goverri~ent's

. Ill ll8.90i 15 A.~. S06 at .S28. '" .; l2J' !i'9i~k79 L:J. IK~B.) 9'55.
 19511 BURMA: LAW REFO'RTS. 25"1

proposal to arrest J'hakin Tin and U Ba Nyein, who H".C.

1950'
are known or reputed to be Socialists in connection.
(f 01o; KHIN
with the payment of Rs. 30,~'0!000 which had been \..
paid out, without actually rece~ving the sugar, and at a THE UNfON'
OF BURM A.
time when the insnrgents Wei'e about to overrun the
U TuN B vu.
place whe-re tht:: sugar was man~fa:etured and stored, C.J.
and he wen.t on to ~Hegethat i!fui-t was bf ti'r\ rep.sons one
which i mpelled the Sociafisf J.l>arly-t-o-compel' tlbe Prime
Minister and the indepetident Minister~, wht0 are
collaborating: with him, to resign fir0m the prese:nt
Mini~try. _In d0ing ~o, he appears to as . to attempt,
when it is consid'eredl with the impficati0ns: c~ntaiiru~d:
in paT~grapfrs . ~~ 6 and 7', and patrtieularly when these.
implications are mad'e at a ti'me when~ iru>l1rndr<m.s
are raging widely fn cltffere.nt pads- of tlie e0tmtry:.
l;>y cert~~ f~cli'?nS or S~cfions, wh6 a.re d)ssatisfieGi!.
wi~h the Government, wnicn als'O- cemsists: oF. s<!>l!Jitle
Socialist
.
1\.:Hnisters~
' I
and

when athe e-e0m::nnlc "i
.lit.; 0f
the country is being severely and adversely:affected,.
to create a fee!ing 9f contempt or- fiatFCd -against the
Socialist PartY; The effect of.paragraphs 4, s;. 6 a111d 7
.is. that tl;i~yjmply . that the. Socialists are unscruP.ulous
~ ~ ~
0
' ' , V ;. , 'I I \ ' \ , , , ' .'"

or pe:r~iff:if)~,. w~~h V'~~' .~'\kip~. ~~ct}(<!-0~~~...'~~; ,tht

breatlwimg~ .~iJm.e...wla4ch t~)'t. <D,qta4t~~ ,RY .~: , F~~~~9.n:
having been postponed for a year, would not hesita~).>
a.n d for. no rea.son whatever, to intrigue and drive away
I 1 1 \ "' '\ I t ' t : , , I ,, , ,, , , l.; ) , , , . ~. .~ ,

th~_Pri:IPe
I>
.M~'n.i&fer
.o.. (
I 0'
Th.altfn
' -" .
N'q;, who is being held in .
",, } ",, , '
0
, j
0

high esteem in and oufsid'e Borma; and tlle indepent"

de~ ..:~{~~~~~~. ~~~- ~re . ~.i:~ co~hib?ra~s;: for -~bin~ .
nothing_glore .tJ.1f1Ii tf.heir qufy in attemptmg to preven-t,.,
by
. . .
!ll~a.r}s_of Cf{rninaf
. '" '"' ' - . .
prosec;ofiqn; ... . j:Hibfic
-
.' -
money
. .
f>dng
.
.
wa~te.d __ o,r -.~eiP.g ,:P~fd ?~t u~ne~es~arily. :rt .- ~us_t,.
moreover,
, . ' .
be ,remembered
' - . ,. .. ... , i. . ...
tnat the Prime Mi'nisler:-
... :... .. "'.. .. . .
Th_akjqJ~l.u j~ ,qei~_g__coq~i<!~\~~ generally ~ p~~g th~
only mail wno confd succ~~sfq~ bring about gen-eT-a~
peace in . th~s disturbed c~ui:itry~ .There . is : aPSo. trre
252 BURMA LAW REPORTS. [ 1951
H.C. insinuation that the Socialist Party is consisted of
1950
persons who do not like t9 bow even to the decisions
U ON KHIN.
v. of the highest Court of the country, and this is a baneful
THE UNION
OF BURM'A. insinuation.
u TuN BYu, The readers , fo.r whom the article is ordinarily
C.J. intended are alsoJamiliar with the background of the
highly disturbed conditions of the country' in which it
was written, which aro~e more out of misunderst~nding
and distrust ; and reading the article in that light, it
appears to us clearly to be an article which tends to
create, directiy or in.directly f~eling of ha.tre<:l or
contempt against the Socialist Party i~ Burm a. It
must also be. remembered that the Prime Minister
'J;'hakin . Nu, with the help of other Ministers, who
a!e his collaborators in the present Cabinet and who
had loyally' an~ whole heartedly supported him in his
effQrt to suppr(!s.s tl~e insurrections, and with the. loyal
support o f the A,rrned Forces, has of l~te been able to
re.gain . for aurma the confiden~e and esteem of
counti:ies. outside Burma. .. .
The la.~t .sentence of paragraph 8 reads:.

''" Mogyo a~preciates. lully thardanger to his perso~al safety

is increased in writing this Mticle, but ~s he knows well what Hie
law of mut<\bility is, he is undaunted ;. a person is.born only to .
die."

It is thu,s clear from the last sentence.in paragraph&

that the .writer of1:he article realises hilly the .offensive
or obnoxious character of his writing qecause he feare'ci
0
that . he migbt even be assassinated .
for :what he had
wti'tten. This was why he also added the phrase ''a
pers"p..is born only to die'' at the e~d of paragraph 8
of ~the article. And who could envisage or realise :the
'probabie .effect of. the . a,~tide m.ore. tpan ~~:~ 'writer.
himself} . It . also imiinu.a~es thereby ..tha~ t,li(!te are
man-kihers iri the Socialist Party. :
1951] BURMA L AW REPORTS. 253
H.C.
Paragraph 9 ot the article might also be translated 1950
as follows :. -
U ON KniN
v.
' ' If the Socialists \\'ere to carry out their design, which has ~:EB~RN~~~
been revealed to the readers, the country would b e t1tterly
ruined; and it is for that reason that tbe country is being U TuN BYu.
informed about their desi~n, so that it might h:we the effect of C.J.
deterring the Socialists from carrying out their design.''

Paragraph 9, in effect, accuses the Socialist Party,

at a time when the country is in the throes of widespread
insurrection, of being concerned in a pernicious or
mischiev6us design wh ich would r uin the cou ntry
altogether.
The purport of paragraph 10 is ob vious. It r~pre
sents to the readers of confusion, trouble, misery and
chaos that might follow in the VI ake of the alleged
design of the :Socialist Party. Why is this miserable
picture conjured up ? What is likely to b e the feelin~
of the re<lders towards the Socialists who were alleged
to be planning. to go something, which was to create
confusion, trouble, . misery and chaos in the country ?
It is obvious what the reaction in the mind of the
readers would b e towards the sociali_sts. .
The writer finally Vl.:ound. .up the ;;LI'tiCle
'
in these
. .
words :
. .
cc Mogyo dare not write what the design ~ the. Socialists in
connedion
. \Vith the
. Burma
. Army is."
. . .
(

What is the implication here ? Dbe_s it not

insinuate .to the readers that th~ Socialist. Party are
scheming to do something .very sinister and terllibie
with regard to the Army, wliich is at the present the.
backbone of. the country's pea~e an'd prosperity and
whic~- h~ve-achieved astonishing success in the figlitini
fields ? And. this is clearly wha.t it implies, otherwise
it is _difficu~(to apprecia_te why the writer of the article,
254 B.UR MA LAW RE.PORT.S. [19$1

~9~o who in accordaFJce with the article is. a very brave

- man, should be deterred 'fiom sett~ng out before his
{.1 ON J{HJN
'!', readers what the Soc1ahst Party proposed to do tn
~HG, U II!ON 4-.' . 'th "l 1\
oF .BuRM~- ccmf.l'ecvtom \\v.r .c 1.e ft!nn:y..
u TuN.Bvu, ~or -~he rea-sons, which we hctve inclic:rted ab0ve,
C.J. . th~ a rtide rn questron must be;: CcYrtsidered 'to ~ b'e an
artkte wliit'h tetids, iricffrec'fly a:t 1eas't; to create feeling
of hatred of con't empt' agaii1st the Sodal'ist Party in
.Burona.' The :0Fder of .the P resident calliftr~g rup0n -the
iPetitianer ltb -deposit -a sum :of ;Rs. - ~;000 :wn-s, therefore,
1ltgb.tl~7l!D\ade.
' llhe efft.ct ,0f -section U4 of the GooS~ti,tu.ti<Dfl is
plain, which reads:
" 114. Th'e l:'nio'n Government ~hall consist oi tl.e Prime
Nfirliste;. ;an~f ofher itteni.bers a:pptiiifted 'un<tet 'Sectio'ri 56; " ~ nd
;1..: ' I ... .. , ., . ci : .. : t

.Se:ot-ion
. . .56 ..r.eads :as ..follows
.~ . : '
.. " ~So 1('!-) 'The'- Fresitl-e1t sitan; on 'the -ui>mrnrttion dr:fhe
.Chami,i)r oi ~mep\lties, ~ppoih't ~'ifl'llirrtei!Mlrmfer wl'I'O 1.Sflall~bei tb'e
hlm-aN1 t'lt~ 'ID:t'rfon lmlmunerrt. : ' '" . ',. -.. \. " . . ' 1 ,
~ a,2) -trhe iF~sident :sHan,:on the' 'llmnirHttiron of the R11im:e
JvliniSie\, =aru>oint .other me~ber-s cif .th~ IUnion\Go.vel'lnrumt.
(3) The Presiclent.shall, omth~:adv.ice.: of the P.dme Minister,
acc~pt the resign1tion. or terminate. the ~ppointinent of. any
m~niber 6 ffi~;ltJiiiori 'Gcvernriien't. H ' ' 'I

It is thus clear that the Cabinet Ministers, of which

~h~ t'i?nme' . ~Min1'st'er .:-is' 1he ' 1i\e'~dll.l
, C:Cfhs'HH.ttes
. the
Government . for. the pi.ifpose'
f.ress -(;Emet-gency .f.owets) .~ot; .'We .m~ght staiteat
or
S'eet'i'oh -~ I (tr of ibe
Qn.ce; witho~tenierm;g i11to. a-nff _detajled piscussion,
~h~ -we ale .not a.0nsid~r .tha~ :the - a.r:ticle .in .guestion.
h&S a .ten,den~y,, dit:ectly.QT in~rec~y, t o -create .feeling
~I .hatr5;d -or .eo~mp!, or cif.-disaffection against .the
:9o:f.letnm.ent: -.lt -was _;dir,cmte_<il ~ostensil?l, and solely,
~i~t .the :~09_ial1st ..:;P-ar-ty, .and ,nnt against .th.e
~inisteq;.as a ..wh9Ie.- : ~-e .are un~J;>le J:o .firrd a:ny.thing
1951] BU.RMA L AW REPORTS. 255
in the article which would really indicate that it was H.C.
1950
intended to create, even indirectly, feeling of hatred
U ON KHr~
or cont~mpt, or of dissatisfaction, against the Ministers v.
.. . 'l'HE U!>tON
aS a ~hole. OF R U !tMA.

The application will, ho\\"ever, for the reasons u TuN avu,

alrea dy _$~t :out earlier in this judgment be dismissed. C:.J.

"D AuNG ~HA GYAw,'J-1 ~ave. ha~ .the1l:dvantage.oJ

rc:<!-qi~g th_e 'judg~erit of my learned :bro{hers, the
ciiil(Ju~icc and ~~~ti~e B? Gyi, ~nd :alfh<?ugh I find
mys~ff'iri . g~ri~ral agreement on the rrii.nor points dealt
wHh ~y tf1~jn, l reel constrain,ea to say, with the
d~~~e~t r~g-~~t'; 'fhat _on fhe rp~j~_r ;!ssu:s -~p.v,olved in
this case I am unable to subscnbe to fhetr vtews.
the dff.inding pJoii~~ti:O~ i~ ~~ ~~~isle pu.blished by
one M<?gyo . in 'fhe ~t'B~~ar<hif', . R:aq#o~n dai~y, a
purp~~4-~i _'t o give out a epsafi<?n.a l n.e\:Vs item c<:>n-
c~n1ing fqe igtm~n<?rit p~a.n of . the -.S ociafist Party of
~-ti1;rp._a to)~~in a p.urely :~_oci.~fi~t ..(:iov~~rim,eqt. T~e
artib!e at the ~utset remindS flie .r eaaers of :the r.e cent
~P~?~-~_me~~:-?r. t?.r_e~. ~'6da!i~(~iJi~!t?:s.t~ the .a_b~n~t
~~~: H~Y\e ~-~.n.~r~l, ~~?.:e~~t~~n _-th_at t~_e . ~w~ yortfolios
ren'l~~t}mg_ ~n the Qapm~t;wo9lp also be }ille~ q.y the
s~M,~!~~~~ ':. Go~~r~ry: -~o - ~~~~ . ~?'~.~~ta~-~~n, -~~-d ~~~ t~:e
~Mr;pq~,e Qf,.fhe. 'Y.r.tt~r, he -l?_a s ~e<;lfOt ~tC?.m .a Soctah~t
so:Uice_tbafth.e ~S~i~~ist:'J?~r~y 'is . p~an~#ng 'to ' 'form .a
?~~~ly~So.9Jal~st._'Cabi:~-~ t)J~~r r~ ~~v~~j; rJ~y --~~re~t a?p
ui{hrect mea_n s, the m!iependenf .AFf,F.'L . Mini$ters
!I}~iu.~j'ng :the':J?r!P1.e' '1;tip~ster :ni~~-e~C .lh e \~iter
1

tlien mentions 'thre'e reasons wnidi. riiove$:1.-the Sodal.is!

l'~;i_iy: .:to ' 'talf;~ . ih,1i st .~~:ffiJ?~~din,g -~~~P~ ' )~ae~y,;_ 1 he~e
ie~~ons ~ere ("1) 'Jlie .ab <?rtiv_e : ~~t~1_11.[1t.to:'(mplic~te
r~ak~.~ "tin, 't~e ''Ch~lrman of. the ~~g~r . 'o~troi .Boa!d
a~.a l,Ji ~a ~rr~n~lts 'ecr_e~~t:-y, _i_n.)vh~~~aspe~n, ~D:o~~
as t~~ ~~eya:w~cl~y $~g~r c;ase, .(2) Jhe : a~~~~t- a,nd ipro-
seciitio.n of c~rta.i.ii -~.69hilist~for..di$.posi~g"q'f. some.b~ies
! . , .. .. . : . 0 .. . . ; . ' - 0 . ,
256 BURMA LAW REPORTS. [1951

H.c. of cotton yarn issued by the Civil Sugplies Department,

1950
and {3) the release by the Supreme Court of one BoYan
u ON v.
KmN Naing who had been undergoing detention under the
THE UNxoN Public Order (Preservation) Act. The writer opines
OF: BuRMA. that the Socialists are taking this opportunity of carrying
u ~~:,~. ~~A out their plan as the General Election has been put off
for another year.. The writer then states that he deems
it his duty to make the above disclosures to the country
and that he has no malicious intention of arousing
hatred against the Socialists by inventing any falsehood,
a proceeding which he thinks is unnecessary, as, in his
opinion, the popularity of the Sodalist Party is on the
wane. He~ . h?\:Vever, realises that in 'ma.king such
disclosures he is placing himself in more danger than
in what he ali-eady is, but being mindful of the law of
imperm~nency he is . unafraid, it. being the . lot of all
persons to die o'ne day. Then, the writer contin':JeS to.
express his fears of what might happen t<? the co'untty
should the 'socialist Party' a dopt the line of action as
air~ady set out. He hopes that ,th~ . making qf"these
di$clostires will d~ter the Socialists 'from taking the step
p lanned by them; If any responsible person making an
'a ssurance that the news item is totally~untrue, the
w~iter'~ joy \vould be .unbo~tnded. He then procee~.;
tB speculate onwhat can possibly.happen ifthe Socialist-
Party took supreme control of the Go~ernment. R~
ference is made 'to the relations with the ~rohtier areas,
to ~he: financial an~ material support about to be gi~en:
. by :the:
.
British. .'irid
. . .American
.
Governments,
. . . to ..the
setting up of international relationship with Red China
and ~0 other possibilities into which the . writer dare
not" stretc}). hii imagination. Then again, the w~iter
speaks.of the possibility..of a purge in. the Party .and.
the c'i:>rtsequent removal of Ministe~. U Win . from the
Minrstry.:.Finally, t~.e :writer me~t1ons that he dare
not write about- the S9cialist Plan regarding the army.
 BURMA LAW REPORTS. 257
For the publis;ation of the above article the peti- H.C.
1950
tioner has been directed to deposit a sum of Rs. 3,000
as security under section 3 (3) of the Press (Emer- U Ot~ft. KHIN
. gency Powers) Act, and it has been contended on the THE UNION
OF BURMA.
petitioner's behalf that this article does not fall within
the mischief of section 4 (1) of the said Act for. the tr.GYAW,AuNG THA
].
reason that the Socialist Party does not fall within the
definition of 'class or section' occurring in section
4 {1) {d) of the Act and that the article in question is
entirely . innocuous in its effect upon an ordinary
reader.
Affer a fairly exhaustive survey of .t he Indian
authorities placed before us, my learned Brothers have
come to the _findings that the Socialist P~rty in Burma
is a class or a section of the residents of the Union of
Burma within the meaning of section 4 (1) (d) of the
Press (Emergeney Powers) Act and that the article
complained against offends this provision of law by the
tendency it hcts of causing hatred or contempt of the
Socialist Partf in the minds of its readers. Of the.
many reported decisions reviewed in this case I need
o~ly mention a few in support of th~ contrary view
which I~ find it my misfortune to put forward in this .
.. . . .. .
case. .
The first ground of dissidence which: I fed bound
to give expression is in respect of the_ question as to
wh,ether the So<;:ialist Pady of Burma .can! in law be
'deenied to be a section or class of the residents of the
U~ion .of Burma_wit.hin the meaning .of se ction 4 (1~
(d) of the P~ess {Emergency Powers) Act. Now, lhe
words oi section 4 (1) (d) of this Act and of tl:fe :old
Indiar1 Press Act of 1910 follow the wordings founCI in
section t 2~-A of the Penal Code fwhieh defines
~- s~di.tion '-~ but with this difference, that tinde.r the
p~ese~~ section a.:... mere tendency, eithef directly or
. indirectly,_ .to bripg i_nto hatred .or con.te:mpt the
. 17
258 BURMA LAW REPORTS. [1951

H.c.
1950
administration of justice . or any 'class

or section ' of
...- the residents of the Union of Burma also becomes
u o:. KHJN actionable. In the interpretation of a statute, words
THEBUNJoN borrowed from another statute must be assumed t()
OF Uft.t.JA.
- have the same meamng or connotation as has been
V AUNG TRA b h
GYAw,J. placed upon them y t e courts. See In the Matter of
the Indian Compan;es Act VII' of 1913 and of the
Traders' Bank Ltd., Lahore (1).
Thus, when interpreting the meaning of the words
"class or section" used in section 4 (1) (d) of the
Act the fact that the whole of the provision of section
124-A of the Penal Code has been reproduced in section
4 (1) (d) with the 'small difference above stated cannot
be lost sight of. The hatred or contempt which the
publication has a tendency to excite must be againsl
the government established by law in the Union of
Burma or against the administration of justice in the
Union of Burma or against any class or section of
persons resident in the Union of Burma, and from
this wording of the clause it is clearly open to inference
that this clause has exclusive reference to the exciting
of hatred or contempt in the minds of the reade rs
against the Government established by law or against
the administration of justice or against any class or
section of persons resident in the Union of Bu'rma,
who are actively connected with the executive Govern-
ment of the . country, viz., t he different organs of the
Government like the Police Force, the Army and th.e
Civil Service. Any publication which tends to excite
hatF~d or contempt against these classes of people
woultl study have the effect of creating disaffection
against the Government established ~Y. law. Section
4 (1) (h) of the Act, however, refers to :another and
different form of sedition~ namely, the p~omotion of
feeling of enmity or hatred betwe~n 'different . cla~ses
(l) S6 A.l .. R. i1949) Lab. 41.
195 1] BURMA LAW RE PORTS. 259

of persons residen~ in the Un ion of Burr11a and this H.C.

1950
clause is a reproduction of section 153 -A of the Penal U ON KHIN
Code, and different considerations must ncc es~arily v.
1 THF. UNION
arise in interpteting the meaning of the word classes' OF BURMA.
occurring in th is clause. Although the same word may U A UNGTHA
occur in the two different clauses of the same section GYA\V, J.
of law their respective meaning cannot be correctly
and properly interpreted without paying regard to tht
legislative intent expresst!d in their previous use in two
different section's of the Penal Code dealing with two
widely different aspects of the same offence-namely,
exciting .hatred, conttmpt or d isaffection against the
Gove rnmen t, administration of justice, etc., and promo-
ting hatred, between different classes of residents of the
Union, both of which, according to Halsbur.y's Law of
England, form par t of the offence of sedition. (Re-
ference : paragraph 458, Volume 9, Hailsham Edition,
quoted by Cornelius .J., In the Matter of "The
Co-operative CaPital Press," Lahore (1). It may here
be not~d that with the exception of Clause (e) which is
directed.against blackmail, all th e other provisions of.
section 4 (1) of the Act relate clearly to sedition, as the
term is ordinarily understood and, in particular Clause
(d) relates to that type of sedition which may be com-
pendiously d escribed a~ creating disaffection towards
the Government established by law.
In weighing t he effect of the offending article the
.
words of Lord Phillimore in A nuie Besant v. Advocate-
'
General, Madras (2) might well be kept in mind ..
In making an attempt to interpret the words 'ci l SS or
section' appearing in section 4 (1)~ the Press (Etner-
gency Powers) Act :-Lord Phillimore said :
- " 1?Je balancing of important political c.onsiderMions which
is effected hl' addin~ Explanation 1.1 ~o the enacting words
. 11) (1949i A.I.R. Lah. '218 at 228.
.(2) (1920) I.L.R. 43 Mad. 146 at 163-164 ; ll6 I.A. 176.'
 BURMA LAW REPORTS. [1951
. .
IH.C. Whi~h are found in the earlier part of the section has its analOS!Y
1950 ia sections 124-A and 153-A of the India~ Penal Code~. The
U 011 KJ./TN l~ngoage is not precisely the same , but there is the same delicate
v. balancing of two important'public considerations, the undesirabi-
TRE UNION
OF UURMA. lity of anything tending to excite seditiotl or to excite stnfe
,! - qetween classes and the undesirability of preventing any bon~
UiAl.!NOTHA
GYAW, J. fide argument for reform.
* . *. * *
*
In applying these balancing principles i~ is inevitable that
different minds may come to different results, one mind attac h-
ing more weight to the considenlion of freedom of argument,
and the other to the preserv.ltion of law and 01:der or of
harmony.''
At page 164 of the report the following illuminating
remarks occur:
It m'ly well be that tbe primary obJect was a legitimate
attack upon a system, but unless care is taken it becomes difficult
~o make a fierce attack upon a system without conveying some
imputation upon the cllss whi~h the system makes or which
carries the system into practice. And it must be remembet:ed
that those words in Clause (c) \Vhich refer . to the hatre1 or
.contempt o a class or section are not lirriited by Expla~ation fl,
and that 'there has been in lthis respe'c t some . departure from
the policy of the Penal C'ode, which superadded a qualifyihg
explanation
. which has not found a place
'
in the Press Act."
It was held in that case that the article complained
.against was an atta<:k on_the English Civil servants in
India and Englishmen in India geneni.Uy and that these
persons constituted a class or section of His Majesty's
.subjects . as defined in section 4 tl) (c) of the Press
~ct, 1910 [now 4 (1) (d) of the present Act). Much
11ashappenea in I n'8ia and in this country since Lord
.Pnillimore wrote about the balaneing of two important
l>ubl,ic consider:ati~ns no~ed ~hove, and freedom of
.Opinio.n express~d in the public press within the limits
a
.3llo1fed by law is n<?w -right guarantet!d by th~
Consti;tutior:tof the Republic of the Union.of.Burma.
1951] BURMA LAW REPORTS. Z6l

In Raj Pal v. C1'own (1) the meaning of the H.c.

195()(
wqn:i "classes '' as used in section 153-A of the Penal
Code was held not "to be restricteq to " races " merely u 0 N21.Ks1N
but to include'
also "religious denominations". For THE UNroN
Of BURHA.
a. body of persons to come within1;the definition of a -
' class' of .the residents in the Union :of Burma {the'y ~ ~~::.1~
must form a well-de fined and readily ascertainable
group having some element of permane.n~e and stability
and su.fficiently numerous and widespr~ad in their
distribution in the country. Applying this t~st,
Europeans aQd Indians, Hindus and Mahomeda~s,
Kisans and Zamindars or landowners, workmen and:
.mill-owners
. ~
have bee n held to be classes. See the.
cases of ] as want Rai (2) ; Chamupati (3) ; M,unshi
Singh (4) and In Re. ] onnalagadds Ramlingaya (5).
I n a numb~r of Indian cases where the pu bliq1tjo~s
objected to had either attacked political parties or
advanc~d political views, there are found expr_esse~
thpse principles. r~loating to the freedqm of the press-
which I venture to quote with respectful approv.al.
In ;;t democrncy it is essential th ~t th.e masses sho~ld
be p'olitically educated, an(they are entitled to kn_m:V.o
the pros and con~ o[ every p:oliti~al system and ev~~y,
0

political ideology apd: .within ." the)!mits: o( la~; ...~

parti~ul~r- par_ty_il:tay place 4is vi~ws and its principles
b~foJ.:e the. :peopl~. i . S.ee: ,Mqff~!hP:r, DatTJp~qr _Pati!_
afJ:CJ anf!.the~ v_. . . :T!te. . Go!f!ern1,n~nt ..of. Jt<>fnbfJ:Y (6) .
0

In . Kt:~tra_ga9-ds. . Ra~agqpala Ra;o~ v., Tire Provinc.e of

Madras .(.7) . .it ";as p9inted o.ut thaf" it'will be. 1nde~d
a pangex:ous doct~in<? to hold that any adverse,,expx:es~
sioi). of op_i~ion on -the action of a particular.party th~tl'
in. powerby an organ or member of an opposite. P.arty
0 .. 0 0 0

> -

0)'(1921) 3 Lab. 405 at 413. (4) 10 Luck. 7i2.

(21 s' Cr. .L.J. 439. . (5) (!937) Mad'.14; : 0

. 131 13 ~h. ~52 (S.fi.) . . . .. (6) (~950) Cr. L.J. Bom. 8~.
0

~7l. 11?49~ I.L.~. Ma~. _149 at 1 ~7.

 BURMA LAW REPORTS. [1951
1
H.G: ,. should by .itself be held to fall withi.n the enactment.
1950 .
[Clause (d) of section 4 (1) of the J?r'ess (Emergency
u ON KHlN
v. P9wers) Act]. No doubt if the language used is so
Tcf!,B~:;: violent and exciting as to lead to violence, insurrection
. --,r A or disturbance,
U ' AUNG; H .
it may fall within ether provisions
G.Y~w. j. under which appropriate action might be taken
ag~i.nst th~ authors of such writing.
.
Where the objectionable publication relate.s to the
army of the ,country, Cornelius J., In : the Mafte1' of
"The Co:operative Capital Press, '' Lahore ( 1) states
" ;there can be no doubt that if it is sought to bring any
persons within the expression ' class or section of His
Majesty's subjects', it will be necessary first of all to
look for well-ascertained, well-defined and sufficiently.
numerous groups ~ * bearing all the external marks of
an easily distinguishable clas~ among the subjects of His
Majesty in the Dominion". The question before him
was whether the Pakista~ army numbering ab~ut 100,000
comes . . \vithin the definition. of 'class or section '
appearing .in s~ction 4 (I) (d) of the Press (Emergency
Pmvers) Act and . in giving an affirmative .:-afis,ver to
this question . regard was had to the fact that the army
was a class or section of the people closely associated.with
the established Government en.i oying a common official
status, the s'lme consideration which applied to the.
case of Annie Besant v. Advocate-General, Madtas (2) ..
In the Matter of the {'Nawai Waqf Daily," Lahore
(3) the publication complained . of was an article
attacking the utt~rances and activities oft he late Indian
~ . .
leader Mr. G(!ndhi. Themajority of the Bench in that
cas~hold. thatthe words '' diffe.rent classes " in section
4 ~IY (h) of the .P ress (Emergene y Power~) Act refer :
to religious, racial, sociai,
. tribal an~ possibly
. . . ..
~conomic
..
(t) (19~91 A.I.R. Lab. ztaat 22s. 121 (19u:t9J 46 t .A.i7.6at 19H96; 43 Mad.!46.
. (3) (1947) 2S Lah. Series~ 4;7 at ~14 and 561-562.
 1951] BURMA LAW REPORTS. 26'3

<>r functional but not to political classes like the Muslim H.c.
1950
League, the Mahasabha or the Indian National Congress.
U ON KH!N
The dissenting view of Achhru Ram J., seeks its v.
justification in the current context of political rivalry ;:.Es~:!~:.
which then existed .
between the Indian National u A.IJNG - T
HA
Congress and the Muslim League. But the attempt GvAw,J.
made to bring the Congress and the Muslim League
within the definition of " classes '' used in section 4
{!) of the Act was in respect of an alleged contraven-
tion of section 4 (1) (h) of the Act {promoting feeling
of enmity and hatred between different classes), and it
is admitted by Achhru Ram J., that in countries with
.settled constitutions, t~e difference . between different
political parties would generally be one of policy only,
with each of them seeking to get the control of the
Governmental machinery by trying to win over the
majority of one common electorate to its side, and that
-con.sequeil!Hytfiey-wmlld. not be regarded as different
~lasses within the. meanin'g oe any statute containing
provisions similar to those found in the Indian Penal
Code and the Press (Emergency Po"Yers) ~ct~ The
lea~ned Ju4g.e further states ' 1 there is, . however, rio
:analogy at all betwee11 such poiitical parties and polifical
parties like 'the Congress and ui~. Muslim Leagl:le in
India each of which is trying to force the other to
accept its .own views on the constitutionat, question;
~hich ~as .. y~t to be settled, not by' ~n appe.al 'to a
common electorate, which does no't exist, but by other
means, not always altogether peaceful~ and, occasionally
at '1east, including .threats. of violence, it would be
d~gerous, and, af tli.e present moment wnen . the
atmosphere is. so ~\Jch: surGharged, disastrous,.if th~
.me!llbers of: these two podie.s. could with .impunity,
in4ulge in the use oflanguage calculated, to.prb~o~e .
fee~in&s.of .e nmity or hatred between .the fw6 bodies,
their "acts. being . within the r-each . neither . of section .
264 BU.~MA LAW_REPO_RTS. [19~)

H.C. 153-A, Indian Penal Code nor of section 4 (1) of the

a so
Press {Emergency P owers} Act."
u ON KHIN
Mohammad Sharif J., in attempting t q get at the
~';:-n~~~~=- meaning of the word "classes ,, used in th.e Act did
u A:; T HA n qt feel safe to go beyond the views expressep in the
GYAW; J. case of Efflperor v. M iss Mannib_en (1). In his view
the term '' classes " cannot cover a political party or
.group held tQgether by the community of in_terests to
achieve a c;:ommon objective. Political parties come
a nd go an4 are susceptible to rapid ~h~nges in their
complexion and composition. To hold otherwise:
would lead to str~nge a~d -.i~~onvenient results. In
that case ~ sev~re attack on the motives ~n!-1 method s
of a political par~y may be actionable and this would
retard the growth of a better and healthier society
particularly in cou ntri~s which ai_m at ~ de~ocratic
form of government. . It would, there~ore, follpw that
the l e~q.er of~ politica_l party howevereminent he might
be, cannot be placed_ on th~. sa~e pe~~stal as the:
founder of a rel~gion _or ~ spiritu:;J.~ ~ead whose votaries
are animated by the -~9m~_on . faith. ~nd ~ot actuat~d.
by expediency.. By h!s very _posi!io.n ~nd ~~~i-vi.t~~s - ~
politicalleade_r_inv~tes critici~tn ~nd ~xposes himself to
cens~re and . even ridicule. It w~uld npt m~ke any
difference if. his followers _.or partizans solely or pre::-
dominantly belof!g tQ q_rie _i~ligious communi~y so long
as attack is in respect of ma-t ters per~aining to their
political views an4 Ideals. . _ .
As already pointed ~ut, ~(?,.~siderations which apply
to a ~as~ falling ~nper section 4 . (1) (li) cannot with
tiqual force and validity ,apply t~ a case ~ought to be
prought u~der section 4 (0 {d) of t_he Ad. Hqwever~
I fipCt my~elf in respe_ctfuJ flgreeme~t with tJ:te. vi~w
of Mohaqunad Sharif J.;"exprt:~ed above, especially
in view of ~l)e fact that ,i.~ try-1~g ~o ~p~ly some .m~~ni_ng
~ (1) (1933)_57 ~~ 253 at239.
1951] BURMA LAW REPORTS. 265
H.C.
to the words " class or section " we are attempting to 1950
construe the mei:ming of the words of a statute of U ON KHIN"
a penal nature. The provisions of th e Press Act must v.
THE UNION
be interpreted liberally and in favour of the subject. oF BuRMA.
(See In the Matter of the Newspaper " The Daily u AuNG THA
Pratap " (1) . GYAw, J.

In this connection, it is well to remember that the

Press (E~ergency Powers) Act is a piece of precau-
tio~~ry and preventiv~ legislation, and extre.m e care
should be taken that in interpreting the words ~sed in
the enactment the fundamental rights guaranteed in the
Constitution are not insidiously encroached upon and
a lthoug~ the words '' class or section " used i~ the Act
need not necessarily signify large portions of a popula-
tion and !_hat those portions should he determined no~
by any artificial or official designation, but by some
natural or spontan.e ous process whereby large masses of
population are grouped into separate categories, as was
held in the dissenting fudgm(mt of Agha Haider J., 1_n
In the Matter of'' Tht Zanzindar '' Newspaper, Lahor'
(2), such class or st!cti~n may well be comprised . of ~a
large .body of. m~n forming_ a separable portion of ~
country p~sse~si~g" ~~pl~sive, .and~ ~triong ~~~-~selve~~
common.attribut.es and characterist~cs, as for ipstance,.
~he . police .force of the country or the army: "W~il~
on the one hand it is of the utmost importance that the
courts sho~l4 act ~o sup press . sedition, it ~s not les~
important that the freedom of political. controversy on
which to ~ very
gr~at extent in modern times, the
po~itical i{ealth and welfare of the Community depends~
should
' ..
not be
.~ . -
unduly .
restricted or hampered. ltois"
nece~sary t~at the public to which the decision o,f .s~
.

many questions of the utmost importance affecting u~eii

well-byiug and in certain circumstances even .their
destiny is und~r modern .c onditions entruste.d should.
- .f - 0 . ..

(1} 51 Cr.I; J. Easf f.Ll~, 115 al7l7. (2) (19~41 ~.I.R. La h. 219 to .2~6.
266 BURMA LAW REPORTS. [1951
H .C. by being acquainted fully with the m~rits and demerits
1950
of the various political theories offered to them, be in a
U 0~ J<HIN
v. position to judge for themselves along which path of the
THE U NION 1 ff
oF B u RMA. many that politica propagandists o er to them, the1r
.
u A;;;;; THA true well-being lies. This involves free critiCism of
GvAw, J. one political party by another, and it is commonly found
that suc h criticism is couched in outspoken terms, and
often in the language of exaggeration" per Cornelius J.,
in In the M athr of " The Co-operative Capital Press.''
Lahore (1) (at page 2~5).
The weight of judicial opinion as far can be gathered
from the r eported Indian decisions would appear to be
in favour of the vie w that a political party d o~s not
possess that degree of permanency or exclusive charac-
teristics as would constitute a class or section within
the meaning of Clause (d) of section 4 (1) of the Press
(Emergen cy Powers) Acl. Political parties are
a~orpho~1s in their very nature and are capable of
-speedy change and dissolution depend ing upon the
trend of political development in the country. These
'Parties are formed with the purpose of carrying ouf
::Such changes in the political and economic life of
the people as may be deeme'd nece~sary for the
realization of certain objedives ~ased on a particular
tht'ory or ideology. Under our present Constitution
the goal may. be a common one but the path to be
-chosen and the methods to be adopted to arrive at it
-can be divergent giving rise to the adoption of different
and mutually opposed policies. The num erical 's trength
,.and permanence of -a party would, of course, depend
u~<;>n the support it receives froin the electorate. .
.Besides, there ar:e other considerations of a general
nature which, of course, as stated by ~ohammad
Sharif J., In the Mat!er of the "Nawa! . Waqf Daily''
(Urdu), Lahore, Abdul Hamid;- PubltSher of
(1) (1949) A.l.R. Lab. 218a~ '228.
 1951] BURMA LAW REPORTS. 267

"' Nauai vVaqf, '' Lahore v. The Crown (1), cannot H . ~.

J950
bring a politica~ party as such within the ambit of
section 4 {1) (d) of the Press (Emergency Powers) Act. v 0 ~.KHtN
The Constitution of the Union of Burma d efinitely THE UNtoN
OF ~U.~~fA.
:aims at the creation of the socialist welfare state and - -
. . I parhes
:a 11 poIthea . pro fessmg.. to wo~ k f or thts en d u GrAw,
AONG T HA
J.
within the framework of the constitution must of
necessity be inspired by a common political ideology,
whatever tiame or label they may choose to give them-
selves. It is in regard to the methods sought to be
employed by them to reach the common goal that
differenc.es. of opinion may exist and since the common
electorate must be educate!=~ to be able to vote for the
;party pr:oposing to adopt the best possible means to
:achieve the desired end, a free public press b:ecomes: a
necessary democratic institution. Political parties by
the very nature of th~ policies to which they are pledged
and the work they have to carry out in furtherance of
such policies, must in the fitness of things be subjected
to criticis!ll and comment in the public press to the
degree allowed by the ordin~ry lav~i. The crowning
:argum~nt against the inciusion of a political party within
the meaning of section 4 (1) (d) of the Press (Emergency
Powers) Act lies in the incontrovertible fact that
a.lmost every day, views andopinions are published :in
t~e public pr~ss to ~ay that tlie Communist Party
supp_resses religion. and denies freedom of- wor:shtp tq.
:the peopte brought . un<Jer its political domination.
Such publication would undoubtedly tend to bring tl?e
Communist Party to hatred and cor1te~pt of th~
newspap~r readers \,ho value such freedo~ of worship.
~~tt t~e law a1lo:ws the inculcation: of Comn~.mist
<;logma among th~. people and also its publ~c condem-
nation as. somet.hirlg vile a nd deleterious to the lif~ of
the communitr or nation. ..
 268 .BU~MA LAW REPORTS . [195!

r9~ Thus in a democracy, the mere adoption of a politicat

- programme or the holding of certain political opinions.
U 0HN KHIN h . . .
v. owevcr wtdely and efficiently orgamzed and expressed
THE UNION S
oF BuRMA. uc
h work an d opm10n
. . may . b e, wou }d. no t 1n
. my v1ew .

11
A~NG THA qualify the party to the inclusion in the class or section
GYAw, J. of the residents of the Union of Burma within the
meaning of section 4 (1) .(d) of the Press (Emergency
Powers) Act. I am not in the least unmindful of the
unhappy fact brought out in argument that the .c ountry
is sorely beset with both internal and external
dangers, but iJ I may be permitted to use a simile, the
ship of state having set out its course on a democratic
sea cannot; despite the perils aforesaid, afford . to cut
d9wn or shorten one of its main sails, and thereby
retard its progress towards the cheris.h ed goal.
However, even on the assumption that a political
party can be. deemed to be a s.e.cti~n or class of the
residents of the Union of Burma within the meaning
o'f this penal provisions in the pt-es~ laws of the country,
it. is extr~.rnely doubtful whether -tlie artiCle complained
;;tgajnst cari be held to be within the .mischief set out
in section .4 (1) (d). . . .
Before dealing with the meaning and substance of
the article in question, it appears necessary to keep .in
juind certai~ general principles which . have been laid
down from time to time it). reported decisions dealing
with matters o(the same natur~: I1J ~he Matt~r Q.j the
Newspaper ''The Daily -Pratap" .(1) the Special
Bench of the .E ast Punjab High Court h~1.s this ~o say
0
(at.p~ge 7-27) :.
.. ., ' ..
o ;, Alfhough in~ite~e~f to\iolence ~r disorder has been heid
not t<Ybe an essenthl . ~ngredient of the offence of sedition 'i~i
'Indfu th~ provisions of the. Press A~t must' be interpreted.
.liber~lly and in .favour . of the ~ubjec~ ,* ~ * Th~ section
-[~ef~rri~g to sectid~. 4.TJ) of the ,A.ct] taken and re3:d .as ~- whole is
. . {l) 51 cf. 4.J. Eas{Pu!l. 725 ;tl 727,
 1951] BURMA LAVv REPORTS. 27
H.C.
malicious motives' in the discharge of its duties', or by 1950
articles unjustly accusing the Government of hostility
U ON KHIK
or indifference to the welfare of the people". See v.
'fHf UNION:
J.V!rs. Annie Besan.t v. Emperor 1) . In construing a oF BuRMA.
(

newspaper article its meaning must be taken from the u A;;; THA
ar.ticle as a whole and not from isolated passages. See GvAw, J.
Manomohan Glzose v. Empero1 (2) where it was held
that an article in a newspaper attacking a rival-political
organization was held as not being seditious within the
meaning of section 124 -A of the Penal Code.
It is in the light of the principles noted above that
the offending article in the present case must be
conside{ed to see whether it falls within the clutches
of the law provided in section 4 (1) (d ) of the Press
(Emergency Powers) Act. The article read as a whole
purports to divulge the line of action which a
prominent political party in the Union of Burma is going
to take and speculations are offered as to what would
happen to the country should such a consqmmati~n
take p~ace as projected by the said political party.
The article also seeks to find some explanation for the
disagreement between this political party and the
independent AFPFL Ministers in the Mi.n istry
which influenced the said party to embark on its new
policy of assuming sole power of government in the
country. There can be no reflection on the honesty
of motives of the <Jdmittedly numerically superior arid
predominant party if it decides to form a government
composed solely of its members, for thafwould. be in .
accord with the ordinary constitutional practice. Bdt
the writer did not want that event to happen a.t his
part~cular juncture in the country's history, . He
thought that if the party as~umes sole power and
carries. out its political progr~mme the country would
be ruined; t!Ie Qnion Jl!ay disintegrate ; the expected
{lJ (191~) I.L.R. 39 Mad. lOiS. (2) (19111 ,.L.R.. 38 Cal.. 253.
'272 BURMA LAW REPORTS. [195 .

H.c. foreign loan may not be forthcoming ; international

1950
~ contact with Red China, which has since been done,
11
ONv~~lN might bring unforseen results ; the 'party might under-
!~EB~:~ take a purge and eject one of its members from the
- Ministry ; and, lastly, the wrHer made a reference to
U AUI'G THA
GYAW, J. what the party m power would do w1th the army-a
piece of speculation upon which he did not venture
to enter. It is difficult to say how the fears ()f the
writer expressed in the article as to what might take
place if a pr~Uominant political party assumes complete
power in the country, should tend to excite hatred or
contempt in the minds of its readers against the said
party. The ordinary men in the street to whom the
neWS are conv eyed Would hardly care about the COJil
position of the Gov,~rnment. Members, supporters and
sympathizers of the party would be glad that the event
they have t?een waiting and working for is going to take
place. Readers of the newspaper who were not iri
sympathy with the aims and'objects of the party \Yill of
course entertain some degree of disappointmentand dis-
approval, and even of resentment. Therefore; so far as
the principafnews-item is concerned th.ere can be rio
question of it having a tendency, directly or indirectly,
to create ha'tred or contempt against the Soci'alist Party
of Burma.
There are one or two portions of the article which
divorced from the context ar.e said to impute improper
motives and sentiments against"this party. A number
, of criminaf prosecutions are mentioned as wen as a
decision made by the Supreme Court as h~ving caused
thi~ dissension with the indepettdent members of the
A-FPFL. A stig,g e.s tion is conyeyed tha:f.. so far as
~he crimin.a l prosecutions' are . concenied.,. . they were
attempts made by the . in'dep.e ndenf . AFPFL
. Ministers to discredit the leaders and members . of 'the
. Spcialist Party. S~ch a s~~~estion .; h~s not been .
1951] BURMA LAW REPORTS. 273

contradicted by means of an affida,it before this Court. ~-~

The article also ventures the sugge~tion that the decision U ON KHIN
made by the Supreme Court in respect of a prominent v.
THE UN!OM
political detenu had offended the Socialist Party. One oF BuR~"
of the members of the said Court had previously for u A;;;THA
an appreciable period held important portfolios in GvAw, J.
the Cabinet. This suggestion also has not been
controverted by means of an affidavit.
The next paragraph of the article, which was
brought under adverse criticism, is the one where the
writer said that by making the disclosures about the
plans of the Socialist Party he has put himself in more
personal danger, and in a spirit of bravado generally
born of temerity he stated further that he w.as not
afraid ~o die for carrying out his duty to the country
by revealing the truth about the Party's plan . The
personal danger which the writer anticipates, could
vary fro~ common assault to asstlssinatio~. Merely for
the reason that the writer exaggerates the danger in
which he feit himself placed, it cannot be said that he
iS thereby conveying an innuendo that the party whose
plan he was divulging employs assassination as one of
its methods of removing political opposition in the
country. The news which the writer was conveying
in the article was not such as would excite intens~
hatred of the writer in the minds. of the members of
the Socialist Party, for such an assumption of political
power by a predominent party in the Legislative
-Assembly . cannot be considered as -either illegal or
undemocratic.-
. . /
.
The next sentence in- the article which is sa!d to
.
have a . tendency to excite h~tred or contempt of the
Socialist Party in the minds of its readers, is the. one
relatiil' to the Plan _of the Secialist' Party in respeCt of
lh~ army', which."the writer dared not .venture to: \.vnte
about now. . A. tover-nment iri power in. the-absen-ce :o
. . 18 . .
274 BURMA LAW REPORTS. [19Sl
H.C.
1950
a strong and stable opposition may !ieek th~ co-opera-
tion of the army for the reaUzatiQn of its ideal of a
U ON KRtN
v. planned state and for perpetuation of its political
~;'h~=~~~ regime. This, in a true democratic country, would be
u A , T , a misfortune, and by merely pointing out this
G~=~. J~~. unfortunate possibility arising out of having a single
party in control of the machinery of the gov<::rnment it
~cannot be said that the Socialist Party was being held
up to hatred or contempt.
Thus, reading the article as a whole, and in a liberal
and detached spirit, what an ordinary reader would
understand is that a predominant political partyin the
country was going to assume complete control of the
governmental machinery and that certain unfavourable
and u~desirable consequences were likely to happen
if such an eventuality took place. To the ordinary
man in the street the article conveys information of an
educative character which, if the meaning is realised
to the full, might guide his vote in the next" election.
The writer by writing the article claims to have
done his duty to the country and that he was not
actuated by any malicious motives. He assumes that
the party about which he was writing was waning in its
popularity. There can possibly be no objection to
both these assumptions made by the writer. As to the
extent of the damage which a one-party government
might likely cause to the country, the writer, I think
is at liberty to -give his own views in the matter.
Thus,. in my opinion, a poiitical party cannot be .
held to be a class or section of the residents of the
U~ion o Burma within th~ meaning of-section 4 (1) (d)
of t\e Press (Emergency Powers) Act ~nd that there
is nothing. iri. the ar-ticle in. t)ue~tion, read in :a liberal
and detached . spirit, whic~ -_would bring it under the
said section a nd clause of this Ad . . The order p;1ssed
~~.the prejudice of. tlle p~~ifi:on~r shpuld be_.s et'aside.
1951] BURMA LAVI/ REPORT S. 275

APPELLATE C IVIL.
Before U Tun Byu, Chief hls/ice n11d U On f'e, J.

E. M. CHOKALINGAM CHETTYAR ( A PPE L.I,.ANT) H.C.

1950
v. D~c. 18.
SAvV THA DWE \REsPoNDENT).*

Conlrnct of sale. 011 behalf of minor-Advance poid-Reccvcry of-5. 65

of 1he Contrntt Act uhelltcr applicatle- Wht/lt(r purchaser cortlrl
adva11ce itl eq11ity.
Where a sum of Rs. 5,000 in Japanese Co.~rrency was paid py the asren t
appointed by a Hindu minors mother :IS guardian in pursuance of an alleged
agreement to purchase land and the suit was filed for return of th:l said money
amongst oU1er claims :
H eld : Th:~t the agreement of purchase or land entered on behalf of the
minor ia void ab imlio.
Mol1ori Bibee v. Dfrarmodas Glzose, (1903) 30 Cal. Series, 539 a t 548;
Limbaj i Ravji Hajare v. Ralzi Kom Ravji H ajare and others, (1925) 49 Bom.
Series, 576. followed.
Ss. 64 and 65 of the c ontract Act a re not applicable to a claim for r eftiild
of the advance as these sections start from the ba~s of there being a contract
between the competent pllrties. The Court however on equitable principle
can direct the refund of the advance money when .the :~lleged pu~~aser can
p lead no equity in I.Jis favour .
The Court ough t to be most chary to act against thejnterest of the minor
and bis interest sho11ld not be jeopardie~d for a technical erro.r in drafting the
plaint. Le;we should therefore be gran~ed to a mend th e plaint even at a late

-~
K flan
.
Gul a /Ill anollr er v. La-kha Sit~gh a.ttd a,otll.:r , A.I.R. (1928) Lah.
609; Man ma tha Kumar Saha v. Excha11ge Loa1~ Co. L ta., A.I.R. (193,6) Cal.
567; Mahomed Syeaol Ariffin v. Y eoh Olli Gark, 9 L ah. Series, 701, referred .
to.
Ma Sftwe Myat v. Maung Mo Ht1a1111g, I.L .R. 48 Cal. 832 at 835, followed
a na applied.

K. R. Veitkatra,-n. for the app.ellant.

O. S. Woo~ fo.r the res~ondent. .

Special Civil Appeal No: 1 o! 1950 again~t th e decree in Civil %nd Appeal
No. 39 o.f 1949, dated 21st .F~bruary .19$0; '
276 BURMA LAW REPORTS. [1951

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

1950
E.M. CHOKA U TuN Bvu, C.J.-~. M. Chokalingam Chettyar,
LING AM
CHETTVAR a minor, sued, by his next friend Unnamalai Achi,
v.
SAW THA who is the minor's mother and natural guardian, for
DWE.
the recovery of a sum of Rs. 4,000 in the present
currency from Saw Tha Dwe, defendant-respondent,
which was alleged to be payable by the latter for the
breach of contract of sale of 300 acres of paddy land,
of which Rs. 2,000 was said to be for the refund of the
advance paid to Saw Tha Dwe at the time the agree~
ment for sale, was executed, while the remaining sum
of Rs. 2;000 was claimed as compensation due under
the terms of the agreement of sale, dated the 13th
February, 1944. It might be mentioned at once that
the advance was paid in Japanese currency and that
the amount for which Saw Tha Dwe was sued was
calculated on _the basjs set out in the Japanese Cu~rency
(Evaluation) Act, 1947,. Paragr:aph 1 of the written
statement, which Saw Tha Dwe filed, reads:
'

''The suit is nOt m lihtaiflabte inasmuch as-

(a) the .alleged agteement to purchase is voi<.l as the
a
. plaintiff is' minor ; .
(b) the alleged agent'-E. M. G'ovinqaswamy Naidu has no
status as such in law ; and
, (c) there is no privity 'o! contract bel ween the plaintiff and
the defendant." -

)"wo preliminary issues were framed, and the learned

Assistant Judge, before whom the trial fi_rst came,
heard arguments on the first preliminary . issue ; . and
h~ held that the suit, which the. plaintiff-appellant
instituted, was' not maintainable in ,law, and dismissed.
the ~uit of the plaintiff-appellant, with costs:.. -:.- .
- -~ The pl~iritlff-~ppellanJ ~ppealed against .the order
dismissing his suit, and his appea{, -.w~ich .was .~own
1951] BURMA LAW REPORTS. 277

as Civil Appeal No. 1 of 1948, was also dismissed with r9Z;

costs. Both the \ower Courts held in effect that the E. M. CHoK~-
contract of sale was void ab initio in that the plaintiff- LJNGAM

app.e11a!) t was ~ mmor. Th J t' r' II
e pam tn-appe an nex t t CHETTYA.R
v.
appe<l:led to the High Court in Civil 2nd Appeal 5 'tww~~A
No. 39 of 1949, and the points, which were argued u T.......-B.
UN YU,
before the learned Judge, who heard the appeal, were, C ..J.
to use his own words, as follows :
"In this appeal under section 100of the Civil Prccedure
Code by the appellant, his learned advocate bas urged that both
the l~wer Courts had erred in coming into a finding of
fact that Govindaswamy Naidu was acting for himself in entering
into the contract, without hearing any evidence adduced by the
plain tift- on that behalf and that in any event both the lower
Courts had erred in ignoring section bS of the Contract Act.
inasmuch as the plaintiff's suit was not merely one for com pensa~
tion for breach of contract but also for the refund of the
purchase money. "

The learned Judge ' was of opinion that t he pl'ainttff:-

appellant should have been permitted to adduc~'
evidence to .show that wfl.en .. M. Govindaswamy;
Naidu entered into. the agreement for the purchase
of the paddy land, he did so: for ancl on behalf of t~e
plaintif.f~appeliant minor, and not~in his owri personal
capadty .... The learned Judge; however, .held, in effect;
that even if Govipdaswamy Naidu had en:te~ed intq
.contta~.t for the_purcha,se 0( the paddy _land Oll bel-1~1~
of the plaintiff-appellant m~nor; th~ tatter w~~ not .
entitled under section 65, of the Contract Act. to .
tecover tp~ adv~nce paid to the 4~fendant-respo~de9i
Saw Tha Dwe, nor was.tie entitled to .claim compe~~:";
tion from the.hitter..
. The agree~~nt,_ d.~te4 the 13th ~ebr~ary, .1944,:
shows
. :. .
~.that...Saw
~-
T ha
, . . . .
Dwe. .
. agreed
.
to sell. 300
. . ... acres
..
~.

OL J?addy lapd. t<> ._E . M. _GoviJ?.daswar:ny :Nar(lh_tu .<>.~'

M9ulm~_in. :::_The word" Narahtu ", which :~as wfittell'..
27s - BURMA (AW 'I~. EPORTS. [1951

r9fo. 'in Burmese, was obviously: a mispt:onunciation for

11
H Naidu , which \VaS the correct rame of Govi nda-
E. M.(;HOKA
uN'GAM svvatHy. e powers o f at t orney, wh'1ch' Govm
Th . d a-
CkE!~hR swamy Naidu held, shows that Unnamalai Achi, the
S.&wTHA
DWE.
moth(:fr.and natural guardian of the min'or Chokalingam
~ - . Chettyar, appointed! ; Govindaswamy Naidu as her
U TUN c:1:Bvu, attnrney .f or th e purpose o f carrymg
.. on th e b usmess
. of
the minor, which was being conducted under the
name of "ENA MUNA," or "E.M. ". The powers
gia:nted to Govindaswamy Naidu were set out in the
po'v\.ers of attorney, arid paragraph 1 of the plaint rea~s
as follow~ : . .

. '' 1. That on 13th February 1944 at T4atoo, by an Agree

me_nt, the defendant abovenamecl through his A.gent, saw Tun
j..ye, entered into a Written Agreement with the Govindaswamy
Na.i~u, duly constituted Ag~nt of Plaintiff appointed by his
natural guardian Unnamalai Achi for sale of about 300 acres of
paddy hnds ; which are situated in Yin-Ny~ih Ngagyj-i'n ' l(wiri.
No. ..76iand Sar-gyo-gyaung Kwin No, .' , Paung Township
. ~t tht! ~ate of Rs. 300 per acre, arid received from the said
Govindaswamy Naidu Rs. 5,000 as earnest mane~;. The said
earnest 'i1-irneybeionged to the planfiff a,ndti.e said. Agreement.
was entered into for the be, .ei1t of the plaintiff. . .

. There is, thus, sufficient material on the record on

which if might be found that the agreement for the
purchase of 300 acres of . paddy land .from Sa~
.Th~ Dwe could_~e held 'to' .be an agreem~nt in which
.d :ovindaswamy N~idu purported to ac~ for atid oii
:-behalf of E .. M. Chettyar,- a fi~ni ~hich haq ,it~ q.ffic~
at"Moulmein.. It could, under the circ~m~tanc~; b~
. said0 .that the surq. of Rs. ~,000 in JapaQese .. curr~ricy, .
.
w'bich -is 'eq~ivalent ~0 'I~s. . 2~ooo: in' the p~~e~t .
~u-rr~cy,~ belonging -tc;) . t~e- ijl_i~<?( 'pla~nti#~ap.pella~t,
.. wa~ ',paid . o~er . to . the q~fe_n~laJ:lj.;re~p.onq~n f . Sa~
7

Th~ Owe under an ~greenteiJt wiirehwas void :a6'1?iit~o~

 1951] BURMA .LAW .REPORTS. 279

The questiom which has been argued before us, ~5~

is that. the plainttff-appellant was entitled, under fhe E. M.CaoKA-
provisions of section 65 of the Contract Act, to recover LING.m
. D . CHETTYAR
the advance pa1d to Saw Tha we and that, m any v.
~ase, the plaintiff-appeUant was entitled to recover SA;\J:~t'
the advance in equity as the money was his and as u T--
Saw Tha. D we cou1d have no ng . ht, w-het her m
. 1aw
. or .UN BYIJ,
c.J.
in equity to retain it. We are of opinion that section
65 of
the Contract Act does not apply to the case now
under appeal. It was. observed in Mohori Bibee v.
.Dharmodas Ghose (1 ), which came before the Privy
Council, as follows :

''The qu~stiot\' whether a contraet is void or voidable

presupposes the existence of a contract within tb,e meaning of
the ~c~. and cannot ar~se in the case of an infant.. Their
Lords~ips are therefore of opinion that. in the present case
there ~s. not any such .v:oidable contract as is dealt with in
$ection 64.
' A new point was . rai~ed here by the. appeltants' Coun!el
-founded t>~ section 65 of the Contia<:t Ac~, a section not ~efer~ed
tQ in the CXmrh b<Uow, or in. the cas.etJ. of the appella-n.t~ 'or
Tes~nd~nt._.. It is sufficient to say that this se~tion, like s'e ction
-61l,, s:t,arts f"~pi tl~e ba.sis. o{ the.r e ~~ing aQ. ag_r~em~nt or c9ntract
between competent parties; and : has no application to a case in .
which:. th.ere never was, and' nev~r .could ha v~ beeii; ' ~n);
<:6.nt~;t; 1 ' : . . '

. In: Linibaii 'Ravli Hajare .\t.. Ram, Kom Ravji Fliifai:e.

a'nd ~tlidr~ ( 2) it- w~s also hetd -as follows =

. -~ A'sate:1nade by-a step-mother o~ behalf .o Her' ihin:or \Oil~

ia a sale b aa unauthorised pers.O.n. and lbe m-inor is entitle.d ta
C;ii.Ve it &et a~~de,:. . ... ,, . . ' 0 . . .

:. 'til~ s.ale_. by the step-mother. is n<;~t void!lbte but "oid

oab itJiti-., a11d, therefore, aections 64 and.-65 of tlie India~ c ontracf
.
..
~ct: t.8'11; are not appii~i~te. " . . .
.. . : . t.
. . .
280 BURMA LAW REPORTS. [1951

H.c.- The question which next arises. is whether the

1950 mmor. p 1ainti ff-appe1!ant can, in equity, clai.m to
E.M. CHOKA- recover his money, which was paid as advance to
LINGA~I
CHETTYAN
s:a..w Th a D we un d er an agreement, w h'IC h was vo1' d
SAwvTHA ab initzo in that the plaintiff-appellant was a minor.
ow. It appears to us that the statutory inability imppsed
u Tu~ BYu, upon a mino'r is intended for the protection and the
c.J. goo:d of the minot, and it will require a very strong
and cogent reason before we can permit this statutory
inability on the part of the .minor to be used to the
il!jury or disadvantage of the minor. We are unable
to see any good reason in this case, why, wl-1ere the
minor is concerned, the Court Ot.Ight not, in the
exercise of' .its equitable discretion; to restore the
parties to the position in which they were before
the contract, which was void ab 'initio, was entered
is
Into. n. diffic~t't to conceive, ~h the circinnsfances
of .the pre~ent case, on- what principle, whether in
justice or equity, th~ vendor can c~airp. to retain
the advance paid to h im by or on behalf of:,the minor
under a contract which was void ab initio, The minor
plaintiff-appellant in attei:ripting t,o rdcover the advance,.
whiCh passed into the hands of Saw Tha bwe, . doe~
not .attempt' to deprive the defendant of anyt.h ing .
which the latter owns or possesses lawfully.. It is.
difficult to understand how Saw Tha. Dwe can even
plead equity in his. favour. Appiirentiy, no att~tnpt
was made. to look into the power$: of at~orney;wlrj<;:h
Govind:a.swamy Naidu held, ot~erwise Saw Tha . Dwe
w.o.u ld have obserVed at once that Govindaswamy
~ .
Naidu was appointed an attorney tocarry.o n a ht.Isiness
belo'nging to the minor at Moulmein . lor certain
ptitposes pnly. . It ~ is afso cltar fioin .the .p:ow~rs . of,.
: at~<x.ney gtaiited to Goviqdaswaniy ;N~.idti thai ~~, ha,4
...no .power .t 9 purchase im~oveahie prO:perty' or(.behalf
of .t he. minor.
.
 1951] BURMA LAW REPORTS. 281

In Khan Gul and another v. Lakha Singh a11d

H.C.
1950
another {l) Shadi ~Lal C.J., observed: E. M . CHOKA-
LINGAK
"If the infant : is~in possession of any property which he has CHETTYA R
obtained by fraud, he can be compelled to restore it to his former v.
SAW THA
owner. * * 0 * * The equitable jurisdiction is founded OwE.
upon the desire of the Court to do justice to both the parties U TUN BYU~
by restoring them to the status quo attle, anc1 there is no real C.J.
difference between restoring the property and refunding the
money except that the property can be identified but cash cannot
be traced. "

In Manmatha Kurnar Saha v. Exchange Loan Co.

Ltd. (2) it was observed :
"It would appear, therefore, that the Judicial Committee
have in effect recognised the . principle that the Conr~s in India
have an equitable discretion (o direct the refund of money which.
an infant may have obtained by his own fraud provided the
l~nder is actually deceived by the f~aud perpet rated by the
minor. It may of course 'b e argued that jurisdiction to order-
restitution only exists In cases in which the ~inor invokes the
order of the 'court as a plaintiff, but as Sir Shadi Lal <;.J., has
pointed out _in . ahomed Syedol Ad/fin v. Yeoh Ooi Gark .(3),
cited above :
. . 'It is pifficult to understand why ~he g1anting of a~
equitable remedy should depend upon a mere accident : namely
wheth~r it is the minor or his advereary who has taken the
initiative in bringing the transaction before the Court. The
materiai circ'nn:istances in both. cases ~re exactly the same. A
contract. has been entered into with an infant and tts it: is an
inv~lid transaction it must be cancelled. ' "

We are also of opinion ,that the Co~rt has; on equitable

. principle, discretion to. ~direct in a proper case theo
refund _o f the advance money belonging to.t he. iJ.!tnor
to him; and this . appears to us to be a case 'w hete thi~
direction' .ought
. . .
to be
. . given.
. .
It is true
.
that the
..

.(if.A.I.~ (1928) ~a~;~.' (2f ~.i.R. (1936) Cal. 567.

. _(3) 5 Lali. Se~ies, 70r,
 BURMA LAW 'REPORTS. [1951

~~ plaintiff-appellant has not .set out in his plaint that

- he also claims, in the alternative on equitable principle
:.M.CaoKA-
uNGA~r to recov~r the a d vance, w h'1ch was pa1'd wh en t h e
caa~vAR agreement, dated the 13th February, 1944, was
SAw TaA
DwE.
executed. It is, however, clear from the plaint filed
that he also claims for the return of the advance, which
v TUN BYU,
c.J. was paid to the defendant-respondent Saw Th~ Dwe
under an agreement, which was void ab initio, and
this, therefore, appears to us to be a cas'e where we
ought to allow the plaint to he amended. In asking
for permission to be allowed to amend the plaint,
it coul-d not, in this case, be said that th.e plaintiff-
appellant was attempting to set up a new cause of
action. It seems to us that the Cqurt ought to be
rpost chary. to act against the interest of a ininor.'
V\T e do not think it wiil .be proper oi just to penalise a
minor for a. defect, which is really a techniCal er-r.o t
in <jrafting the plaint. The . plaintiff,.app~liant .does
not, by amending the plaint for this purpose, attempt
to 'introduce a 'new cause of a.Cfion into his plaint, in
that it was 'implied i~ paragraph 1 of th~ : plaint that
the plaintiff-appellant was a minor at_ the time the
agi-_~ement w.as .ent~red it:tto qn his heha~f. _This is,
4n our opinion a spec.ial case where. leave-to amend
tl:le plaint at . a _very late stage ought to be ~r.imt~d.
And -Lord Buckmaster observed in lrla Sllwe Myq{.'v .
.Jfatln~ Mo Htiautig ('1)_~s follows:
- .
"All -rules of Court are nothing but provisions -intended t~;>
:s'~ciire. the proper adm.inistrati~n of justite. and it is.: therefbt;e
~s~ntial tha;:t they should be . inao-e to
serve and be .
subordi-ni:uo
19 -~th:t purp~e,_ s;O _that fUll powers qf amend~~nt mu,st_b.e
~njoyed and sho11ld always.. b~ liperally.. exercised, b.ut none
~he,l~s:no P,<?\lf.er ~as yet been f$i~~ti_fo 'ena.bl~ .. ori~ ~.istinct capse
.() action to be .substituted for another' nor :to 'change, by means
<>f amendment, the ilibject-m~tter ohhe 'suit." .
0 ~ ~ ~

{1) .I.L.R,:41 Cat; 1~2 at. l35.

1951] BURMA LAW REPORTS. 283

The plaintiff-tt,ppellant ~viii, accordingly, be allowed H.C.

1950
to amend his pl<iint ; and after the plaint has been
.amended and filed in this Court, a decree will be E. ~~~~~\~tA
passed and drawn up ~etting aside the judgments and CH-;vAR
d ecrees passed in the Court of the Assistant Judge, SAwTHA
Thaton, the Court of the District" Judge, Thaton, and DwE.
in Civil 2nd App.eal No. 39 of 1949 of this Court, u T~J:Bvu,
.and there will be a decree for the payment of a
sum of Rs. 2,000 by the defendant-respondent Saw
Tha Dwe to the plaintiff-appellant. Each party should,
however, in the circumstances of this case, bear its
own costs throughout.
284 BURMA LAW 'REPORTS. [1951

APPELLATE CIV~L.

Bt/ore U Tun Byu, Chief Justi ce a nd U 0/m Pe. J,

H.C. DA-vv OHN SEIN (A PPELLANT)

1951
-
Mar. 16.
v.
SHINSAWBU CONCO LIMITED (RESPONDENT).*

Burma Co-operative Societies Act, s. i 5-Aw.znl by Officer a;Ppoinl~d by

Ret islrar, Co-operat ive Societies Rule 15-Award made by suc/1 nrbilralor
-Arbitralio11 A(t, Js. 14, 15, L6 and 17- Whet her sucl' award coul rl
be challet1ged in a C o11rt of Law t111der the Arbit ralio11 Act,
Where aa award has been made by an Officer appointe I by t.h e Deputy
Retistrar of the Co-operative Society in the exercise of !JOWers under Rule 15
of the Burma Co-operative Societies Rule5 diredin g payment of a sum
ofmpney :
Held : That Rule 15, subdause (3) authorized the Registrar to appoint an
arbitrator and aub-rule (4) provide that such an award shall be enferceable as
a d ecree of a Court having local jurisdiction in the matter.
Held further: That this Rule 15 is inconsistent with the provisions of
ss. 14, 15, 16 and 17 of th~ Arbitration Act. It is not contemplated by Rule 15
that an award is to be filed in Court or the Court would have the power
to modify or remit the award unde'r the Arbitration.
S. 32 of the Arbitration Act does not a p[lly to an award m ade unde'r
Rule 15 of the Burma Co-operative Societies Rules and such award cannot be
challenged in Civil Court.
Nanda Kisl1ore Gowswami v. B11ll Co-oj>eratite Credit Society, Limit ed
(1943) Vol. II, Cal. Series, 431 at 434, followed.

Ba Shun_for the appellant.

Ba Nyunt for the r'espon~ent.

The judgment was delivered by

q TuN BYu, . C.J.-One U Ba Aye was the

Ch~irman and Tr~asurer of Shinsawbu Conco Limited~
wl,life his wife Daw Ohn Sein, the appellant, was also a
Civil Misc.. Appeai No. tS of t9SO against"the order of the High Court,
,Ori~inal Side irr Civil _Mise. No. 60 of 1950, dated 3rd May 1950.
1951] BURMA LAW REPORTS. 285

member of Shin~a\:t.bu Conco Limited. It is said that H.C.

1951
t here was a short~ge of a sum of Rs. 12,432-8 belonging
DAw Om~
to Shinsawbu Conco Limited when U Ba Aye left SEIN
Rangoon on or about 28th April, 1949 to go to a SHINSAWBU '!

place in Prome District, which was then under the LIM Co:-;co
ITEO.
insurgents' domination. U Ba Aye had not returned
U TUN ' BYU,
to Rangoon since that date. On 8th June, 1949, his C.J.
wife Daw Ohn Sein executed an undertaking, whereby
she agreed to repay the sum of Rs. 12,432-8-0 to
Shinsawbu Conco Limite d should U Ba Aye fail to
return to Rangoon after a reasonable lapse of time, and
she also agreed tq the two houses mentioned in the
document, with other propeJ:"ties belonging to her,
being sold for the repayment of the said sum of
Rs. 12,432-8-0 to Shinsawbu Conco Limited. Daw
Ohn Sein paid a sum of Rs. 1,000 to Shinsawbu <;:onco
Limited on or about 3rd June 1949. She failed to pay
anything more subsequently ; and Shinsawbu Cohco
Limited rderred the matter to the Registrar of the
Co-operative Societies. Th~ Deputy Registrar of the
Co-operative Societ.ies, in exercise of the powers under
section 15 of the Burma Co-operative Societies Rules,
1931, appointed the Range . Officer, Co-operative
SoCieties, as an: .arbitrator to decide the matter in
dispute between " Shinsawbu Consumers' Co-operative.
Society Limited represented by its Secretary U Ngwe
Lay on the one par,t and U Ba Aye, ex-Chairman- and
Treasmer, represented by his wife and s1:1rety member
Daw Ohn Se1n. and other 14 old .Committee Members .
on the other part "..- 'The arbitrator made his aWIIlnl
on the 12th December 1949, wherein Daw Olin .Sein,
wife of U .Ba . Aye, was dire~ted to pay a su_m of
Rs. 11,432-8-0 together with the costs of the arbitration-..
t,o Shinsawbu :C onco Limited and. her properties .
men\ioJ:r~d iii the undertaking given by her :wer~ to- be
$9lci on ~~r f~i~ur.e .to pay. ~h~ .amount aw~rded~.a~ainsC
286 BURMA LAW REPORTS. . [1951'

H.C. her. Rule 15 of the Burma Co-crperative Society

1951
Rules, 1931 reads:
DAW OI:IN
SEIN
fl, " i 5. (1) Every dispute touching the business of a c_o -
SHINSAWBU op~rative society-
CON CO
LIMITED. (a) between members or past meq1bers of the society
U Tul' BYU,
or persons claiming through a member or past
C.J. member, or
(b) between a member or past member or persons so
claiming and the committee or any officer of the
society,
shall be referred to the Registrar. Reference may be made
by the committee, or by the society by resolution in general
meeting, or by any party to the dispute, or, if the dispute concerns
a sum clue from a member of the committee to the society,
by any member of the society.
(2) On receipt of such reference the Registrar shall either
decide the dispute himself or refer it for decision to an arbitrator
appointed by him or three arbitrators, one of whom may be
appointed by him and one by eacli of the parties to~ the dispute.
(3) The RegistraT, arbitrator or _arbitrators shall enquire into
the di.spute, and on completion of the enquiry shall record
jl decision or~ award in writing.
(4) such decision or award shall on application to the .
civil court having local .jurisdiction be enforceable as a decree of
such court.
(5) 1n proceedings before the Registrar or an arbitrator or
arbitrators, no party shall be represented by a legal practi-
tioner."
. .
Sub-rule "(4) of Rule 15 is, "in our opinion, inconsistent
with the provision~ of sections l4, 15, 16 and 17 of the
Arbitration Act, 1944. It is clear that Rule 15 does
not>' contemplate an award being filed in court, or
of the Co.urt modifying or remitting the award under
the . pro~isions of section l$ or ~~of th~ A1;bitration
Act. Nor. is it__ ne<;:ess ary t? .pronounce judgment
on the award made.. under. Ruie 15 of the. Burma
09-ope-r,ative .. Societ~es.. Ruies, .. 193:1, in that. the .awaz:d
of .t he .a rbitrator <?~ld; under .sub:rule (4~ of _Rille 15,
1951] BURMA LAW REPORTS. 287

be enforced as jf it were a decree of a Court, without H.C.

1951
anything more bc'ing done after it was made. DAW OliN
Rule 15 of the Burma Co-operative Societies Rules, SEI:-1
v.
1931, was made apparently under Clause (I) of SHlNSAWBl.t
section 50 of the Burma Co-operative Societies Act ; CoNco
LIMITED.
and it has not been contended before us that Rule 15 U 1 ' UN .BYO,.
is ultrt.J vires of section 50 of that Act. We cannot C.J.
appreciate how an application to set aside an award
made by reason of Rule 15 .of the Burma Co-operative
Societies Rules, 1931 can be entertained when it is
clear from Rule 15 that such an application could
not have been contemplated in view of the provisions
of sub-rule (4) of Rule 15, the effect of which is
to convert the award made by an arbitrator under
Rule 15 into a decree which can be enforced by a
Court having jurisdiction in the place in which the
award was made. The provisions of Rule 15 must
in the circumstances be considered to be entirely
inconsistent, at least, with the provisions of sections 14,
15, 16 and 17 of the Arbitration Act.
In Nanda Kishore Gowswami v. Ball Co-operative
Credit Society, Limited (1) Mukherjea J., observed:

''The Cou.r.t cannot modify an award as laid down in

section 15 of the Arbitrat~on Act, nor is there any necessity of
filing an award in Court as is contemplated by section H, and
we are definitely of opinion that it is not necessary to have
a judgm'ent on an award as indicated in . section 17 of the
ArbitiatJon Act."

The above observation applies with equal force to

'the Arbitration Act, 1944 which is in force in Burrpa ;
and it might be mentioned that _the provisions of
sections 14, 15, 16 and 17 of the Burma Arbitration
Ac~ are same as those in th~ ,B~ngal Act.
: ~

U) (1943) Vol.
. 11,.
Cal.. S~ries,. p. 431 at 434;
288 BURMA LAW REPORTS. [ 1951

H.C. It has also been argued on behalf of the appellant

1951
that the Court has power, in view ofthe provisions of
DAW OHN
SEIN
section 31 (2) of the Arbitration Act, 1944, to decide
v.
'SHINSAWBU
all questions relating to the validity, effect or existence
CoNco of an award, although, the award had not been filed
LIMITED.
before it and even though the time ordinarily allowed
U TUN BYU,
for filing the award had expired. We must say that
C.J.
we find it difficult to see how an award made under
Rule 15 of the Burma Co-operative Societies Rules,
1931 can be said to be an award which . " may be
filed" in Court when, in accordance with the provisions
of Rule 15 under which the award is made, it is
a:n award which is not required to be filed in Court- to
make it enforceable as a judgment or decree of the
Court. Moreov~r, the. time presc'rlbed for filing an
award in Court had alsG> long expired. .The question
whether tbe award, with which we are concerned
in the present case, can be attacked by means of a suit
is not a matter which calls for c0nsideration in the
present appeal, and it will, therefore, riot be right
fm: us to deal with it. The appeal is . accordingly,
for the reasons which we have already stated, dismi-ssed.
with ~osts ; Advocate's fees three gold mohurs.
 1951] BURMA LAV\t REPORTS. 289

A~.PELLATE CRIMINAL.
6efre U Tu11 Byu, Chief lttsltce, ~emf U O~t l"e, I.

SEIN HLA (APPELLANT ) H.C.

1951
v.
May 11.
THE UN ION OF BURMA (RESPONDENT).
Ctiminal Proced11re Cvde, ss. 256 (2) a111i 342 (11 (a), (bl 11nd (c)-&cmimlil1~
of ~t CCttsed after dtfnce tvilnesscs-Jf irretuiril-y vitiating t ril11-
Duty of a"use.1 it~ cri mi"al c.rse-Burden I #roof of tuilt alwt~ys
on Prosecution.
Where defence wnnesses had been examined in a Jlllurder case and
subsequenty the accused was examined aud it waa contended that s. 256 (2)
-of the Criminal Proceclure Code had not been complied with and the
same amounted to a serious defect in procedure so as to vitiate the trial.
Held :That the mere fact that the imperative statutory rule of procedure
has been broken is not enough to vitiate the tri:tl or proceeding. The Court
sho11ld consider the gy-:wity of the irregularity a nd whether the irregularity
Jus ca used injustice to the accused. The irregularity in examinin~ the accused
.after the defence witnesses has not prejudiced the accused and it is not suc-h
serious defect in procedure as to vitiate the trial.
Kalltt v. Dnshir Uddiu, (1931) 53 All. 172 at 178, referred to.
Abdul Rahnum v. Ki,JgEmperor, (1927) 5 R~n. 53 at 69, followed.
Held further: That an accuaed person owes no duty to anybody and the
burd~n of provint his guilt remains throughout th e trial wit!) the prosecution
who must prove such euitl beyond all reuonabte doubt.

Thein lfan for the-appell~nt,

Choon Feung. l Government Advocate) for the

respondent.
The judgment of the Bench was delivered b.y
U T uN BYu, C.J.- The appellant Sein Hla v;as
conyicted, in connection with the death of. one .1-ung.
Sein, of an offence of murder punishable under section
30~ (l) (b) of the .Penal Code, and he. was sentenced
' Criminal Appeal No. 156 of 1951 bein! appeal from the ord~r o{
Sessiena."Jadge sittinc aa ~pec:!a.l J~,Jd'e of Maubln~ datoll 6th. 1\b ct!lt l~St
.,astcd in Criminal Rcelll~ Trial No.. 17 of 19~~
J9.
290 BURMA LAW REPORTS. [195-1
H.C. to death in respect of tbis charge. He was also
1951
convicted, in c onnection with the death of Tin Hla
SF.Il' HLA
and his wife Ma Yin, of offences of murder
"
THF. J NION
punishable under section 302 (2) of the Penal Code,
OF BURMA.

U TUN RYU,
and he was sentenced to transportation br life in
C.J. respect of the second and third charges. He now
appeals against the said sentences and convictions
passed upon him in the Criminal Regu.lar Trial No. 17
of 1950 of the Court of Sessions Judge, sitti.ng as
Special Judge, Maubin.
The learned Advocate for the appellant submitted,
during the arguments, that the trial of Sein Hla in the
present case must in law b e set aside on the ground
that Sein H1a was examined on oath only after all the
defence witnesses had been examined and that it was
an irregularity which was prejudicial to the accused.
Sub-section (2) of section 256 of the Criminal Procedure
Code, as amended by the Code of Criminal Procedure
(Amendment) Act, 1945, reads :
" On entering upon his defence the accused shall be asked
whether be desires to give evidence on his own behalf, and the
Magistrate shall warn him in the manner required by sub-section
(1) of section 342. If the accused decirles to give evidence, his
evidence shall next be talcen, and after his cross-examination
and re-examination (if any) the evidence of witnesses for the
defence (if any) shall be taken. If the accused declines to give
evidence, be shall before the evidence of the witnesse~ for the
defence is taken, be examined in the ' manner provided by sub-
section (2) of s~ction 342 '."
It has not been contended before us that the
.provisions of section 342 (1) (a) (b) and (c) have not
be~n properly explained to Sein Hla at lhe trial ; and
the -relevant portion of the case . diary in Criminal'
Regular.Triai ~o. .17 of 19So, dat~d 30th January, 19.5'1'
~l$o_...f.e~Q}_
. '' Cba.r~es ' und~r thte~ heads.:.:::.:under"section -302 (1).(b},.30Z
(2} ~nd 302 (2) o"I thi ~ehal 6?Cie~~a~e:~ ag~i~~t' ~he accused;
. - .
 BURMA LAW REPORTS.

Charges explained ;md the plea of the accused reconled. He H.c.

IYSI
declines to recall any of the P.Ws. for furthe cross-examina~
tion. .SEI N HLA

The accuserl is c-1lled upon to enter into his defence ~nd

11
THE, V-NtoN
sunrmary of his defence recorded. . oF AoRMA.
Accused is asked if he desires to give evidem:e on oath ~~1 ui;;;::Bvd
his own behalf and he replied in the affirmative, after clue warning. C.J.
For hearing of defenCt: on lst March 1951. '
U Thein Maung for the accused applies for permission to
file a list of D.Ws. within seven days. Issue summonses to them
immediately the list is filed. _
'\~itnesses warned off yesterday are present. They are
discharge~."

Th~ defence witnesses whom the appeJiant

Sein HJa desired to examine for his d efence were
examined on 1st March 1951, and the case was
postponed, apparently for delivery of judgment, to
6th March 1951. The learned trial judge subsequently
realised that he had omitted to examine Sein Hla oil
oath as desired by the latter ; and Sein H1a was
. '
accordingly examined on 5th Mar ch 1951. Th'e.. tase
diary dated the 1st March 1951 r eads:
'' Case called~ . Accused Sein Hla present in cust-ody. P:P.
for the Union of B'urma and U T hein Maung for the ~cct,~_sed ..
. Six D. Ws. summoned for today are present. Four of them
examined and cross-ex:lmined. U Thein Maung waives b. W$.
Po Hla and Sein Matmg wHo ate present.
Heard U Thein Maung and P.P.
FoJ; orders on 6th March 1-951
Accused remanded."

_ The d eposition of Sein H1a made on oath iri Co.u rf

has .been read before us, and 'a 'per:us~l of his ~ep~$f~
ti~n shows tJ?at Sein Hla .has been fully examined in
his examinationin-chief and that U Lwin, . .\Vh<:t
appeared for U TJ.:lein ..M~ung. ~ho conquCtecf' the
defence of t~e :.appellant on . ~a~Jier dates, had
 BURMA LAW REPORTS. [195!
lH.C. conducted the examination .of Sein .Hla satisfactorlly,
1951
as an Advocate ought to have done when ddendingan
:SBIN H~~
'li. accused of a serious charge. It was moreover not
THE {JNION
OF BURMA. alleged by the appellant i'n his memorandum of appeal
U TUN RY1J,
that he had been in any way prejudiced in his
C.J. examination on oath in Court by the absence of
U Thein Maung in Gourt on the 5th March 1951.
'fhe judgment of the trial Court also shows that th~
trial Judge 11ad certainly considered the statements
which Sein Hla made on oath before the judgment
was delivered. The appellant could ~ot
said to have 'been prejudiced in any way
fact that he was examined only after the
nesses had been examined. We are also
see how it could in any way be said that an injustice
has been done to him through that irregularity.
It has however also been urged on behalf of the
appellant that the word (( .shall" in the second sentence
of sub-section (2) of section 256 of the Code of
~riminal Procedure .i ndicates that the provisions of
sub-section ( 2) of section 256 of the Code. are.
imperative and. that the accused must be examined
before any of the witnesses for the defence is examined,
an~ that, if that is not done; the whole trial is vitiated
-and becomes illegal.
ln Kallu v. Bashir Uddin ( 1 ), after referring to the
decision of their Lordships of the Privy Council in .
.Abdul Rahnwn v. King~Emp~ror (2), KingJ;, obs~rved :
" . : . . .. it is no longer open to the courts in India
t<fhold that the mere fact that an imperative statutory .rule of
pr~-edure ha; been broken is . enon~h to vitiate the trial or.
~r~ceeding. It is clear that the courts should consider tbe
~ravjty of the irre.g ularity or Offi:issiOQ and \\hetbet it uiigbt h~~~
worked achnl injustice -
to the' accused. If non.compliance with .
:
.. : .... ~. .
at
.. ...
(1) (1931) S3 All. 172 171.
l2) (1927) 5. Ra!! ~3- at .69~
1951] BURMA LAW REPORTS. 2~3

an imperafive provi~ion in section 360 is curable under section H.C.

537, as held by their 'Lordships, it is clear that it is open to this 1951
Court to consider whether a breach of a statutory provision under SEIN HLA
section 356 is not similarly curable. " "
THE UNION

The observation made at the end of the decision oF Bumu.

of their Lordships of the Privy Council in Abdul U TuN Bvu.
C.J .
R4hman v. King-Emperor (1) was-
,, To sum up, in the view which their Lordships take of the
several sections of the Code of Criminal Procedure, the bare
fact of such an omission or irregularity as occurred in the case
under appeal, unaccompanied by any probable suggestion of any
failure of justice having been thereby occasioned, is not enough
to warrant the quashing of a conviction, which on their
Lordships' view, may be supported by the curative provisions of
sections SJS and 537."
We do not consider the irregularity in examining
the accused after the defence witnesses have been
examined, instead of examining him before any oi the
witnesses for the defence is examined, to be such
serious defect in procedure so as to vitiate the trial.
The appellant Sein Hla was afforded e:very opportunity
of making his statements on oath, as be might deem
necessary for his def~nce, and he appeared to have said
all that he might properly make in his defence. It
cannot in that circumstance be said to be an irregularity
which has occasioned a failure of jusfice or which ha~
prejudiced his defence. The irregularity in examining
the accused after the defence witnes~es were examined
is not an irregularity whic':h will vitiate the trial, unless
. can be shown to have occasioned a failure . of
jt
justice or, at least, to be such,. as must have materially ,
prejuqiced the accused in hi& defence.
The deceas~d Aung Sein, Tin Hla and his wife
Ma Yiri apparently di.e d at about 4 p.m. on the Ut~
December 1951. The fishery hut whe~e they died was.
about S ~iles away from Htani village. It c~nnot be
lil (1927) sRan. 53 at 69,
:2..1}.4. ~URMA LAW REPORTS. [1951

disputed that, besides the deceased Aung Sein, Tin Hla

and Ma Yin, the appellant Sein H la and three other
8 1
'- -~ '~_i:.A persons namely Maung Sein Daing, his wife Ma Khin
i!;"q~~~~7 Sein and_ Kyee Py~ wer~ ~lso living at the fis_hery ~~t.
u Tl.r~ ~-ru, ott'the mg~t of _the occurrence. Maun~ Sem D _at_ng
...<f.J: and Ma Khm Sem were first sent up for tnal along wtth
Sein Hla, the present appellant, but the prosecution
against them wa~ withdrawn, and they were sub-
~equently examined as witnesses for the proseC.uti9n.
~-~ ~hin S~in . is said to have produced a set of gold.
ht}ttons which were allege-d to be the property of tpe
deceased Aung Sein, and she said that they were
given to her by the appellant Sein Hla. Ma Khin Sein
must in this case be consider~.d . to have, at least,
placed herself in the position of an accomplice, and
her evidence cannot properly be acted upon unless it
is cor.coborated by some evidence f~om a~ ind~peri-:
dent source._ We are unable to see any evidence_on
the record ~hich .would' indicate, independently of
tlie evidence of. Ma Kh1n Sein, that the appellant inu~t
fiave' given her those gbl-d buttons~ Tht e vidence of
her husband Maurig Sein D~ling does no_t stand on.'
higher position. . _ .
-: The most important . witness in this case is Ky.e e
Pyu (P;W.I), and _there ca.!l, in our opin~on; ~e . no
doubt th.a t he was actually present in th~ fishery .hu~f#
the thr-.e the incidents occurred.' He.-stated that' he was
~w~k'en~d by th ~noise of a ganshot and that he _a:ct~milly~
saw the appellant Sein Hla fire one -shot \~ith ~ rifl~' af:
cthe.Geceased Auug Sein who was still in.sid~ a inosquilo.
ctfr.tain. This witness also saw Sein Hla shoot aC flie:.
deceased )da Yin .' when. the l atter -shouted :_out
m9;'b~:X>. ~. otSoo~ _ ; and he :a~so said . .th~f he :' sa~v .
sdn'R ia .shoof "at the dec'eased . Ti'n Hla who w{$-
,. . ~ . '. tl : ...

. t unning. out of the hut \V.hen .the : latter saw.that' hW

-~le ''liali been.sh.ot at ' i' and a~cci;ding to Ky~e Pyu, he.
 1951] BURMA LAW REPORTS. 295

heard Tin Hla:.. cry out oo~o5oo:>:tjj"2!~Gcn5GO)o1~ after H.~.

1951
Tin Hla was shot at. Kyee Pyu said that the appellant
SEIN HLA
Sein .J-Ila also fired 4 or 5 shots at him as he dived into v.
:a stream to make his escape. Fortunately, Kyee Pyu ~~~~~~J:~
was not hit;and he went ov-er to the hut of Than Ge u T- UN
-B
YU,
who lived a short distance away. c.J.
According to Kyee Pyu, a lamp was burning in the
hut at the time those incidents took place, and . we
:accept his evidence on this poirit, because if a watch
was kept at night at the fishery, as WaS d<;me in this
-case,a lamp must have been kept burning in the hut
also. Thus Kyee Pyu must have been in a position to
-see clearly what occurred at the fishery hut. Kyee
Pyu ~tated that no dacoity occurred at the fishery hut
-on the. night of the occurrence, and -we also accept his.
evidence on this point. It is not possible in this case .
to accept'the suggestion made on behalfof the defence
ihat lusoes had attacked th,e fishery hut on the night
of. the occurrence~ There c an be no dispute that there
were two guns at the .fishery hut on.the night of the
-occurrence artd. that none of those guns were taken
away.. A lusoe would.. we think, not have hesitated to
:seize,-afleast; the DBBL gun which was Tying by the
side of'the dece$ised Aung: Sein, if he hadbeen shot at ;
.b y a: lusoe. ; This Circumstance strongly,. in our opinion; .
:Supports the: statement of . Kyee Pyu that the fishery
but was n ot attacked' by lusoes. on the niglit ' of the . .
.Occu.r rence; .Thus jt . must have. been the . appellanf
Sei~ Hla, as deposed to by Kyee Pyu; who shot at ;the
-decease4 Aung Sein, Ma Yin and her husband Tin lila
rOn the night of the occurrence~ .. . . . . . . .. .. .. . .:
. . . 0
: : Kyee Pyu could not, in view of. the fact thaf lb.ere
was'a lamp. burning :in. the' hut .af t:he tiirte of. tlie-
cOCCUrrence have made: any mista~e abo tit :. the. identitY:.
<>f: the appellanfS ein Hla..,.The ~vidence -aiso shows:
thaf~yeeJ?yu. and S~iJiJila :used :to sleep:.:undet. th~
296 ltUNMA LAW :1fiDf>O!t1'S.

~9~i same mosq uito curtain at the fishery hut. There js.
evidence in this case to shoW that Kyee Pyu net only
S"Bl~ HLA
v. . reported ~bout what had happe@ed at the fishery hut
1
~~B~:~:~ to Than Ge {P.W. 2) when he arrived at the latter's
u '..l'uN BYv, h~t, but there is 01lso evidence to show that .after Kyee
c:r. Pyu left Than Ge's hut ia the company of Chit Pon
!P.W. 5)" at daybreak to report the incident to the
police he also denounced the appellant Sein Hla .in
the latter's presence to the Police party, whom he
met at Kalone village, as the person who actually shot
at. the deceased Aung Sein and otner persons. Kyee
Pyu i~ supported in this respect by the e'{idence. o
Chit Pon. The cofiduct of Kyee Pyu after the
incidents which occurred at the fishery hut appears t<>
us to be clearly consistent with .the> conduct of a man
who had personal kn~wledge of what occurred at the;
fishery but and was willing to discloise what knowledge
h~ had of what teuk place at the fishery hut. The
appellant, i"n hi~ statement" ori oafn, s ufgested that
Kyee Pyu probi>lbly harboured .a: frodge against ,h i.rn
as he had occasion to kick Kyee Pyu once, which
was about 10 days before the d-a:y o the occurrence~
. but Kyee Pyu had not been cross-ex~mined about
it, and no weight could accordi'ngly be Eiven to-
this suggestion. If Kyee Pyu's evidence is accepted
as to wha.t occurred at the. fisher,y hut before he went
over to the hut of Than Ge, and whi~h evidence we
accept, it is -clear that it was the appeliant Sein Hla who
shot a~ the deceased Aung Sein -and Ma Yin and that
the~shot which Sein .Hla fired . at Tin Hla while the
latter \\~as running away from the fishory .hut ~ust have:
also ~truck Tin .HJa. . The medical evidence sho.ws. that
0 . .

Tin.~Hla ;tlso received . dah-cut wounds, but this . does .

:not . riece~~rijy s"ugg.est that . the lusoes mu'st" .have:
~tta~ked the fish:ery hut on the night of the .occurrence.
b~~ause it:was pos.sible.for the appellant t() hav.e ; gone::
 1951] BURMA LAW REPORTS. 297

to the place where Tin Hla had fallen and inflicted #.C.
1951
'
those dah-cut woun9s after Kyee Pyu had fled.
SEIN HLA
It is true that no motive has been proved in this v.
case, but we are satisfied that there can be no doubt TilE UNION'
OF flURMA.
that it was the appellant Sein Hla who killed th~ U TUN lSYtr.
deceased Aung Sein and Ma Yin and that it was also C.J. ~
the appe.l lant who inflicted the gunshot wound found
on Tin Hla.
The doctor could not say what was the real cause of
Aung Sein's death, because his dead body was partially
burnt by the fire which occurred at the fishery hut
after Kyee Pyu had jumped into the stream to make
his escape. It is most likely that Aung Sein died from
the gunshot wound which he received at the hand of
the appellant Sein Hla. In any case the appellant in
setting .fire to the hut must have realjsed at that time
that in doing so he was likely to cause the death of
Aung Sein who was lying in the hut at the time.
There is, of course, no evidence to show.definitely that
it was Sein H.Ia who actually set fire to the hut, but.
the circumstances of this case suggest strongly that
it must have been Sein Hla who set fire to the hut
after Aung Sein and other persons had been shot
at in order to cover his misdeeds. Sein Daing and his
wife Ma Khtn Sein have not been cross-examined to.'
suggest that they were concerned 'iil setting fire to the
fishery hut. Thus the appellant . could in the
drcumstances of the case be said to have done some
'a ct which he knew was .suffici.e nt in the ordinary
course .Qf nature to have caused the death.. of Ausg '
Sein, and his offence so far as the death of Aung Sein
is concerned becom~s orie of murder. It .has not b~en.
suggested in this case that there was any quarrel
between theappeliant S~i'n Hla and .t he deceased. Au~g.
Sein.
. . . at
. the
. . th~ latter was shot at. . Moreover,
time " . the~: .
evide.n~e m this
~ . . . case shows
. that the deceased
 BURMA LAW . REPORTS. [1951
H.C. Aung Sein was still in his mosquito curtain at the time
1951
he was shot at and that he must have been asleep for
SE!N HLA
v. some time before he was shot at The attack on
~~RB~=~o:, Aung Sein could, therefore in the circumstances of
u T~BYu this cas~, be said to have been premeditated, and
. C.J. ' the appellant Sein Hla must, therefore; be consi-
dered to have been rightly convicted of an offence
under section 302 {1) (b) of the Penal Code so far as
the death of Aung Sein is concerned.
Ma Yin was probably shot at because she. had c;ried
out tG~;oSGq:>:::O. f. e1:20o:>-:>cO and it could not thus be said
that the appellant Sein Hla had Fremeditated her death
also. The fact thal she was shot at v.:ith a gun shows
however that the appellant must . have also intended
to have caused an injury whicl} was sufficient in the
<>rdinary course of nature to cause the death of Ma Yin.
The same rernarks will apply in so far as the death of
her husband Tin Hla is concerned. It is probable that
'Tin Hla was shot at, becau.se the appellant had already
shot at Ma Yin, wife of Tin Hla. It could not in the
.Circumstances be said that th'e appellant Sein Hla had
premeditated the death of Tin Hla. Thus the
-convictions and sentences passr.d upon the appellant
:in respect of. the death of Ma Yin and per lmsband
Tin Hl'a must aiso be considered to have been correct.
:. It has lieen subniitted during the. arguments, on
'behalf of the appellant, that the learne~ Sessions Judge
was u.n duly in~uenced in his conclusion ..by the fact
that H~e . accused had not. attempted to explain why he
~.~d bidden.the rifle on the night<of the occ~rrence and
by . tQ.e accused's conduct . hl not denying his ' gum .
.at.:..on~e when Kyee Pyu denounced him t.o the
-sw lJ. Ba . Gyaw and in . that the.. 'a ccused had not
~!t~mpted to . ex plait.!. how he came t() . possess the
-;e*fiibit~utton.s.. We .thil)k we .o:~gh~ -to say, as clearly
~fs yv.e; can emphasise,that- an a~clised, p~rson ow.es no
1951J BURMA LAW REPORTS. 299
H.C.
duty to anybody and th at the burden of proving his 1951
guilt remains throughout the trial with the prosecution SF.IN HLA
and that the prosecution must prove his guilt beyond all v.
THE UNION
reasonable doubt. It is clear in this case, however, OF RUR)IA.
from what we have sel out earlier, without maki.ng any U TUN BYU,
adverse inference against the appellant by reason of C.).

his omission to make certain statemepts in Court, that

there is sufficient and reliable evidence in this case to
prove beyond doubt t hat it was the app~llant Sein Hla
who shot at the deceased Aung Sein and M.a Yin and
that the shot which the appell.a nt fired at Tin Hla also
struck the "latter.
We are unable to see anything in the evidence
which has been adduced for the d efence which can help
to throw any doubt on the credibility of Kyee Pyu,'s
-evidence, anq so far as th~ suggestion that the fishery-
hut must" ~ave been attacked by -lusoes on the night.
of the occurr~nce is conc~rned we . cannot, in the
circumstances of. this case, accept it. The convi~tions
and sentences passed upon the appellant in the .trial
Court are, -therefore, correc_t, and we a~ so confirm the.
conviction anq se.ptence. of death ~nder section 302 (1 ).
{b) of the Penal ~ode in respect of the death of
Atlng Sein~ The appeal is therefore dismissed.
. ~ .' . . . . ' .
300 BURMA LAW REPORTS. [1951.

APPELLATE C I VII.J'
..
Before U S an llfaung and U Tha1tng Sdn, 11.

H.C. DAWSONS BANK Lro. (APPELLANTS)

195l
v.
JulyS.
c. EIN SHAUNG ANDTHRF:E OTHERS(RESPONDENTS).'*"
Money Lenders Act, s. 12-Comtilution of the C.nion of Burma, s. 23 (4)-
, Property whether ittcludes debts nn_a c.hoses in acliJn-Pleas tmder
s.12, Mouey Lenders Act not takeu-Whelher appellate Court CQ1t {!.ive
relief-Admission by advocale-Bi1tdiug mrture on cliwt.
Held: At the time the Constitution o[ the Union of Burma c:~.me int<;> force-
a debt was regarded as a piece of property capable of being transferred by
law and capable of being expropriated. The term r property in s. 23 (4) of
tile Constiiulion is not confined only to corporeal or tangible property but also
includes incorporeal or intangible property such as debts and other choses in.
action.
Halsbury's l.aw of England (Vol. 25), 189-194; Imperial Ba11.k o/India v~
Bengal Natiot~al lJank, 59 Cal. 377 (P.C.}, referred to.
Sections of the Constitution sho:tld not be interpreted in i narrow and
technical manner but should always have a large, liberal and comprehensive:
int_erpretatio~.
( Hlwe (a) A.$:. Madari v. r Tun Ohn aud one, (1948) B.L.R. 541,.
followed. .
The Usurious Loans Act and the Money Lenders Act had never been
considered ultra vires' of the Legislature under the Government of Bur~a Act,
19%. There is no difference between the said pro.visions of the Government
of Hurma Act, 1935, s. 145 (:l) and s. 23 (4) of the Constitution.
Held nlso: That it Is a matt!'r of general principle that the determination
it a caae must l:e founded_ rip'>n a case either to be found in the_pleading~
or involved in or consistent therewith. This principle does not exclude the-
application of s. 12 of the Money Lenders Acl on appeal: This section
prohibits all Courts from passing a decree for a sum -greater than the principal
of the origfnalloan and arrears of iuterest w!lich exceeds such principal, taken
together with any interest already paid. The duty cast upon the Courts is-
that provisions of the section are applied in proper cases though the parties-
inay not have raised the plea,
., 1'. T. ChrMensm v. K. Sufh1, 5 L.B.R. 76 ; Ma Htwe v. Mau"g . Lun,.
8 L~.R. 334 ((''.B.); Haji Chit and five others v. Haji Kyatu,3 U.B.R. 201. ; .
Shivabasava v. Sangappa, 29 Born. 1 (P.C.); The Official .Trustee of Bellgaf
v. Krifltna Chatzdra Mozumdar aud others, 12 Cal. 239 (P.C.); Harendra:
Kumtl'r Bose at li:anothu v. Khemada Kinkar Roy atui otlur.s, A.I.R. (1927~
. _cat..s6, re!errea -to . /.
Spedal civil Appeal No. 5 of 1949. against the decree of the. Appellate
Side of the H'igh. Court; Rango9n in Civil ~nd Appe,al No. 21 of -~949, dated ....
iot~ June 1949.
1951] BURMA LAW REPORTS. 301

The terms of the G~ri ou s Loans Act, 1918, have been appli.:d ev~n in H. C.
favour of a defenda nt \~O had confessed j~;dgment. 1951'
S.P.R.M. F irm v . :lfatm g P<J Ky .t aud others, 1 Ran. SSO, referred to. D AWSONS
There is no reason there fore why the Money Lenders Act shoc ld not be B~ :\K LTiil.
-applied in proper cases in favour of a defendant who had fai led to invoke the v
C. EIN
:Same. S HAUN'G
An admission of fact by counsel is bindil: g on the client and when once a AI'D Tf!RF.F.
OTH I!R~.
fact Is admitted proof of the same need not be furnished. A compromise by
counsel without knowledJ:e or instructions of t11e client stands on a different
footin g.
Sheflterd v. Robiusou, (1919) 1 ( K.B .) 474, distinguished.

G. Horr ocks for t he appellantsr

P . K. Basu for the respondents.

U SAN MAUNG, J.-This is an appeal under section
20 of the Union Judiciary Act against the judgment
~md decree of the learned Chief Justice of this Court in
Civil 2nd Appeal No. 21 of 1949 setting aside the
judgment and decree of th e District Court of Pyapon
in Civil Appeal No. 10 of 1948 and restoring the
j~dgine~@<J: decre e of the Colirt of the 1st i\.ssistant
Judge, .J?~n,. .dismissing Civil Regular Suit No. 30
<>f 1947.ofMeS5FS. Dawsons Bank Limited, who are the
.appellants:iii/ti.'f .-present appeal. In Civil Regular
Suit No. 30 of .i.9t7: aforesaid, Messrs. Dawson.$ Bank
Limited, sued Q:: Ein Shaung and three others . for
ecovery of' Rs. S;UOO:being interest due on th e first and
second mortgages~xootlttd by the defendant-respon-
dents' father T. L\Van .:s~aung arid by the defendant-
cespondents t.hemsel~ '41t .was alfeged that the
plaintiff in filing the suit for iriterest only was miely
exercising OtJe of the rights'.rese~;v~ ~n. the instruments
.of mortgage. The suit w.ts resisted m~i~Iy th~ 9n.
ground that the amounts due on the. two mortg~ges in
question .haq b~.e1i fully. paid up during the jap~I1ese.
regi'me :io orie.U.P~ Tay, ~he Office .Superintendent of
PawsoQ.s ~ank, Whq W<\S 'left in charge. of the . cu.rrhJ
302 BURMA LAW REPORTS. [1951
B.C. duties on the evacuation of the Managing Director and
19.51
DAWSONS
the General Manager of the Bank from Burma, and
BANK LTD. who was subsequently appointed a Custodian of Enemy
v,
C: E!N Property by the Japanese sponsored Burmese Govern-
SHAUNG
ANO THREE
ment. This defence was accepted by the 1st Assis-
OTI'IERS; tant Judge, Pyapon, who held that "the settlement of
u SAN the suit mortgages was mape between defendant
MAUNG J.
1
U Ein Shaung on the one part and U Po Tay on the
other party with their consent, and U Po Tay was
acting as an Executive Officer of the Department of the
Custodian of Enemy Property under the. Bur~ese
Goven1ment. Therefore the settlement _in question
holds good." The suit was accordingly dismissed
with costs. On appeal to the District Court of Pyapon
.the learned District Judge held that under International
Law neither the Japanese sponsored Burmese Govern-
ment 'nor U -Po Tay; who derived his authority ' as
Divisional Officer of Enemy Properties from that
Government, had any right to take charge of private
property and accept repayments towards the discharge
of thy debts contracted during pre~occupation time
and that therefore the debt was still subsisting. The
le~rned Judge considered that the provisions of the
Money Lenders Act, 1945, should riot be taken into
consideration as the question of the applicability of the
f\ct was not .raised. jn the trial Courb. On appt!al to
the High Court,the learned Chief Justice held that this
was a ~t case for. application of section t2 of the Mbney
Leiid~rs Act, 1945, which .is in the follo:wing terms: ,.
) . .
"12. Notwithstanding anything to the contrary contained
i~ ~~other hw fQr the time being ir;t 6rl!e, 01~ in any contract",
no Cburt sJ:}aU, in respect of a loan ad~riced before or after the
of
comniencement this Act, pass a decree for a suni: greater thari
tlfe p~inCi~i of the original loan and ~rrJars of intere~t which,
to~6ther ~it-b. any iiite"rest-a,fr.eady pal.d; e~ceeds the ar~roul}t. bf..
s~ch prin~~pal.'; . .
1951] BURMA LAW REPORTS.

The plaintiff's suit \Yas then dismissed for the H.<.:.

19.H
reasons given by\ tht; learned Chief Justice in the DAWSONS
following words. : BA:-;K LTD.
'IJ,
C; ElN
''Thus it must be held that the piaintiff-respondent Bank is SHAU~G
not entitled to recover under section 12 of the Money Lenders AND THREE:

Act as inter.e st a sum which is Earger tl1an the pnncipal amount

of the loan advanced. U Po Tay, an employee of the plaintiff-
--.
CTUERS.

u SAN
MAUNG; J.
respondent Bank mentioned that Rs. 4,000 or Rs. 5,000 had,
since: 1925, been paid each year as interest by the 1st defendant-
appellant. However the learned Advocate, who appears on
behalf of the phintiff-respondent Bank, frankly stated during the
argument before this Court that the tohl amount of interest, in
respect of the two loans adnnced on the 17th November, 1925,
and lOth May, 1929, which had been received by the plaintiff-
respondent Bank had, in both cases, exceeded the sum of
Rs. 25,COO. The plantiff-respondent Bank cannot. in the circum-
stances claim for more paym~>nt of interest from the defendants-
appellants. The judgment and decree' of the District Court are
therefore set aside, and the judgment and decree of the Court of
the 1st Assistant Judge will be restored.''

In the COJ.trse of the argument before the learned

Chief Justice it . was contended on behalf of the
plaintiff that tp.e Money Lenders Act, 1945, was no
longer good law in view of the provisions of sub-sec..:
tion (4} of section 23 of the Constitu.tion because ofthe
absence of the provisions relating to the manner in
which the owner of the property should be compensated.
This contention was rejected on the ground that the
money due to the plaintiff by the defendants on the
simple mortgages of the properties in suit could not be
considerec,l as property within the ambit'of sub-section
(4) of section ~-3 of the Constitution.
. This appeal under section 20 of the Union Judiciru-y-
Ad, therefore raises an interesting question as to. tl~e
of
il~hire the property contemplafed by sectiop 23 (4 }of
the constittitiop besides ot.h~r que.stion~ of iJ:nportance~
First- and foremost. "if has to be . con.si~er~d: . whether
304
.. BURMA LAW REPORTS . [1~1
H.C.
'1951 section 12 of the Money Lenders Act and other
D,b.WSONS
allied sections restricting the ac<lretion of interest
BANK LTD. on loans are no longer valid and enforceable in view
v.
C.ElN of. sub-section (4) of section 23 of the Constitution,
SHA'UNG
AND THR'f.'E
which reads :
pTHERS.

us:-N. J,
MAUNG,
" (4). Private proverty may be limited or expropriated if the
public interest so requires but only in accordance with law which
shall prescribe in which cases and to what extent the owner shall
be compensated."

The learned Chief Justice, who had answer~d this

question in the negative, had proceeded on the assump-
tion that the word " property" occurring in this
sub-section means corporeal or tangible property and
not incorporeal or intangible property such as debts
and other "choses in action ". We have carefully
considered this matter and with great respect we must
sa'y that in our opinion a debt must be consideredto be
a piece of property within the contemplation of sub-
section (4) of section 23. Ce'r tain ' fundamental rights
have been guaranteed by the Constitution of the Union
. of Burma .and section 23 thereof, which has guaranteed
to the citizens and others residing within the Union
certain ~conomic rights, guarantees the right of private
property and of private initiative in the economic
sphere provided that no person uses the right of private
properly to the detriment of the general public and no
monopolist organizations have been set up to injure
the interests of the national economy. These pro-
visions are contained in sub-sections (1), (2) and (3)
of.s ection 23. Sub-section (4) has already been quoted.
Sult-secti.qn (5) is in the following terms:

". (5). Subject tq the .conditions s~t out in the last preceding
subs~tion, individual branches of national economy or single
enterprise~. Jl}ay be nationalized or acqu\red by the .State by lawif
the public;(. inter~st sorequires,'
 1951] BURMA LA vV REPORTS. 305
Thus, it will b~ seen that private enterprises may be H.C.
195l
nationalized subject to th e conditions set out in sub-
DAWSONS
section (4} of section 23. Is it to be conceived that in BANK L'!'O.
the nationalization of private enterprises only corporeal v.
C.EtN
and tangible property will be involved regard being SHAUNG
A!-:DTHREL
had to the complexity of modern conditions ? Most of OTH ERS.
the assets of private enterprises are in the form not uSA~
-only of tangible property but also of intangible property MA.UNG, J,
such as choses in action'. Assume for the sake of
argument that Burma as an agricultural country would
have in the near future many land mortgage Banks
similar to Dawsons Bank Limited, and that the State
has in the public interest decided to expropriate the
assets of these Banks for the purpose of nationalization.
The tangible or corporeal property belonging to such
Banks will consist mainly of the Bank buildings and
furniture, whereas the intangible will consist mainly of
debts due to the Banks by the cultivators. Therefore,
if the word "property : occurring in sub-section {4)
oi seci:iun 23 is to be interpreted as meaning only
tangible or corporeal property fhe Banks which are
expropriated for the purpose of nationalization will
only receive compensation for the buildings and
f~rniture and not for the other assets. This clearly is
not within the contemplation of this sub-section. In
English law property ca~ be both corporeal and
incorporeal or tangible and intangible. . Personal
. property is divisible into two classes, namely, chattels
personal and chattels real and the expression "chattels
personal" which strictly speaking has meant things
moveable has in modern times been used to denote any
kind of property other than real property and chattels
real. Property in chatt~ls persona~ may be in posses4
sion or jn action and the expression " choses in action "
or "things in action " .is now commonly used ,. in .a
wider s~nse,_ to include all incorporeal interests i_n pure
. 20
306 BURMA LAW RE.PORT:S. [1951

H.C. personality unaccompan:ed by. pt(ysi:cal possession~

,1951
whether or riot the subject-matter is <;apable: of reduc-
.DAWSo~S
BAN.K LTD.
tion itito physical possessiori .by nctio.n ,or bth.e rwise.
v. See Halsbury's Laws of England, Voluine zs, pages1.89
c. EIN
: SHAUNG to 194. In International Law also a debt is considered
AND'THFEE
O.'tHl!.RS.
to be a piece of personal property. McNair in his Legal
u s ..N Effects of War has this to say regarding the effect of
MAUNG, J. the outbreak of war on the debts owing. to or by the
enemy:

''By English law, as we have already seen, the outbre1k of

war does not automatically involve the confiscation of private
enemy property in this country, though the Crown !nay by
iriquisition of office bring about a forfeiture, or Parliament ma.y
produce this effect by legislation. A debt is essentially a piece of
propedy, and it is wortl1 rememberin~ that the action of debt was
in origin a recuperatory action, the tbeory bein~ that the defen-
dant .was wrongfully retaining the plaintiff's property."
...
Later the learned author remarks;

" In conchision, it is ~t~bmitted that where as a ;;;cit"6f .a

pre-war contract there has accrued due to a party who becomes
an enemy a liquidated sum of money, whether:already .payable to
him when \varbrolce out or becoming payable to him during the
war; the right to that _payment is merely sqspend~d during the
war and, in the absence of atrangements to the contrary made
either during the war (including fo~'feiture by inquisition of
office) Ol: in consequence of ~he Peace 'Treaty, is' enforc'eable ' in
our c<?~rts by. the ex-enemy when tJ.lewar is at ~n end." . :. . ;
.. ':: .. ;
.~t :pages 119 and 121. There is. no definition of
property in the Burma General Clauses A,ct; the ..only
'd~fi.niti9ns occutring therein being those of mov.e able
pt'operty and immove able property.: Section 6 df : th'e
~rati_sfet of P roperty ~~t provides t~at'-propert of.any
kind may be transfer):ied, e:xcepl:' as ot}lerwise :provided
by: the Att o'r by any.. dther :law .f or. tfie . time beitrg in
force ,afi~ . a debt is a .speoi~ o.f property which . can be
1951J B.~~MA : LAW R E P9RT~~ 30?

transferted under \he Act. In the C:l.<>C of Imperial H.O.

1951
Bank of India v. Bengal Nalio rbaL Bat~k ( 1) their
DA\\'SONS
Lordships of the Privy Council held that the definition B A:o;K. LTl)o.

of " actionable claim " added to section 3 of the C. "'

E1N
Transfer of Property Act, 1~82, by Act II of~1900, did SH,.UNG.

-
AXL> THREE
not prevent a debt secured upon immoveabl~ property OTH ERS.
fi:om being transferred apart from the security. USA~
Therefore it is cle;1r that ac~ording to. the state of MAUNG; f;
laws existing at the time the Con~titul.ion of the Union
of Burma came into force .a debt .was regarded as..a
spc:cie of property wh~ch was capable of being tramfer-
red by law. It was also a sp.ecie of property which
was capable of being expropri~ted. . .
As held by their Lor9ships of the Supreme Court
in U Ht1~e (alias) A. E. _Madp.ri v. U Tun Ohn and
one .(2), sections of the . Constitution shouldt not b~
interpreted in a narrow a:nd. techni~al n:tanner b.ut
should ~m:- all occasions be . in~erpreted in. a large,
liberal and comprehens~ve spirit . . Constru.ction~ mo~t
beneficl.al to the ~ides~ . possible .a mplit\lde .of it~ pow~rs
s\1-oulq be adoptedan4. the Const'itution Jhough wriUe~
should be interpr~ted in ~u~h a W<I.Y as.will be su.b jeqt
to development th_rough usage <~.rid c;onventi.o n. _ In
o~r opinion it will not be in accord~nce with tl~e rule
laid down by the Supreme C~urt if we were ~Q interpre,t
sub-sectiop (4) <:>f ~ection .23 of the <;::onstJt.utio.q as ~nly
._co.nfi.I;le~ to tangible I?rope~ty. ~~ other~ise. w~. shall. pe
. a party to a misapprehensio~ . t.l!~t all private property
except 'those. which ~re tangible or c_orporeal ca~ P.e
.expropriated for the purpose of being nat,ion~Ji.l;e_~
w itho.ut payment of . any compensation w}?~ts6eve~. to
the owner thereof. . . . . . .
~a'ving i nterpreted t~e word 11 property'.'.o~c~~in.-g
i'n ~ul;>-segtion (4) of sectio[\~23 ~n the%m~nner.in_djc~t~d
ab~ye, it ~as still. to. b~ c_<:>nsiqered t whet.h er becall~~: pf
308 BURMA LAW REPORTS. [195I

H.C. the provisions of this sub-section, ~ection 12 of the

1951
Money Lenders Act, 1945, and other allied sections of
DAW~ONS
BANK LTD. this Act are no longer valid and enforceable. It has
v. been contended that because section 12 of the Money
C. EtN
SUAUNG Lenders Act,-1945, limits all accumulation of -interest

-
AND TB~EE
OTHeNS. to an amwnt not exceeding the principal, no matter for
U SAN how long the loan remains unpaid, it is in fact limiting-
MAUNG, J. private property within the meaningof sub-section t4)

of section 23 of the Constitution. This, in our opinion

is a fallacious way of looking at the provisions of the
Money Lenders Act referred to. What seCtion 12 of
the Money Lenders Act purports to do is to limi't the
acl:retion of interest on loans in the interest of debtors
in general. This is not such a limitation and/or
expropriation which is contemplated by sub-section(~)
.of section 23, which must be read in conjunction with
sub-section (5) of thafsection. Thes e two sub-sections
read together protect the citizens and .other perso ns
residing in the Union of Burma from expropriation;
either in full or in part, of their private property for
the purpose of nationalization without being compen-
sated therefor. They have not been designed to
hamper the State from making such rules as it deems
necessary for regulating the relationship between
cteditors and debtors iri general for the purpose of
protecting the tatter frorri the usuri_o us pro-pensities of
,the former. The r~levanf provisions of the Money
Lenders Act, 1945, are in effect similar to the corres-
~riding provisions in the Usurious Loans Act repealed
th~reby. If th~ Usurious Loans Act and the Money.
Lenders Act, 194.5, had never been cons-idered to be
ultrti' vires of the legislatqre owing to the Govern-
ment .of BurmaAct,.1935, it could-hardly be contended
-t hat.'s ection 12 .ahd?ther allied sections of the Money
Lenders Act, 1945, are now invalid arid unenforceable
'in .'vie.w. <>r the._: '.provis-ions of section _:23' of the :
 1951] BURMA LAW REPORTS. 309

Constitution. In this connection there is no real H.C.

1951
difference between the provisions of sub-section (2) of
DAWSONS
section 145 of th\ Government of Burma Act, 1935, BANK LTD
and sub-section (4) of section 23 of the Constitution. v.
C. ErN
The next point for consideration is whether the SHA UNG
Ar-;0 THREE
High Court in its Civil 2nd Appeal No. 21 of 1949 OTH RRS,

was wrong in dismissing the plaintiff-appellant's suit on U SAN

the ground that section 12 of the Money Lenders Act, MAUNG, 'J.
1Y45, was applicable when the defendant-respondents
had never raised this plea in their pleadings nor
canvassed it in t)1e trial Court. It has no doubt been
established as a matter of general principle that the
.determination.in a C(!.use must be founded upon a case
either to be found in. the pleadings or involved in, or
consistent with the case thereby made. See P. T.
Christensen v. K. Suthi (1); Mt;z H't71Je v. Maung Lun
(2); Haji Chit and five others v. Haji kyaw (3) and
Shivpbasava v. sangappa (4). This principle of law
is applicable not only to Courts of original jurisdiction
but also to appellate Courts. See The Officiai Trustee
of Bengal v. R.rishna Chandra Mozumdar and otl?ers
(5); and Hare.ndra Kumar. Bose and atwt/Jer v. Khe-
mada Kinka1 Roy and others (6). However, in. our
opinion it is within the competence . of a:ny Court,
whether of orig_m al or o(appellate jurisdictic~m, to take,
into consideration the provisions of' section 12 of the .
Money Lender~ Act. although parties to a suit may not
have pleaded tnis section in defence to a claim against
them. This section is explicit iri that it prohibit~ all
Courts of law (rorp passing a decr~e for a s1,1m -gr~~ter
t_han the principal of the original loan or ar.rears of
interest which, together with any interest aiready.patd,
exceed . the amour{t of such principal. Therefolie; a
. . .
(l) S. L.~.R. - p. 76 . . (41 29 Born, p. 1 (P,C.).
(21 8 L.B.R. p. 334 (F.B.)~ . . (5) 12 Cal. p. 239 (P..C.}.
p,
(3J 3 U.B. ~~ ~OJ. .. . . . (6). A.~.R. (19271 Cal. p. 86.
310 BURMA L AW REPO.RTS. [ 1951
H,C.
1951 duty is cast upon the Courts to see th<it the provision s
'))A WSONS
o~ this secti'on ar~ a~ plied in proper jase:s n?.twithstan-
l'lANK LTD . dtng the fact that patties may not have made any plea
v.
C. EIN in this conneCtion. 'Iti tbe case of: $.P.R.M. Finn v.
0
S HAONG
A~!)THREE
Maung P() Kja and otHers (1 )', in which the applica-
. OTHERS. bility of th~ Usuriqus Loans Act,. i-'918~ W~S considered,
.l,.t.SAN it ~as "~eld by . a~~nch of .the '!afe High Court of
MAUNG, J.
Judi.catttie 'that ~he p~ovisions of the '!surio'u's Loans
Act c6u~dbe applied even in favour of th e defend an t
who 'had'"coiifes sed judgment. As already obser ved
aB'o~el!ffi~ provisions of section 12 of the Mon ey
tfc'ridets .:Act, 1945, ~and or other allied sectiohs o f th e
-~ct'are i1 .termssimilarto fll-ose contained in the Usur1-
9.,us .'Loans A~t. . Ther~fore, if. the 'provisiOns of the
Usurious Loans Act could be appJied even in favou r of a
defendant who &ad confessed ju~grtie~t, there seems no
reason why the prov isions~uf the Money Len deFs Act,
1.945, shOt1! d 'not be app1{ed in ptoper cases in favour
of the defendant. who has failed to invoke them in his
defence. . 'I t is 't herefore . a matter for considerati on
.w)1ether in .. this case th-e l~ar~ed Chief JU s't'ice in
dealit1g with the niatter .i n second appeal had sufficier1t
ltlaterial'hefore
J, -
to
him justify
.
the' pbintiff-appellanl's

sqit being d tis ~ni.ssed on the ground that section 12 of
:i i\e.Money Lenders Act, 19'45, had operated to debar
c b'urts o hiw fron1 decree'ingany interest dn the two
nfortg~ges.. in suit. As pointed out by the learned
;Chref Justice, U Po r ay, an employee of th.e piaintiff-
appellant Bank, who. was in a position to be able to .
know what had occurred and ~no \Yas exa~ined as 'a
witness for the plaintiff, had admitted that s ince the
year 1925. :U Eln . Shaung, . wl10 was- one of the most
re~f:Jlar payersamong the clients of Dawsons Bank,
had oee.~rp~yifi~ int~resttothe -Bank to the extent of
Rs. 4,000 ot Rs. S,OQO every. year~--. This admission was
. (11 J Ran. p. 580.-.
 1.9511 BURMA LAW REPORTS. 311

sufficient to indicate clearly that interest already paid H.C.

1951
on the two mortgalies in suit had exceeded the principal
DA\\'SONS
:amount and this fa~t apparently led the learned Chief BA~K LTD.
Justice to ques~ion the lc;:arned Advocate for the t.
C. EtN
plaintiff-appellant Bank whether or not the total SH A C~G
Al-IO'THREE
:amount of interest in respect of the two loans had in OTHERS,

each . _case exceeded the pri11cipal. The le3rned u SAN

Advocate then admjtted that this was the case and M A UNG, J.
thisis an admission of fad whi ch must be considered
:as binding on hi.s client .. the plaintiff-appellant Bank.
It is idle for the' plaintiff now to contend that what
purported to . be two rri0rtgages each for Rs. 25,ooo
were in faCt .not mortgages for these amounts but that
what were secured by the mortgage.deeds in suit were
in fact credit facilities which were not to exceed the
limits pi:escribed. These (acts were not pl~aded in
the plaint filed by the plaintiff-appellant. The admission
of t.l'!e learned Advocate for the plaintiff-appellant has
enti(eiy dispensed with proof of the fact wheth~r or not
int~restalready paid had exceed ed the principal amounts
secured by the two mortg~ges in suit. Therefore the.
learned Chief Justice was quite justified in having
:applied the provisions of se ction 12 of
the Money
ten.~erf) Ac~ ::~,n~ it{'dism~ssiilg the. plC\inHff-a,pp~l.lapt_'s.
s uit with costs. The case of Shepherd v.
Robin..son
(1), where in an aCtion for a d ebt being called upon
for hearing,.:counsel for the defendant comprnmised
lhe. su-it witho:ut. knowleqge of the tact th~t' t~e Aefen-
dant. had given instr~c.tiens that the case was not to be
settled ~ridthe C~mpromise W!-\S accordingly set aside
by ~he Co~rt,
- is cl~arly distinguishable
. . , from-tne:presenf.
.. ..
For.' these reaso~ s the appeal f~ils and must- be
.
dl_s~jss~d wj'th ~osts; A~ vocate's fees ten goid mohtits.

~:u: J'ij~UN<rSE"~N~ J..:...J ~gree_.

(l) (l9i91 1 K.B.D. 474 ~
312 BURMA LAVv REPORTS. [1951

APPELLATE CRIMINAL.
. .I
Before U T:m Byu, Chief Justice.

H. C. MA MYAING (APPLICANT)
1951
v.
THE UNION OF BURMA \RESPONDENT).*'
Disposal of e~:hibits-Or.dtr for rdurn of jewrllery-Cowuictio" for breach of
tmsl~lportunity to own1r to be given-conlrl.lct Act, .s. 178,..-Snle oF
Goods Act, s. Z !9).
Where a br<'ker entrusted by owner with authority to ~ell certain jewellery
gave it to another person who in his turn pledged it in a pawn-shop and upon
conviction of the broker for criminal breach of trust the Magistrate made alb
order for return of the jewellery to the owner without notice to pawnee and
the Additional Sessions Judge cancelled the said order and directed the same-
to be returned to the pawn-shop owner.
Held: That unless Ul,e order of the trial Magistrate can be said to be-
clearly wrong on the face of the record it ought to be sustained. Where
opportunity is not given to the pawn-shop owner or to the originai owner to
be heard before the orders for the return of the jewellery were passed, that fa~t
would amount to serious irregularities . .
The pledge in the present case was made by (P. W. 3) and not by the
original broker. There was also nothing to show that the jewelleries were in
fact pledged in her name. There is consequently no. ma terial on record that
the pledged jewellery must be considered to have been a pledge made by a ..
t>roker:
Hefd.jurlher: That under s: 178 of the Contract Act a mercantile agent
actingin the ordinary course of business can pledge goods in his possessio~
with the consent of the owner' and a broker in _jewellery given for sale comes.
within the definition of mercantile agent as defined in s. Z 19) of the Sale o6
Goods Aet.
Sulaiman v; Ma .Y wd , (1934) A.I.R. Ran. 198, referred to. .

YanAung and _ . } for- the

Tin Maung (Government Advocate) respondent.
U TUN BYu, C.J.-OI)e Ma Tin May was~o-nvicted
of criminal breach of trust in Crimina!' Reguiati
No. . 23 (G) of l949-50 of the Court of the 2nd :
A4,dition;~l , Magistrate <1), Hsipaw, and she . was
seiltenced,
.
.t ipder section
. .
406 of the Penal
.
Code~
Criminai Revision No. 'iS6-A.of ~950 being revi:e~ ~~ tb~ ordtr of the-
.Additiol!al .. Sessi~ns 1 Judge of Hsipaw, . dated 9th September 1950 passed in.
.Criminal Misc. No.I. of 1949-!\0i
~

 1951] BURMA LAW REPORTS.

to suffer six months' rigorous imprisonment. The H.c.

learned 2nd tdditional Magistrate (1), Hsipaw, ~
directed the exhtbit jewelledes, worth about Rs. 1,270, MA ~.YAING:
which formed the subject of the offence in that THE UNioN
OF 8 UR~fA
case, to be returned to their original owner Ma
U TUN BYU,.
Myaing (P.W. 1). . Subsequently, the Additional C.J.
Sessions Judge, Hsipaw, modified the order of the
2nd Additional Magistrate (1}, Hsipaw, in so far
as the exhibit jewelleries were concerned, and ordered
them to be returned to the pawn-shop from which the
exhibits had been se,ized; and the learned Additional
Sessions Judge also set out the conditions under which
the jewelleries were to be returned to the proprietor of
the pawn-shop. He, however, did not give any
opportunity to Ma Myaing to be heard ; nor did the
2nd Additional Magistrate (1), Hsipaw, give the
proprie~or qf the pawn-shop an opportunity to. be heard
before he ordered the exhibit jewelleries to be returned
to Ma. -~~1)~, their original owner. These irr'egulari-
ties must ~ considered to be serious in that persons
who~e q(&#;~C>r liberties were affected ought ordinarily
to be gl.v~n: :an, opportunity of being heard before an
order is passed agaiQst them. These irregu-larities~
however, dp no( appear to be of importance now, in
that tl~e revjsion application will h~ve to be considered
ori its myrit's by.thls Court. . ' .
Thus; 'the. point whiCh arises in this revision
application becomes, w~ether the order of the 2rid
Additional Magistrate ( 1), : Hsipaw, directing th~
j'ewellerie~ to be returne~ to t~eir origil)al -owner
Ma Myaing, qm be s.a id to haye been made properly of
correctfy; and .it wjll intlus con~e.ction be . J;lecessary
to reproduce the provisions .of section 178 ot~ th.e
. Contract Act, whic~ read : ;
' 178. Wher~ .a me~c~ntile .ag:mt.is,
1
with tb~ co~sent of the
()\vnet, in :po.ssessiO!l
. .
ofgoc)ds
.
or tb
e dotuments of
title
. ...
to goods;.
.
 BURMA LAvV REPORTS. [~951

fi,O. any pledge :made by him, when actin~ in the ordinary course of
~<.).Sl
~
business of a mercantile agent, shall be as valid as if h.e were
:M.~ ,\\1YAI.NG expressly autho~ized by the owner of the good/ to make the sa~e .;
f!~
'J:'HE UNION provided that' the pawnee acts in good faith and has not at. the
oF BUI,!MA. time. of the pledge notice that the pawnor h~s not authority to
p1edge. .
'{), ,l.')JN ayu1
c;.J. Ei.platzatiotz.,....,..In this se<;:tion, the express(ons 'met'Gantile
agent and ' documents of ti~le' .s hall have the meanings assigned
1

to them in the Sale of Goods Act. "

'n. . ., , .
.

Th.e .expt~ssion i-' ~erca~tile agent" ;s defiDed m

$ection 2 (9) of the Sale of Goods Act, as fo~lows:

. ,, 2 (9): 'mercantile agent' means. a mercantile agent. having

in the CListomary C~Ui'Se Of busineSS as SUCh agent authority either
to sell goods, or to consign goods for the purposes of sale, or to
huy goods, or to raise money on the se~urity ,of goods;"_
.. . . . . ., . . .
In Sul(limcin. v. M_a 'Ywet (i ), it'w~s held that a .brokei
in jewelle~y who had been given jewelleiies by their
owner for sale came within th~ q1eaning of .' .' m~i:caqtil~
agenJ ",as defined in section 2 (9) of
the. Sale of Goocts
Act.' Sedi~n 'i78 .of .the contract . Act- . refers to cases
where :the pledge . wa~ made by. the mercan'tde ' agerit
d.ther ..in . person or
expressfy on h~s b.ehaif. . .In th~
~ase at ptesent under c'onsiderntion' lt is dear that the
pledge was not made by Ma Tin May, the proker, but
the. jewelleries . were '1n .. .r~ality . :.. pledged . by
auQg Oo-Sein (P.W4 3} wh.9. was asked by Ma. tin :May
:to ._p.Ie(:lge those jewelleries. for. her. Tiler~ 3.Iso d.o es
-riot' app'e ar to .be anything on th.e...reco_rd sflOw that to
the jew~Jler.l'es:.~eJ;e~:in fao(pl~cigeci >iii Ma.1'1n _May'_s
na~.~ .' . : 1'4.~~ng:_q0 .$.ein~ _.who
. ~- - " . . ...... . '
w;ent
~.nd _piedg~d.tho~e
. "
ieW~treties-; .a~scrf~ct,..J:lim~~lf . ~s a dealer i .n ~otoi
fy~e~~n~l;tuh.es . the'r~ is.: therefore, ',no ,~aterial on
the fecord"to.indiate t hat t he 'pledge of trrejewell~ries
~~st
- .. . . .
-:be .considere~
. .. .:
!t~. h..-a. ve .b~en. a' l>)edge'
:
ffiad~ by .
....' . . . ~

. (1) ('19~4~: ~,I.~. R~n,. p. 198.

1951] BURMA LAW REPORTS:

a broker in jewelleries. It is, in the circumstances, H.C.

1951
difficult to con c~ive how the pledge of the jewelleries
MA MVAING
in the present ca!>e by Maun g Oo Sein can be said to v.
THE UNION
fall clearly within the provisions of section 178 of the OF BURMA .
Contract Act. I do not think that it can, as the record U TUN RYU,
stands at present, be $aic;l that it is a. c~.se in which the C.J.
pledge can be said to fall clearly within the provisions
of section 178 of the Contrac_t Act. .
The cases that had been referred to during the
arguments before this Court were cases where the
pledge was actually made oy persons to whom .the
properties were entrusted for sale, which is not the
-case here. I do not feel that I ought to say anything
more about the provisions .of section 178" of the
:Contract Act as this matter can be n ;-agitated again in
a Civil Court, if the aggrieved party so desires. I am
o f opinion that it cannot be said to be a: case' where .the
<>rder of the 2nd ~ddi~ional Magistrat~ U}, Hs.~paw,
directing the return ol the exhibit jewellerie"S" to their
<>riginal pwner is 9n the face _of the rec<;>rd clearly-
wrong. The order of _th~ Additional Sessions Judge,
Hsipf.w,_ .wbich modifies th ~ -order of the. 2nd
Addit~onat"Magistra.te '(1.}; Hsip~w, is.sei asid~ -and the
is
order of .'t he 2nd .Add.iti'onal Magi~trate .( 1}, Hsipa.w,
r.e stored . .
316 BURMA LAW REPORTS. (1951

APPELLATE CIVIL.
Before U Si Bu,J.

H.C. SUNDERMAL RANGLAL (APPLICANT)

,, 1951
_ v.
June 23.
JHABARMAL BAJAJ AND OTHERS (RESPONDENTS).*

Code of Civil Prccedttre, s. 10 a11d s. 151.

Held: That s. 10 of the Code of Civil Procedure provides for stay of suit
pending h~aring of another Civil Suit. There is no provision for $.tay of a
Civil Suit pending criminal trials. S. 151 of the Code of Civil Procedure
cannot be invoked to stay a suit which cannot be legally stayed otherwis~.
Lnkshmi Insurance Co. Ltd. v. B. K. Kaula atui another; 11940) A.I.R.
Lah. 85, referr.ed to:

]. K. Munshi for the applicant.

M. M. Raft for the respondent 1.

D. N. Duft for the respondent 2.

U.SI Bu, . J.-This is . ~m application for stay of Suit

No. 1119 of i950 of the . Rangoon Cfty Civil ..Court,
pending the disposal of two criminal cases which
are now in the Court of the 5th Additional Magistrate,
Rangoon .
. The applicant's <;ase is that the 1st . Respondent
J. Bajaj has filed two complaints-against him, which,
when he filed his application, were pending in the
Court of the 1st Additional Magistrate, but which has
'sinee been transferred to the Court of the 5th Additional
Ma~strate under the orders of
~his Court. He says
that th~ subjec_t-~a,t~er of the two complaints is the
:. Civil Mise, Ap,Pii~ition. :.No. 21 of l950 being an applicati6n for
stay of Civil Suit Nq. .lll9 of 1950 of the Rangoon City Ciyil Court pending
dispasal _of two crirumal cas~s.
1951] HURMA LAW REPORTS. 317
..
same_as that oftlte Civil Suit, which also has been filed H.C.
1951
by the 1st Respondent against the applicant and
SUNDER~fAL ,
two others ; that the issues to be decided in the HANGLAL
two criminal cases are substantially the same as those JHAs:RMAL
to be decide.d in the Civil Suit, and that grave ANDBAJ.V..,..,. OTHt<:1<S.
injustice will be caused him if the newly instituted -
Civil Suit is allowed to be heard concurrently or u sr au, 1
simultaneously with the two criminal cases or either
of them.
The 1st Respondent, on the other hand, contends
that considerations that apply in the two criminal cases
are different from those applicable in the Civil Case. and
that no prejudice will be caused if the Civil Suit is
heard.
Mr. Munshi, the learned Advocate for the applicant,
has . explained to me, at some length, the facts of
the two criminal cases and the various stages through
which they have passed ; and his main contention
is that he does not want the Civ'il Suit to proceed while
the criminal cases are being heard.
,As I felt that it was somewhat unusual that an
accused should apply t~ stay a. Civil Suit pending
the hearing of a criminal case or cases-(generally the
practice being exactly the -opposite)-! asked the
learned Ad,vocate for ~he applicaqt if. he could refer me
to any <;tecided cases.where. a Civil Suit had b6en stayed
pending the hearing of a criminal case .and his
reply was in the nega~ive. ~r. Rafi! the learned
Advocate for the 1st Respondent, has assured me &hat'
he must have looked up some 4{) C(\ses and had
not . been able to find any. I myself have fOund ..
none.
Section lO:of the Code o'f Civil Proc~dure provides
for .th~ stay of suits and Mr. Muns~?-i h;1s a~m.itted
<i~ite .dghtly~that this section does i)ot . apply. I:fe
invoke~ th_ e inherent powers of this Court referred .
318 BURMA LAW ' RE,-PORTS. [195J
H.C. to .in -s ection 151 - of the Code<t~ obLirl. a stay of the
1951
-
Si:iN.oER'kiL
ltiN.GLAL
Civil Su'it.
In. L-akshmt Insurance Cd. Ltd.

v. :B'. [(. Ka'ula and
v. another (1} it was held that section 10 of. the: Code of
Ji!AB.\'RMAL
BAJAJ Civi'l Procedure being inapplicable-section 151 of the
AND OTHERS.
san'ie Code .could not be invoked to stay a suit which
U Sr BU, J.
c"Ould not be -legally stayed. This 'is a view with whiCh
I entirely agree.
Assuming, however, that this Court can exercise its
inherent powers it is certain that ~t cannot do so lightly
and that, at least, a prop.e r .case mus t first be made
out to justify the exercise of th:at exceptional power.
The question therefore is-Has such a case been
made out?
'The applicant has alleged in his application that he
will suffer " grave pr-ejudice " if the Civil Suit wer.e
proc eeded with-but: his lear-n ed Advocate has not been
able to show how and in what manner he will be
prejudiced if the: Cjvil Suit were allowed to take its
course. . .
l have read the two complaints and also the.plaiilt
filed by the applicant with this application and I. find
that:white the complaints referred to such.:.offences as
criminai 'breach of trust, cheafing and forgery-tSee
paragraph 11 of the 1st complaint and paragraphs4and
:5 of the second COmplaint}-the Civil Suit is one for
account oFpartnership, pure and simple.. . .. .'
Co'n sid:erat!ons -wnich will arise in the criminal
caies -n~ed not- arise .i n acivil Suit. ..
The Civil Suit does not and cannot depend'upon the
resv~t of. either of the criminal cases. Whatever may
be the result whether in favo~r of the accused!.or
against . him~ the Civil Sui~ mu~t, i:n, the. end,' proceed.
I cannot therefore. see :~ay obj~c~ in .staying it. :. -
(I} A.I.R. (1940) Lab-,, SS.
1951] BURMA LA W REPORTS. 3i~

to
In the result) the appli cant has failed make out H.C.
1951.
a case and I ain satisfied that no prejudice will be
SONDERMAL.
caused him if the Cjvil Suit,proce,eds. RANGLAL
The application is therefore dismissed with co~ts ;
JHABARMAL
Advocate's fees ten gold .mohurs: BAIAJ
AND OTJ1ERS.

U Sr Hu, J.
320 BURMA LAW REPORTS. [1951
.I

APPELLATE CIVlL.
Before U TUtJ Byu, Cltie/ Justice, and U Si Bt~, J.

H.C . P.R.P.L. RAMASvVAMY cHETTIAR AND oTHl;Rs

1\151
(APPELLANTS)
Sept: 1Z.
v.
MA AYE AND ANOTHER (RESPONDENTS).*

Transfer of lnzmOteable Property (Restriction) Act, 1947, ss. 3 and S-

[ioreit;ner -Union of Bf'rtn<t Adaptation (Laws) Order, 1948-Bailrlf
conductmg auchOt' is persoll' rmdcr Gilteral Clauses Act-Order Zl.
Rule 90 of the Code of Civil Proc((/.ure wlrether applies to illega_l sales.
Ht'ld: That the purport of the Transfer of Immoveable Property
(Reatriction) A..:t, 1947 is to prohibit the transfer of immoveable property to a
foreigner except in the circumstances permitted under the Act. All transfers
contrary to the Act are void ab itJilio, and the Court has no jurisdiction to sell
the property to a foreigner.
Klriarajmal v. l)aim, (19051 32 Cal. 296 at 312, cited and relied on.
The Bailiff who condacts the auction in a High Court sale is a "person"
as defined in the General Clauses Act. He could not sell immoveable property
to a foreigner ' in contravention of that Act.
Cka_t, Etl Ghai v. Lim Ho_ck Seng (a) Chin Huat, {1949) B.L.R. 64;!, reli"ed on.
Order 21, Rule 90 of the Code of Civil Procedure does not apply to an
illegal sale, and the sale to a foreigner is void ab initio.

P. B. Sen for the appellants.

N. C. Sm for the respondents.

The judgment of t~e Court was d.elivered by

U TuN Bvu, C.J.-The first appellant P.R.P.L.
Raraswamy Chettiar obtained a mortgage decree
against Maung U Khin, U Chit Khin, .Ma Aye,
U M-ya Bu arid Daw Thein May in Civil Regular Suit
No:9 ,of 1947. of the District Court of Bassei~, and
. the ~nimoveable property which formed the s~bject of
' ------~
-------
.Civil Misc. Appeal No, .36 of 1950 .against the order of 'the District
Court ~f. Bassein in Civil ~xecution No... of 19~8. dated 6Ui day of October
1950. :
1951] 32.1

the mortgage was sold and purchased by t he decree- ~:;~

holder at a Court auction sale on the 23rd February -
1949 for a surrl.of Rs. 7,000. The sale to the decree- R.!:~~~;~~v
holder was confirmed by the District Court on the ";~E~~~~s.
25th March 1949, and a sale certificate was issued to v.
~'!.\AYE) AND
him on the 19th Ap ril 1949. ANOTHER.

T he Chettiar decree-holder sold the immoveable u TuN avu,

property in question on the 17th February 1<.149 to c.:r.
U Ba Kywa, Daw Sein .May and Daw Mya May, who
are the second, third and fo urth appellants, for a surD:
of ~s . 4,000. About five months afterwards, namely,
on the 22nd December 1949, U Mya Bu and Ma Aye
applied under section -l7 and Order 21, Ru1e 90, of
the Court of Civil Procedure to set aside the sal'e of
the immoveable property in question to the Chettiar
decree-holder and to order restitution of the said
im~oveable property on the ground of fraud and
certain irregularities in the conduct of the sale.
There was some delay in the hear.i ng of this application,
and U Mya Bu and Ma Aye applied, on th~ 7th June
1950, to add an additional ground for settipg aside the
sale to the Chettiar d~cre e-holder. They further
contended ~hat ti1e sale ..of the iJ?mov~abl~ property
in question to the Chettiar decree-holder was void in
~iew .of the provisions of sections 3 and. 5 of.the
Trans fer of Immoveable P roperty (R~strictio~) A~t.
i947, on the ground that P.R.P.L. Ramaswamy Chettiar
w~s. a foreigner. and as . suc~ was incapably of . puz:chas-
.i ng . the im~n:oveable property in question. . lt wa~
9nly then that the provisio!ls of section 1si of the
C.o de of Civil Procedure was mentioned. The learned
. Di~trict Judge held that the sale of the ii'nm~~~able
property to P.R.P.L. Ramaswamy CheUia; was ~~~id in
view of the provisions of the Transfer of Imm<1veablc:
Property (Restriction)' Act, 1947,..and. he set a~ide Ui~
sale to P.R.P~L. Ramasw~u:lly Ch.e ttiar. .:H e also heli
21 .
322 BURMA LAW. REPORTS. [1951
H.C. that U Ba Kywa, Daw Sein May and Daw Mya May were
19~~
in no better pmition than the decree-holder ~nd that
RA~~!~~l'~v they were accordingly not entitled! to retain the
CaEi'.TJA?'!. immoveable property in question. He therefore
AND .o'J'HESS
v . ordered restituhon of the Immoveable property to the
MA AY'~> Ar<O
ANoTHI!lR( Judgment- deb tor M a A ye 10 . exercise
. of th e Court's
u Tui B~u. inherent power under section 151 of the Code of Civil
f .J. Procedure.
It is obvious in this .case that P.R.P.L. Ramaswamy
Chettiar, who lives 'in India, could not be considered
to be a citize~ of the . Union of Burma after the
4th of January 1948 when Burma became an indepen-
dent state. The expression 'foreigner' in the Transfe~
of Immoveable Property (R~stri~tion) Act, 1947, as sub-
sequently amended by the Union of Burma (Adaptation
of Laws) Order, 1948, is defined as-
." ' foreigner means any person . who 'is not a citizen of the
Union.";
and section u of the Constitution of the Union . of
Burma specifies the classesO persons, who are con-
sidered to be the citizens of the Union of Bunna.
The Union of Burma {Adaptation of Laws) Order,
1948 came into force in January 1948, and it is this
definition which applies in the pres ent case in view of
the fact that the sale of the immoveaqle property in
question to P.R:P.L. Ramaswamy Chettiar was not
madeuntil6ver a year afterwards, read with, of course,
the provisiOJ;lS of section 11 o'f the Constitution of the
Union .of Burma~ . . .
The relevant portj~ns of section 3 and section 5 of
the rr;r!l.ns.fe.r of Immoveable Property .(Restr~ctio.n) 1\c~;
1947.reaq:
"s_~ Notwithstanding anything. contained. in any other law
for the time being in for.ce, no transfer o any immoveable
property ?r leas~ of imm::>veaQle prop~r.ty' for ~ny t~.r~ exceeding
It 951] BUR.M.A. LAW. .RE~O.RT.S. 323
One year, shall be maoe by any pe rson in favour of a foreigner H. C.
or any person on his behalf, by way of sale, gift, mor tgage or
otherwise :

-
1951
P.R.P.L.
RAMASIVt.MY
CHETTIAR
- ANO OTHERS
All tral')sfers of Immoveable pro perty and of leases of
;:> . v.
:immoveable prop.!rty contrary to the provisions of th is Ac t llfA AY!t AND
shall be void , and t he President may, by order in writing, ANoTH.F.R.
declare such property or any portion thereof to be forfeited to U T us Bvu,
the State : C.J.
1: ... : : "
'It is therefore clear that'the purport of the provisions
of the T ransfer of Immoveable Property (Restriction)
..Act, 1947 is to prohibit a transJer of immoveable
property to a foreigner, e-xcept in the restricted
circutllstances permitted under that .1\c.t and to make a
.transfer of immoveable , property in contravention of
the provisions of that Act void db initio. The sale to
;P.R.P.L. RamaS\Vamy Chettiar must therefore be consi-
dered from the o~tset to be a nulli.ty, and no p~o
ceeding will, in the circumstance, be. required. to set
lit aside. T he fact that the Chettiar decree-holder had
obtained the permission of the Court to bid at the
:auction sale is not a factor which the Court can con-
.sider in view of t~xplici t provisions o.f the Transfer
of I mmoveable Property (Restriction) Act, 1947. In
the Privy Council case of Khiarajmal v. Daim (1)
Lord Davey stated:
. .
" But on the other hand the Court had no jurisdiction to sell
the .Property of persons who were not parties to th~ proceedings
ol' properly represented on the record. As against ~th persons
tthe decrees and sales purporting to be made would .be. a nuilifY.
and mlglit be disregarded without any proceeding to set theni
.aside. If authority be desired for these elementarypr6position~
it may be. found in the judgment of ~ir Barnes Peacock iri
Kish~n Clmn(ler Ghose"V. As~oorun (2]: ',' . . . . .

(2) (1863) ,1 ~arah, 647.

 Ei95t.

H.c. We a re unable to accc;pt the . ~ontention that the

lJll. Transfer of Immoveable Property (Restrict~on) Act,.
1_l~Ys~!'~1 v 1947 dc:>e~ l}ot_ applY. to th~ sal~ ~a<;Ie to P.R.P .'L.
CHETTIAR.
AND' OTfiERS
Ramaswamy Chettiar on the '-'.'round that tl~is sal~ _does .
. _v. . nqt fall wit~in tqe provisions of sectioQ 3 of the
MiN~~:;o Transfer : of. Immoveable Properly tRestriction) Act,.
u TuN BYu, 1947. It was held in Chan Eu Gbai. v. Lim Hock Seng
C.J. (a) Chin Huat (1) that the bailiff, who condttcted the
High Court auction sale, was 'a. person as 'defined in:
~q~ : G~l).er~l_. Gla\ls~.s Ac~, that h~. could not . selE
~mmov_ea'Qle proper.ty to a foreigner in con~ravention~
Q,I,: U~~ -:.Brovi.sJqp~ . of _the. :Tra.n _s.fer _of ~mmoveabl~.
.Pro.B~f_tyJgestri~fion) . Act, _}947, ?-\nd that any. ~ucb.,
S.ale.~1ad~ .'Qy qjm ,~as . :void. in view..'of the pro'\isiqns;.
.
<;i s~ction . 5. 'Tli:e sa~ed~ the.P.re~ent <r;:tse appea.rs
; .I ' . . ~ ...
to- .

us to l:iave been. . m~de ~jn.&iinilar oircumS:tances .as the.-::

;$
-~~1~ -~~~d.~c;teq i,~ t~-~ ~i~ _cH~t ;~~ctjp~ ,&ai~, -~n~ . !~
~.ni ca~e: w,~ -a~e~~r,?p,~ni.on ~~a~ t.h~ . ()ffi~_~r :eo~?U;'Ct~~-&-
' ~- ~oU.rt ~~.c~i?p~s~~l~)~ .tp~ ;I?i?:~ri_st _. q~ur.t ~.ot:t.~.~ ~l~g
be .considered to. be: -a p.erso.n for. the ..purpose- . o.
~e~ti~~.- : t~o(,in~ , .r.-~~nsi~-r,.~(l . r~ffio~ibl~~ Ii_rop~rti~
n~~~tr~~ti?hl....~~~~-}~~7!:. ,,,., " . '"' . ., ' . . "''
;:-> 1~hr . s~~ to. \~r..:9~lJiWr~ ,qecre~lder.,.b~irg 1 iu.~g~t~
a.J?d . Y.a!4' . q.~-. :~~H!~Bh ;~:k fpl~P:V at lJ.: J?f.l. ~Y.w?-,..
Pa.w
... ,~
~etn Ma.y. a.nd. Uaw.
....'\'\.: . . . . ., .: . t ..
~- . . ..
Mya, . .
May
~
~.could acquu;e n<r
. . . : .- .. . . . . . .
~ ~ 10

interest' whatever , in .the immoveaple p.rop.erty. 'in.

question. This is therefore a cas~ :;'t-i~rc th~ origi~~i.
parUe~ ._, snould~ .be~ ' -relegat~d 'j to :-th:eir:forrire-r positi. Onl
eb.efl:>re the ineffediv:e :s:a te :wJi'icho~ctitred iri F~bruary
<1949. T~e Coti~f"'ha~- tr:e :ne_c~~s~fy.. recordbdore.~t;
in((it ai?pears t~. -~s1 .'to
o' ~ ' .
'' b~,..'.ohly
: . .
,Gqn~i~teritwit)l.go.9;ct.
.. . . . 0

f.~~so~ .~~d. ji,tstice,.i\i. t~~-,c~r~:\l!A~~~qc~ . 9( tl:le: p~es~ni.-

:case~-.'tti-a;t ; t~. ~~oprt:: ~h_oul4-mak:e-:. ~a 'orc;ier,t0rel-egate
the .. parties back . to 'the . p~sition:.in ,~hich they, -were:
: . . . . . .,. .
.
V<H~949fB.L.:R, -~tl.
 BURMA LA\V
. RE~ORTS. 325
previous to the illegal sale. It will, of course, depend H.C.
1951
on the circumstances of each case whether a Court
P.H.P.L.
ought or ought hot to exercise its inher~nt power HAMASWAMY
CHF.TTIAR
under the provisions of section 151 of the Court of Civil A:-10 OTHERS
P~ocedure, 'b ut the Court ought to exercise its inherent tl.
l\IA AYE AND
power where good reason and justice require it and ANOTHER:

where no provisions of law exist in the Code of Civil U TUN BYO,

C.].
Procedure or elsewhere, which will meet the necessity
.Of the case under consideration.
The p;ov.isions o_f Order 21, Rule 90, do not, in
our opinion, apply to the circumstances of the present
case where the sale is illegal and void ab i'nit~o, arid
'this cannot" therefore be said to be a case where the
:appellants have a remedy provided elsewhere in the
Code of Civil .Procedure~ The. ded.sion of the DistriCt
Court must accordingly be considered to have been
correct and the appeal is dismissed with. costs ;
Advocate's .fees three gold moh.ur~~
 BURMA .LAW. REPORTS. [195.1t

APPELLATE CIVIL.
Before U SatL Matmg and U Tkazflig Sein, 11.

DAW NGWE LAY (APPELLANT)

H,.C.
1951 '1.1

.. Sept. 7. w. COOPER AND ANOTHER (RESPONDENTS}.*

Wills-Proof of e.:recution attd allellaUon-Pritll;-#tzes illvolvcd-Onus-Lctters;

of admz'nistrafion wtth Will atme:red-Gratlf of-S. 232, Surcesston A.ct.
Held: That under s. 232 of the Succession Act a residua:ry legatee may be-
admitted -to prove the Wil-l and Letters of Administration with Will annexed.
may be j:!tanted to him to the whole estate or the unadminister'ed !?art.
The 'Principles involved with reference to proof of due . execution and
attestation of Wills are well settleCI. r illl~...:'o'li~s lies in every case tipob the
party propounding the Will and h~ iil'tisr~~tr~fy the co.nsci'enceofthe Court:
t.hat the Will is the last Will of a heo,andcapil81e Testator. If a party wiites
or prepares a Will, under which h-e< takes '::tbenefit, the Court lTlust be
judlclal!y satisfied that the Will ex-presses the true intention of the deceased\
and the Coitrt must be vigilant and jealous in . examining the evidence illl
. support of the same.
' Barry v. Butlitl, (1838) 2 Moore (P.C.) 4!10 ; Tyrrel v. PaiutoJt a11d a110tirer,.
(1894) L.R. Probate Division 151 ; WilUam Robitr.s v. Natiotzal Trust Co. Ltd.
alld ctlrers, A.I.R. (1927) (I>.<.:.) 66 ;"Eusoof Ahmed Sema v. Ismail Altmect
Sema and others, A.l.R. (1938} Ran. 322; lara( Kumari Dassi' V
Bisscssur Dutt, 39 Cal. 245 ; Harmes and twother v. HinksOtz, A.I.R. {1946)
P.C.) 156 ; Parker and another v. Fe/ gate and Tilly, (1883) L.R. 8 Probate
Division 171, referred to.l
Where a testator is of sound mind and giyes instr uctions for a Will and!
accepts the instrument drawn in pursuance thereof at the time of signature he:.
must be deemed to be of sound mind when it is accepted.
Percra a~td otlters v. Perera a11d another, (1901) A. C. 354, referr.:d to andl
followed.

M M. Rafi for the appellant.

P. K.. Basu for the respondents.
Tlie Judg~enf of 'the Bench was delivered by:
... .

U SAN MAUNG~ J. -This is an appeal from the order

of .th~ District J~dge of Bassein passed in his. civil
Reguiar Sui_t-'N0~ fS _of 1947:for t he gra~t of letters of
. . -
dvillst Arp_eal No. 1'8 of 19~9 aiainst th.e order of the District Court
of Bassclil in ~uit No. 15 of.l9~? dated 2$th January 1949

. .. !
 195 1] BURMA LAW REPORTS. 327
H.C.
administration to the estate of the late Mr. P . Cooper to l YSl
the first respondent Mr. vY. Cooper with a copy
DAW NGIVJ!:
of " Mr. P. Cooper's Will " annexed thereto. r:u
:Mr. W. Cooper is not an executor under the Will and w. C'~oPER
the letters of administration w.i-tk,tht.1 wqlk:;aU~~.
;.,.,. AND
ANOTHER,
was apparently granted under the provisions of sectLm
U SAtl
232 of the Succession Act, the relevant portion of MAuNa, J.
which reads :
'' When the deceased has appoin ted an executor who is
legally incapable or refuses to act, an universal or a residuary
legatee may be admitted to prove the Will, and letters of admini-
stration with the Will annexed may be granted to him of the
whoie estate, or of so much thereof as may be unadministered."
The appellant in the case is Daw Ngwe Lay who is
the widow of the deceased P. Cooper and the second
respondent Mrs. Schiller; who has made common cause
with Daw Ngwe Lay, is a niece of Daw Ng.w e Lay and
is also one of the many illegiti~ate children of
Mr. P. Cooper.
The evidence of the witnesses quoted, especially
that of Mr. Calvert, ]eaves no possible room for doubt
that Exhibit A was the . document purporting to be '!-
Will which was found at P. Cooper's house soon after
his death and that it was read out by . 0 Ko Kyi in the
presence. of witnesses, including severai children of
Mr. P. Cooper. Mr. ~alvert's p.aging arid initials at
the top right}Jan.d corne~ of ~xhibit A;a}so .estabgshes
the fact that all the seven sheets of the document ..
were those found and read out and that no page ~s
been extracted therefrom or otherwise substituted, .
(the document ma.rked "W" referred to by Mr. Cal~ert
being Exhibit A}. .
The next point for consideration . is, is the. Will
Exhibit A the one produced .before the then District
Judge, Mr. Evans, with the application for Probafe
in the ye~t i942; .This. application has been filed in
. ~28 BURMA ! LAW REPORTS. [1951

. Hi<C. Jhe ,. pr.oceedings as Exhiqit Gat pages 22 . and 23 of

'i95l
._the .ex,~1ip~~)ile. It bears the signature of the then
DA~~~~GwE Dish:\~:t Jtglge, Mr. Evans 1 who had signed across the
11. QqpP,~~fr,e :?.tamp affixed thereon in token of its can-
-w..~PER
~AND cell~_tio.1;1. :: In thi~ a,pplication it is stated inter alia th~t
ANoTHER. .P :: C9op~r:~ a st~vedore residing at No. 33, Strand
u- SAN Ro~d,. Ba.~se~p, di.ed on the 1st. January, 1942, that the
.MAUNG J.
writing annexed to the application and marked '' W "
was his last Will and. testament, that it was duly execu-
ted 2-t B~ss~iP. on the 29th of September, 1940, that
t~e:.~;{pplic~nt))r. Nair was the executor named in the
'Will andthat the deceased had left survi.ving him the
followi:ng:relatl.ves who would be entitled .to succeed
to his. estate .h,ad. he di:ed intestate under the. provisions
of.the I rid tau:.succesSi9n Act, namely-
~l) Mrs.P>Cooper alias Ma Ngw~ Lay, formerly
residing at Victoria Street, Bassein, and at
the time of the application residing in
.Tainangyaung Kanni Village, Bassein West
Towtrship.
(2) William Coopet, Stevedore, No'. 33, Strand
!Road, Bassein, the on'ly son of the said
. :deceased.
(3} ~lice Cooper alias Mrs. Schiller, daugh~er of
fhe de'cea:sed; residing . at No. 37, Fytch<S
Roa(l, Rangoon. ::
'(4-)l E~r.ha Pinto; ~ daughter. of the deceased;
residing at No: 9, Strand Road, ~assein.
:-(5) -M1rs; 'Wyllie, . daughter of the deceased~ .
resid.ing at No. 9, Strand Road, - Ba~sel'n. i
.The applicat'icm _was . - ~erified by/ the :app.l icant
. Dr. Nair arid also oore. the .following:vetiticati~ri .: --..
,:'r fU. 1the. ul).dersigned; one o( ~he wi.tnesses tO' the last Will
-~n.d testame.nt of.the ..testatol mentioned if{ the above petition,
d~dJ~~~ ,.th~t :I'r~vas . Pt:es~nt :~rid s~w the .said. t~stl.tor ~~x his
 1951] HURMA LAW REPO RTS. 329
H.C.
~ignature ther-eto. ~igned this ve ri fication :tl Bassein on this 1951
27th day of JJ nuary 194.2.
0.-\\\' NGwE
(Sci. ) Josr- r>H LA\\'[n::-:cE." LAY
v.
W. CooPER
Now, the \:Vill Exhibit A was discovered a t AXD
A"OTHER.
P. Cooper's house during the first week of Jan uary 1942,
U SAN
:and the application for Probate was made on the 27th MJ\UNG, l.
.January 1942, about three weeks later. There is no
-evidence to show that any Will, dated 29th September
1940, was discovered in the meantime. Th e on.ly Wi_ll
hat was discovered was Exhibit A which was read out
:.to those present by U Ko Kyi, the then Township' J1:1dge,
Bassein West, and Additional Magistrate, Bassein.
joseph Lawrence ( P. Vv. 3) had attested only one. \Vill,
namely, Exhibit A, and it was he who had made the
verjfication to the application for Probate. Therefore,
it is difficult to reject the story told by Dr. Nair
{P.W. 1) and !lis brother M. M. Nair (P .W. 9) w_ho acted
t~r Dr. Nair at the timy the applicatio_ n for Proba,t~ _was
mad~ that it was the Will
;. , ...
)
. Exhibit A which
: ... was
' ..
produced in qourt ~ith tne applicatio11 ~x~ibi:t G_~ Jn
-tl).e application itself the address~s of_ all.tlwse i~tere_s~ed
in cortesti,n_g the Wilt. were 'g1~en ,'and the presumptio~
j.s:th.at_speci_al notice.s '~re iss~ed t~ the.m by the the~
.O istrict Juqge. At pages '27 an.d 28 of Exhib1~ G are
tq).a receipfgiven to Mr. Nair for paymeQ.t of process-
~ees, anC:l (b) a she~t of paper .coritai~ipg Dr~ Nair's
:address and a five rupee process-fee. sta;np whi'.ch .has
U:;>_e en pu_nciied and caf)cell~d by' the tl~~n Dis,rkt
judge, Mr. Evans. The endorsJment Qn the reeeipt
.als_o ~hows that processes had been issue<;! on t.he
31st of January 19-1-2. The process-fe~ (or the issue
0

()f a notice being one' rupee it is reasonable. to pre~ume

that notices w~re in fact issued to all the five -pers~ns
named in the application as those interested in, _ the
: estate of P. Cooper had he <;lied intestate: . Thercfdr~~
330 BURMA LAW REPORTS. [1951
. .
H._c. the probabilities are also in favour ol the fact tha t the:
Will which ~as discovered at P. Cooper's house a few-
9 1
-l J

DA'U'~,Gw& days after his death and read out by U Ko Kyi to.
w. c~oPEn those present, including some of hie; daughters, was..
ANo the Will which was in fact produced with the applica-
e'NOTHER.
-. .- tion. There seems no point in any party wishing to-
M_!Ju~:.N J, suppress at that time the Will Exhibit A which was.
then regarded among the circle of friends and relatives:.
as. the last Will and testament of P. Cooper. There
was also no point whatsoever in at'.aching to the
application for Probate a spurious Will at the inip'iinent:
tisk of it being discovered as a forgery~ For these
reasons we have no hesitation in coming to the conclu-
sion that Exhibit A was in fact the Will produCed by
Dr. Nair at .t he time he applied for Probate. The fact.
that Exhibit A doe~ not bear the signature of Hie then;
District Judge, Mr. Evans, is not of much import..
The gen_eraJ practice among the District Judge? .varies_
Some take the preca.u tion of putting their initials on.
documents at the tim'e qf receipt, soine at the time it is.'
proved by evidence or witnesses and some at an even.
later date. The agrec~e.nt Exhibit B, which wa~
presumably produced with the Will Exhibit A. at t,h e
ti111e ~he appticati.on for probate was made, ~so does\
not bear the s ignature of the District Judge. But the
iist of documents produced by fq.e applicali't .Dr. N~ir
shows that besides th,e Will of P. Coopet a copy ofi
agreei11ent~Was'~a.tscrpf0duced. The copy of agreement:
produ(;ed can be;: no other than .E xhibit B, n o otli.er-
agr~ernent being reie~arit for . the purpose of the
aforesaid probate proceedings. . . .
A~ . alTeady observed above," Dt . .Nair, . ~ M." Nair
~~d W. cooper ~-hly made an attempt 'to: foist. the:
opy of (he Will,.:of whi9h . Ex~ibit. .c i~ a certified!
.CO!Jy, ' in CivH ~fiscellarieous cas~ Np.; 26 of 1946, in
~rcler to sui~ thei'r own' purpose, n.a'riiely, to avoid the
 1951] BURMA LAW REPORTS. 331::.

terms of the dis~bility clause contained in the original H.C.

1951
\Vill Exhibit A . It is impossible to believe that none
DAW NGWE
of these persons had noticed that this disability c1ause L .\ Y
was absent in the copy produced in Civil ~fiscellaneous v.
W. CooPeR~
Case No. 26 of 19+6 and that they did not therefore A1'(0

know that the copy of the Will produced by them

could not have b een a true copy of the original wm.
-
ANOTHER .

U SAN
MAUNG, J-
Having established the fact that Exhibit A was the
Will which was found at P. Cooper's house a few days
after his death and that it was the Will produced by
Dr. .~air wit h his application for Probate in Civil
Miscellaneous Case No. 1 of 1942, the next point for
9.o nsideration is, is this the Will of P. Cooper duly
signed by P. Cooper and attested by the witnesses
present and that P. Cooper knew tl1e contmts of the
paper which he was t hen signing ? As rega~ds proof
of due execution and attestation of Wills various autho-
rities have been cited by the learned Advocates for,
both parties. In fact, t ;1ere is no real divergence as to
the principles involved. T he earliest well-known
authority is th e c ase of Barry v. Butliu (1). Th ere the
following rules were formulated by Parke, B : -
" . . . . the first that the onus Probmzdi li es in every.
case upon the party J.ropounding a \Viii ; and he must satisfy the
conscience of the Court that the instr ument so propounded is the
last Will of a free and capable test~ tor.
T.he second is, that if a party. writes or prepares a Will,
under which .he takes a benefit, 'thlt is a circums tance that ought
gener~lly to exc,i,te the suspicion of th e Cou.rt, aQ,{_i calls-. upon, .i_t
to be vigilan.(i:t'nd- jeafi'Sils in eica'liining t"Jie "evide~ce in SUP. POrt
of the instrument, in. fav<:>ur of which it oagbt. not to pronoui:e
unless th~ suspicio~ is removed, and it is jndiciaily satisfie-d "that .
t he p.lp.er pro{>Ou:Jded does express the true Will of 'the
deceased."
The.;t! obs~rvations of Parke, B., were quoted with .
approval in_ T yrrell v. Pa_~nfon and qnolher (21 . and.
11) (1838} 2 Moore (P.C.) p. 480. (2) (1894! L.R., Probate Division, p. 151.
332 BURMA LAW RE'PORTS. L1951
H.C. followed by the Court of Appeal. Se.e also TVilliam
1951
Robi~~s v. N afional Trust Co. Ltd. arfd : others (1) and
.DAW NGWE
LAY Eusoof Ahmed Sana v. Isr-nail Ahmed Serna and ofhe1s
tl.
W. CooPER (2), where the ruling in Tyrrell y. Painton (3) was
AND
.ANOTP.)'i:R.
followed . However, in the case of ]arat Kurnad
Da.ssi v. Bissessur Duff (4) a Bench of the Calcutta
U~N
.MAUI'G, J. High Court has laid down what seems to us to bt a
correct approach to the question as to the standard of
proof required to establish a 'Will under the Evidence
Act. T here Jenkins C. J., observed:
"In so hancllin~(tbe case the learned )udge prof~ssed to be
guided by Tyrrell v. Pai11l011 a'ml. another (3). As l understand that
clecision it laid down nc new princi~l~. but if'ineiely applied a
\\ell eshblished principle i~' ilt1 ~xceptional set of circumstances.
That principle .was enuuciated in Bar.ry v. Butlin (5) where it was
said : 'The n1les of law accord~~~: to \\h]ch c:_1ses of this nature
~re to .be decided do not' admit of a-llY .dispute so far as they are
~ec~ssarY. to tlie determination .of the pi:esent' ~ppeal, and they
have ueen aequiesc~d 1n.'\ :m. bo th s ides. ' Th~s~ rul~s are t\vo :
The first, . the "onus probat1di ties 'fn every ca~e upon the ,party
propounding ~ Will, 'at'id he ~~1us't ~atisfy the .. conscience of the
Court tbat.the instrument so ..propounded i!'! the last Will of a free.
and capable testator. Tl~e sec~J:t.<Hs, th?-t if., a: party -writes .or
prepares a Will under which he takes a benefit, that is a circum-
st~u~ce that o'ught ~ener~lly t\:\ ex'Cit,e the suspiCion of the Court,
and 'calls upon it to be vigilant' at1d 'j.e~lous"in ex.amining the
evidence in su'p port of 'tiH~ h1struine'i)t, 'hi' '.favour of wJ1ich it
ought tnot to pro:~onnce u~les~ ' the' ~usp'icion 'i~ removed, and
it is judidally satisfied that the papr ; prbpouiidelf, does exprE:SS
the true Wi'U oi the deceased:' ~ .... : . ;... ' "
The.effect of this decision is t~eiy :stated' by Lord : Davey,
as he afterwards becat11'e , in Ty;rell'v: ' Paintq11 a~~ another (3) ,
.w flere he said. :'The principld i~ th'at'wn'ete:Ver a JWHt is prerared
"Und~r circumstances
~ . . . . \vhlch .raise
. .
a ,.v
.. c.n:."groi'ln~
.. .. d.eif
,. ... suspicion
. ... . that
.
it does not express the mind of the testator; the Cotir t otignt not
to ~ronoun~e. i~favoqr .
o{ it unless
. the suspiCion is . reJI!oved.'
~ : . . ~ \ :- t . , $ ~ :

11) A.I.R. I 192i) (P.C.) p. . 66. . (3) (1894) _I R. Probate Division, p. 1$1.
(:h A.I.R. i1~J8l Rail. p. ;322; ... : \t4J' 39' cai. 245.:-~ .. .
(5) q~3~) 2.ll:loo~ (P.q l' ~.'-~i

... ,
 1951] BURMA LAvV REPORTS. 333

The snspiciot~ to \\"bkh allusion is m1cle must, I think. be H.O.

1951
one inherent in ttle tran;;action itself, nne\ not the doubt that
may arise from a conflict of testimony which becomes appnrent DA\\" NG\\"6
LAY
on nn investigation of the t rans:1ction. v.
Now, while I williilgly concede the value to us of these Vv. CooPER:
Al\0
decisions, it must not be f01gotten that the law is hid do\\'n for ANOTHER.
us in clear and imperative terms by Ach of the Indian Legisla-
ture, and it is by the provisions of those Acts that we must be
guided.
*
D~mqnstrat~on , or. a conclusjon. at all points lo_ g ical, c;mno
be exp~~ted, nor can a .c!egtee . of .c e l"tainty. b"e deman ~lec_l 0
which t_h e m!ttler_~~~~der investig;ttionlis not reasonably capable
Accepting the external test which experience commends, the
E~idence _Act, in cc;m_formity witi1 the general tendency ~f th(
day, adopted the requiremen~s of the. prudent m11n as an appro
priate CO;JCrete st.andar_d by which to measure proof."

That this is the right approach to the qu~sti~r

is amply borne out by the attitude taken by thei1
Lordships of the Privy Council in H armr:s anc
another v. Hinkson (1) , the headnote of which reads. a:
-follows .i .
: .. : ! \ .
"The rules formulated .1nd reaffirmed in Tyrrell v. Paintot
and ~not~?;. (2) i:e., (I) t"t)at the onu~ Proban:Li lies i~ every cas(
a
up:m .the party propouncli.qg wllf ; and he must satisfy the con
scie-~ce of i~e Court that the i nstrument so propounded is toe las
Will-of a free and capable testator and (2! that if a.party writes-01
prepares a Will, under .which her take.s a benefit, that !s a circum
stance ~pat Q 1gi._t genel"flllY to excit~ the _suspicion of the . Court
and calls upo11 it to__ be vigilant .. and jealou~ in, e~aminipg th<
evidence . in, support of the instr ument. in fav_our of which i
:ought" not to"proi16unc~ imldss the' suspicioil is removed, ,.Od" il i!
judicially Sltis.fied that the p:1per propounded does express th(
:tru~ Wilt"of the tieceased are r ules which enjoin a r&sonabl<
scep~idsm; not an obdurat e pC!rsistC!nce i~ cfisbelie. T hey d<
not ; deman9. froxp the.ludge, even in c ircull_lstances o( grav(
.~uspicion,
.. : " .. ..a. r~sqlute
. . a_ .. .. . .. in~re_
n d impenetrable
. - . . . d.~~Jty.
- He
... ..is . neye1
' .
. 'U_(AJ;R. (i;9~6J (P,C,J p;:156; {:2)..('18_94)' ti.R;. Pronate Di~isi~n, p.)'Sl.
334 BURMA LAW RE.PORTS. [1951
H.C. required to clo~e his mind to truth. The first ,rule requires that
195i
the conscience of the Court must be satisfied. Whether or not
. DAW NGwE the evidence is such as to satisfy the conscienc~ of the tribunal
LAY
v. must always be, in the end, a question of fact. The second rule
w. COOPBR warns the Judge that the evidence of the witness who drew the
AND
ANOTHF.R. Will must l:>e received with caution, but this does not mean that
it must be rejected altogether. The burden of proof may be
UeSAN
:.MAOI'G, J. dischar~ed. The adverse presumption may be rebutted. The
rule is not to be understoo:l as meaning that at some point, which
the law can define, t~e Judge wifl be in a position to say that the
presumption has become conclusive ag1inst the Will, so that,
if he were trying the case with a jury. it would be dght to direct
them that they must pronounce ag~inst it. i this wete the
meaning of the rule, it would involve the untenable proposition
that it is a question of law whether or not presumption of fact
ha~ beenrebufted.: 'Tliat question must always be one of fact
a~d the true meaning of the rule is that unless the tribunal
is finally satisfied that its initial suspicions were unfounded the
burden of proof remains undiscbar~ed aud the presumption-must
prevail."

Applying the principles so deduced to the case

now under consideration, it is clear. that there is
sufficient evidence in proOf of the fact that the Will
Exhibit A was executed by P. Cooper and that it was
duly attested by Dr. F. B. Men non and Joseph Lawrence.
P. Cooper was illiterate. Athough he sp.o ke
English fairly well, he could neither read .nor write in
that iangu11ge. He could . however sign his name
in English. Dr. Nair (P. \Y-; 1) was his trusted friel)d
a nd fainily doctor. He used to consult Dr. Nair
regarding his private affairs including the desirability.
ofrnaking a Will. . Mr. Nair lP. W. 9); Barnster-at-law;
was \)i. Nair's . you.n gest brother and to hiin was
entrus~d the duty of preparing several drafts of the
Wi~l'l::fefore the final .orie was . appr~'\,e.d. Tlte Will
Exh.ibit A was the resu~t o.f the. finally approved draft.
As each 'draft was m:ad.e . P. Coop~.r used to take i t
away with him.only to bring it back to, Mr. N~ir for
 -
195 1] BURMA LAW REPORTS . 335

"the pu rpose of making co rrections whic h were more or H.c.

1951
less minor in nature. To the knowled!.!<: 0f Dr. Nair
' DAw NGWE
and Mr. Nair onlyoon e \Yill was e-xecuted hy P. Cooper LAY

and that on the 29th of Se ptember I CJ ~ O. It was w. ;OoPER

Exhibit A and, besides t he atksting witnesses Joseph Al'\OTHER. AND

Lawrence (P. \\'. 3\ and Dr. ~knnon. an a~sis tant of

u SAN
Dr. Nair, then.: \rere prc:sent at th<: cim...: i its execu- i\IA UNG, 1.
iion Or. Nair and his brother .\Ir. .\";tir. Besides
Dr. Nair and .\[r. Nair, against whom suspicion attaches
on account of their cond uct in relation to Civil
Miscellaneous Case No. 26 of 194-6, Joseph Lawrence
(P. W. 3), (whose testimony cannot be impugned in any
way except that he happened to be a compou nder
-employed by Dr. Nair) has given evidence in favour
of the due execution and attestation of the Will Exhibit
.A. Furthermore, Daw Mary (P. W. Sl, who must be
regarded as an independent witness, had stated that
the signature on the Will looked like that of her father
P. Cooper. On a comparison of tbe signature on
E xhibit A with the admitted signat ures of P. Cooper
-on Exhibit B and Exhibit 1 we are of the opinion that
they can be the signatures of one and the same person.
As a successful stevedore and a well-known resident
of Bassein P . Cooper's sig~atu re must have been
known to many of his friends and relations, including
t he appellant Oaw .Ngwe Lay and the respondent
Mrs. Schiller. , Neither Daw Ngwe Lay nor Mrs.
:Schiller could bring any. evidence to show that the
:Signature purporting to be that of Mr. P. Cooper on
:the Will Exhibit A is in fact not his. T hey themselves
have not come forwa rd to de.n y it on oath. Therefor~
;it must be taken as established 0n the evidence on
:record that Exhibit A was in fact executed IJy
.P. Cooper and attested by Dr. Mennon and Joseph
Lawrence in th ~ manner stated by the witn esses for
~he plaiotiff~respondent W. Cooper. .
336 BURMA LAW REPORTS. [19S t.

~9fi . In the case of Tyrrell v. Pam !on {1 ). and in each of

- the cases following it, which have been brought to our
DAW ~GWt::
LAY nohce,
susptc1on was a ttac he d t o ~h . ~ t anc~s
r e ctrcums
w. c~~l'ER leading to the execution of the vVill in question by the
ANP
A:-IOTHER.
fact that the person who helped in its preparation was;
ei'ther the sole or the main beneficiary thereunder_
e MAuNG,
U SAN
J. AspointedoutbyJenkins C . J. ,m](l.rat Kumari Dassf
v. Bissessur Duff (2), the suspicion to which allusiom
was made in Tyrrell v. Pai11fon and another tl) was.
inherent 'in tl1e tramaction itself .and not to suspicions:
aroused by the subsequent conduct of witnesses to the
proceedings. In the case now under consideration there
is nothing on record to show .that Or. Nair, his brother
1\tli'. Nair, Dr. Mennon and Joseph. Lawrence had
conspired together in 1940 iD: ~rder to induce P. Cooper
to execute the Wili Exhibit A against his better judg-
ment. Even assuming that the subsequent conduct of
Dr. Nair and his brother was suspicious, no such sus pi-
cio.n can be attached to the conduct of Dr. Mennot1'and
Joseph Lawrence; Therefore; the evidence on record is:
such as to satisfy any prudent 'p erson similarly placed as.
we are that Exhibit A was duly executed by P . Cooper
and attested by Dr. Mennon and Joseph Lawrence_
This is the standard of proof required by the Evi.d ence:
Act. In other words, the conscience of ~he Court-
is satisfied as to the due e:xecutioh and attestatio~
of the vVill Exhibit A. However, considering that.
P. Cooper was illiterate, it has still to he considered
. whether he knew of the contents of the Will Exhibit A
before he affixed his signature thereto. There is no
~pecific evidence to show that it was read out tq him
aJ that time. However, there;(is credible evidence on-
.ecord to show that ~- Co.o per w_a s a very careful man
besides being a successful stevdlore. He was carefuL
eriough to have several drafts ma~e of his Will before:
11) (1894) L.~. Probate. Divisioi), p. 1-51. 12J 39~Cal. 245.
1951] BURMA LAW REPORTS. !37
H .C.
he was finally satis~ td . Eac h time t he \Vill \\as draft- 1951
ed it was taken away by him, presumably to be care- DAw N GWE
fully stud1cd in the manner best known to himself. L4Y
v.
After the \Vill \Yas extcutt!d it was kept in his custody \V. CooPER
for more than on ~.: ye=tr befo re it was finally discovered Al'OTHER.
;,.:->0

after his death on the 1st of January, 1942. Therefore, u---s7N

it is entirely incon cci\able that he did not know the \\4AU!\G, J.
contents of the vVill b efor ~ he signed it or that any one
would have the temerity to foist upon him a Will
contrary to the specific instructions given by him to
Mr. N-air. Mr. Nair was positive in that the Will
which P. Cooper had signed was drafted in accordance
with the instructions given to him by P. Cooper.
In these circumstances there is sufficient evidence on
record to enable tile Court to come to the conclusion
that the Will Exhibit A was drafted according to th e
instructions given by P. Cooper and that P. Cooper
knew the contents of Exhibit A before he affixed his
signature thereto.
In the case of Parker and another v. Felgate a11d
T1lly ~1) where the testatrix signed a Will a few days
bef9re her death while she was roused to conscious-
ness fro II). a coma by pain or discomfort, Sir J. Hannen
in addressing the Jury observed as follows:
'' This being the material evidence, the law appJicable to the
case is this : ,If a person has given instructions to a solicitor to
make a Will, and the solicitor prepares it iu accordance with
those instructions, all that is necessary. to .make it a good Will, if
executed by the testator, is that he should be able to think thus
far, ' I gave my solicitor instructions to prepare a Will making
a certain disposition of my property. I have no doubt~tbat ~e
has given effect to my intention, and I accept the document
which is put before me as carrying it out.' Now, I have ooly
put into language that which flashes across the mind without
being expressed in words: Do you believe that she was so far
capable of understanding. what was goin1~ on ? Did she at that
(1) (1883) L.R, '8 Probate Division, p. 1.71.
22
338 BURMA LAW REPORTS. [1951
H.C. time know and recollect all that she had done \\ith Mr. Parket?
1951
That would be one state of mind. But if JiO ll should come to the
0AW NGWE conclusion that she clid not at that time recollect in eve1y det:-.il
LAY
v. all th~t had passed between them, do you think that she was in a
W. CoOPER condition, if each clause of this Will had been put to her, and she
AND
ANOTHER. had been asked, ' Do you \Yish to leave So-and-So so mnch,' or
do. you wish to do this (as the case might bel, she WOltld have
u SAN
MAUN<'l 1 J.
been able to ans\\'er intelligently 'Yes' to each question? That
would be another condition of mind. It would not be so s trong
as the first, v1z ., that in which she r~collected all that she had
done, but it \\'Onlcl be sufficient. There is also a third state of
mind which, in my jud~ment, would be sufficient. A person
might no longer have capacity to RO over the whole transaction,
and take up the thread of business from the beginning to the
end, and think it all over a~ain, but if he is able to say to
himself, ' I ha,e settled that business with my solicitor. T rely
upon his havin~ embodied it in proper words, and I accept th.e
paper which is put before me as embodying it; ' it is not,
of course, necessary that be should use those words, but if he is
capable of that train of thought in my judgment that is sufficient.
It is for you to say whether, having regard to the circum-
stances under which this Will was prepared and executeci, you
accept the view of those who were present at the time, and who
have givtm their evidence, and who say that in their judgment
she was conscious."

The ruling in Parker and another v. Felgate and

Tilly (1) was approved b y the Privy Council in Perera
and others v. Perera a nd another (2) where the head-
n ote reads:
"Where a testator is~of sound mind when he gives instruc-
tions for a Will, but at that time of signature accepts the instru-
ment drawn in pursuance the reof without being able to follow
i~ provisions , held, that he must be deemed to be of sound mind
when it is executed."

Although th~st? cases do not afford an exact parallel,
the principle underlying them is tliis : Can t he
Court infer from the circumstances obtaining in the
(1) 11883) L.R. 8 Probate Division, p. 171. . {2) (19oti A .C., p. 354.
'1951] BURMA LAW REPORTS. 33 9

case that at the t.ime the te ::tator affixed his signature H.C.
1951
on the \Viii be kne\\. its contents notwith .., landing that
DAW NGWE
the Will could not be read out to him in full nor its LAY
v.
terms appreciated b: him in iull e\en if it could be w . CooPER
-read out to him ? B~::ari11g thi:; principl;; in mind we ANOTHER.AND

are of the opinion that t:H:: \Yill Exhibit .\ was d rafted

U SAN
'by Mr. Nair in act:ordance \Yith the instruc tions given MAVNG, J.
to him by P . Cooper and that P. Cooper was aware of
the contents of the \Vill Exhibit A before he affixed his
signature thereto. In fact the internal evidence con-
tained in tbe \tVill itself shows that P. Cooper was
a carefu) person solicitous or rather over anxious for
the welfare of his son Willie Cooper and that he had
made elaborate provisions for his son, including
preferential treatment to him in the event he married
.a Roman Catholic girl of Anglo-Indian or European
parentage. Such a Will could not have evolYed out of
the mind of anybody else but that of P. Cooper. Very
-cogent reasons were given why he had left his wife
Daw Ngwe Lay, his daughter Mrs. Schiller and his
other daughter out of the Vv'ill. For these reasons we
hold that Exhibit A has been proved to be the last Will
:an d testam ent of P. Cooper duly executed and
attested.
The next question is whether letters of adm inistra-
tion with the vVill annexed should be granted to
w. Cooper. H e has come out of the present affray
wifh his armours very much dented: Had it been
-considered possible to avoid such a course we would
ihave refused to grant him letters of administration ~n
favour of some one more
. worthy. However, he is the.
residuary legatee under t he Will of P. Cooper and the
other bequests made i_n the Will Exhibit A are negligi-
'bly smalL . It has not bee!) satisfactorily shown that
'he hasbeen .misman~ging P. Cooper's estate and it is
.common. ground that a~ thTough the Jap~nese
340 BURMA LAW REPORTS. [1951'
H. C. occupation period and thereafter it \VQS really he and
1951
not Dr. Nair who was managing the estate. T herefore~.
DAW NGwE
LAY provided sufficient security is take n from him to
v.
W.CooPER ensure that he is under the proper control of the
AND
AN OTHER.
Court, there seems no reason why we should not grant.
U SAN him letters of administration. The secttrity demanded .
MAUNG, J. from him by the learned District Judge of Bassein.
seems to be quite adequate. Therefore, the ord er of
the District Judge of 1;3assein granting letters of admin i-
stration with the \ill Exhibit A.. annexed to the res-
pondent W. Cooper on his furnishing security in the
sum of Rs. 60,000 with two sureties is confirmed and'
the appeal dismissed. As regards costs, in the pecu--
liar circumstances obtaining in this case we would_
direct each party to bear his own costs throughout.
 1951] BURMA LA\V REPORTS. 341

A.PPELLATE CIVIL
B<"fc>re U Sa11 Mat~ng, J.

~I...\"C:\G TIN NYUNT (APPELLANT) H.C.

1951
v. Aug.~.
MA KH\YE. :\f.-\ A:\ 1) .l.:\OTHER (RF.~PO~DENTS).*

'Civil Prt)er:dutc: Codt , >. 1Y) -l tu cizll g vj f .cc/ ;d1 0 1 [iu ..l Q:,>:,.u s of Ia;;; and
fact-JI!h tJ / .rre-I::tidt"ll" .-let, ss. 101 title! 102-Btu,i.:ll ,f prc,f-Jli>-
apPrdlemio~ of Lower Co11r f.
Plaintiff sued the defendant 1\laung Sein for cancellation of a Registered
:Sale Deed on the ground that she and her hubsancl had purchased from
the previous owner dnrin~ Japanese re~ime and that subsequent sale by the
owner to the defendaut was collusive and without consideration. The Trial
Court decreed the suit and the decree was confirmed on appeal by the
District ColTt.
OJJ Second A tjleat, H tid : That no second appeal lies under~. 100 of the
Code of Civil Procedure except on the grounds mentioned therein and where
th ere is no error or defect in procedure th" finding of the first Appellate Court
on rhe question of fact is final. if there was evicience before that Court.
.llussummal Dur~.r Clroudlzrain v. Jawnl1ir Sillgh Choudhri, 17 I.A. 123,
'-followed.
what are questions of taw and questions of fact are sometimes difficult
to disentangle. \V'hen the allocation of ouus of proof is one of the most
-vital question between the parties, it is the duty of the Court to rectify the
.mistake made by the Lower Appellate Court.
Nafnr Chandra Pal Cflowtll111ry v. Shukur Sheik, 46 Cal. 189 (P.C.) ;
.Madfto Ram v. Naudu Mol, 1 Lah. 429; Gauga Ram v. Rrllia and others, 1 La h.
:249, referred to.
The question of o~rus of proof is a question of law rendering a secoud
.appeal competent.
The fundamental principles relating, t<:> the burden of proof are embodied in
::ss. 101 and 102 of the Evidence Act. 'As the genuineness or the document
.Exhibit 2 in favour of the defendant was proved, .the Lowc:-.r Appellate
Court was entirely wrong in dismissing the appeal under misapprehension as
to the burden of proof, which lay upon him to disprove consideratic

H la Gyaw for the appellant.

Tun Aung for the 1st respondent.

Civil 2nd A~peal No. 26 of 1950 agains( the decree oi the District
<Court apd Subordinate Judge's Court of Shwebo in Civil Appeal No. Z of
1949 and ~ivil Regular No. 54 of 194
342 BURMA L.AVv_ RE.PORT$.
H.C. U SAN f\{AUKG, J. - -In Civil Regular Suit No. 53 of
1951
1948 of the Court of th e St1bordinate J'-;dge, Shwebo, the
MAUNG TIN
NYU NT plaintiff-re~pondent .t\Ia Khwe Ma sued the defendant--
'
MA !{HWE
appellant Maung Tin i\yunt and one Maung Sein for the
MA AND cancellation of a registered deed of sale of the house in.
ANOT-HER.
suit on the ground that the house in question was the
one which she and her husband U Lu Daw had.
purchased from Maung Sein during the Japan ese
regime for a sum of Rs. 1,800 and that the alleged1
sale to Maung Tin Nyunt by Maung Sein was collusive:
and without consideration. As Maung Sein died'.
after filing the written statement in the case, his wife
Ma Thi was brought on the record as his legaf.
representative. Both Maung Tin Nyunt and.
Maung Sein filed written statements denying that-
the sale was collusive or without consideration,
and contended that the house was sold during the
Japanese regime to Maung Tin Nyunt by Maung Sein
for a sum of Rs. 1,800 ; t hat a document o1 sale was,
then executed but could not be registered owing to the:
absence of Registration Office and that after the British
re-occupation of the country a fresh deed of sale had'
to be executed and registered, the equivalent of the-
purchase price being fixed by mutual agreement at
Rs. 1,000 in British currency. Witnesses for both sides:
were examined on the issue as to whether or not the
sale of the house was made to U Lu Daw and his wife
Ma Khwe Ma as alleged by the plaintiff, _or tO>
Maung Tin Nyunt as alleged by the defendants,.
~whether the unregistered deed of S'!-le was e~ecuted on
thea 11th August 1943, and whether after the Britisll
occ~pation a registered deed of s ale was ex~cuted on
the2.6 th September 1947. In the circumstances:
alleg,ed by the defendant, the learned Triai Jm;lge:
answered these issues in favour of the p1ainti~ and
decree_d the . plaintiff's suit with costs. ' The appeal
 19511 BURMA LAW REPGRTS . 343

to th e District Judge of Shweb o by Ma ung Ti n :Kyu n t H.C.

1951
was unsuccessful. Hence t b ~ present appeal under
MAti NG TI N
sect ion 100 o f the C ivil Proced u re Cod e b y the d efen- NYU!\T
v.
dant-appellant :\bung Tin ::\yunt. I\o\\" 1 it is settled l\!A K HWE
MA AXO
law that no Second .-\ppeal lies except on the g rounds AN OTH RR .
specified in sectio n 100 of th e Civil Procedure Code
U SAN
(corresponding to section 584 of the Code of 1882) and MAUNG, J.
that where there is no error or defect in th e procedure,
the finding of t he First Appellate Court upon a
question of fact is final, if that Court had b efore
it proper evidence for its consideration in support
of the finding. See Mussummat Durga Choudhrain
v.] awaltir Singh ChoHdhri (1). However, questions of
law and of fact are sometimes difficult to disentangle.
F or instance wh ile the proper legal effec t of a
p rove d fact, the admissibility of evidence, and
th e q u estion of whether any evide nce has b een offered
o n one side or the other are essential questio ns of lav;,
the question whether the fact has been proved
when evidence for and against has been properly
ad mitted is necessarily a pure question of fact. See.
N afar Cha11dra Pal Chowdhury v. Shukur Slzt:ik (2).
In Madho Ram v. Nandu Mal (3), a Bench of the
Lahore High Ce.urt, consisting of Shadi Lal and
vVilberforce JJ., held that when the question of alloca-
tion of onus is the most vital one between the parties,
it is the duty of the Court in Second Appeal to rectify
a mistake made by the lower Appellate Court in
this respect. This case was followed by another B ench
of the Lahore High Court in Ganga Ram v. Rulia ang
others {4) where it was held that the question of
onus probandi arising in the case was a question of l~w
rendering a second appeaf competent. c.

(1). i7 I..A. p. 123. (3) 1 Lah. ~.'429.

(2) 46 Cai. p. 189 (P.C.). (41 2 Lah. p. 249.
344 BURrvL\ LA\N REPORTS. [1951
H.C.
1951 In the case now under consideration, the l<.:arned
M.AU!'GTtN
District Judge has clearly misplaced the burden of
NYU NT proof. He observed :
v.
MA KHWE
MA AND "On the evidence upon record the lea:-ned Trill Judge came
ANOTHER. to the findings that the Exhibit No.2 (registered deed oi salel ,\as
U SAN executed by the defendant Maung Tin Nyunt and G Sein. without
MAUNG, J, any consideration being passed and that thus the same must
be held to be void under section 25 of the Contract Act. Now it
remains for me to consider whether the evidence upou record
justifies the lower Court to answer the issues in favour of the
plaintiff. In view of the deftndants' plea of the Exhibit
No. 2 document being a genuine one, the burden of proof must be
placed on them.''

Later, after discussing the evidence of the witnesses

for the defence, the learned Judge concluded the
discussion by saying :
'' In consideration of all the facts set out above, I am
inclined to the view that the evidence that the defendants
could adduce on the voint in issue_is not such as may be
considered good enough to discharge the burden falling on them.
I must therefore hold that learned 'trial Judge was justified
in answering the is:mes Nos. 4 and 5 against the defendants."

Now the fundamental principl.es relating to the

burden of proof are embodied in sections 101 and 102
of the Evidence Act. s~ction 101 enacts that :
" Whoever desires any Court to give judgment as to any legal
right or liability, dependent on the existence of facts which
he asserts, must prove lhat those facts exist."

Section 102 enacts that :

1 The burden of proof . in a . .suit or proceeding lies op
th.at person ~ho would fail if no evidence at all wen~ given
o~ either side."
It is 9lear from. the above that since it is
Ma . Khwe l\-Ja who .asserts that t~e registered deed
of sal~, E xhibit 2, is.coilusive '.andwithou~ co~sideration.
 1951] BURMA LA'v\' REPORTS. 345

it is for her to pro\e these facts. Furth ermore, 1If.~5C.l

fro m the plca'dings in the case it is clear t hat if no
M AO N GT!~
.evidence at all were gi\en on either side, the plaintiff's N YU NT
v.
1fa Klnve Ma's suit must fail. Therefore the burden of ?.!A KHW
MA AND
,proof on the collusiYe nat ure of the registered deed of AXOTI:IER.
sale, E xhibit 2, is clearly u pon !\Ia Khwe Ma.
U ~AN
Let us conside r h O\\' s he has succeeded in 1\lAOl\ G, J.
dischargin g this burden. Sbe has cited as a witn ess
,her ex-husband, U L u Daw who stated that the house
:in question was purchased d uring the Japa nese regime
by his son Maung Tin N yunt, who \\'as the n a boy
of about 10 or 12 with the money belonging t o
Maung Tin Nyunt1 obtai ned by the sale of jewelleries
ibelonging to Maung Tin Nyunt's moth er who was his
fi rst wife. A deed of sale, Exhib it 1, was executed then
ibut could not b e registered. T hereafter, on the
Te-occupation of Burma by the B ritis h, a fresh deed o f
.sale had to be executed.
She also cited as her witness Maung Thein (P.\V. 1),
th e writer of the deed, Exhibit 1, who stated th at
this deed was written dur ing the Japanese regime at the
house where Ma K hwe Ma and Maung Lu Daw
were Jiving and that at the time it was wr itten
.M a Khwe Ma was also present .
The other of the plaintiff's witnesses who spoke to
'he contrary' could only say that they heard that
1he house was purchased by Ma Khwe Ma an d
Maung Lu Daw. T hey could not sta te this as a fact.
The ddence has cited U Po Kyoke (D. W. 2), who
!knew . , J,
of the execution of the first sale d eed, Exhibit
:and who also attested it ; and U Po Yin (D.W. 4) who
;knew of the exec ution of the r egistered d~ed of
:sal~ Exhibit 2, in lieu of the document executed \"luring
ithe .Japanes.e regime.
In these circu~stances, it isGlear.that the genuiness
.of the docume nt, Exh~bit'2, was pr.o ved n~t only b) the .
. .
346 BURMA' LAW REPORTS. [195 JJ.
H.C. evidence called by the defence but also by the:
1951
MAUNGTIN
evidence called by the plaintiff herself. In these:
NYU~T circumstances the learned Judge of the District Court
v.
MA KIIWE was entirely wrong in having dismissed the defendant--
MA A~D
ANOTHER.
appellant Maung Tin Nyunt's appeal. Han the learned:
Judge been not under a misapprehension as to .
u SAN
MAUNG, J. the burden of proof, I have no doubt -vvhatsoever that
on the evidepce on record he would have. come
to a contrary finding. For these reasons 1 would set
aside the judgment and decree appealed against and:
dismiss the plaintiff-respondent Ma Khwe Ma's suit
with costs in favour of the defendant-appellant.
Maung Tin Nyunt. _Advocate's fees three gold
mohurs.
 1951] B.URMA LAW RE!lORTS. 34T

.
'ORI GINAL CIVIL.
I:J<f. I . .. fj _ G yi. J.

u HL.-\ PE ( PLUNTIFF) H.C.

1951

Aug. 1!/,.
THE BOARD OF DII<ECTORS, Ul.\ ION OF
BUR i\IA AIR\Y..\.YS (DEFENDANTS) .*
Carrter, liabilil j ! -D,JCtr iue of rc:; ips:~ loquitur meauiug ami af>ftlicafiou-
Positi01J i11 Ia;; Jf carnu -IJ'hetlter can contract out of lttlbi/r/y fvr
accident by l C<Judition.
Plainlifi':; \\'ife w:~s a passl!nger in a Dove aircr:~lt which cr:~shed into
the Gulf of :\Jartaban on the 19th March 1949 and she lost her life. Plaintiff
claimed damages i0r himself and his children under the Fatal Accidents Act
:.ncl the defend'!uts dcon iecl that they were common carriers, that there was
any lleJi!ligeace and <hat under the conditions printed on the back of the
Ticket they were absolved from liabili ty.
Held: That a carrier of passengers, even a common carrier, i! not liable
unless he has been negligent.
ReadhCtld v. The Midland Railway Compat~y, (1868-69) 4 Q.B. 3i9.
referred to.
The doctrine uf res iPsa -loquitu r !the thing speaks for itself) is not a
proposition of law but only a figure of speech meaning that any other
view except liability of the defendant is inconsistent on mere proof of iacts.
It is also used in the sense that on mere proof of certain facts an inference of
negligence might be drawn reasonably. The plaintiff himself admitted that
he was unable to connect the accident with the particulars furnished by him
and the dciendants' theory about the accident did not require eXI3mination
The doctrine res it>Stz'loquitur cannot be invoked in the circumstances and the
death has not been proved as due to any negligence.
Held also: That a carrier of passengers is in law neither an insurer nor
precluded from making any special c:mtract with its passengers.
Easson v. Loudo11 ancl Norllt Easltnz Ruil~ra~ ComP<.IIIY, (1944) 1 K.B.
421 at 425; L zidilt a ud others v. Gir~ger Coote Airways Limited, (1947) A.C.
233 at 245, referred to.
It is open to a carrier to make a special contract excluding liability and if
the deceased before the death bad b~ a valid contract excluded l!itW eir
from the l<'atal Accidents Act his represmtalives cannot maintain an action
under lhat Act. The conditions in the notice are printed at the back but
attention is 'called to them on the face of the ticket and reasonable steps
had been taken to bring the conditions to the notiCe of the intending p:Ssen-
gers. The defendants are absolve4. from liability by reason of the. ~aid
conditions.

Civil Regular Suit No. 14 o f 19SO of the High Court, Rangoon.

3 48 BURMA LAW REPORTS. [195 1
H.C. Tltt>lltf.<on v. L oud<ln , .)/itlilllll and Scot/ish Railw a y Compa t.). 11,301

U
1951
HL.~ f'E
.
1 1<.13. ~1 ; Pculou v. S<>ttlltnu Nt~il;;.,y !1931) 2 K.B~ 103, fo11owccl .

v.
TBE Ba vVin for the plaintiff.
BoAno OF
DIRECTORS,
UNtO:- O F
B urmA Ti11. Maung ~Governmt!nt Advocate) ) for t he
.:}!ll\\"AVS.
t defendants.
G. Horrocks j

U Bo GYI, J.-This action has been brou ght by

U Hla P c under the Fatal Accidents Act for himself
and on behalf of his son and two daughters for
recovery of Rs. 30,000 as damages for negligence from
th e Union of Burma Airways. The plaintiff's wife
Daw Aye Kyi was a passenger for -reward on board the
defenda nts' aircraft, a de Havilland Dove which it is
now common ground crashed into the Gulf of
Martaban on the 14th March 1949, on her flight from
Rangoon to Moulmein. It is also undisputed, now,
that there is no admissible evidence on the reco rd as
io the circumstances in which the plane with all on
board met her tragic fate.
The plaintiff alleges, however, that the defendants
were at the material time common carriers and that
l1is wife's death was due to the negligence and default
of the defendants, their agents or servants. The
followmg particulars of negligence have been given,
viz., the most suitable type of aircraft was no{ used
and the one that was in service was not airworthy, no
embarkation advice was given as to the use of safety
ap'pliances, th<e wireless operator failed to send an
S.O.S. while the pilot on his part failed to make a
for~ed landing, and, finally, salvage oper~tions were
not promptly condu cted. Theparticulars of negligence
that the defendan~s bad failed to get the Carriage by
Air Act applie.d . to interpal air carriage cannot
1951] BURMA LAW REPORTS. 349

possibly be, and has not b~e n , pressed to an i~s u e. H.C.

1'15 1
The defendants den y ll a \i ng ever been common
U H LA P E
carriers, they deny that the ir agents or seryants \YCre t.
TH F.
guilty of negligence or cleiau lt, and they claim under BOAIW OF
the conditions of carriage printed on the back of the 0IREC1'0
{!!'>ION OF
RS, .

passenger ticket to be absoh ecl fr om liability for Daw I:WRM'

A I RWAYS.
Aye Kyi's death.
The following issue ~ ~ <IS n O \Y re-arranged, have U Bo GYI, ] .
been JOined : -
(1) Were defenda nt :; common carriers at all
m~terial timts?
\2) Was the deat h of Daw Aye Kyi due to the
negligence or d efault of the defendants or
their servants ?
(3) Are the defendants absolved from liability by
reason of the conditions on the back of the
ticket issued to Daw Aye Kyi ?
(4) If relief is granted , to whom and in vvhat
proportion should it be granted ?
Learned counsel for the plaintiff frankly admits
that he cannot put the liability of the defendants as.
high as that of an insurer a.nd he grounds. his claim on
negligence. and/or default. Generally speaking, a.
carrier of passengers, even a common carrier, is not.
liable unless he has been negligent: Readhead v. Tlz~
Midland Railway Company (1). In this state of the
law and since the defendan ts have on their ticket:
expressly repudiated the status of a c_ommon carrier,.
I am of the opinion that no useful purpose would be
served by trying on the slender eviden ce now tendered.
t he is_sue whether or not the defendants were at the
material time common car riers. A d ecisioq on
this issue being unnecessary, I shall refrain from
_d eciding it.

(1) (1868-691 4 Q.B. 379,

:350 BURMA LAW REPORTS. [ 195 1

H.C. \Yith rega rd to the questio n of negli.gence, plai;1tt.ff s

195 1
learn ed counsel admits that the ill itial burde n of
;u HLA i' S provmg negligence l ies on the plain tiff, for me rely
l'.
THE because a n accide nt has occu rred does not ra ise a
BoARD oF
' DIRECTOTlS, presumption tha t the defendants' serva n ts w ere
U NION OF
jjlti RMA negligent ; but h e conten ds ti:a t i n the circum stances
AIRWAY:>. of this case t he doctri ne of res ipsa loquitur (the t hing
:u Bo GYI , J. speaks fo r itself) should be i nvoked in plaintiff's favour.
This maxim is noth ing m ore than :1. rule of evidence, a
commonsense r ule the effect of which is that i n certain
circumstances the thing speaks for itself, so mu c h
so that a pr illla faci e case of negligen ce is presume d to
be made out and the burden of pr ovi ng t hat h e
was not negligent is shift~d on to the d efenda nt. F or
instance, a motor car does not usually run onto the
pavement or into a stationa ry object standi ng in t he
middle of a clear ro~d , and when such a n accid e nt
ot:cu rred, it is but good sense to assu me t hat if the
d river had not b een n egligent it would not' have
occurred. B ut, as su bmi:.ted by learned counsel fo r
t he defen dan ts, before t he maxim can come into
operation, the re must be tangible facts such that it can
r easonably b e sa id t hat"if there was no n egli gence t he
accident would not have occurred . This position is
implicit in t h e maxim itself the e ffect of which is
n o more tha n that in c erta iiJ. circumstances th e thin g
s peaks for itself. In Easson v. London at'ld N odh
!iastern R ailway Co"r!Lpany, (1) Du P areq L.J.,
-observed :

. , f. * * Where an action is based on negligence, the
plaintiff'has to prove negligence on the part of the defendant,'
and ttat by reason of that negligence he has suffered damage.
Much has been said about what is cal!ed the doctrine of
ns ipsa loquitur. Th~t there is . ?.u(;h a doc~ri ne nqbody doubts,
bu.t, if it is invok ed, it is ne~e~ry to . be sure what the precise
(L) ( l944l 1 K.B . 421 at p. 425.
 1951] BURMA LAW REPORTS. 351
d0ctrine is. The \\orcl~ re.< if '."..: 1: r: r i\J.:-mslhes are han!IY .1 !J.C.
J 951
proposition of la\\. though the..-' ::' :: ~: , ,. They ;;q.: a figt:r<.:
of s peech, by which wnH: ti;--,-. '- :::' ,: : t h ;tt cerlai11 hds l' HLA PE
V.
arc SO inconsistent \\'ith am ..-: .-. ~;-;,e r : : :.:H th~ rJeie11clant THF.
has been 11egligent that any jnr~ ' '. ; :: o :: ; ~-c. : i o: :h -t bcls R OAI;D OF
DIRECTORS,
found t lnt negl igence \ct;; n ,_., p ; ._., : t11" h :.!;,_i: .g .: fi:ITo. ;,.e l' Nzo x OF
verdict. Sometimes, the p: ; . . e ~ : .-:. ~o as i.lr as tb;;t, J3VRMII
AIRI\.. YS.
l>ut is merely that on prn i .i .: .::.;i :t i;h'::' a n i!!Cerence of
neglige:1ce may be d ra\\'11 ~y ,, ........ ,:onabk jcry al th o u~ll the U Bo GYI, J.
precise circumstauces ;ue no: blly k:~own.''

Here in the pre;-;em c..:ase, however, th<::re were no

known surviYors of the crash and no one who may
'have witnessed it ba;; been examined by t he plaintiff.
On the other hand, the defendants have led evidence
which goes to show that the de Havilland Dove
.aircraft has been found reliable not only in the Union
of Burma but all over the world, that the care and
maintenance of the machine in question was proper and
:adequate, and the usual inspections were made before
the plane took off and the engines and radio equipment
were found to be in working order, that the pilot
was able and experienced and the radio operator
competent, and, in short, that everything that should
'be done was done to guard against a possible accident.
'It is in evidence that the plane delayed her departur~;
'b y half an hour until the early morning fog h~
cleared, and when she took off the weather wa~e:
:and nothing unusual was noticed. At 8 a.m. sl1.lr~
Mingaladon and at 8-10 a.m. sent a m~~~v. to
the D uty Control that she expected tu,~e . at
.Moulmein at 8-45. a.m. and again at ~;,;A:Wm . she
contacted the D uty Control and asked thecm;:rect. nme.
'T he messages did not contain any intimat.ic;fn . of
engi~e trouble or other u nusual happening. All\ was
.appare~tly well _arid if so~et hing unforeseen had n ot
suddenly oc<::urre<i th e plan~ would most probabl~..
nave-reached M.o ulmein at 8-45 a.m . It would seem
352 BURMA LAW REPORTS. : l

H.C. (herdore that something happe11ed to the plane be t\n:~ :

1951
8-27 a.m. and 8-45 a.m., during the spa~e of about 1 ~
U HLA P E
v. minutes, which sent the plane crashing down in to th e
TH~:
BoARD OF
sea. Th e plaintiff admits that he is unable to connect
DIRECTORS, the accident with the particulars of negligence
UNION o~
BUJHIA mentioned by him. On the other hand, the defendants.
AIR~VAYS.
have led evidence to sho\~ that the particulars of
U B o GYI, J. negligence are incorrect and could nol have accounted'

for the accid ent. The d efendants, on their part, haYe ,

through their witnesses, advanced certain theories to-
accou nt for the accidtnt. It is suggested that the
insurgents \Yho vYere infesting the area over which the
plane passed may have fi red upon the plane an d hi t
the pilot or in th e altern:tti,-e that a fair-sized bi rd
may ha\'e collided with the plane and crashing through
the \\'ind-screen may have inj ured the pilot. Th e-
third theory advanced is that pirates may have
travelled on the plane in the guise of passengers and
attacked the pilot. Now, as I have mentioned before,.
there is no evidence as to how the plane crashed into
the sea, and therefore I do not think it would be
profitable to examine the theories in detail. The-
,circumstances in which the plane crashed into lhe seat
.Ull probably remain shrouded in mystery for ever..
. - most that can be said to account for the crash
U t during the short interval of about 18 minutes
51 ren.vhelming disaster may have ov ertaken the-
ph ; cenly, so that the Wireless Operator could
not nd the time to send an S.O.S. In the-
toUtsU: rrgument 't he plaintiff's learned counsel
sufnlllfs~t since the plane was equipped witn
B-,<ffitrols, a co-pilot should have flown her along
~~e pilot. This ground has 'not-been mentioned
fiti'f'('the particulars of neglig7nce f~rnish~d by the .
~~aintiff ; and~ m<:>reover, since wl1at -actually occurred
' just before the crash cannot be ascertained it is
195 1] BURMA LAW REPORTS. 353

diffi c ult to attrib uk t l1 e 1.:r:1::>h to the absen ce of a H.C.

1951
co-pilot. In ali th-::-c.: ci rcumstances I find myself
U HLA PE
unable to invoke t h;: doctrin e of res ipsa loqnililr v.
and on the ava ilabk c.: vi clt:tll..:e I must hold that the TH.E
BOARD OF
death of Daw .-\ye J~y i has no t been proved to ha\'e DIRECTORS,
UNION~F
been due to the negligenct.: or default of the defendants BURMA
AIRWAYI,
or their servants, a nd I answer the second issue
accordingly. U Bo Gvr, J.
As regards the third issue, a carrier of passengers
is in law neither an msurer nor precluded from making
a special contract with his passengers : Luditt a11d
others v. Ginger Coote Airw ays Limited (1 ). It is
admitted that the conditions under which the passen-
ger ticket was issued to Daw Aye Kyi were the same
as those on the specimen ticket (Exhibit 1). Condi-
tions No. 6 run :
'' 6. The passenge r and the property or baggage of the
passen~er is carried at the p3ssenger's own risk and the carrier
is not a ccmmon carrier and does not accept the obligations or
liability of a common carrier and shall be exempt from any
liability under the Jaw whr.ther to the passenger or to his
dependents, next-of-kin or other legal representatives,.in case of
death, inJury, or delay to the passe.nger, or non-completion of the
flight or damage, loss or det~ntion of the property or baggage of
the passenger from any cause whatsoever (including negligence or
default of pilots, a.'{ents, flying, ground or other staff or employees
of the c1rrier or breach of statutory or other regulations} ~vhether
in the course of the journey or prior or subsequent thereto
and whether while the passenger, property or baggage be on
board the aircraft or otherwise."
It is contended that these conditions are unlawfUl
inasmuch a~ they would defeat the provisions of
the Fatal Accidents Act. But und er that Act .the-
representatives -of a deceased person may sue for
damages when, and only when, the deceased person.
if alive, would have been entitl'ed to maintain an action
(1) (J947) A. C. 233 at 245.
23 ~
354
.
BURMA LAW REPORTS. [ 195 1
H.C. for recovery of damages in respect of .a wrong fnl act,
19Sl
neglect or default ; and accordingly if th e d ecea sed
U HLA PE
11.
before his death had by a valid contract excluded
THE
BoARD OF
himself from such a right, his representatives would
DIRECTORS, not be cop1petent to institute a suit under the Fatal
UJilON OF
.B'"URMA Accidents Act. I hold therefore that conditions (6) of
AIRWAYS.
carriage were valicl.
U Bo GYI, J. Now, it is in evidence that Daw Aye Kyi did not
know English but that she sent her son-in-law
U Kyaw Myint (P.W. 4), who knows English w ell,
to buy the passenger ticket for her. U Kyaw Myint
was therefore her agent for the purchase of the ticket
and in law Daw Aye K yi must be imputed with noti ce
of the conditions whether she could read English or
not. On the face of the ticket about the middle are
the words:
" FOR CONDITIONS
OF CARRIAGE
SEE .BACK.
"
printed more or less conspicuously in a cage ; and on
the back of the ticket the conditions are printed in
clear type. The defendants have apparently taken
reasonable steps to bring the conditions to the notice
of intending . passengers. For these reasons and on
the authority of the decisions in Thompson v. London,
Midland and Scottish Rail'Way Company (1) and
Pen/on v. Southern Railway (2) I bold that the defen-
dal1ts ar~ absolved from li~bility by reason of the
conditions mentioned above and I answer the issue
acc~rdingly. .
Before parting wl.th the_ case. I cannot help men-
tioning that in all prqbability the present suit would
not have been . instituted if. the. defendan"ts had not
(11 (\930, 1 K.B. 4.1. (~) (1931) 2 K.B. 103.

<>..; i
 1951] BURMA LAW RBPORTS. 355

mentioned in t]1 eir letter (Exhi bit D) to the plaimiff H.C.

1951
that passengers and crew \Yere fully covered by
U HLA PE
insurance. It has bee n ascertained, however, that v.
THE
the policy of insurance co\ered the liability of the BoARD OF
.defendants in respect of their passengers and that the DIRECTORS,
UNION OF
passengers \Yere not entitled to sue on the policy. HUR~J.A
AIRWAYS.
I shall take th ese facts into account in considering the
q uestion of costs. U Bo GH,J.

T he suit is d ismi:'sed. In the circumstances

.abovementioned the deiendants will be awarded half
..the usual costs.
356 BURMA LAW REPORTS. [1951'

APPELLATE CIVIL:'
Bcfvrc U Sa11 !Jfa1111~. J.

H.C. SEETHA RAM (APPELLANT)

1951
~
Aug. Z4.
v.
MsT. ALLA RAKHI AND OTHERS tREsPONDENTS).
Evidence Act, ss . 65-A and 85-PresmnPtion -JPower-of-a/tofuey regisli'red iw
ludia-'-Wh cthe!' prcsu upli<m of anlhwficily applicable to Bur' mil-
S. 2 (50), Gemrar Clm~ses Act.
Held: The presumption as to authenticity arising in connection witl;
powers-of-attorney ~:xecuted before and authenticated by the authorities:
mentioned in s. 85 of the Evidence Act will not necessarily arise in regard to .
ciocuments registered outside Burma. Und~r s. 2, <.:Jause 1SO) of the General.
Clauses Act, r eg;istered' with reference to a document 1reans registered .
accordin5 to the law in fore~ in Burma.
In the case of powers-of-attorney executed and authenticated as mentioned
under s. !!5 of the Evidence Act, proof of execution must be dispensed with ; :
in the case of powers-of -attorney not so exec:uted and authenticated legal
proof must be given.
111 the goods of A. J. Prim!'Ose, 16 Cal. 776, referred to.
V\'bere the substituted power-of-attorney was r-roduced but the original
power authorising st=ch subslitutiort w.as not produced and it was claimed that:
the holder of the original power, being reside nt-outside, was not compellable
to produce the original power., such a plea is not available ; the s~:bstitute
cannot place himself in a better position than the holder and the original>
power must be proved unless such l'roof is to be dispensed with under
s. 85 of the Evidence Act.
$lade11 (deceased), 21 Mad. 492, distinguished.

Kyaw My,int for the appellant.

Dr. _BaHan for the respondents.

lJ SAN MAUNG, J.-ln the suit o~t of which this.:

appeil has arisen the plaintiff-respondents Alla Rakhi, .
Sard!.r Begum and Mohamed Zahir-ud-Oi_n,. purporting~
to act by their agent A. Aziz Khan su~d the ~e(et:tdantf:-
Civil 2nd Appeal No. 6 . Gf 1951 against the deaee of ~eDistrict Court::
of:Lowe~ Chindwin in Appeal No~ of 1950.
 1951] BURMA LA\V REPORTS. 357

appellant Seetll:t Ram fnr :t ,: . dara ti on that the i;ou se H.C.

1951
in suit known as the .. \\"c< I{yauktaik" situat<.:cl in
l\I."mywa belonged to them. Th~ defendant-appellan t SEEr~~ RA~rr.
in his written statement ~~ : : all~:ag<.;d
w
tb(: authorih of ?lisT. ALLA
RAKHIAND
.-\ziz Kha n to represent tl11. pbintiffs in tl:e s uit. It was oTHERs.
contended that Mohamed :\ .t:'i r- ud-Din fr0m whom u SAil
Aziz Khan derived his auth ori ty \';as not lt i m~e l f praYed ..
?IIAUNG, J.

to be a duly authorised age:nt of the pJ;,intiff:-: and that

even if Nasir-ud-Din \\as tile plaintiffs ' ;!gent he could
not d elegate his authority ro Aziz Khan. I t ,,a~ also
Contended that the plaintiffs Alia Rakhi and Sardar
Begum were dead at the t im ~ of the institution of the
suit. T herefore one of the issues raised in the case
was as regards t he locus sta11.di of Aziz Khan to file
the sui t. Th e other issues in the case were as
:regards the persons upon whom the estate of the
Jate Ellahi B akhs d evolved on his death, the
maintainability of the suit for a bare declaration and
ihe validity of the mortgage by Khuda Ba khs, a
grandson of Ellahi Bakbs, to the defendant-appellant
:Seeth.a Ram. All these issues were answered by the
1earned Assistant Judge of Monywa, who tried the
case, in favour of the plaintiff-respondents and the
:appeal by the defendant Seetha Ram to the District
Judge of Lower Chindwin was unsticcessful. Hence
ih~s appeal under section 100 of the Civil Procedure
Code by the defendant-appellant Seetha Ram.
Many questions have been, r,~j.sed and argued by
. ..
' 't''""~ ~ ~r. .

the learned Advocate8 for l:;>oth :s~~~fand among them~

were the maintainability of flle: . suit for a b~e
<leclara~ion in view of t4e proviso to section 42 of the.
the Specific . Relief Act, the question of e.s toppef by
:the conduct of the plaintiffs or their agent Aziz
.Khan, the applicability of section 4l of the Transfer
:of Property Ad, the question o. Hm'itation a~d the
autho~ity. of Aziz Khan to filC? th~ . sui~ urider appeal.
358 BURMA LAW REPORTS. [1951

H.C. In my opinion for the purpose of decision in this

1951
case it is not necessary to discuss any of the questions.
SEETHA RA)l
v. involved except that of the authoritiy of Aziz Khan to
MST. ALLA
RAKHIAND
represent the plaintiffs Alla Rakhi, Sardar Begum
OTHERS. and Mohamed Zahir-ud-Din. Aziz Khan claimed to
'(1 SJ.M derive such authority by virtue of a power-of-attorney
MAU!W, J.
granted by Nasir-ud-Din and filed in Civil Suit
No. 8 of 1948 of the Court of the Assistant Judge
of Monywa as Exhibit A. [A true copy of this pov:er-
of-attorney has been filed as Exhibit C in the suit
under appeal.] This power-of-attorney which was.
executed at Lahore on the 1st of June 1933 and
registered at the Office of the Sub-Registrar, Lahore,.
contains an endorsement of the Sub-Registrar to the
. effect that execution was admitted by Nasir-url- Din
who was personally known to him and thaf Nasir-ud..:.
Din was purporting to act under the power-ofaHorney
granted to him on the 15th November 1927 by Rakhi,.
Sardar Begum, Zab ir-ud-Din and Seth Khuda Bakhs.
under the guardianship of Sardar Begum. It runs as:
follows:

"Know all to whom these presents shall come that I Mohamed,

Nasir~ud-Din son of Sheikh Taj-ud-Din, B.A. of Labore attorney
for Mst. Allah Rakhi widow of Mit Sheikh Ellahi Bakhsh son of
Mir Karim Bakhsh of Lahore, Mst. Sardar Begum w~fe of
Mohamed Nasir-ud-Din and dau~bter of the said l.ate Mir Sheikh
Ellahi Bakhsh and Zahir-nd-Din and Seth Khuda Bakbsh sons of
Mohamed Nasi1-ud-Din under the guardianship of their mother
' Mst. Sardar Begum appoiuted and constituted, vide general
po~er-of-attorney ~egistered in Labore on 15th November -1927 ~
do hereby .constitute nnd appoint A. Aziz Khan . son of N azii: Khan
to b~my lawful attorney to do all or any of .the follo-.,Ying acts~
deedos and things that is to say : - . .
1.: To manage t!le property or properties situated at
Monywa .and to realize the rents and profits thereof
. and to let or demise the propdties or any part thereof
to aily person ot persons for me and dn my behalf.
 1951] BURMA LAW REPORTS. 359

2.To rec~i,e money an d grant receipt thereof or to clo H.C.

1951
all other acts ancl t hings ,,hich may he: ucce;.;sa ry to
be done for tile improvement an d nnnag<:ment of such SEETHA RAM
v.
pro:t::erty o: properties. !liST. ALLA
3. To sign ancl present pleadings, appeals o r petitions for HAKIII AND
OTHERS.
execution, review or revision, with cl ra ,,a!, com promise,
restoration , setting <side an ex par/c proceedings or u SAN
.l\IAu:-..G, J.
decrees or other petitions for th e prosecution of the
suits filecl for recovery cf the r ents and profit~
accruing clue from the said properties.
4. To employ any legal practitioner authorising him to
exercise pO\\ers regarding prosecution of suit or
suits.
In witness whereof I have hereunto set my hands al Lahore
this 1st day of June 1933."

The original po ..ver-of-attorney under which

Nasir-ud-Din purported to act has not been produced
in Court but a true copy of it, which was made at
Monywa on the occasion of Nasir-ud-Din's visit to
that town in the year 193~, was soughfto be proved by
the evidence of Ghulam Haider (P~ W. 3) who deposed
to .the effect that the true copy was typed out by
Nasir-ud-Din himself and that it was compared by
witness with the original. It is Exhibit A filed in the
proceedings and although its admission was objected
to by the defendant-appellant it was nevertheless
rec.eived in evidence. The learned trial Judge held
that since Nasir-ud-Din was a person out of the reach
of, or riot subject to, the process of the Court,
secondary evidence of the existence, condition or
contents of the power-of-attorney granted to him by
plaintiffs \vas admissible under Clause (a) of sectio~ 65
of the Evidence Act read with the proviso to secti~ 66.
His view was shared by th~ learne.d District Judge on
appeal f:tnd .it . has be.en strenuously contended ort :
behalf .o~ tJ:ie:defendant-appellant that both the Courts
below W.er(:wr"O"ng in . having admitted Exhibit A in
360 BURMA LAW REPORTS. [1951

H.C.. evidence. In my opinion this contention must be

The original .of Exhibit A
1951
allowed to prevail.
SEIITHA RA)J
'II
is apparently a general power-of-attorney granted to
MST. ALLA
RAKHIANJ)
Nasir-ud-Din in very comprehensive terrns by his
OTHERS. mother -in-law Alla Rakhi, widow of Ellahi Bakhs, and
u SAN his wife Sardar Begum, .. mother of his two children
MArtNG, J.
Zahir-ud-Din and Seth Khuda Bakhs. It states inter
alia:
"AND GENERALLY to do execute and perform any other ,'let,
deed , matter or thing whatsoever which ought to be done execu-
ted or performed or which in the opinion of our said attorney
ought to be done, executed or performed in or about our
concern!>, engagements and business of every nature and kind
whatsoever as fully and effectually to all intents and purposes as
we ourselves could do if we were present and did the same in
our proper persons it being our intent and desire that all matters
and things respecting the same shall be under the full manage-
ment and direction of our said attorney; AND FOR THE
FURTHER better a~d more effectually doing, effecting, executing
and performing of the several matters and things afo1esaid, w~
hereby give and grant unto our said attomey full power and
authority ~rom time to time to appoint one or more substitute or
substitutes to do, execute and pedorm all or any such rna ttel's
and things as aforesaid and the same substitute or suostitutes a.t.
pleasure to: remove, aod to appoint another. or others in his or
their place or places ;"~
It was therefore contended on behalf of the plaintiff-
respondents that Aziz Khan who was granted the power-
of-attorney Exhibit B (Exhibit A in Civil Suit No. 8 ef
1948) must be regarded _as substitut~d agent witpin the
ambit 9 section 194 of _the Contract Act and not a
mere s~b-agent. However; it is .clear that although
~~a1lr:-.u.d.-.Din . might have had tl)e -power to appoint a
sttbstjtuted agent within the ambit of section 194 of the
Conkat Act, Aziz Khan whom he h~d appqinterl, vide
the power-of-attox:ney Exhibit .B. was . his sub-agent.
-Th~ phrase " do he~;~by constitue and appoint A. . Aziz
K,han s~n of.Nazir ~han t<? be my !(l'lliful attorney to
1951] BURMA LAW Rl!PO~TS. 361

do all or any of _the fo llowing acts, etc.", makes it e l<:ar H.C.

1951.
that Aziz K han '!'.'<ts not to b~ regarded as the agent of
SETHA RA~[
his prin cipals Alia Rakhi, Sardar Begum and .%ahi r- v.
ucl-Din but as !tis own :;ub-agent accountable to l1i m MST. ALLA
RAKHI AND
for all that Aziz-Khan mi ght have done in management OTHERS.
Of the properties at :V16ny wa. The fact that Aziz U SAt.'l
tvlA UKG, J,
Khan, when on a ,isit to Lahore in the year 19 38,
rendered accounts to the plaintiffs, even if trlle, does.
.not make any d ifference t o his legal position.

Tf Aziz Khan has the power to file the su it under

:appeal it is only as a sub-ag ent of the plaintiffs.
namely, Nasir-ud-Din. Therefore it is incu m bent
"Upon Aziz K han not only to p ro ve that he was the
:s ub-agent appointed by Nasir-ud -Din to manage the
;properties at Monywa but also that his principal
Nasir-ud-Din was himself the duly authorized agent
of the plaintiffs holding a gen eral power-of-attorney
:granted to him by them. This can only be d one
by the production of the original power-of-attorney
:granted to Nasir-ud-Din by the plaintiffs and by proof
of its execution unless such proof must be dispensed
with under section 85 of the Evidence Act, which
lfeads:

" The Court shall presume that every document purp01ting

io be a power-of-attorney, and to h:we been executed before, nnd
:authenticated by, a notary public, or any Court., J udge,
Magistrate, ritish Consul or Vice-Consul, or representative of
:His Britannic Majesty, was so executed and authenticated."
,.
Even had the original document been produced the
m ere fact of its being registered in India may not be
1proof of its execution because presumptions which may
:arise in connection with the authenticity of documents
Tegisteied in Burma wiJl n~t neces~rily arilie in regard
-to documents registered outsid e this country b e<::ause
362 BURMA LAW REPORTS. [ 1951'

H.C. the word "registered" with reference to a document_

1951
means registered under the law for the time being in
SEETllA R.~)l
'V. force in the Union of Burma for the registrfl.t ion of
MST. ALLA
RAKHI .~XIJ
documents. See Clause (SO) of section 2 of the
OTHERS. General Clauses Act. Both the Judges of the lO\\"el-
"l....,SA)I Court were wrong in considering that Nasir-ud-Din, in
MAUNG, J.
whose possession the original of Exhibit A was said to
be, was to be regarded as a person out of the reach of,.
or not subject to, the process of the Court within the
meaning of that phrase in Clause (a) of section 65 of
the Evidence Act. Nasir-ud-Din in fact was the person
for whom Aziz Khan was purporting to act in filing:
the suit under appeal and Aztz Khan could not be
placed in a better position than If Nasir-ud-Din had.
himself filed the present suit. In the latter event it
would have been incumbent upon Nasir-ud-Di.n not
only to have produced the original power-of-attorney
but to have. proved its execution unless such proof
must be dispensed with under section 85 of the:
Evidence Act.
No doubt in the evidence of Aziz Khan there:
appears the folloWing statement~-
,,In 1927, November, Alia Rakhi, Sardar Begum (widm-r
and daughtet of Ellahi Bakhs) executed a PO\Yer-of-attorney im.
favour of Begum's husband Nazir-ud -l>in appointing him as.
tl~eir agent for the management cf their estate at Monywa and
other places. Begum signed that power-of-attorney both in ber'
persona( capacity as well as in her r.e prese!ltative character as.
the guardian of her two minor children, Khuda Bakhs and.
.,Zahir-ud-Din."

However, this statement does not necessarily _imply

th(l~Aziz Khan was himself present at the time of the
executio!f ~f' the power:of:attorney in . question. Ini
fact he di9. not co~mit himself to saying that much
.Therefore an that this statement can imply is that
A~iz K"1an
,
having. ' seen -the power-of-attorney
n
u}
 195 1] BURMA LAW REPORTS. 36J.

question and knowing its terms and also beli:.::vin.r: that H.C.
195l
1\;<sir-ud-Din \Vas in fact the agent bad mack the
SF.ETHA RAM.
necc:ssary inference clbont tile due execution of the ~: .

i\!ST. ALLA
power -of-attomey. RAKHI AI'/D
In any event this statement without the produc- OTHERS.

tion of the original power-of-attorney is of no avail as U SA:>~

i\lAU~G. f..
proof of the existence and condition of the document
in que~tion and of its execution. I have referred to
some of the authorities relating to the proof of
execution of powers-of-attorney and I need only refer
to two of them. In the case of In the Goods of
A . ]. Primrose ( 1) on an application for letters of
administration to the estate of the deceased who \vas
domiciled in Scotland, and to whosr estate o ne P
had been appointed executor, the application being
made by one K under a power-of-attorney granted by
P, the application was refused by Norris J., on the
ground that that power-of-attorney not having been
executed and authenticated in the manner provided
by section 85 of the Evidence Act could not be acted
upon. This decision .was dissented from by Shephard
J., in the case of Sladeu (Deceased) (2). The learned
Ju~ge observed:
'' ..... Mr. Justice Norris seems to have assumed that the
provision contained in section 85 is of an exhaustive character
and that no other mode of pmving tbe execution of a power~of-
attoi:ney is admissible. That ~ssumption; however, is, in my
opinion, not warranted by the language of the section, nor can it.
have been intended to exclude_other legal modes of proving the-
fact in question, v~z . the execution of the power-of-at_to~y~
I cannot see why the fact should r~ot be proved by an affidavit
made before a person competent to administer an oath. The

Evidence Act _is expressly deolared not to apply to a.ftidavits."

The difference of opinion between the two learned

Judges is not,
.
in _ niy. opinion,
.
irreconcilable. What
-.
)

{1) 16 Cal. 776. (2} 21 Mad. 492.

364 BURMA LAW REPORTS.
H.C. section 85 of the EYidtnce Act contem~lates is that in
1951
the case of powers-of-attorney executed and authenti-
~SEETHA R.H!
v. cated as therein prescribed proof of execution must be
Ms'f, ALLA dispensed with. whereas in the case of powers-of-
RAKHIA!m
OTHERS. attorney not so executed and authenticated proof of
USAN execution must be given in v;bateYer manner it is
:MAUNG, J.
legally admissible. For these reasons I hold that it
bas not been proved that Aziz Khan had the locus
standi to file the suit under appeal.
In the result ihe appeal succeeds. The judgment
and decree appealed against ~re set aside and the suit
is dismissed with costs as against Aziz Khan ;
Advocate's f~es five gold mohurs.
 1~51] BURMA LAW REPORTS.

CIVIL REVISION.

Before U .'lung K lt iru. f.

DA w PAN MYAING AND OTHEf~S (.-\PPLICANTS) H.C.

195f
v.
Aug. 30.
KO SEIN KHANT (a) MAGBUL AH~IED
(RESPONDE::\T). *
Dt'bt SettltJt11l Board fief 72 of 19-li-.lcl H of Ji)5J, s. +-A "21-.-ltf!tctl-
tton under-Dttty of t .rectdiws Ci:rl Cor~rt-Ptoof of ntf>llcattoll for
scaling doum.
Held: Althou~h a D.ebt Sculement Hoard was to lla\e been established
under Act 7l of 1947 nothing has beM done therein ; but for purposes of
ss. 26 and 21> of the said Act an application I made by a debtor to the Deputy
Commi..:sioner under s. 4 (a) (I) of the Act l4 of 1951 shall bt deemed to be ::m
applic;,tion made to a Board and sob-s. 1 of s. 4-A authorises the Deputy
Commis~i one r or other officer named to receive a;1plications for scaling
down of debts presented by the debtor residing within the jurisdiction.
Where such an applicatkn has been made to a Board, any suit, appeal
or other proceeding pending before a Civil Court in respect of a debt
for the settlement of wl1ich an application has been made, shall be stayed
under s. 26 of the Act 72 of 19~7. The Civil Court could not thereafter make
an enquiry whether the applicants are b<>na fide agriculturists.

Hla Sein for the applicants.

Mohamed Jaffer for the respondent.
U AUNG KHINE, J.-In Civil Ex.e cution Case No. 1$
of 194i of the Court of the 1st Assistant Judge, Myaung-
mya, the decree-holder Ko Sein Khant (a) Magbul.
Ahmed too~ out execution proceedings against the
original judgment-debtor U BaZan on the 11th Octo~
1947. During the pendency of the execution proceed-
ings some time in January ~1950 the judginent-de~tor
U Ba Zan died and the present applicants, namely r
Daw Pan Myaing,
. Maung .Nyein and .M.aung Kyaw Than
Civil, Rc;vislon ~o. 4:1 of.-1930 against order. of . 1st Assistant Judg:e
o~ Myaungmyain
. . .Civii.Executiou. No.15 of 1947,
. dated the 123rd
. .August 195().
.
366 B.URM~ LAW REPORTS. [1951
H.C. were brought on the record as the legal.represeritatiYes
1951
of U BaZan. On lOth July 19:10 an apptication was filed
DAW PA:-1
MvAtNG on behalf of the applicants to have the proceedings
~'NI) OTHERS
v. stayed on he1 grou n d t [?at an 8 pp 11 cat'10n un d er sect'10 n 4
Ko SF.IN of. the Agriculturists' Debt Relief Act had been fl led
K:HNT
(a) ~AGBUL with the Deputy Commissioner, Myaungmya. It is
ARMED.
noted in the diary order of that d ;ty that an intimation
U AUNG
.RHINE, J. to this effect bad also been r~ceivecl from the Deputy
Commissioner. On t he application of the applicants
the learned Assistant Judge opined that an enquiry was
necessary to find .out whether the applicants were bona
fide agriculturists or not. The applicants contested
the competency of a Civil Court to hold such an
enquiry. On the other hand, it was contended on
behalf of the respondent that the application was
bound to fail as the applicants had declared them-
selves to be traders in a connected Civil Miscellaneous
Case (Civil Miscellaneous No. 1 of 1948 of the Court
of the 1st Assistant Judge, Myau11gmya).
Although the establishment of a Debt Settlement
Board was envisaged in tbe Burma Act No. 72 of
1947, nothing had been done in that direction and,
therefore, the application was filed with the Deputy
Commissioner, Myaunginya. In Act No. 14 of 1951,
in section 4-A (2), it is clearly mentioned that for the
purposes of section 26 and section 28 in Act
No. 72 of 1947, an application made by a debtor to
the D;eputy .Commissioner under sub-sect~on (1) shall
be deemed to be an application made to. a Board
'l.lolllder section 4. Sub-section (1) of section 4-A
:authorizes .~he Deputy Commissioner or any Sub-
<liv~ional Officer or Township Officer to receive
:apph<;.atioils for scaling down- .of . debts presented to
li1m by a debtor residing in the. lpcal li~its .of his
jurisdiction. 'rherefore, the contention of . th~ appli-
c~nts tha.t the e xecuting Court should h~1:ve: s tayed
 195 1] BURMA LAW REPORTS. 367

til<.: proceedings as soon as it was intim ated th e fact H.C.

1951
that an a pplication for th~: scaling do\\'n of debts had
0 A W PA:-1
b <.:e n made to the Deputy Commissioner concer ned, l\1\' AING
appears to be correct in Yi e\r of th e clear pro\'is ions of A:-\0 OTHERS
t .
section 26 of the B urma Ac t ~ c. 72 of 1947. Section K O SEIN
K HANT
2 6 reads as follO\\s : ( l ) M.HtBUL
.~H~IEO.

' ' \N"her e an applica tion ba:; been made to a Bonrd undei U AUNG
section 4, any suit, appeal or othe r proceE'clings thln pending KHlNE, J.
'before a Civil Cour t in r espect of any c!ebt fc r the settleme nt of
which the a pplication has been made, shall be stayed until the
Boa rd has r ejected or dismissed the application."

'The provisions of section 26 are clearly mandatory

.and it would not permit any excuse, legal or otherwise,
to have any civil proceedings kept alive after the filing
Of an application under section 4 of the Burma Act
.No. 72 of 1947. However pertinent an enquiry
may be n~cessary to find ou t, whether the applicants
:are bona fide agriculturists or not, the law, as it stan ds,
will not allow. a Civil Court to go into this matter.
The order of the learned Assistant Judge directing
:an enquiry to be made as to whether the applicants are
:agriculturists or not is not warranted by law and as
:such it must be vacated. In the result this application
is allowed. The execution proceedings in Civil
:Execution No. -15 of 1947 will be stayed until su ch
tim e the' apptication .made by the applicants under
sec~ion 4 of the .:Surma Act No. 72 of 19+7 is decided .
.Advocate's cost three gold mohurs.
368 BURMA LAW REPORTS. [ 1951!

CIVIL R E VI S ION.

BejOI'e U Anng Kl1111c, J.

H.C. U H LA AUNG }
HLA SAUNG AND OT~ERS
1951
u (APPLICANTS)
Sept. 18.
v.
U SEIN T H ANT )
u P H AN NGA AND OTHERS J (RESPONDENTS).'X

Urbmr Rent Co1d1o/ Act, 1948, ss. 19 (1 ), 22 (1) allll 5-DccistOn tmdcr-lf
revi~able by Hid1 Cot11t rmder s . 115 of the Code of Civil Proced11re.

When by an Act of Legislature, a new authority is constituted for

determininK questions wl.ich are the creaticns of the Act and a Jud~e o r
Presiding Officer of the Court as distinct from the Court is directed to perform
such functions it must be pres~.:med, in the absence of express enactment o r
necesgary implication, the intenion of the legislature was that the Judgeg or
Presiding Of!icer is a perso11a desigt~ala. .
Decision un.der s. 22 of the Urban Rent Control Act fixing Standard Rent.
upon a referencP. from the Rent Controller is not subject to revision by the:
High CotJrt under s. 11 S of the Code of Civil Pz:ocedure.
ltfahomed Ebrahim Moolln; v. S R. Jandass, 11 L;H.R. 387 ; K. A. Iff..
Mohideen v. Bukshi ??am, I.L.R. 3 Ran . 410; H. D. Chatterjee v.L. B. Tribcd.i,.
A.I R. (1922) Cal .42i; N~ranarayan Mandai v. Agllorecltatldra Ganguli, I. L.R.,.
63 Cal. 136; C. K. Ramas'l(tl11ti Gor111dan v. Mutlm Vel(l.ppa Goundatz antl'
ot lrers, A.I.R. (1933) Mad, 191 ; Shah Chaturbhuj v. Shah Mauji Ram, A.I.R.
(1938) All. 456 ;. K. Partlrasarad.hr Naidt~ Gam v . C. Kotcswara Rao GarL~
and auollrcr, A.I.R. (1924) Mad. 561 ; Tltakin Aye Maung v. The Hon' bl~
Ju~tice U ' Atmg Tha Gynw and others, {1949) . B.L.R. 188 iS.C.} :
Tire Municipal Corporation of Rangoon v . M.A. Slta!mr, I.L .R. 3 Ran. 560 ;.
H . A . Aziz v . Kilyoboy, I. L.R. 4 Ran. 304; {, Ba Pe and another v.
fJ ~ Shwe and others, ~.~.R. ~1 Ran. 1, referred to.

P. B. Sen for the applica.n ts .

s: A . A: Pillay and .San Thein for t he responden ts~
~ civil Revjsion Nos. 3 and 6 of 19.51 against the orders of the fst Assistant
J udge's Court of Yenangyaung in Civil Misc. No.8 of 1950, dated 18th October
1950 and in Civil Misc. Case No, 12 of .1950, d'a ted 2nd December 1950.
1951] BURMA LAW REPORTS. 369

U AuNG KHINE, J.-Ci\il Hevision Cases Nos. 3 H.C.

1951
and 6 of 1951 are takt:n u ~" together to consider a
C Hr.A Au:-:G
common point of law as t.' \\; d her this Court has t: I I L,\ S,\U KQ
po\Yer to entertain app l katic.1 : ~ in reYision arising out M W OTII Rl:
fl.
of orders passed by the Coun:; ;:-:-ting under section 22 u SEJN
THA~T
of the C:rban Rent Cont:-c,: ..\d, 1948. This was a U PHAlfNGA
preliminary point raise d b y !lit counstl for the AX Il) OTHERS.

:respondents in thest: mo pr oceedings. T he facts

leading to the filing of the t\\'o rt!\ision applications
are simple.
T he Assistant Rent Controller of Yenangyaung,
.acting under the provisions of section 19 (1) of the
Urban R ent Control Act, 19481 passed orders fixing
certain standard rents of the two premises leased out
by the respective landlords. The parties aggrieved
by the passing of the orders, made references to the
.Court of the 1st Assistant Judge, Yenangyaung, under
section 22 (1) of the same Act, and the learned
Assistant Judge proceeded to pass his own orders after
rhearing the respective parties. It is now contended
on behalf of the applicants that this Court, in spite of
.the provisions of section 22 (5) of the Urban Rent
Control Act, 1948, has jurisdiction to entertain
.applications in revision. Section 22 (1) and (5) read
;as follows:-
" 22 (1). lf the decision of the Controller fixing the
:Standard rent for any premises under section 19 or the order of
the Controller made under sub-section (3) of section 14-A is
questioned, a reference shall lie to the Chief Judge of the City
Civil Cour.t of Rangoon, should the premises be situated in th~
'City of Rangoon, and to such Judge as may be prescribed by erbe
Governor if the premises are situated in any urban area in which
the Act is in force.

(5) The decision of t be Chief Judge of the City Civil Court
tf Rangoon or o tb~ Judge of such other Court as aforesaid
.shall be final. "
24
 [1951
~fi The first case cited in support of this conten'tion is
J that of M ahonud Ebrahim 111ool!a v. s: R. ] andass (1).
l;l HLA AUNG Th . . I. h F l B
u HMSAUNG at IS a case m w 11c a u 1 ench of the Chief
AND oTHERs Court held that the Controller, \Yhen dealing with
'll, :
u SEts applicatioBs under the Rangoon Rf n t Act was actin!'[
TRANT .....
o .PtrAN NGA judicially in the exercise of a Civil Jurisdiction and,
AND oTHERs. therefore, must be held to be suborclinatt to the Chief

u Au~-:G Comt. However, in the case of K. A. M. Mohideen v.

I{HtNE,
1 Bukshi Ram (2), the majority of a Full Bench of the
High Court of Judicature held that the Rent.Co.n troller.
of Rangoon is no~ a Court and that the High Court has
no jurisdiction to interfere directly in rev~sion with
orders passed by the Rent Controller, Rangoon.
Mr. P. B. Sen, appearing for the applicants,
however maintains that the dissenting judgment of Sjr
Sydney Robinson C.J.,-in the 'case of K. A.M. Mqldd'een
v. Buk,s hi Rani (2), is of great . ,~eight and that:
his line of reasoning i.s in consonance .wifh. a great-
number of d ecis.ions given in the- vario~1s. High. '
Courts in India and .as such shtmld be followed.
Qui:te a good deal of Indian authorities has been
eimvassed : i~ support df the ~ve argument and.
th'ese cases are H. D. Ch:attlr}ee V. L . B. Tribedi (3-);
Ntwanarayatz )fandal v. Aghorechandra Ga11'guli (4);
C.[{. Ramaswami Goundanv. Muthu Ve/appa Gou11dan :
and ethel's (5); Shah Ch:aturb.huf v.. Shah M {1Uji: Ram
(6); and K. Pa-rthasm-adlii;Naidu Garu v. C: Kofe$w ara ,
Rao Ga1u and anoth.eV\7).- Finally; i=t was -urged> on
b~]J~l-t' .of ipe . appliat~'t's 1 'citing fhe ~ ta~~:. of Tf.a.~irz '
j~. Mait;r.zg
v. -rh'e Ro1tt' bieJu~ti,~e'o; 4.u~f1.' "T.~a.r;y(i/i
a/rJ:P. . 9~~~~rs (8}, #1a~ it ;h~$, l:?~~p )1~~4 ~;~y)~J1i':9~.~r~hl,~~
Couft that t4e words in section 15, su.b,~~.k~O.J?. ,{J} of}
'~I.. , ' ;. . ~ '

<~di.ii9:Ii. "3i7. ~\5> ~-A'.tw n~~f~l.la:119i

'l~l'
i:t:.R.; '3')Raii:1 '410. -:: :..; ''- .io C~~!AI,,Jt.R~ :(i9Jsl-:NH. J4'Soi:;:
' (3}A.I.R. (1922) Cal. 427; (7) A.I.R: (1924) M~"' :~f>l ,
(4) I.L.R. 63 Cal. 136; (8) (1949) B.L.R 188 (.C.).
:1951] BURMA LAW REPORTS. 37 1

th e. City o f R'}-ngoon Muni cipal Act : 1 ' final and H.C.

1951
conclusiYc" has n ot ~n inflexible meaning, and that it
U HLA A!Jt<:G
may mean " final an d t:r:alterable in the Court which U HLASAUNG
prvnounced it,'' cr it may n~ean that "it cannot be ..,r.;o OTHEH:;
v.
m ade the subject-matter of the appeal.'' It was l).gEIN
Til A NT
f urther held ~~so t ha t t-\en t hough the appeal may not U PHAN r-.4tA
lie under sectio n JS (3 ) oi the City of Rangoon A:-10 OTHERS.

Municipal Act, yet undtr sect ion 25 of the Constitution {)' AUNG
KHJN],:,J.
of Burma, it any fundamental ri ght of a citizen is
infri nged, he can apply to the Court for directio n in a
writ of ccrtior.ari. The facts of this case are quite
distinct from th e cases now .under consideration and
a s such .the above decision :;of the Supreme Court in
that case will not be applicable here.
As against the array df numer9us decisions rr:ostJy
of the Indian Courts as. cited by the applicants, we
have decisions that in - cas~s, such as the ones
under consideration, the ! 'High Court has no
authority to interfere ._ F 01lowing on the deGision in
K. A. M. Mohideen v. Bukshi Ram p ); first we have
the Full Btnch cas~ oL1'/ze Municipal Carp,ora/iOn
0.( RMJgoon v. M~ A'. Shakur (2).- In . .that.. case under
s.ection 14. of the Hangoori Municipal::Aet~. 1he Chief
Jtidge ,_of :the Rangcr.on- Small .C ause . ;.Court ,: in
perf<:>rming: the functiops:.assigned :to hiin; w.a s.held. 1<?
b.eacting:as a.pe1:so11a desigrz:ata:arid not a~ a Co.ur.t:and
that .t.he High C0Uil't had =n:9 ju'r isdiction under. sec~ton
H S.::of :th e ~ Civ~l: P:recedure Code: to interfere ih
revision .with his decisions. . ' ' : : ...: ~: , l , ;
ic Next, we:have a case.tvhi'c his on .all four.SJwit-h.: tll.fa
present' casesv.:: .. It :;is: a lSo . another .EriH.:'_ Bench~
decision .'oL.fo:ur fton~ bla J!ldges. of tne. High ..Coud;of
Judicatm:e~abRangdOiwn~mely, H~ :A. :Aeiz w Kil;ola.,y,
(a). .It ~was ; J:l.ehi.:tlhat : t.t>.~: l st:'Judge- ol th~:. Cburt..rifi-
' ~ I ..
~p;,;_.- .1 ~tl c: !U .. . . JJ! JJ : (J ~ .... '! . ~ _;; ,;; : . ~ .: . . ;--!\,

~-}--I,L,~...3-Ran,--41G:---~-- -- ...~~~ .I.:L.R 3 .Ran. -560.

. (3) .f.LtR;f4lRai1!. 3~; L; . .
372 BURMA LAW REPORTS. [ 195 1

H.c. Small Causes, Rangoon, in exercising the powers

19 51 under section 18 of the Rangoon Re'ht Act, 1920, acts
u HLA AuNa as a persona designata and not as a Court, and that the
HtASAUNG H' 1 c
uAND OTHERS 1g 1 OUrt l1ad nO JUriS
. . d'lCt'100 t 0 reVieW
. th
. e d eC lSlOnS
..
u :;tN made by him in respect of references under sectio n 18
, THANT of the Rangoon Rent Act, 1920. The last portion
~N~"~:"~::. of section 18 of the Rangoon Rent Act reads as
u AuNG follows : "The decision of the 1st Judge of the
KHINE,J. Court of Small Causes, ~angoon or the Judge of such
other Court as aforesaid shall be final."
Lastly, we have the case of U Ba Pe a nd artol her
v. U Ba Shwe and others (1 ). In this case it was held
that the District Judge, who was functioning under
the Electoral Rules of the Mandalay Municipality, acted
as a persona designata and his opinion given was not
subject to any revision by the H igh Court.
T hus, it will be seen that there is a preponderance
of Burma decisions holding that '' when by an Act of
t he Legislature a new authority is constituted for the
purpose of determining questions concerning rights
which are themselves the creations of the Act and a
Judge or Presiding Officer of a Court, as distinct from
the Court itself, is directed to perform the functions
of the newly created authority thi:m it must be
presumed, unless the contrary is expressly enacted
or necessarily implied, that the intention of the
Legislature was that the Judge or Presiding Officer
should perform those functions as a per.sona designata
.and not as a Court." .
_ F or all these reasons I must hold that this Court
has no jurisdiction to review the decisions of the 1st
Ascistant Judge, Yenangyaung, in respect of the
reierences
. made under section 22 of the Urban . Rent
Control Act, 1948. The applications .are therefore
dismissed with costs of three gold mohurs in each case.
(1) . LL.R. 11 -Ran. l .
 1951] BURMA LA'vV REPORT$. 373

APPELLATE CIVIL.
Before U T1111 Byu, Clti<f l:ts: : . . w .i:_ f.. Si Bu, J.

L' BO GYI AXD Al\0 TH ;::;;: (APPELLA NTS) H.C.

..' . 19.51

sept. 1~

/tlortgag.; d cw m c:nl lll:,;J j ,f- !:":::':,; s :f: J.:r ::. :.:. /ic s-S . .;9,
R<gislr.t: io11 A c:.
By Exhibit A the owners purported to cr.,;~te :1 m -rf!!age of :1 godo\\'n
and things attached thereto for Rs. 600. They w~ dcrtO<'ok to pay this
amount by instalments from December 1948. t:pon a contention \\ het her the
personal liability codd be enforced when the mortgage is invalid :
Iie:d: In s. 49 of the Registration Act, 1908 the language employed in
previous corresponding sections has been changed ; under the old section
no instrument like the one in questi on "could be received in evidence or
shall be acted upon in Civil Proceedini(s." The effect of the amendment is
that the transaction cannot affect immoveable property. "Affect" is a
compendious term for expressing the longer phrase " purporting or operating
create, declare. assign, limit or ext.i nguish, whether in present or in future.
any right , title or interest, whether iuvested or contingent."
Sa1aswa/h(ltnma " Paddayya, (1923) 46 Mad. 349 at 359, referred to.
'l'he P'!rsonal covenant to pay a loan, if it can be separated from the
mortgage, is not a matter which affects such immoveable property in
any way.
Captain C. R. Smith v.Jifrs. Hef>lotulall, (1938) R.L.R. at 11, distinguished.
'l'he object of the legislature in enacting s. 49, Registration Act was I<) shut
out evidence of a doe11ment affecting an interest in land unless it sho':lld have
been registered.
Lachmipat Si11gl' Dugar v. Mirta Khairat Ali, (1869) 4 Bengal Law
Reports 18 (F.B.l ; UljtJtumtissa v. Ht~sseitl Kha11, (1883) 4 Cal. Series.
520 at 525, referred to.
In the present case it is possible to separate the obligation from the
interest in the immoveable property. The suit is for reco,ery of the debt
and not for enforcement o lien. The document was tendered to establish
that the loan had been made, not for proving a transaction :Ufecting the
property, -
Sh eodial and t~nother v. Prag Dal Misra and another, (1880) 3 All. 228 at
233, referred to. ~

Mau11g Ba v. Maunt Tha Kyu aml another, (1939) R.L.R. 3~; Bhabi D~tt
v. Ramalf!lbyamal, A.I.H. 1934) Ran. 303, distinguished.

Civlllst Appeal No. 71 of 1950 against the order of the Cily Civil Court
'i n Case Np. 1078 oi 19 49.
374 BVRMA LAW REPORTS~ [1951

H.C. G. N. Banerji for the appellants.

1951
u Bo Gvt A ung !y.[ittt (1) for the respondents.
AND
ANOTHER
"
U !{AN WIN U T uN BYu, C.J.- U Bo Gyi and Daw Kyiu Po,
ANU
t~o~HER. the plaintiffs-appellants, claimed to recover a s um of
Rs. 600 from U K aR vVin and M<t Saw Aye , the
defendants-respondents, in Small Cause Suit No. 1078
of 19 ~9 of the Rangoon City Civil Court. Their suit
was :dismissed on a preliminary issue, \\'hich wa:>-

"Whether t he present suit is maintainable as framed for

recovery of ,money due on the original consideration in view of
the fact t~1 at there was an invalid mortgage document executed
.at t he time this suit loan was ad\anced by the plaintiffs to the
defendants."

T he learned 2nd Judge of the Rangoon City Civil

Court held that as Exhibit A, which purport ed 'to
.create a. mortgage of immov~able property, was
inadmissible in evidence to prove the mortgage, it was
also inadmissible for the purpose of proving the
,personal co:v~naJ?.t:giv~n by U Kan Win and :Ma Sa~ Aye
to repay the sum of R.s. 600 by instalments ; and he
accordingly held that the suit; as instituted, was not
maintainable in law. '
;. Exhibit~A sh ows that U J{an Win and Ma Saw Aye
purported to create a mortgage on their godown and
~ few!other things attached to.or used with the godowo
in favour of U Bo Gyi and: Daw Kyin P o for a s um .
Qf Rs. 600; and they also undertook in the latter
,por.tion of Exhibit A to repay the ~urn pf Rs. 600 by .
I I

insblmeots, with effect from the month of. D ecember.,

1948.. Sectitln :49 qf the Re-gistratiofl .Act' reads :
. . . :-. . .: .: .. i. .. :
~ ~ ':'. ::. ._; ...
... ........ ----- -
~--- -.:. - -- ... _______ . . . . . .
...;_.

. -: .. "?t9. No d6onment . requi~-ed .by . section . t? or by any

prqvisio1i of the T ransfer of Property Act ot by any 'law fortnerly
 1951] .BURMA LAW RE PORTS. 375

in for<::e for the registration of c:ocumcms in Burma tO he H.C.

1951
Tegis'.ered shall-~
Ia) affect any immoveable ~,:operty comprised therein. or l' Bo GYI
AND
(b) confer any power to ad<';,:, or ANOTHER
(c ) be recei,ed as e,i(lcnce t:i any transaction affeding "
U }{A:.l WI~
such property ot conferring such power, ANn
:tn les:> it has been ref!istetecl : ANOTHER.

ProYid ed tb:H ;;n 1:nre1-(S1e:ecl document affecting u TUN Bvu.

immo,e:tble property nny be rcceiY<!d a~ eYidence of a contract C.].
in a suit fo r ~reci:ic perform:tmc under Chapter II of the
specific Relief Act, or a~ evidence of r a: t performance of
a contract for the purposes of sec:inn 53-.-\ of the Transfer of
Property Act, or as evidence of any collateral transaction not
required to be effected by registered instrument.''

The contention made on behalf of the plaintiffs-

appellants is that section 49 does not prohibit Exhibit A
from being admissible in evidence for the purpose of
proving the personal covenant to repay a sum of
Rs. 600 which in the p resent case constitutes a distinct
transaction, separate from the mortgage transaction
and in that a personal covenant for the repayment of
a loan is not required by law to be registered. It will
.b e observed from the provisions of section 49 of the
Registratiort Act that Exhibit A, being unregistered,
could n_o t ,be used to prove the mortgage which it
:purported to create, or for the purpose of establishing
:any right <Dr claim arising out of the :mortgaged
:property. It' is clear, however: that section 49 of the
Registration Act does n ot prohibit an unregistered
dOCUJl!.ent fr<:>m being received in evidenc~ for all
:Purposes. We do not think that it will pe proper c
to e "tend: the prohibition in section 49 beyond o hat
it clearly prohibits.
T1Je releyant. portion of the corresponding ~~ction
.of the Act of 1894 w~s in .the following ~erhls'.:-. . ....
1 t - -- :;

"No instrument shall be received it~ ~rncknte in -any

.civil proceeding in any Conrt, l()t shall be ncted on by any public
376 BURMA LAW REPORTS. 1 . :.. '

H.C. officer . . . unless the same shall have been regis.te re<. ::.
1951 the manner and within the time prescribed by this Act."
U Bo GYI
ANn
ANOTHE R
We have italicized certain words in the corresponding
v. section of the old Act of 1864. Section 49 of the
u KAN
ANOWIN . t ra t'IOn A c t o f 18b 6 was :
R egis
ANOTHER.

u TU"N BYu, "No instrument required by section 17 to be registered shall'

C.J. be reGeived in e'ltidetzce fn any civil proceeding in any Court,
or shall be acted on b y any public officer as defined in the Indian
Penal Code, or shall ;~ ffect any property comprised therein ,
unless it shall have been registered in accordance with the
provisions of this Act."

We have also italicized certain words in section 49 of

the Act of 1866. Thus it is clear that when the
Registration Act was first introduced, it specifically
prohibited an unregistered instrument, which was
required to be registered tmder the Registration Act,.
from being received as evidence at all in civil
proceedings. The implication, which arises from
the su.bsequent change in the wording of section 49 of
the Registration Act, is that it is intended now to,
allow an unregistered document being used for other
. purposes, which do not strictly fall within the prohibi-
tion of the provisions of the present section 49 of the
Registration Act.
In Saraswathamma v. Paddayya (1) Spencer J.,
stated: '
"All sorts of transactions may remotely affect immoveable
property. Section 49 of the Registration Act bas to be read in the
'light of section 17 of . the same act, and section 91 of the
Ev*nc~ Act. ! this is done, the word 'affect' will be .s~en to
be a compendious term for expressing the longer phrase 'purport-
.ing or-operating to create, declare, assign, limit or ex~ingnish,.
whetMr in present or in fiiture," a~y .riih.t, title or' interest;.
whetbef invested or co~tingent '." . .

(1) (1923) 46 Mad~ 349 'at 3$9. .

 1951] BURMA LAVl REPORT S. 377

It is difficult to see how a personal covenant to pay a H.t.:

lfJ5J
loan, if it can be.. separated from the mortgage, can
G ~o GH
strictly be r egarded as an obligation, interest or claim, A~i>

\Vhich arises out of the immo,eable property, which AXOTHF.I ~

'il.
formed the subject of the aborti,e mortgage, or that l,; K.~N \\"IN
A ~ I>
it is a matter which affects such immoveable p roperty .AXOTtii:R.
in any way. U TUN BYU,
The facts in the case of Captain C. R. Smith v. C.J.
Mrs. Heptonsfall (1) are different from the case which
is no\v under appeal; and there GoodmanRoberts C.J.,
observed:

" T he learned trial Judge thou~ht that the cause of action

on the mortgage and the cause of action on the deficiency were
quite separate and distinct. But in my opinion no separate cause
of action for the personal remedy accrued after mortgaged
property \\as found on sale to be im:ufficient to satisfy t he
mon~age debt."

T here, the personal liability emerges out of the

mortgage, and i t ar.ose only after the sale of the
immoveable property had been effe cted and discovered
to be insufficient to pay the decr etal amount due
under the mortgage. decree ; and thus the decision in
Captain C. R. Smith v. Mrs. H eptonstall (1) does not
afford any assistance on the question under considera-
tion. In the present case under appeal the ddendants-
respondents specifically agreed in the latter portion
of Exhibit A to pay the sum of Rs. 600 by instalments,
commencing from the month of December, 1948, and
.this personal covenant to pay the sum of Rs. 600 is.
contained in _the last three or four lines of Exhibit A7
which can be separated from the earlier ,portion ~of
Exhibit A without impairing the meaning or purp~rt
of the latter portion of the Exhibit A. .

(lJ (1938) R.L:R.at 11.

"378 B-UR:MA LAW REPORTS. [1951
H.C. Peacock C.J., observed, in the Full Bene b cose
1951
U Bo GYr
of J,achmipat Sint:,h Dugar v. Mirza Khairat Ali (1),
A~O as far back as 1869, under the more stringent
ANOTHER
'/1. provisions of the old Registration Act :
U KAN WIN
AND
" It appears to me that the object of the legislature in section
. -
U
ANOTH'ER.

To~ BYU,
49 was that no document should be received in evidence as a
,C:J. document affecting an intere~t in land unless it should have been
registered; but that it was not the intention th.at such a doct:ment
should not be admissible in evidence for a purpose for: which
. registration was not necessary."

The above observation applies more pertinently to

the present provisions of seGtion 49, as the present
section 49 of the Registration Act does not prohibit a
civil Court from receiving an unregistered instrument
in evidence for any purpose whatever.
A relevant passage in the Full Bepch . case of
:Ulfatunnis~a v. Hussein Khan (2) reads :

'' Undeithe Act, thhefor~, it was settled law for whole of

India that at1 unre~istered document like the present '':.as a factum
and might be used in evidence to charge the person, though not .
the land. On a matter of such general importance, we think we
Qught.not to hold the law to be changed, 'unless we can see very
clearly that the legislatur~ jntended to change l.t. J?ut \\.'hen the
lai1-guage of the 'two acts is coni pared it is seeirthit the w01ds of
the tatter are nof rnore stringent; but lesssfringent, than those of
-the earlier.'~

:T4e.:Acts referred to were th~ ~arlier ,Registration

:Act's. . The words "shall be >received .e vidence of as
~ny trans.adi<;>n affecting such property" in section 49
~~gh~; in our opinion, to. b.e read a,s H~Ierriilg to a
'transadi'on which affects land or anythi_ng ?rising. out
.;or', ...o.r .q)n,nected ~ with, the. hiric{, ~.rid nothing m~:n:e.
'~~ the' case ai' presenfunder ~()11sidera:ti9.ii, . w is not a
. . ~ . ! .: . . ' .! . .. . . ' : . ..

.til (1869)4 :SerigaiLa:w I~epoi:1s i iHF.B~J:

(2) U883) .4 Cat.: se~ii:s ' 520':\t
. 525..
,1951] BURMA LAW REl'.ORTS. 379

case where it is not possible to separate that portion of H.C.

1951
Exhibit A, which purported to create a morigage on
the immoveable property, fr om the portion, which u ~~oGYI
creates the. personal covenant or liability. The ANOTHER v.
.Allahabad High Court also maintained the same view v KAN wm
~
:as the Calcutta High Court, as far back as 1880 ; and ANoTHER.
the observation of Straight J., in the Full Bench case u T~BYV,
of Sheodial and another v. P1' ag Dat .Mis1'a and c.J.
.another ( 1) is also pertinent to the point !lOW under
:consideration, and it reads :
" But in the present case the bond creates a personal as
divisible froll_l a property obligation, and the loan can be
separated from the hypothecation. The suit was simply for the
money debt and not for enforcement of lien, and the bond \\:as
not tendered in evidence for the putpose of proving a transaction
-affecting property, but in order .to establish that the loan had
been made.

oldfield J., also ?b.s~rved in that Full Bench case as

-follows: .;
'' The bond imposes a personal liability for a debt on the
obligor, and also affectS. the mortgage of a property and the two
transactions are dis~in~t. The instrum~nt 1 may be received in
:evidence o(th~ formel~ t'hough not o(the htter transaction.". .
, , _,; . , .. l

The prayer i11 the plaint of the case now before

u~ was simply . for th e repiy'm.ent .of the loan of
Rs. 600, and not for the purpose of enforcing any
claim; right, or interest, which. might arise out of
'the immoveable properly mentioned in Exhibit A.
:As the present suit is.in effect to enforce a m~mear1
'debt o nly, it could' not, in the c::ircumstances, be :said
io ha ve been intended to
establish or' enforcea any
Tight, claim,- or :jntere~t, whiCh mighf "a1"is~ - otit :of
the immoveable': property..- .: ' .;i .' ' ~- : ' : .

!4il ;(18\!lcir~ i1t. 228 at 233. _'

380 BURMA LAW REPORTS.
H.C. The point, which arose in the case of lvlauuf!. B 11 L
1951
U Bo Gvr
Moung Tha Kyu and another (1), is "!ntirely diffe re nt.
AND There,1\I the suit was for the redemption of an
ANO'HIER
v. usufructuary mortgage of certain lands, which was
{; KAN WIN
AND
purported to have been affected by an unregistered
ANOTHER. deed and that was therefore a case where the term&
U Ti:JN HYU, of the usufructuary mortgage could not be. proved by
C.J.
a document, which was inadmissible by reasons of the,
provisions of section 49 of the Registration Act,
which forbids 'an unregistered document from being
used to prove the abortive mortgage. In Bhabi Dutt v.
Ramalalbyatnal (2) the transaction, which 'relates to
both moveable and immoveable properties, could not
be separated and made divisible. The Exhibit A must
therefore for the rc:asons set out above be held, in the
circumstances of this case, to be admissible in evidence
for the purpose of proving the personal covenant.
The Advocate for the plaintiffs-.appellants has also
contended that U Bo Gyi and Daw Kyin Po were
entitled, apart from the mortgage deed, to cl~i!1 in the
alternative a refund of the sum of Rs, 600 paid under
the abortive rnortga.ge in view of the provisions of
section 65 of the Contract Ad. The plaint, however,
made no mention of section 65 of the Contract Act.
We do not think we ought, in the circumstances, to
consider wliether section 65 of the Contract Act can be
resorted to, or be said to be applicable, in the present
case. It is open to the plaintiffs-appellants and their
Advocate to consider whether it will be expedient to
ca.me.nd the plaint or. not, and the question whether the
a~endment will be p'etmitted or not, will then be
deci~ed by tlie ori.ginal Court, when . the application
.is made befor.e it. Both . parties will be allowed . ~o
suggest n~w issues, if they desire to do so.

(1) (1939) R~.R. 39. (2) A.I.R. (1934) Ran. 303.

1951] BURMA LAW REPORTS. 381

We t hink we ought to make it clear that we do not H.C.

1951
.in this appeal ptfrport to decide whether the plaintiffs-
appellants had in fact paid the sum of Rs. 600 to the U Bo Gvr
A:-:o
defendants-respondents or not. The costs of this ANOTHER v.
appeal will, as welt' as the costs already incurred in the U KA:-1 WIN
AND
original Court, be left to be decided by that Court ANOTHIIR.
when the final hearing in that Court is concluded. u TuN Bvu.
'T he appeal will, for the r easons already set out, C.J.
be allowed ; and the judgment and .decree of the
ti>riginal .Court will be set aside.
382. ..BURMA 'LAW REPORTS. [19Sf

APPELLATE CIVIL.
. .
..
Bef~r~. !f, Tu11 Byu, Chief htslice, aud U Si Bu, J.

--
H. C.
1951
ect.- 2.
MA u~,G HL~ I\YI
u BA QHN
.. v.
(APPLICANT)

AND oNE. (REsPoNDENTs).*

' . ' ' ' . :. . . .. . . . .
Administration suit--Pri>ferty joinlly ocr,uired by Buddh~s!. couPfe-
~

Mortg<.~gc by one of lhtrll- l'roPer decree. .. i

A house was jointly acquired during the coverture of U Ba Nyein
and Ma Aye Kyi. The Respondent claimed the property as the property
of their tather U Ba Nyein and after his death their mother married
again and they claimed two-thirds share on the principle of Nissaya and
Nisstla. The house had been mortgaged during the lifetime of the
husband once by the wife who redeemed the mortgage.
Htlcl : That the ReSJOndents stepped into the shoes of the hllsband.
He was btrdened with the liabj]jty, for the mortgage, for one naif of
which he was dearly liable. The proper decree in favour of the
Hespondents would be for one half share subject to the payment of half
the debt as the liability mut be considered to have passed to them.

Ba N'Yun for the applicant.

N. R. Majumdar for the respondents.

U Sr Bu, J.-This is a suit for the administration

of the estate of one U Ba Nyei n, deceased, the
r of th e plaintiff-respondents. The app~ll<mt is.
4th defendant.
case of the plaintiff-respondents is that their
Ba Nyein was the owner of the house in
bought it with his own .money, that.
h. their mother Ma Aye Ryi married
sometime later, she mortgaged tht-
. present appellant, whp obtained a ..
d bought .it, apparently .at a court

1950 . against the <lecree of the City

No. 750 of t949;
 1951] 'URMA J;AW REPORTS. 383

sale held 'in execvtion of the mortgage decree. The H.C.

1951
respondents claim~d a two-thirds share in the said
U B-' 0HN
house on the principle of Nissaya and Nissita. v.:
The only defendant who seriously contested the ~:~::~~~~:
suit is the 4th defendant the apP.ellant in this appeal. USxBu, J..
H is c.::ase is that the property stoo d in the name o f.
the mortgagor Ma . Aye Kyi, . the mother of the:
respondents, that she was. the ~ole .o"Yner of the
property and tha.t the plaintiff-re.&p-ond.~ts. have . no
right, title, :or intere&t thereip.
. The tr:i.al Court came to . the conclusion .t hat the
said house: was jointly acquired by U. Ba Nyein and:
MaAye Kyi, the , parents of , th~. respon!lents, and
therefore gave a . decree entitling th.e re.spondents to
one-half share therein ; and hence, this appeal. .
We hav~ read ;the. e-videnqe; a~d we agre~ ~ith
the learned trial.. hldge tha:t . tl1is house : ~as jointly;
acquired during the coverture of U Ba Nyein _-. an<$
Ma Aye Kyi, but we do not agree that the respond-
ents are entitled to one-half ; sh.~ie thet~in wifhout
payment of their half share in the redemption money~
It must not be forgotten .that this house was mortgaged.
twice by Ma Aye Kyi, the mother of the respond-
ents. . T he first mortg~ge was with one V Po Lin
during the lifetime of her husband U Ba Nyein, the
fatlJ,yr . o{ the plaintiff-respondents. ~a . Aye Kyi
redeemed the mortgage for Rs. 900 out of her own
money. So, at the death of U Ba Ny~i n the house was
burdened with a liability of Rs. 900, for on~-ha1f of which.
he wa~ cleaily .liable. Now that he is dead anQ.
the plaintiff-resp~ndents have stepped into" his shoes~
his liability must be considered to have .passed iln
to them.
In the result, 'A_'e w~tild vary .t he decree by subje~t
ing the half-shar e of the r espondents to a deduc-
ti.on_ of Rs; 450 ; . thaf is to . say, tpere will be a .
384
. . .
BURMA LAW REPORTS. [1951
H. C. decree in favour of the plaintiff-responden ts to
1951
u BA OH:-< one-half share in the house subj<!ct to paymen t by
~. them of Rs. 450 to the purchaser, namely, the appellant
;gu::o . .
1 ~ ~ U Ba Ohn. And that p<:irt of the decree directing
U S1 Bu, J.
the appointment of a commissioner, if necessary, to
take accounts and to effect a partition of th e house and
give delivery of the plaintiffs' share of the house to
the plaintiffs, is confirmed, and the commissioner, if
appointed, shall also have power to sell the property
for the purpose of distribution, should he find it
difficult to have it partitioned in a manner which will
be acceptable to both parties. The minor's share, if
the property is sold, will be paid into Court. The
.
commissioner's fee shall be paid equally by both
.
parbes.
As the appellant has succeeded only to a limited
extent, each party will bear its own costs in both
Courts.

U TuN BYu, C.J.-1 agree.

1951] BURMA LAW REPORTS. 385

4PPELLATE CIVIL.
' Befort U Anug Klrit~e, J.

ESOOF MOBAMED AND FOUR OTHF,RS {A PPELLANTS) H.C.

1951
v.
NIZAMI SUPPLY COMPANY {RESPONDENTS).*

Civil ~isc. ~ppeai No. 43 o(l951 against the order of the 3r Jud#(e
City Civil COurt of Rangoon ~n. Civil Execution No. ~94 ~f 1951, date!l the-,
20th June1951. -
.25
 BURMA LAW REPORTS. [1951
H. C.
19Sl
1951. The re~ponde_nt pai_.d Rs. ...220 on 9th .January
1951. However, .in February 1951,,'the respond~nt
ESOOF
MoHAMJ:.o defaulted and Rs. 150 ~as deposited only on
AND .FOOR
OTHE!<S
B th February 19.51 and again Rs. 30on J :Sth February
!h 1951 and finally Rs. 80 on 27th February 1951.
:'Nrz~~r"I
SUPPLY As the r~$p.on.cl_~nt . failed to comply with .terms. as
C8MPANY.
agreed upon tri~ a~p.e'Ilant again applied 'for the
U AuNG ~xe~c~V~rr._?f.: ~~~ -~ ~e~.r~e. ' J'he -resp<?tide_n_t Objected
KH!NE, J. to the execution. of. the. d'e cree' Oil the gfound that
they l~ac;l not com.mitted any breach of 't erms i~posed_
upon ~~~m. : ~~e terms and condit~on~ for the stay
:Were drawn up by U Ba Kyaw who w~s offi~iating
as 3r.d Judge of the Ci;ty Civil Court in pla;ce of D Kyaw
Sint. tvfio was. prbmoted to officiate . as znd Judge ef
the same Court. This. order now . under appeal was
pa$sed by U Kyaw Sint on his revt:rsion _to . his
old post. He held that the previ'otis order passed
by U Ba Ky.aw was unten~ble in the sense that
the order was not only vague. but was po$sible of
different interpretation. H l'therefore qncelled the
pryvious order pas~ed and_ s1:1~stituted i~ hy a fresh
<;>ne c;l,rawn . up by him and which he ~onsidere.d to
be m~re precise. in language_: Howev~r, iaud~ble
the object may be in ir,nposing fresh te.r ms and
conditions on the respondent, I am .o f the
opin~on that' his action w.as n~t warran.ted by hw/
He cannot arrogate to himself the functions of a
- Court sit\ing in appeal- ~r in revision on th~. orde~
pa&~ed _by his : pre.d ecyssor. . .. .. . ::
. .Th.e or~er passed by ~i~ _predece~sor, i~. app~ars
~me. was a simple one. The judgmerit.:.debtor.: 'was
.
di~~?~e~f~~ . pay tl\e' -:a~rear-s due . ~Il:d . costs _l?:r :~ix
m9 1ilt:~ly. 1!!~~l..men~~ By ar.r~a~s due,. he mu~r havy
me~nt the 'rents -due for Jhe peri~d . ~st Jm:i.e 19'49
Jp :~otii: Ju_ne t9$o' and n~ .. mq~e. It .was ... ciue . ~0
-~~fi;ie'::'f#on~payment {?f. _rents. for th~s .period t~at the stik
195:1] BURMA LAW REPORTS.
for ejectment was filed and it is only a question cf H.C.
1951
simple arithmet~c to find out what is the actual amount
E ! O.''lF
which was in arrears. MOHAMED
Even assuming th at the respo~dent was right in AND YOUR
OTH ERS
his calculation that he was to pay Rs. 220 per month, '1/.
NIZAMI '
he clearly defaulted when he did n<;>t pay in this sum SUPPJ-''Y
by the lOth February 1951. He paid in Rs. 150 only CoMPAlifY.
on the 13~h of February 1951. Having failed to KHJNf;J. -
l}AUNG

.
compiy wlth the terms imposed .upon . him, lie was
not entitled to make. a fresh applicatio_n for stay
of execution. In K. S. Abdul Kader v. Sri Kali
Temple .T1:~st \1) it. was held that .. where a.
tenant
has obtained an order for stay of execution of a
decree for ejectment on a certain condition, he cannot,
after h~ has broke.t;1 that conditioh, apply again for
stay of execution . ~nder section l4 (1) of the Act.
The Lower. Court knew of this decision but held that
the respo.n dent had not comii)itted t h_e breach of
.erms imposed upon it. How the Lower Court came
to this conclusion, I am at a l9~s to - understand.
By a se.ries of specious argument~ the learned 3rd Judg~
tried to . prove that the otde~ of his p'r edecessor
was un'fe!lable fqr ,lack of precisiot). It 'is crystal
clear inspite of all arguments .put forward that the
respondent had bro~en the c.o nditions on .his failure
to deposit even the minimu!Jl amount of Rs. 220 on
Jst fef?rpary 195'1.. This tn~ learJ:led Judge preferred
to oveflook. . . . . . . .. . . . . .
. ' For all the reasons given above,. J am. of 'the
9PiP.iq~ that the order of (he 3rd Judge, :city wit
Court u:p.der appeal is .clear)y untenable. In .the result
.the appeal is allowed wiJh costs: The Lower C~u~t's
order. would be set asic(-e 'and the' appellantS wfll be .
: ~~~~~d. _t9, p~q~~e? . ~i~ th~ir execution ~f t~e ~ecree
j_hey qacl obt!<\~nt~~ J\9.:~ocate s. fees th~;ee gqld mohtirs._,_,
. . :. ~1) tl49) B.L.R. .175. - ,:
 BURMA L.P;W REPQRTS. . [195 1

APPEL LA J'E CI~JL.

Bifore U San Maung and U Thaun.g Seitz, JJ

., ....
H.C.
1QS1 ~
K. K. s. KADER MEERA .(AP.PELLANT)
*;~fz;. v.
. ..
S. P. MOHAMEO'ABUBACKER .& BRoi-iilfRs.;AND
A~~THER tRESPONDE.t:l.~ ).. *
. :j
Suit jo~ malfcious proswitio/-t-Meaning of tlte w~rd '' prosecution ''-Whether
suit for ntali~iot#s :prosecuiion lie if defenda11t files an aP~licatio~t tinder
s. H~. of the Crintittal .Procedure, C~iie attd obtains att. l1ttachmenJ-
Esse.t~tial poirtts lobe PrpvedJn a suit/or malicious Prosec'ulibn .
Held : The word" prosecution " ill a snit for 'm~licious prosecution should
not be interpreted in a narrc:iw and restri~ted 5ense in which i.t used in theis
Code of Cr~mina1 Procegure, It is" not essential that the original
proceedings shonld have been of such a ;1atute as to render the persons against
whom it was taken lilible to be.arrested, fined or imprisoned. Where there
has been deliberate abuse C?f the 'process cir the .criminal court and s alutary
provi~io.ns fra!lled by the le,gislatur'e to ~ecure 'th.e' pr~ventl?n o'f offences
nave been utilised maliciQ~sLy and. wtth9ut - re'lasonable and probable caus~
for. the harassment ?f th~ pl.~intiff who ha~ thereby suffered damage. iil
. reputation. and property an a,CtiOn for . malicious ptOSc!CU!ion or malicio'frs
ab,liseOf.i~dlcia.l process is.lllaintainable~~: .. .' . .. . ';'
. c .:H. Cr(n~d~ L. o. ~efily, (1912:-i3J .J7 .C.w.N. 554 ; Bishut~ Pers11d
v:
Ncmritt Singh and aiwther v. Phulmati Si11gl' rmd plll!rs, (1914-15) i9 C.W.N
935; iagdto v. Dwarka, t1947)l.L.H. ~6 :Pat. 68 Mo!lametl A;,tiwv~ Jdgendra
i
Kumar Baut~erice attd ollte!'s, (1946~47) 'i4.I.A;: t93, follovv~d. .. . ., ;
In" a auit for malicious prosecution the !ollowih points should be proved:-
p (1) that.th'~ pl:\lnti{f was .~secutc;~-by:the deferidanl .., . . . . ..
(2) that the. proce~dings cqmplained pf terminated in favour of the
plaintiff, .. ...~ : . . ; . .; . . .
:: .. (3) .that the prosecution .was instituted. without re~onable and.. probable
.. - .. . ea.u se, . : .. : . . .. . ., .. ..:
._.(4( it was <lue to malicious intention of t,he defendant and :not ~ith a -
: Jlle"te intention of carrying' the ~w i!lto effect. ~ . . : . . ~ ..: - . .
. .,iJ,r;..bhadaarSingh v. B~4.ri Sah) I.,u~k~ '(U.~ ; U S~e v .Ma'i!tl1! l{giV~ T~~
. a 11 d eight o thers1 (1~27) I.L,I\. 5 Ran.- ~0~, followe~. : ... . . .. . .. :. . . . .
.. ... : ... . ' .. .. .... . .: .
. .'l951] : BURMA LAV{ REPORTS: 389'

P. K. Basu .for the appellant. H.C.

195,1 -
Dr. Ba Han' for the respondent No. 1. K.K.S.
MADER
M-EERA
N. R. Burjo1jee
. for the respondent. No.2. . v.
S. P. MOHA-
MI!D
The judgment of the Bench was delivered by Asu.aA"KER.
& BRoTHERs.
U THAUNG SEIN, }.-This 'i:s' a'n appeal againstJhe A:.N~t~ER.
judgme-n t . anq deGree of the Original Side of fhi"s .
Court dismissing the appellant-p~aintitf K. K. S . .Kader
Me~ni':; suit for damages amounti_ng to Rs. 40,900 for
-malicious prosecution. . .The appeilarit-ph.intiff_'s case
was that on or about the -2 5th Jamiary 1946 the second
respondent V. N.V. Mohamed Eusoof, who was the
Agent and Ma.~~ger of the 1st r~spondent firm of.
s. P. Mohamed Abubacker ,~~Bf.ofhers, had maiiciou~l.y
and vvitqput_. ti;I}y . .r.eas9ri~ble. and, probable caus'e
in~titut~ pro:ce~:dings a gainst : hi~- (appellant-plaintiff-).
tinder secfiori 145 of the Crimina-l :Procedu~-e Co.d e h1.
t:h~:-~9u:~-lc>f'the 3rd Addit_io!J.a\ Magistrate, .~angoon,
and' Iii.: GOnseq.uenc'e -his. shop 'at No. 46j4z.~ Edward
Street, . ~as .at~ach~d :atici' he was evkted therefrom..
Fortunately' for . hi~ he applied 'to the . High Cour~
in revision ag~inst that: order which. was set .aside 'a n'd
.._t.he. _shop_ was re_store4. . _. ~c<;:~~;.?i.ng t~ -tp.e -~p_pe1I~pt:.:.
plaiJ?.tiff1 . th~. le~rned 3r.d Adgitron~l M~gistr.ate _wa.~ .
iq~uc~_~f: _i~.t~::~~~~.:?f.i.P.~g:~-th~- :9r4~r::.which -~.e : ~id as:a ..
~esult ~ of :fal~e :rdpr.e~~ntati<:>ris o_n -th~:: p~u:f: o( the .
2nd .r,es'p:9?-~~nt V. N.- -Y; .Moharned Eusoof a11d _hen.9~
he daime~HI#t[he .was e:i1titled to damage.s f<?r harm an(\o
injury. ~nJlJ9!~~HP~ hjs r~putation and creclit bymfans. .
-q! tl1e=:r,:~~fi\i~_i?usr;';~r?e'9ut.~<?i1.,>' Hct.-~-~~~in~cl }uiH1e{
_y.N::y:.
tl}at_th<} ::,._ I?r,9~ect~t~o~:. " bY, ~~_he Zn~ re~p~md~n~
W.o~!hed._:..Eusqof - w~s ~t . '~ tlle .ipstance :- add active
it):~t~g~t16~- "~h.4)~i- .tti~. he~~ fit <>r th.~ 1st _ ;respo~et~lit

fiJ;fu::-~( .-::- .~ . r.::;i.:~Jp~~~m~4. -Ah~ba~'er .. If; ~~~th~r.s.,.'~!?t.
 BVRMA LAW R.EPORTS. [1951
~

which he was the Manager and Agent, and that this

firm is thus liable to pay l}im damages/1
~~E~ In his written statement the Z"nd respondent
~~R:' V. N. V. Mohamed Eusoof admitted the i~stitution ,of
S. P:. MoHA- the criminal proceedings referred to but denied that
. M-11.1>
A.su~cKER he did so with malice or without reasonable and
&~~ . .
. - AND pro~able cause. On the contrary he asserted t,hat hts
ANo~HER. application was a well founded one and that he had
u SEJN,
TaAuNG
J. 3:cted all along Qn th.e ad vice of competent cotinsel i~
the person of Dr.
U Thein. Furthermore, lie denied
that the proceedi~gs were instituted for and on. behaif
of the 1st respo.n dent 1Jrm o S. Mohamed P:
Abubacker & Brothers.
Th~ 1st respondent firin on their part disclaimed
all liability for the acts of the 2nd respondent V. N: V.
M'ohamed Eusoo( so far as the crirrirn.al proceedings
were c_o ncerned, .arid co.ntended "'that it was no part of
the 2nd defendant's (2nd respondei)fs) employment
to itistitute any: criminal proceedings in general and
the s'a id' application under . section . 14S, Cdrpi!1al'
Pro<;:edure Code, in partic~la,r." They went on to s<i.y
that " since they came to know of it they expresi-e9..
~their entire disapprov(!.l of' the said proceed ings ..'.1 : .
. The suit w'enL to trial and tlie tnain 'issue : betWeen
the :parties \\as whether the 2nd respondent' V. N. V.
r.jlohained ~u~oof maliciously an.d without rea.sona~le
and probable. catise.. irtstjhited'.' the proce.edings iir
quest~9n b~fore. the 3rci . Additioriai .. Magistt..af~i
a
.~angoon, 'and sq, wh.etherthe 1st respo;ndenffiriri'-1~
li~e to pay (:J.amages f or tb,e. a.c ts of ''the 2nd:
responckni V. N. v.
Mohariled Eusoo{,._wh.o W<!-~-. ~tlie~r
M~n~gei:
~ ~ ....e '
. . and
.. . ...
Agept.
. .
.The "learp~d
. .
.;:,Jtidg~.: -~hti'ng,! o~ .
. .. .. . . . , . . . ..,... ..
' tfl~ , Origin'al' .S ide (G: :;Ori ~e- }:);:. a'G.epted : .t~~
fes:t?~ndents'' ~d~ten.tiori> :u1at-~~<! {>1-ob~edirig~r..rwere;
Jfbf: iWs_htuted . ~ith any inaiid'Su~ ~ ~ntei# 9J?'WHli~%1
f~as~ihaol~ .. a~d:;" probabl~ cause';.. ithd ,. ;:a.ccoairig1Y.,
 1951] BURMA LAW . REI'ORTS. 391

dismissed the suit. On appeal it has been strenuously H.C.

1951
argued by the \learned counsel for the appellant-
K. K . S.
plaintiff that the learned Judge's decision is wrong KADER
and that there was clear and definite proof, both from MEERA
V'.
the oral and documentary evidence adduced at ~he S. P. MOHA-
MED .
trial, that the proc~edings were prompted by malic~ ABUBACJER
01i t_he part of the 2nd. resp~:mdent V. ,N. V. Mohamed & SRoTHRRS
'.t~b
-.E:~soof to damage his dien.t 's rep'utation and credi_~. ANOTHER.

In . addition it was urged that th~ 2pd resp~nd~nt tJ THAUNG

S EIN; J,
11. N. V. Mohamed Eusoof had been guilty of gross
misrepresentatiqn of facts before the 3rd A.dditiorial
Magistrate, Rangoon.
Now, ~t the outset it should benoted that though
the suit was one for damages for (( maliciolls
prosecution " there was in fact no prosecutic>n of the
app'ellant-plaintiff iH the sense in which this term is
usually understood. The ' ter'm " malicious prosecu:_
tion .!' is ~ 'naine applied to a form of tort and as
pointed .o-ut in the ruling in C. H . C1owdy.v:~ {;: Q.
Reil~ {!), the word ''prosecution" should :not be
interpreted in. a nartow and. rt)stricted sense ~in . w}:lkh
it is used. iri. the Criminal Pr.o cedure . Code. That' was
also a case for "malicious prosecution., - ~rising 'out
9J .an . ~PP,li~ati9.n . QQ.~~J; . se.ctioJJ .lt5, ~- Griminal
, , ., f ',' : , ~ ' 1 , ' , , , , , ,I \ I, ', J o . I o

p~.ocei.ure C~de. ; The r~~ey.~pt pqtti1oru>f. the Prad~9ty

r~ad~:~: :-.. ; .... ,,;,,,, :. . . . :... : , ...: .
' " ':It : i~ : not Ul.af :fan; :'adidif ror>&linag~~ -for inalitibus

p~ose~~ion: H~s ~nly 'wh~ri"'ttie .:o~i~inar- pro'ce~d1ngi':.:wa~. a
.. prosecution' in the sense in which the te;~~is"us ed riii:tbe
~c;>..~~-P!Jmif!~; ~~S~~~r<?;r;it i~e~~ ess~~V~ t~'\L\1]-e of.igin ..
P.f,~.c;<{~jm~. ~po1,1Jd h~ve ~eJl: o~ .MRh'.a.~na~~r~ as ~<l.,f~,nder~
.P~fao~--again~t ~vhom~'it"~as '.tr ~~n' li"abl~''to~~e~arre'si'e'cf;~fi~e:d' ot
imprisoned:.~r-.~- 1 ~~.."' ,.,(";r~
._ ..,J:-'- -": '-.: . ~'"'!.''(!'1 t
'~'" k '-..
.:.
t- ...
rfl : ~ ........~.-, r.\' 1 ;r :
.. - ~ .._..j- ~ :~

r~t \v4leihe~ellfas<i,ee~
J .... ., ,.,
k. ~-'
~
i
~eliBe<tate 'abus~'oftfi~
.":) .. .. ,~
~'i>tbces-s
s ..,, ~ ;~
<>tthe 1\i/flmfuaJI iCoQt.t\\and;.'lshl'ti{ary 'provt}i~s frame({~i:j)t l Ul~
~ ~-.---_;~= ~-~;-~::- ;;:-,;;:~;,~i~ --~ ---- ..
:~<2 ~11-:-w~~-v;-~.~i-~r~: -;~~ --
('!t_ .~!~~lf!t~pl_ 17 C.W.N. S_ ;'!; ;:;~ .W ..;-1 ~.i._t\~i 1 ~>:i .
3Y2 BURMA LAW REPORTS. [1951
H.C. Legislature to secure the prevention of offences have been
1951
utilised maliciously and without reasonable 'and probable cause
K.K.S . for the haras$ment of the Plaintiff who has thereby suffered
KADEn
Mn; RA damage; in reputation and prope1ty an action for malicious
Jlo prosecution or malicious abuse of judicial process is
S. P. MoRA . t . b} ,
m
.M 1 main ama e.
ABj',TBACKBR
& BRoTRJiHs This ruling was followed in Bishun Persad N m-ain
AN:::ER. .!!tgh(and anoti;er v. Phulman Singh a11.d othe1-s
u THAuNG (1 ), and the above dictum was repeated in the
SEIN, g following form":
" The action for damages for malioious prosecution ~s not ::e
creature of any statute. To determine whether such an action
lies, the term 'prosecution ' should not be inter:Pr~ted in the
restricted sense in which it is used in the Code of Criminal
Procedure. ''
Both these cases' were. referr~d to and followed in
] agdeo v. Dwarka (2}. The same principles were
also la-id down by the Privy Cou,ncil in M ohamei A min '_
v. jogendra Kunu~r Bannerjee and othets (3}, where,
after re.ferring to the ruling in .Bishun Persq,d .Narain
Singh and a'!ofher v. P}Julman Singh and rthe-rs (1),.
and numerous other rulings, their 'Lordships (at page
202) stated as follows :
" To founo an :~,ction for damage~ for maliqions prosecutiolli
based' on crimiJ?al proceedin2s the test is not whether the
criminal proceedings have reached a stage at which they may ee.
correctly described as a prosecution. ; the test is whether such
proceedil:)gs have ~eached a stage at which dam'age to the
plaintiff r.esults. " . _.. . -

~ It . iS thUS
~ .
cJea:r . that an action for H . riJaJiciO~S
.
. prosecution ." will lie . even. in respect of ,p_ro~eedin,s:
un'<;!eP: section VfS,:.Criminal Pn;wedure Code.~ -: .
.. . .According t'o the Privy Council ihilng -~i~ .
Bii1!J1z.bttd."af
..,-~ ~:)'! ~. :: : .~....
Sih.h.
. ' ~ .-.
. ,~Uadri.'"'
<v:~.-~~~ -
~Jl! ":''!:(J~Yr
~ ;~:
... .t . ) ..
:'Wni~h . . "'as
.. ;.' :. '

.. {11 .it~t4~t.sn? e. w.N. 9Js.' - '(31 u:9.4o=-471 74u:)93.

. {2) -{19471 I.L.R 26 Pat. 2J!.., . .. : : ~ , , (4L,~ Lu~k. 21'5
~951] BURMA LAW REPE:>RTS. 393

followed by the High Court of Judicature at Rangoon H.C.

1951
in U Sot: v. Mau,ng Ngwe Tha a11d eight others t l ),
I<. K S.
in all suits for damages for malicious prosecution it is KADER
incumbent on the piaintiff to prove the following MEERA
v.
points:- S. P. M OHA-
MED
AllU BACKBR'
" (1) That he was prosecuted by the defendant ; (2) that t he & BROT~fR'
AND
proceedings complained of terminated in favour of the plaintiff, ANOTHER.
if from tbeir nature they were capable of so terminating ; (3) .that
the prosecution was . ~nstituted against hiJn without any 0 8eiN, THAUNG
].
reasonable a~d probable canse i and (4) that it was due to a
malicious intention of the defendant and not with a mere
intention of carrying the law into effect."
,

The app~_lla~t-.plainti_ff claims that he did in fa9t

prove all . fhese points and that he was thus enti~l.e'rl
to a decree as prayed for by him.
: * . * . ...
~ On :evidencf .the leaf~ed Judge held t-hat. though
, "'1 '

th~ ~videnc~ of. def~nce is weak, plaintiff's case . has

not been proved.

__ ____
.....__ ..,.._
. "-- ---
.. ~tit ~ib"h.{R. ~:.'R~nj$.. :
::394 B' URMA LAW REPORTS. [1951

APPEL.L ATE CIVU....

Before U San M~utig and U Tltaung ~ei'! JJ.

H.C. ABDUL HAMEED (APPELLANT)

19~1.

..&pt. 20 v.
S. A. ABpUL HAMEED (RESP<?NPF;NT). *.

s.:2{ct), Urban Re11t Co11trol Act,; 1941}-Premises~Ejedment of occupant-

S. 11 (1) whetiJer applies to j>e61tiSsive ocr:Upatiot~.:...S: 17,' City Civil
Court Act -Atplicafion uiJder-Appe~~l.
Held: That s. 2 (dt of the urban Rent Control Act defines premiseS.
S. 11 of the same Act refers i~ every one of its. clauses to~ tenants'. None
of these clauses apply- to a person merely in permissive occupation of the
~uilding. By t~e a111e11d.me~t Qf the d~finit!9n of 4 pr~mis~s' under s. 2 (d),
~11 persons in occupation of pr~mises do not come within ~he ambit of
~. h; otherwise s. f3 provid.i ng for ejectment b persons pern'fitted to occupy
premises under s. 12 would b~ t:e<;iundant and 'tl).erefqre tl~i.\ cQ,illd not I:J.av~
been in the co~templation of the Legislature. The ~entiof! of the Rangoon
City Civil Court"Act in s. 1 t (i) oi the Urban Rent Control Act does not
~ffect Ule prbvision of ~. 17 {1) 'Of the former Act. N.o ;ippeaJ lies against
the prder un~i~(t!iis 11et!ion. ! ' ' ' ' ' . . . .: :. ...
~ ~ . i o- lo f. ' , ~
' Sa'Uf Cltail1 Pvon v. Tal{ C/zoo 'Ke11g. anil Mrie ot[~ers, (L9t7)' R.b.R 23;
followed. , ...,
In special circumstances, in the ends of julit~ce. a Memorap.dum of
Appeal can be cqnverted into one of revision.

Nyun Maung for the appellant.

Ba Gyan for the respo.ndent.
~'he judgment of the Bene~ was delivered by
. . .
U
SAN MAUNG, J.-In Civil Regular SuifNo. 1225 of'
19~0 .of ~he City Civil Court, Rangoon:, tl:le appellant
Abdul :Hameed fil~d an application under sec-
.tfo'ii '17 of the .' City Civil .Court 4ct for ejectment of. .
. tnelesportdent .s~ A.. l\bdul Hameed OQ. t~e ~rOl,lnd
thattb.e respondent was ~n per:m1ssive occupati.on ~f
. . No. .2.t. 2/it4,.
. room. No... 2. . in. house. .. .
Ed\vaTd
. .
Street,;.. . ,

: ' crvJlJstApneai wo:'loof r.?sr:iiiih"ij:.fnc,uecree9rtlie,.CitfCivil C"oti t

:Of Ra~g_oori in'Civil Regufa~~o:~~iz2~ '6ft956~>~~(~d;the 3rd Febru~ry. 1'9.St,
 1951] BURMA LAW REPORTS. 395

<>f which he (the appellant) was the lessee of the H .C.

19) 1
Soorty Bara Baza~r Co. Ltd., and that the respondent

had refused to vacate although permissiOn gtven to ABDU L
H"~'Ev.o
him to reside in the premises in suit had since s. A. ~~uoui.
been withdrawn. The application was contested and H AMEeo.
therefore it \as treated as a suit-vlde Rule 3 of the u SAN
R~les made by the High Court to regulat~ the MAuNa J:
p~99_edure of the Rangoon City Civil Court in such
proceedings. The respondent in his wri~ten .sta~ement
~ontended that he was not merely in permissive
<>Ccupation of the suit premises as alleged by the
appellant bu~ that the suit premises had been sub-
leased to him by the appellant at a rental -of Rs. 100
-a month. On the pleading the learned 2nd Jud~e
<>f the City Civil Court who tried the case. framed
four. issues as follows :
. ..
" 1. Is the suit as framed maintainable in Law 1
2. ~~ the 'suit cprrectly valt.~erl for the purposes (a ) of
Court Fees and (b) of julisdiction ?. .
3. l s the Indo-Burma .Medicine 9ompapy a necessary party
tp 'the suit? : . ,
, 4. Was the occupation of the suit premises permissive
9Q.ly .~s : ~ileg~l by --~~e . pl~intiff,_'. 6r b.y., 'fay ~ te~~~py as
iiriegea b}r'the defe'ndant ?f' . . . ..
. ,l .-::.. :: . ~ . :~: ~.} . . ,, ' . ~ ~ ... .

He. then dismissed . the .appellant's ; f' :suit" . on a

preliffijnary , 'issue as t.o its m'aintainabilrtr . . : He held
that since the amendment of the "def1nition of ttie
word ~-' premises" contained in section. 2 .(ll)' of tli'~
Urban . Rent . Bontr.ol Act, 1949, ~. n'0. application
untJer section . t7 of' the . 6ity 'Civil _C ourt;, Act . -~b.r.
the : ejectment' ot a persan . in permissive &ccupati~
o_f _:;:(ny. pn!IQ.iseS:.-a-s defined , in :tll'e < ~J-rbaq .>R-r.ent
C6ntr.ol .. -A~t;: wavld. lie:::. and.: that the. :"'nl.y:'~ way.:- i n
wnich;::sucil~ persons~-could- b e 'e jected' i~; l;>y:~~~: ~of
a,;:SUif Jr.amea-:-"tlttd'e r .:either . one .or.; -o.tn~r.L M .'the.
clatises~~~:sub,;section -ct) .o section. 1 i ..~(tbe r.b:irr :u
396 BDRMA tAW REPORTS. :-:'i l95l
!
H.C.
1951 Rent Control Act. Now hii d..efinition of the word
-
ABDU.L
''premises" given in sedion 2 tli) of the Urban
}JAM!ft<D Rent Control Act, 1949 reads as follows.:
v.
S. A,. ABDUL
H AMEED. , "any land on which a bnilding lias been erected and
U SA!\ any building or patt of a buiiding let or ocwpied or :i.11ie.n:ded
l1AU.NG, ). to be let or occupied separat~ly for ~ny purp0se "~' hatexer
including a. stall let for the ~~tail sale of goods in a ~arket
or any 'other building, anY: la.ir(l; furnished f~rnih.ire 'o r .-6xttite
. . butldh1i'
let toge:iher with. such . .
or part of a. b.u'flding:''
...
Frorp. t~1is definitlo~ .the . learned Judge ~as .<f~.~uced
that if any .one is in occupation of . any. premi!:!e.s
as defined in that . sccti.on, the only :manner in.
~hich he .can be ejected by way of suit underis
section 11 (JY . of the. Urban Rent Control Ad!. , .
To our mind, it i~: .difficult to understand .how
the learned J u4ge .cotilc('~h~ve fallen in~o ~v~fi .= ~\n.
~rror as this> The defi'nitiori of the word ''.' pre,mises"
as given In sectiori 2.(d) pf..the U rban Renr'o~lror
~~ ~~:t , P.?~~:: :.~~\:/il. '.a:~y,~:~~f:.. h~ad ~o ..t?,.~:~.:f?~<;:l!]~t?il
that any one --xn pccupahon of such prerrtJ.MS mu~t be
regarded as . a teilant tn'ereof within the cont~mphition .
of the Urban .Re.n.tControl Act. What se.
.....~
cJio~. ('(t) . t
!: .~na<its -'itf tliaf rio one who is ~ tenant of an}' preiriise:s
"' -.. r l'

as .de,fined -in the .Act .cfn . be eject~d ther_dro~;n ' <!J1~.

pos.session . oJ, .the.'. P.r.emises in questiop,.ieco~er~~ #P~
him except .urider the circumst~~ce~ ,gi;\reri in qn~....P~
.-:p.t.l'! cr. :.o( ftie. clauses of that su b-sedion . .. T Jli~.}~qn .- -
:'.t;l~sfo:fi: J.~ {bz:tlfie~ .by the ,fact that.~l~ t,h~~~es (a) .tC! .~
. '(f) enu~er:ated . therein refer to tenants. . F~~ e:&am~y{
~~~!1 .JaJ t;efer$:..:to...a .: tenant ; r~~- wl).om. .r.~i~:~s .
. ~a~ully. ~;fly_e.. i. el~u~e: {'b);.~o, a1te.~_aAL.agains,t . wl:!~In ~~
-decree.
. ~-;,;' :
'fo.n.,B.riea:t1
. ;oc:..t. ':--"' - .
s of
t
rent
. .... '
\ .,
b.ad~.bee'Q:,:given .prior, tp .tli~
. ..., .. ..... t ...... , .; ~

. r~s~~t!!f?J!!"qf. t~~ , Giy.il ; .G~:v~~J}rilefi~lR~:~ tp,e_..:poh.q~~~-

. $.io_P-_:;~fth. *i~~$ti:Jit,it;& wifh.J<!-P<iln ; ,;::9.:~~9se ;{E)Jo-..~ ~e~f!.nt:,
Vfti~,~~~-,~~!jpn,an y:..guilty.(. of '1. a_. :c~4u.c,t :whi'ch:'J~!':.;a: .
1951] _!lURMA LAW :REPORT3. 397

nuisfi~~'

etc., or \\:hose h~usehold is guilty of such H.C.
- 1951
-condu}t; clause (d) to"a: t~nant whose house site is
bona fi-c!e required by ~lie 'l andlord for the erection t 11A0:ELEo
<>r re-_~r~ction of a ~tding ; clause (e) to a tenant s. A. ~\ 11 ouL
whose l~ouse is reasop)~:f.?ly a.n d bonli. fide required by HAMEED.
the J~~i.dlord for maj~_r ~ej>airs .an~ clause {f) to a u SAN
ten~nt 'WhOSe hOUSe is.. required by the OWner b011a MAUNG, ; .
fiif,e.:for his own residence.
None ~f those clauses .'a pply' to a person .merely
in permissive occupa'iit>n of a building without having
to m~ke any payment. therefor: ..
u~ as the lear~e~(Jl;ldge- "thinks,. _ by . ti]'e mere
amehdm~nt of the ~e~riiti.on of Hie. wordll p~.ernises"
<>ccuiring in section 2 (d) of th'e Urban Rent Control
Act- ~11 persons in occu pation of such premises come
within the ambit of th~ Rent Control Act, section 13
<>i the. Act providing for the ejectment of:persons who
hav~ .:b.~n permiHed .._to occupy premis'es _~nder the
provisions. of section 'l~.:_ wquld b e :entirely redundant.
In ~~bt some of the.- :~~oy~sions contained in ' s:~ction
13 (1} -would contradict . with ' those . containea :'in
sectforl. -11 (1). This cqtlld hardly h~~v.e been toiitem-
plated: :bY th~ ~egisl~{~fe " in amending t~is de.finition
of the. word "premises:_,~ :.'c ontained it:~ s~ction . -~ ; (d) ..
... _N{) doubt s_ectio.n) 1 (l~ enacts thaf notwith.s,tandi'r:ig
anyth:ing contained i'h .the Transfer of ~rop~rty..., Act
qr t~~.: Con tract Act. or 'th~ Ranggon QHY. Ci vil.'--Court
Act:.fi~.. order or decree for the recovery, of possession
of any premises to which..this Act. appl(es or, fo.r the
ejecfmen.t of a tenant therefrol'Jl shall be made except
under ~t.he . circumstances ~tate~ therein.-:..A r~fe-ren~e
to Rii~goon City Civil Co1,1rt Act is necessary as oib~r--:
wise:.i tenant could be ejected under secHon '17 ~{f)
of the::City Civil Court Act merely on pkoof of the
fact Jii~t: the te~ancy has been determined as required
by_ t~~ -~1)-ansfer of Pr.9perty Act. :The m~~l~o"J?..' o
398 BURMA 't-AW REPORTS [f9S::t
H.C. Rangoon City Civ_il Court. in sect~on 11 {1) of l he
1951
Urban Rent Control Act however,~oes not affect the
ABDUL
HAMEKD provisions:of section 17(1) of the City Civil 'Court in
s. A. 11Aaour. so far as it co'ncerns persons i'n pennissive.occupation
HA'MEP.o. of buildings, etc. ..
u sAN Therefore in our opinion the learned 2nd Judge 'of
'MAUNG, J.
the City Civil Court was wrong in having dismissed
the application of Abdul Hameed urider .s:e ction l7
.
of the City- . Civil . Coud
not maintainable in law.
.
Act on the ground. tha-t
.
.
.. it was

However, no appeal lies against the o rder of the

2nd Judge of the. City Civil Court. The law on this '
point has been elab'orafely discussed by a Bench of
the late High Court of Judicature at Rangoon in
Saw Chain Poon v . . Tan Choo Keng aittd three othe1'S
(1 l wher~ it' ~as held that a final decision in a pro:..
ceeding under section 17 of the Rangoon City CivH
Court" Ad, is not a decree but an order .and that no
appeal lies against such an order. However 1 in 'the
ends of justice we consider that the memorandum Of
appeal should be regarded as an application for.:nivi-
'siori and that we shoul~ exercise our powers under
s~c_fion 25 of the . City Civil Court Act_ . Accordingly
the order of the 2nd JUdge_ of the Cl'ty .Civil Court
dis.missing the applicatio!'l of Abdul Hameed' is set
aside and the City Civil Gourt is directed to proceed
w~th' the application according to law. Costs so far
incurred by the parties .1n. the city Civil Court' inu st
b~ ~o'nsidered as . costs in :the proceedings. of that
<;purt. Each . party should beat 'its own 'co~ts i~ this
Co.\J.rt, Advocate's fees two gold niohuts.
' . 1
1951] BURMA LAW REPQR1"S. 399

APPELLA):'E CIVIL
...
Before U On Pt a11d U Sa11 Marm g, JJ.

H .C . .
S.P.S.N. KASlVISVANATHAN. 1951
CHETTIAR {APPELLANT)
0 .:1 2'.
0

v.
S.S. KRISHNAPPA. CHETTI AR AND OTHEHS
. {RESPONDENTS).*

S. 12 of ilie Ct>de of Citnl Procerl11re-Foreign judgmwt-Producliot~ oj decree
copy but 110/ judgme11l of fdreif!,tl Couri-Maiu!aitlllbility-Arlicle 60,
l;im#ntfotl Act.
A suit was filed upon a fo reign judgment and only copy of a decree of the
foreign Court was produced. The claim according to the decree was for
amount due on a deposit letter and the suit was dismissed on the. ground that
the claim in the foreign Court w;s barred by_limitation. On appeal- .
Held: Article 60, Limitation Act is applicable to the claim in question and
the ma tter of limitation hinqes on whether there was a demand for payment
of the money more than three years prior to suit. The fact that tlie defendant
failed to enter appearance in the foreign Court would go to show that there
was no such demand and if there was no demand beyond three years, the
judgment was correct.
The "said j ud~ment cannot be said to be f~unded upon breach of th e law in
force in Burma. The suit to reCO\'er moneys in deposit is not an illegal claim.
The general rule is that a Court which entertains a s_uit on a foreign judgment
cannot enquire into the merits of the ori~i nal action or the propriety of the
decision.
Baijtiath Kart1aniv. Vallablrndas -Damatli, A.LR. (19J2) Mad. 661 ; Brijl~l
Ramjidass a.n d at1olher v. Govitmrmll Gorhat~das Seksaria and others, A.I.R.
(341 ( 1947) (P.C.) 192 ; Ganga Prasad a t1d another v. Ga.nesll Lal cmd
ot!lers, 56 All. 119, referred to.

Ba Tun for the appella.nt.

D. N . Dutt for ~he r~e..sponden.t No. 1.
The judgment of the Bench was deli vered by .
0

U S AN ' M AU N_G, J.- . The su it out of whic_h the.

p resent appeal has arisen was .o"n e founded OQ . a
,, forei_g n 'judgment, a~ defined . in section 2. (6)
0

.o f th~ . Civil , PrqC,edure , Cqde. ()ddly ~no':lg~ .t:hr

Civil 1st Appeal" No. 4 of 1950 .at;aiilst the: decree of 3rd Judge, City
Civil Court; Rangoon. in -~ivil : Regular No: u; of :1947; .:.. . .
4oo B l.:TRMA L~ W REPORTS. [1951
H.C. plaintiff-appellant (S.P.S.N. Kasivisvanathan Chettiar)
1951
merely filed a copy of lhe decree Qbtained by him
i:~~~: in Small Cause Suit No. 22 of 1946 before the
bHN;T~~~ Subordinate Judge of Sivaganga and failed to
v produce a copy of the judgment' of that Court.
KRr~~~APPA However, as pointed out by the learned 3rd
-'~H~~~~s. Judge of the City Civil Court a suit on a 'foreign
decr~e alone is maintainable without prodi1ction of the
.U S A N
MAu,_.G, J.. judgment on which it is b~sed, z1ide the rulings in
Baijnath Karnani v. Vallabhadas Dam ani (1) and
Brijlal Ramjidas'l an(i, another v. Govindram. Gor-
hiindas Seksaria a42d others . (2). It seems hardly
nec.essary to stress that it would have been far more
satisfactory if the judgment of the foreign Court
had be,en. ptoduced and indeed .the appellant's failure
in his . spit was due mainly to the non-availability of
that judgment .to the trial Judge.. For instance, it is
not :dear . w'h ether the questio.n of limitation \vas
ever con~idered by 'the learned SubordimiJe. Judge
or'.-Sivaganga and such a doubt might easily have
been. removed . if the judgment had been produced .
The piaip.t.iff-appellant undertook to file a copy of
the judgment and though he took several adjour,nments
he finally fail~d to produce it. No satisfactory 'reasons
have been furnished for this failure though .the learned
Counsel for the plaintiff~appellant tried , to . ~ake
out that as the snit before the . " :foreign Court ,; was
a Small Cause one the judgment' was not
usual typeto .be found in regular-suits. Be ~h.i(~~s it
the or
may, the d'e<;ree of the 1' foreign::Court " in qdes'Hc>n is
Tnteresti.ng- 'aQ.d reproduces the claim of the plaintiff:..
ap,eeilant ~~ -~u.t f.q rward in t!;J;:l.C.o urt as follow~ : ..... .
~: . : .;:~
.: ..... .. : -:'~ > -~.. . .
0 ... ... : .. . :.;.~. .~. .
, >. ...
.. " Claim~ ..f6r Rs . . 894-9-9. . d'lt .,on. a . deposit letter aated .
l Jth A~~il .1?~~ exec~te~ }>i ~~~~ So~k~lingam Chettia~. the
" ' I ' , \ ' ''
 1951] . BURMA LA'vV REPORTS. 401

undivided father o'f defendants 1, 2 and 4 and husband of 3rd H.C.

1951
defendant to plaintiff for Rs. 952 payable with the current rate of
interest prevailing in Rangoon. Payments of Rs. 101 and S.P.S.N.
Rs. zoo were made on 4th Jt:ly 1939 and 1st April 1941
KASIVIS-
VANATHAN
respectively. " CHETT!AR
v'*
In other words, it was a suit for the payment of monies KRrs~;~PPA
deposited with the respondents. And the learned A;~EoT;~~s
.. 3rd Judge o the City Civil Court who dealt with the . u SAN
plaintiff-appellant's suit was of the opinion that the MAUNG, J.
claim was time-barred and that the learned Subordinate
Judge of Sivaganga erred in granting the decree which
he did. According to him, the two payments of
Rs. , 101 and Rs. 200 on 4th July 1939 and
1st April 1941 respectively were presumably made in
response to demands and hence the period of limitation
would begin to run from the last date, viz., 1st April
1941 and as the suit was filed in 1946 only the
claim was time-barred. It is impossible to say whether
the learned Subordinate Judge of Sivaganga did in
fact consider the question of limitation before
pronouncing judgment. To add to the difficulties the
parties also failed to lead evidence on this point in the
trial Co~rt. Th~n again, it is not clear whether the
Indian Limitation Act was applied by the learned
Subordinate Judge of Sivaganga. If the Indian
Limitation Act was applicable then thjs Act is the
saine as the Limitation Act in force in B~rma.
According to section 3 of the Limitation Act " every
suit instituted, appeal preferred, and application ma~
after the period of limitation prescribed therefor by
the First ~chedule shall be dismissed, although liJinita-
tion has not been set up as a defenc~. " The fad that
.the. s?it was d~creed by the Subordinate. Judg.e . of
. Stv(\ganga. goes to show. perhaps that there was.:no
:ciuestion of the . plai~tiff-appellarit's ~lairn . being tirrie-
,barred.. ..
. 26
402 BURMA ,LAV\' REPORT~ . [1.951
H.C. . Now, it is common ground that a.-hcle 60 of the
19$1
Limitation AGt is applicable to the claim in q uestion and.
~fs~~~ hence the wh.ole matJ~r hhiges on whether there was
VANA'nfAN
CHE'l'1'1AR'
any demand by fhe p: taititiff-'appellant fOf the payment
v.
s-s. . of the monies lying in deposit. The le-a rned 3 rd
KRISHNAPPA Judg~ of the City Civil Court has presumed that the?~
,CHJt'f.TtAR
ANI>"oTHcJ.<s. payments were made on demands. But it does not
ne. c essarily follow that all payments against deposits -
USAN .
MAUtHi, J_ are th_e results of demands by the depositor; In
the present case, the parties were apparen,dy
on friendly terms and there was mutual t:rust between
them. It. might well be- that the payments were
ac<;:ording to some previous arrangements arr~ved at
between the parti~s. Had it been otherwise. the
respon,dents would. no doubt have pleaded it before
the Subordipate Judge of Sivaganga and pleaded.
that ~he claim \Vas time-b~rfed. The fact that they
failed to set up any such defence or to . put in an
appearance would .g o to show that . there was no
demand for the payments. If there was no derriand
tnen the plaintiff-appellant's -claim was well within
time. For the -above reasons We regret- that we are
ur1able to agree with the learned 3rd Judge of the
City Civil Court that the decree of the ''foreign
Cowt : was in respect of a time-barred debt.
\s
~:~~'l)\~1~ 1~~ a~~ther aspect to this case: Section _13
or the. elvll Procedure -Code lays down that "a
'fg~J~A\j~-~~~g~f:.b:l:;~~}l;t{~~cqncl}ls\ve as to any -. ~at.ter:
t-~?~~bi i:ltie~WY .' ~~j;ii?l\~~~~~(),Qpon~~~,et~~~n . the same-
~itr~ n,,-lJJe1C''{ t .)''n'det' " c~- :ta:i ~-;/S" 'e.c''...a;. 'd cu --.
~ ,_: ::i.':.n:,:!J EM\ r::~:.nq <!:::; r; ..~ t1?-r . ;J;> : }#-f1_.,. :t!~ 1JPIJ.
W'h\l~!~'~ntr:~~9~M~~[~'l;~har~~.-.~i~;t~~~!!i~Jt~~
b6lid~6i' ;g~)he _rs-gJ~I't ;s_. ,, ~rni ~ti-t~Ifh~tt~
. }!e't'
.i_e/Au
., - -'"'*wT. l ,,Rt ,rb',oifuP, :1 m- ~~ i'\~ . . ). J?;.:. ~~ .
k .

~g~~t~ .a~~Rf~.f. JL[; ~c(f~\~&il1~-n~ei_1{)H: (j~~ _ 9:~t,Y.Ft\)?~

a:law lfi force -In .t:Surma 1' lt- ~ ~;fficult .to,~ 4pD(f."C.Iate
"t) J'n i.i ''iJ !:..>(J p rd:.: <: w d ~q<tr - t.!}Y:Jm (~ ~.u ;.: ~!Jr::.:qn.
tn1s argument. as a cla1m ~o ;r.e cover m~mes m :'f'rl?.Pr~~~ .
1951]

is hardly an illegal claim. Had the su it heen one ior H.C.

1951
the recovery of a. gambling .deb:t or in respect of an
S r S.N.
immoral contract then clearly such a claim would
' ' \ I \ ' ' . , '\ \' ' \ ': ,
l(,ISIVIS-
VAI\ ,,THAN
be "founded on a breach of a 1a,,.. in force in the CHETTJAR
Uninn of Burm.a~. :lQ.i~Ga;tga Pr(.l,spd at~q ; anuther .rI.
$~n
v. Galleslz Lal a11d others (1) it was laid down by a KRISHti.APPA
CWPJti\R
Be11ch of tbe Allahabad
.. . ~
High Cou rt ' that
-:: n . t : 1 / r ; '
. where a
' " '.J ANO OTHERS.
foreign. Court merely appiit:'s its o\tn ~a,~. oi .. Limitation u SAN
-in respect :ofa n1attcnbefor.e. ~Lthat Court . cann~t;..,b~ MAUNG,J.

said to have rch.i se'd 1 'l6 ~' re<:'Og1l'i'se the law of India
sfmply oecause the law ofU1irlita(io'n may be djffer~nt
'; ' ' ' : "" . ;' ' 0 . . 1 . I
~''I

in the two countri~s. Il1.e . ~e,ar.Qe<;i. Couns1. .for .~t9e,

respondents has submitted" .,that if the '. l eaniet'<D
Subordinate Judge of. Sivagarrga had held that the
pl~in tiff-appella~t'~ da.~Di,~~~ ~'qt .~~-~,~-bar~eq :a.<;:cp,rd~~g;
to the law of Limitatio'n : applie.able in Siva-ganga, . he,
would be precluded from questioning the :decree ofi
that Coiut: . He
goes 'on'fo s ay'"tnat si!lce this qu~stibn .
was not touched upon by a foreign Court it was opeiit
to him to raise tbe matte.Jiijn Jp~.Gity Civil (.<i;opr.t,; f\ As
pointed out earlier the question of Limitation was
presumably consideredUy ::tfifNoreign Court lJ-efoP-the
suit })~~ . ~~~r~~~ -~~? }~,eR~n. f~~~~?.~~n,~s -~f~not tfn1
be pernutted to question ~he decree of that Court. In
this con:n~cti,op ;t p-:e.- Jollpwfpg ro.lli?fr~9~.ion~,.at~.p~g; 121
{)f the-I<!-bQ)Je~m:enti_one9f-.J.J~li~ ril;I:~; WO~~ apposite.~.,..... , "

:; . . A tCOtalhgty:ttltS app~l Wtl1llb'llillOW~d ~witbr:te<M'~

~rhe :judgtne.n r tihd Idede~f '!tfi~!.'City; ~Ci viL:eQuFt ri~
sef'<isjtle and~ 'there rwiU' b~r:a~'decre~ ifdr the plaintiff! ..
~p~et~~.D:~ ~:s:max~?._:!gr:e. .
F ., r l. ; -
:: ::;-
,t l~
, .. .. i~l-:-
(. 7:
1;-:';-,-.:.-
:-:. --.. -
-'--"'
' " '-"-'-'
'c.:..,.'_;---'-'
!:.;_
_:_'..;_
-
(l) 56 Alt:li9. .
404 BURMA LAW REPORTS. [195 1

APPELLATE CIVIL.
Before V On P.e a11d U Scm ltfaung, JJ.

.Ji.C EPHRAIN SOLOMON (APPELLANT)

1951
Oct. 10.
v.
c. AH FOUNG AND ANOTHER (RESPONDENTS) .

Mesne f>rofits-!Jfeaning of-Whether it iiLcludes itderest-S. Z (12) of tire Code
of Crvil Procedure-Grant of interest.
Held: That in view of the definition of mesne profits ins. 2 (12) of the
. Code of Civil Pro:edure it is clear mesne profits mean not only those profits
which a person in wrongful possession of the property actually ' recei\ed or
might with due dili~ence have received but also interest on such profits.
When a prelimio;J.ry decree grants mesne profit>i to the plaintiff 1t IS not.
open to the Court at a later stage of the proceedings to say that the plaintiff
is not entitled to any interest on the profits which the person in wrongful
possession of the property actually received or mil;(ht with ordinary diligence
ihave received therefrom.
.V. C. K. P. ltfc;nou v. V. C: K. R. Menou, 54 Mad. 955 (F.B.) at 960961 ,
foTJGwe4.

Kya'lll Din for the appellant.

Ze Ya for the respondents.

The judgment of the !3en ch, was delivered by
U SAN MAUNG, J.-In Civil Regular Suit No. 302
of 1947 of the Ori~in~l Side of this Court the
plaintiff-appellant Ephrain SolOJ:I1.0D, who sued the
, defendant-respondents C. Ah Foung, Chin Hone On
Ml two .others for possession of the premises in suit
and for mesne profits for the use and occupation of the
-sai premise~ as from the 1st of August 1Y47 to the
30th of Noyember 1947 reserving to himseJf the right
-to
. sue
. for Tuture mesne profits, w~ .
granted.
. a.
. 'civil 1st ' Appeal No. 80 of 1950 again$~ th~ o~der of
thi,:
Court ora the . .
l()r~~i~al Siile,i~ Civil Regular No. 302 of 1947, dated nrd November 19so: .
 1951] BURMA LAW. REPORTS.
. . 405

prelimipary decree dated the 5th of March 1949 by the H. C.

l951
then Hon'ble Judge sitting on the Original Side
Er>HRAIN
(U Bo Gyi J.), in these terms: SOLOMON
v.
''Suit for possession of immoveable properties mentioned in C. AH FOUNG
AND
paragraph 1 of the plaint and for recovery of Rs. 2,000 due as ANOTH.t;l<.

compensation or mesne profits for use and occupation of the said

U SAN
properties by the defendtlnts from 1st August 1947 to 30th MAUN<P, }.
November 1947 at the rate of Rs. 500 per month ; the
plaintiff reserving his rights to sue for compensation or mesne
profits which may be due in future in respect of the said
properties.
For thi purpose of jurisdiction the suit is valued at
Rs. 47,000 and for Court-fees the suit is valued at Rs. 45,000
being the market-value of the proierties as per certificate of
valuation annexed to the plaint and at Rs. 2,000 for compensation
or mesne profits.
This cause coming on the 22nd, Z3rd and 24th days of
February, 1949, and the 2nd day of March, 1949, for hearing
and disposal before the Hon'ble Justice U Bo Gyi, orie
of the Judges of the High Court, Hangoon, in the presence of
Mr. V. S. Venkatram with Mr. M. Ahmed, Advocates for the
plaintiff, U Zeya, Advocate for the 1st and 3rd defendants and
Mr. C. A. Soorma, Advocate for the 2n.d defendant and there
being no appeannce bY' or on behalf of the 4th defendant and
this day fQr delive'ry of judgment ;
. Jt rs H eltl : That the plai!Jtiff is en titled to mesRe profits
as claimed as reg:uds the 7th issue set out hereunder and it is
ordered-that the said issue be remi.ttecl to the Official Referee fox:
enquiry and- report t0gether with his findings thereon and
reasons thereof..
It is further Ordered; Th1t the suit do stand adjourned I0J:
making -a final decree until the . Official Referee ha~ filed his
report. 1

7th Issue
--
Is the plaintiff entitled to mesne profits and, if so, what is
the amount and against whom?''
The decree was confirmed by an Appellate Bep~h
of this Cqurt in civil 1st Appeal No. 19. of 19491
the appellants . in the .case being the responqents
 . . .
.BU'RM!L\1'liAW' REl-'ORTS. . [195L

'H.~. ~:(U ;
Jt9'1l
A.H. -F6\irrg a~rd Chin H o ne; 0n. Thereafte.r by an
"""'-'- dt~erl d:aied::'fhe 19th of_ :June 1950, a Commissioner
ViE'Pil ~kYN f_
vso1Je>A!dN was appointed for the purpo se .: of taKin:g accounts in
:-JePA~'V~6ufllo ifie;1J?.yct o,Ct.?~ f11e~~.e.,J?~Rfit~. ~? which the plaintiff was
"IA-'N~~IftR ,~nJU~eq~,y,~cfex t~),e ..i<rx~~,m.:in,q.ry .~ec;ree passed in his
"ayour .on.the StP,,of lYiaJ;Cl:I JWh9.: The Commissioner
.~~~ry. ; ~W- Tin \Foon).if'teJDOit~d.tha:t the plaintiff was entitled
::tb mesi1'e': profits'tbr ap~ri'od '{)f 28 mont}:ls from the
~?.~~e:.9nli'eif~~mwt\dri:!?.!~J.?fs..s*1~/' hap1ely, . the 17th of
'Decernb~r 194;,' at' ti1b " ~aH~ of'"'Rs.' 500 per rn.e nsem
1 1-:Vii~}.~t)Jer~t~,;t.her:YRn ,f;~,c~)a.t;Yd rponth by month at the
(0 :o>.art I"ate,f)f :9,,pe; c.e ritperd !IpJ;:~iem and that U1e total
i mesn:l pTo:fits>to.<whi'h3he~ wa:~ ! ertqtJed wa.s R.s. )4,000
~"'j>~us 1 'Rs:.. '~,'488:LCRs~ -45;488!.J '- i:Wihen the matter came
~ np~ ~~~iiJ .~,~f~~~'~ t~.~ f>~f~ii.q_a~..~ide oE this Court, the
;_~1 9;n.,'.~ly,.Jll;~l~.<; (~-}~8?&r~}2~ ipyaw J.,) ~rdered that
J.p,ct.~.})l9..HldJ h~_.i R;n ~tng,k.R;~Fee for the ;payment of
Hnes.lflli=prpfit:;. t~ th~~?'i~~nt; qf, Rs. 16,000 consis~i ng of
$RS.'iL~)2,00@x.v$:.ecifiuaUy .iidaimed in the plaint and.
rRs. <J!4;0'0ol~br ~~1e p~rioli )~f 2-8 months commencing
~fr*~'~ft\<~7t.~.:?LJ!~f.~~r~.efD
bn., J. l/,). , ~.::.~ ..l ' ,., 1QIJ ' 0 ,[J,fJ,;.J !t
194~ at the rate d d b
of Rs. 500 th
per rneosem. 1.e m er.e.s rec_ommcn e y .e
)1~(:l,~q.e~r-::.~~JAI'J1l~i~p)e~;,;\)vas disallowed. N:o . mesne
4>00fitd'Y.as)giwen,fornparJ,., of the month of December
~pho:t~:.to~tiW ..ilf1stihi.h0rt we the suit. . .
hnl~ Botl1 !1Che:de-ah&i:J.l <I:ommi~sioner, to . whom the
1

Illa~~e.r.. .I:~~~r~i~g ?1~~ne profits ..was refe'~.n~d, arrd

~ rl )a~f/ r1' 6a1 'G
1
~~~ .. .:~~w C!t .~.- ,~~em to . haVe. overl~ok.~d -.the
..., [i\~i;ll1 !f,., ... .,~ ./ 1 J.t ( . .
fact tl:lat in the preh ~n inary decree granted to t~e
.Plaintiff-appellant Ephrain .S olomon it was meptioned
~ai the plaintiff was entitled to mesne profits as
:~larfted~?. atidl'tJhe~1fuesne pr:ofit dai'med. was rh~rely
for <he perioP. 1st o( August 1947. till the .3.0.t~ of
N~~b~ii9-t~M~i' rtJ:le right to . sue f~r future:" rrlesne
~Wts beiNgre~e1v'ed.: However,-since-tlYe tef'poriden~
..rtaW.liOOfJ~~d .:&rf~ross~appeal .
i'n. regard
. :io the... gr;an t. : 0 :
;
 1951] BURMA LA\V REPORTS. 407

mesne profits to the plaintiff- appellant for the period H.C.

19!il
of 28 tnonth s commencing from the 17th of December
'
1947,the matterdoes not need any further consideration.
EPHRAIN
SoLo~roN
v.
This appeal is by the plaintiff Ephrain Solomon C. AH FOUNG
against the brder of U Aung Tha Gyaw J., disallowing AND
ANOTHER.
interest and mesne profits for the period 1st of
December 1947 till the 16th of December 1947. As
regards interest it is clear that the learned Judge on
the Original Side was wrong in not allowing any
interest to the plaintiff. From the definition of mesne
. . "
profits. given in sedion 2 (12) of the Civil Procedure
Code, it is clear that mesne profits means not only those
profits which the person in wrongful possession of
properfy actually re.ceived or might with ordinary
diligence have received therefrom, but alsb interest on
-sud; profits. Therefore, when the preliminary decree,
dated the 5th of March 1939 mentions, as it does, that
ih<! piaintiff is entitled to. mesne p;ofits, it is not open
to the Court at a later stage of the proceedings to say
t~at the plaintiff is not entitled to any interes t on the
profits which the person in wrongful possession of
.proper_ty actually received or might with ordinary
diligence.. hav'e receiv.e d therefrom! . It is no doub~ .tru.e
that th~ Court which has still seiz_in of the cas~ can
decide the . quantu~ of mesne profits which the
plaintiff should receive, and this includes the amount
Qf interest properly payable. t9 him.. Therefore whe n
the Commissioner recommends that -a certain sum 6(
~on~y .sho!tl.ct. J~~ ~,nc!~ded il). . th~ : me.s ne .p_rofits a~
-interest,. ~t ~~ :with'iri,. ihe iJiQ.sdi.c tion of the .Gourt to
reduce the amount to a su~" io.wer. than that ~ecorrl'
mended bv the Commis~ioner; or .to . enhancci the
amount to ~ sum greater .than ltlat reeo~~endsd ~ by
th~ Co~rriiss}oi:J.er. ... It is not ope~ to tlie C<;>urt totally
to disallow any 'i_nterest ;giv.en at that stage, In th!s
connecti9.n we are entirely iii agreement with the
408 B U RIV1 A LAW REPORTS. [1951
H.C. observations :of Anantakri shna Ayyar J., in the case
1951
of V. C. K.P. Mmon v. V. C.K.R. Menon (1). There
EPHRAJN
SoLOMON the learned Judge observed :
v.
C. AH FOtiNG
AND " According to fhe definition of the expression' mesne profits /
ANOTHER. contained in section 2 (12) of the Code of Civi'l Procedure,-
u SAN ' Mesne profits of property means ' those pr~ fits which the
llfAUNG, J. person in wrongful possession of such property actually received
;,)
or might with ordin:~ry diligence have received therefrom .
together with interest on such profits.' The result is that,
though the first decree (which would be a final decree so far as
the delivery of theeproperty is concerned; but only a preliminary
decree in so far as it directed an inquh:y as to the m esne
profits, -past or future- Y be a decree for 'mesne profits
merely, yet, having regard to the definition of the term
. ' mesne profits ' mentioned above, the court which inquires into
the amount of mesne profits should award to the successful
plaintiff not only the profits which the defendant in \UOagful
possession actually received or. might with ordin1ry diligence
have-received from the property during the period in question.
but also a '!'lard ' interest ' on such profits. No separate , or
specific direction in the first decree as regards the award of
interest is necessary to en:tble the Court when inquiring into the
amount of mesne profits to p:tss a decree for interest also on the
said amounts of profits, unde1 Order 20, Rule 12 (2), Code oi
Civil Procedure. The questions,-whether mesne profits should
be aw~rded or ~ot, and if so, the pel'iod for ~'hich the same
should be awarded,-are ;questions to b~ decided by the C ourt
which passes the first decree under Order 20, Rule 12 (1), Code
of Civil Procedure. ' Mesne profits ' are in the nature of damages
which such Court may mould according to the justice of the case.
It may, having re.gard to the circumstances, decline to award
any mesne profits at all ; or limit the period for which such
profits are to be awarded ; or give spetifit dir~ctions as to how
the same should be calculated .having regard to the special
circumstances of the case. Similarly such Court has jurisdiction
t~difect that. no interest at all be awarded to the phiintif( or to
.fix the rate of interest in the circumstances. Alf these are open
to tb~ Court wh.i ch pass~s the first Cleere~ under . O.~der 20.
Rule 12 (lL But; 1 that Court sit11ply ~asses a decree for
; (1) 54 Mad.- 955 (F. B.) at 960~961 ..
1951] BURMA LAW REPORTS.
. . 409'

' mesne profits' for a plrticular period, then it is no more open to H.C.
the Court inquiring into the matter under Rule 1:? (2), either to 1951
refuse mesne profits ~tall, or to limit the period for which profits :!:PH RAIN
Soi. O)fON
should be decreed, or to decline 'to awatd any interest at all,- v.
though it is open to it to fix the amount of such profits and C. AH FOUNG
AND
also to fix the rate of interest." ANOTHER.

For these reasons we would allow the appeal in so u SAN

MAUNG, }.
far as it relates to interest and direct that interest as
calculated month by month be given at the rate of
3 per cent per annum. The amount of interest so
payable will be one-third of that recom~ended bythe
learned Commissioner, viz., one-third of Rs. 1,488-
Rs. 496.
As regards mesne profit for the period 1st of
December 1947 till the 1/th of December 1947, the
appeal is dismissed fer the reawn which we have
already given above, namely, that in the plaint the
plaintiff has specifically stated that he woul.d reserve
his right to sue for mesne profits for the future period,
namely, that commencing from the 1st of December
1947. No such suit has been filed.
In the r suit the appeal succeeds in part. The
amount of mesne profits a~ar~ed to the. plaintiff-
appellant will. be increased by a s.um of Rs. 496 as
calculated above. Each party m1.ist bear its own
costs of thi$ appeal.
410 BURMA
~ '"
LAW
'"
REPORTS. [1951,

CIVIL REVISION .
Before U 011 Pe atld U $an /J1au1~g,JJ.

H.C. MAUNG THEIN (APPELLANT)

1951
<Oct. JZ.
v.
DAW HTWE AND OTHERS (RESPONDENTS).* .
Admi1z'istration SUit-Addition of #r;ou in possesszon as Party-.Veccssu'ry
parties itt admmistration suzt-Whetfier a suit shottld be dismissed
against an u ~1l~c,essary party or he s!Jould be struck off-Code of Civil
Pr~ctdure, Order 1, Rr~lc 10.
field: That administration suit is really a suit for accounts as between
members o! the family of the decea~ed, i.e., heirs to the estate of a deceased
persorn as such. A person outside the family cannot be joined as a party
although h:: may be in vossession of a part of the estate; the proper course
then is for the representatives of the estates to
fil'e a separate suit for the
recovery.of such propertks.
In th~ case of Burmese Buddhist 'adminietralfor. suit ~hould be fited when
division or inheritance is claimed from another heir.
When a person who is not a necessary party in the administration suit,' is
added, he should be struck off from the suit under Order 1, Rule 10 of the Code
.of Civil Procedue anu stiit should not be dismissed ~s against him and the
defendant struck off should not be granted a~ valorem costs:
Ah Kyan Si11 a1td otie v. Yeo Ah Gwan and others, A.I.R. (1937) Ran. <497:
. Ma Thin On and others v. Ma Ngwe Hm011 and others, A,.I.R. (1936) Ran. 13 ;
Mauttf!. Ba Tu v. Ma Thet Su a11d otlrers, 5 Ran: 785, followed. .
She~ All v. Jagmohan Ran and'artol!ter, 53 All, 466 ; Ramji Pandey v. Ala/
Khan, 3 Piit. 859., distinguished. .. ;

Hla Gyaw for the appellant.

Ba fla'n for the respondents.
The judgment of the Bench wa~ _delivered by
U SAN MA.UNG, J.-In Civil Regular Suit. No. 4
of 1950 of the 9~.urt of the Assistant Judge; .yingyan;
tt.re plaintif-app_ellant Maung Thein, in suing Daw:.
Htwe ~rid paw Aye Tin, _two wives of the dece~s~cl,
. *Civil: Revisi~n No. 74 or\9S.i a){~inst Civil Heg 11ar Suit No. 4 of i9So
9f the Assistant_Judge~ Court ?f :'4yirigyan, dated the 19th Augpst-1950. . .
 1951] D U RMA LAW .REP!JRTS. 411

U Belu,. for the. administration of the estate of the H.C.

1951
deceased also joined as co-defendant the second
MAUNG
respondent Ulingan (alias) Pulingan, a clerk of U Belu, THEil'

who after the death of his employer, married his chief v.

DAW HT\\'E
wife Daw Hh;~i e. The plaintiff claimed, as the adopted AND OTllt.RS.

son of U Belu and Da\v Htwe, he was an heir to uSAN

MAUNO , J.
.U Belu's estate. Ulingan was joined as party
defendant on the ground that som~ of the properties
comprising the estate was in his possession. Of the
two preliminary objections raised by t.hc defendant-
respondent Ulingan, one was that he should not be
added as a party defendant in an administration suit as
he was a person outsid~ the family. T his preliminary
objection was sustained and the:! learned trial Judge
ordered that the suit as against the defendant-
respondent Ulingan be dismissed '!Nith costl:. In this
:appeal against the order dismissing the suit so far as
Ulingan was concerned, it is contended that .the
l earned Assistant Judge, Myingyan, had erred in
ign oring the. fact that Ulingan had no~ only married
D aw Htwe,, the widow of U Belu, but that he was iq
actual possession of . the properties belonging to the
estate n Qw ~ought to be administered and that in any
event, the learned Judge had ert ed in awarding ad
valorem cost t<:> this respondent, in view o.f the fac.t that
the suit in so far as this respondent.is concerJ?.ed, was
dispos~d of upon a preliminary point. In ccmrse of th,e
argument I?efore us, a preliminary objection was rais~d
by the lean~ed Advocate for the second defendan t
regarding the main tainability of . this appeal. The
lear~ed .Advocate has urged that the so-called dism~s~
of th~ su it in. so. far . as .the respondent Ulingan is.
concerned, is really an order. striking .out his . ~me
under Order l~ Rule 10, of the. Civil Procedure ~~de
and as s'ucb, not .stibje_c t, to appeal. In our opinion,
th1s .conte~tio,n ' m~st b~ allowed to prev;.ti't. Although
412 BURMA LAW REPORTS. [195f
H.C. the order was wrongly worded , its real ~ffect was lo have
1951
the name of defendant-respondent U;lingan struck off
!\.1AUNG
THEIN from the'array of defendants as having been improperly
DAwvHTw.E joined as a party defendant. This order is substantially
AND ~sRs. correct, as a suit for administtation is really a suit for

u sA~ accounts as between the me.mbers of the family of the

MAUNG, J. d ecea.se
. d person an d as sueh , a person outs1'd e th e
family, cannot be joined as a party although he may be
in possession of a part of the estate. The proper course
is for the repr~sentative of the estate to file a separate
suit for the recovery of such property. See Ah Kyan
Sin. and another v. Yeo Alz Gwan a11d others ( l ), in
which the ruling in the case of Ma Thin On and
others v. M a N gwe Hmon and . others {2) was relied
upon. See also Maung Ba Tit v. Ma Thet Su and
three others (3), where it was held that the proper suit
which a Burman Buddhist should file to obtain a
division of inheritance from the ot her members of the
family; is a suit for the administration of the estate of
tihe deceased. There is no doubt authority for the
proposition that where the name of . a defendant has
been struck off on the ground that the plaint does not
disclose any cause of action against him the order
operates as a decree an~ is appealable as such. In the .
case of Sher Ali v. ]agmohan Ran and another (4}
which was a suit for damages for malicio'us prosecution
against two defendants and the Court after considedng
th.e pleadings was of the opinion that the plaint did not
disclose any cause of action agait:tst. the second defen-
dant and ordered that the name of the second defen -
"ga~t be struck off, it w;1s held that a cause of action
against the defendan t having b~en specifically p~eaded
an~ a relief claimed a'gai~st him, the order directing
of
the temoval . his name .from:t}le. .array: .
of parties i~:..i~ .
(IJ A.I.R. (1937) Ran. p. 497. C3J s Ran P i'ss:
(2) A.I.R. (1936) Ran. p:I3. (4) 53 Jill. p. ~66.
1951] BURMA LAW REPORTS. 413

substance a decr~e and appealable as suc h. However , H.C .

1951
SherAli's case (1) is not only distinguishable from the
1\lAUNG
present but the observations of the learn ed Judges who THEIN
decided it are not inapposite. The learned Judges 2'.

-.
DAW HTWE
observed: AND OTHERS.

U SAN
''Where lhe plaintiff had impleaded a person merely upon MA.UtoiG, ].
the ground of convenience and f.he plaint discloses no cause of
.action against him and the plaintiff has claimecl no relief agains_t
him, the order of the Court directin~ the removal of the name of
-su'c h a defendant does not operate as a decree, for, it has not the
effect of au adjudication, and the integrity of th'e original claim
remains unbroken."

As already observed above, in an administration suit

there is no cause of action as against a person who is a
stranger to the family. The defendant-respondent
Ulingan was merely joined because it was convenient
to do so and the removal of his name from the array of
.defendants did not therefore have the effect of an
adjudication, the it)tegrity of th e original claim namely
that t he plaintiff-appellant is the heir of U Belu's
-estate remaining unbroken.
The case of Ramji Pandey v. Alaf Khan (2) cited
by the learned Advocate for the appellant is also
distingui!)habte on the facts.
In the result the appeal fails. However, as it was
highly improp ~r for the learned trial Judge to have
awarded ad valorem cost to the defendant-resp.o ndent,
Uiingan, as if the suit as against him could be properly
dismissed on the merits, we would treat the apJ(eal
as an application for revision. The order of th:
Assistant Judge, will be .varied by substituting. the
following for the sentence ''in the result tbe~uit a~inst
the defendant Ulingan (alias) Pulingan will be dismissed
with costs'':-. "in the result the preliminary objection
(1) 53 All. p. 466. (21 3 ~at. p. 859.
414 BURl\TA LAW REPOf{TS. [1951
H.C. of the defendant Ulinga n (alias) Pulip'gari is sustained.
1951
His name will be struck off from the array of defen-
!ILW:-:G
THEIN dants. He 1..rill als~ be awarded three gold moburs.
v.
DA.v HTwE namely Rs. 51 as his costs. "
AND -OTBI!RS. Let each party bear itsown cost in tbi~ Court.
e s.\~
MAUNG, J.
 195lj BURMA LA\V RE PO RT S. 415

APPELLATE JURISDICTION.
Befurc U Sm liJ,, ,.g and U T .i:11mg St:i11, J I.

ADAMJEE HAJEE D AvVOOD & Co. J...:rn. H.C.

1951
(APPELLANT)
Oct. ZO.
v.
THE COLLECTOR OF RANGOON (RESPONDENT).'~

L.m Acquisitilm Act-Ss. 4, 5-A, 6, 9 nud 11-PtJWer- of lire Collector to release

f ,,,.,/s-:-S. 23 il)- .llo:OIIiUR of lire wt:'r d " markef-vnluc " - When to be
wmpu!eti-i>rinci ple 011 w/ur/1 tlf>tcah are all01.oed,
Hcltl: In view of the clear wordings of ss. 4, 5-A, 6, 9 and 11 of the Land
Acquisition Act nei ther the Collector nor the Judjle sitting on the Original
Side: w~s competent, to reduce or lin: it or over-ride the de<.ision of the
Government as to the ncce~sity W otherwise of acquisition of any portion of
land. The Collector's duly is confined to marking out the boundaries and
Collector and Court are authorized to decide only the quantum of compc:nsation
payable to the owner for land taken over by Government but neither can
release any portion cf the land acquired.
Market-value of a land is the price that an owner will in~ :lnd n ot obliged to
seiJ might re asonably expect to obtain !rom a willing purchaser \\ ith whom be
was bar~aining !or sale and purchase of the land, and such value should be
the value at the time of the declaration under s . 4 of the Land Acquisition Act.
Potential value of the )and acQuired should be f'aken into conaideration in
assessing market-value. The Collector should generally visit the land
personally before fixing the market value.
In appeals involving the question of valuation in land acquis1tion caaes, the
decree complained of will not be interfered with unless aome .erroneous
principle has been invoked or some piece of evidence over-looked or has been
misapplied,
Re. a" Arbitration between Lucas a11d the Chesterfield Gas and Water
Board, (1909) 1 K.B. 16 at 2930 ; Cedars Raptds Manufncturi"8 0- Power eo.
v. L<~coste, (19.14) A.C. 569 ; Fra~er and others v. City of Fraseruille, U9J7) .
A.C. 11S7 ; Swift & Co. v. Board of Trade, (1925) A.C. 520; Reddiar 'and
San Chein v. Secretary of Slate for India in Cou11cil a11d 1/u Special Collector
of Rat18001J, J.L.R. 5 Ran. /99; Premchaud Burral and a1sother v. ehe
~llector of Calcutta , r:L.R. .2 Cal. 103; R. B. Lalal Narsingh oas. v. Secretary
of :.tate for [ttdia, (19251 A.I.R.(P.C.)91 ; Ma SeiiJ an.l. others v. Collector of
R,an~Mn;1 I.L.R. 7 Ran. 227; Govemmenl
I . . . I .
oi
~omba~ v. Merwa11 lfondigar
.
:J~!t U.o: 0 Jtit <.tt : p ..... .' .
' ~ . : c;;ivl' .~~t~.l?~e,.~ho1;,,5f,Rf:l l949 aga~nst the decree of the Original Side,
Aiglkou'ifin ciJiJ RegJfa~ 'No. 144'of 1949,. dated 12th August 19-49. .,
416 BURMA LAW REPORTS. [i9Sl

H.C. Ata,, I.L.R. 48 Born. 190; P1ibhu Diyal v, Secretary f Stal e, (1931) A.I.R.
1951 Lah. "364; Maunt: 8(1W Kltin v Special Collector, lt!aubiu, (1935) A.I.R. R:tn.
157 ; Sri RajA V,richerla Narayana Gajapt:liraju Bahadur Gru v. The
APAMJEE Revettue Divisiottal Officer, Vix.7gapatam, (1939) I.L.R. Mad. 532 at 548; Mohini
H.AJ:EJt Molta11 Baturjee and others v. The Secretary of Sft:lc, (1921) A.I.R. Cal.
DAWOOD & 193; T1:e Collector v. Tlte Mana ger, Kurlu Estat e, 11926) A.I.R. Bam. 223;
Co. LTo.
v. Mnung Po Ni and one v. MaS/twe k'yi atut others, I.L.R. 2 Ran. 397; Kanlo
' THE Prasluid Hazari v. Jagat Cha11dra Dutta t:nd others. I.L.R. 23 Cal. 335;
COLLECTOR Almaram B!Jogt,ant Gltadgay v. Collector of Nag:Ptlr, ( 1929) A.l.R. (P.C.) 92,
()F RANGOON.
referred to and fcllowed.

C. A . Soo~ma for the appellant.

Tin Maung for the respondent.

U THAUNG SEIN, J.-The appellants (Messrs.
Adamjee Hajee Dawood & Co. Ltd.), are a well-known
firm of match manufacturers whose factory is situated
in Pazundaung Quarter of Rangoon Town. Certain
lands belonging to the appellants and lying outside'
and contiguous to their factory premises have been
acquired by the Government at the instance of the
Rangoon Development Trust for the setting up of a
residential quarter for the labdurers and employees
of the various mills and factories situated in and
around that area. The Collector of Rangoon, who
was in charge of the land acquisition proceedings,
awarded compensation at the rate of Rs. 2,000 per acre
in respect of the.13t acres of land which were taken
ov~r. The appellants were naturally dis~atisfied with
this rate as they had originally claimed no less than
Rs .. 14,000 per acr~. There was a further Complaint
. agp.inst the award on the following :grounds. ,
The appellants' factory is situ'ated at some distance
fr~ the Pazundaung Creek which is the only source of
suf>ply'.ofmatchwood 't o the fadofy~ It appears t~at
the wood in question is flo.a ted down from the forests
.. o~ Upper Burma inrafts and later bi~ken up into siQgle
logs in the Pa zundaung Creek: From
thence the ' logs
195.1] 417
H.<; .
.are floated into. the factory along a small waterway 1~51
wh ich links the factory with Pazundaung Creek.
AOAMJEE
Thi~ waterway flows through the land which HAJEE
has since been acquire.d by the Government and DA~ooo Co. LTD.&
the appellants are thus anxious to retain a T~E
narrow strip, 20-feet wide on each bank to enable CoLLECT~
t h em erect wa.t c I1men ' s 1Hl ts for th e proteclton
4.
o f OF RANGOON
_
t he logs while in transit from the Pa4undaung u SEIN, TttAUNG
J,
Creek to th e factory . Unfortunately {Qr them the
Collector of Rangoon refused to accede to their
request \.vith the result that the award was not
.a<;:cepted and the whole matter was r.eferred to the
:Original Side of the High Court under sec.t ion 18
of the Land Acquisition Act. The reference
was dealt with by U Aung Tha Gyaw J., who after
exhaustive enquiry raised the rate of compensation
from Rs. 2,000 to }\s. 3,000 per acre in respect of
~ portion of the land measuri ng about 6'75 acres,
:and accepted the Collector's valuation as regards
the remainder of the land. But the prayer of t he
.a ppellants for the exclusion of a 20-feet strip. on
.either bank of the waterway, referred to. abov'e ,
was rejected once again.
On appeal it has been urged on behalf of the
:appellants that the rate sanctioned by U Aung Tha
Gyaw J., is far too low and th~t a 20-feet strip of land
along the small waterway is vital to the appellants for
the maintepance of a regu.lar supply of matchwood to :
the factory. So far as this strip of land. is concerned,
.a gteat deal of argument ~as led both on the Origiool
Side and before us. Bu.t in view of th~ clear wording
-of sections 4, 5-A, 6, 9 and 11 of the Land Acquisit.i~h
Act, neither the Collector of Rangoon nor the Iean1ed
Judge sitt.i ng on the original si de .was competent . to
limit -the extent of .t he land afre,.tdy .a cquired by ui~ .
Goyernment:
27
418 BURMA LAW REPORTS. [195t
H.C. In thi s conn ection the various .st~ps in a land
1951
acquisitiCln proceedin gs may be of interest. I n the
ADAMi EF.
HAl li E first place, before any land is sought to be acquired
DAWOOD &
Co. LTn.
there must b e a notification und er seclron 4 of the
'II. Land Acquisition Act signifying the Governmtnt's
T~n:
C.LLEC'fOR intentioh to acquire the land for a public purpose.
OF RANGOON.
.......- After the issue ()f this notification any persons interested
l.J TH AUNG in the land notified are at liberty to raise objecti ons t o
SEI!oi, J.
the acquisition before the Collector. On receipt of'the
objections, if any, the Collector is req uired to submit the
proceedings to the Government with his recommenda-
tions thereon, vide section 5-A of the Land Acquisition
Act. It is clearly laid down in this section that "the
decision of the Government on the objections shall be
final." After considering the . objections and r.ecom-
mendations the G overnment issues a declaratiov under
section 6 of the Act to the effect t hat the particular
land mentioned therein is required for a public purpose~
According to this section, ''the said declaration shall be
conclusive evidence that the land is needed (or a public
p 11rpose." The proceedings are then returned to th e.
Collector for action in accordance with section 9 of th e
Act, . that i.s to sa~, a notice is issued stating that th e
Government intends to. take possession of the land and
that claims for compensation in respect of it should
be filed before the Collector. If any objections ar~
flled by .i nterested persons in response 'to this notice
the Collector is ex.pected to go into them and finally
pronounce'- an award setting out" (i) the true area of
th @land : (ii) the compensatiop which in his opinion,
sh~uld be allowed fqr tpe land ; a~d (iii) the apportion-.
moot of tl:\e said compensation among all the persons.
be
known Of t;)e.li~~ed to .interested in the land, of whom,.
or of whose cl~ims, he has .inform'ation whether or not.
they haye resl?ectiveiy :: appeared before him~' ., .
[rruriedi~tely afterthe aw~rd " the land vests absotutely .
 195,1] BURMA LAW REPORTS. 419

in th ~ Go\crum-:.- nt," and the coqcctor may proceed to H.(.;.

1951
take possession of ,it.
There is nothin!! in any of the above pro,isions to ,,,,_,~;;f.E
"J HA <EE
suggest that. the Collector is empowered to alter or DAwuooCo. LTD.
&
reduce th e extent or limit of the land which bas b ee n v.
1'HE
declared by t he Government under section 6 of the cor.t.EcToR
Land Acquisition Act to Q.e required for a public oF Hi\Nco.a~.
purpose. His main duty, after the issue of the notifi ca- u Tr:.;ta~o
SEIN , J:
tion or declaration is to demarcate the actual bounda-
ries on th e land itself and the only objectio ns which
may be raised by interested persons is as to t~e
delimitation of that boundary and the exact amount
of compensation payable for the acquisition. For
instan~e, it might well happen that in n1arking out
the boundaries the Collector may make a mistake and
. include lands which are not mentioned in the
declaration under section 6. In such ~ case the
owner of the lan.d affcct~d could no doubt point
out the error to the Co1Iector and ask h!m to peg
o~t the correct boundaries. Beyond this they
cannot go as section f. of the Land Acquisition Act
is emphatic that the declaration issued " shall be
conclusive.'' If it were permissiqle for land ow.nei"s
to object to the inclusion of . their lands in the
acquisition even after t~e issue of the declaration under
section 6, then ind eed it would be the Collector or the
Court to which a reference may be made under section.
18 of the La~1d Acquisition Act,.and not the Govern-
ment, which would finally decide whether any particula~ .
land should be acquired or not. In other words, the
Coliector or the C-ourt concen1ed could in eff"ect-
.over-rule the decision of the Government ~s to the.
necessity or otherwise .. of the acquisition . .. No s1ch.
power. is conferred by the Land Acqui.sition Act
either on the . Collector or. the Court concerned
and -all thal these authorities -. are competent to .
420 BURMA LAW REPORTS . l195 1

H.C. do is to decide the quantum of compensation

195[

AoAloOEE
.
payable to the owner of the land taken over by
Government.
HAIRE
D:+.wooo& The above provisions apparently escaped the notice
Co.v~TD. of U Aung Tha Gyaw J., and th~ learned counsel
c~~~~~;oR {Mr. Soorma) for tile appelhmts during the hearii1g on
o:F:~At>c~ oN. the Or~ginal Side. \hen the attention of the .l~arned.
u TaAuNc counsel was drawn to the provisions in question he
" SEIN, J. frankly conced ed t h at his on I'y reme d y 1ay with .
0

the
Government ~nd that he would seek his r~lief ii1
appropriate quarters after the conclusion of the present.
appeal.
The only question remaining for decision in this
appeal therefore is as to the adequacy or otherwise of
the compensation sanctioned by U Aung Tha Gyaw J.
For this purpose a short history o( the circumstances
leading up to the acquisition proceedings should be
borne in mind. The appellants' factory was established
as long ago as in 1924 on an ext.e nsive plot of ]and
which stretched as far as the Paz1.1ndaung. Creek.
Some years later io 1937 the Rangoon Development
Tmst, which is e~trusted with the . task of improving
the lay out of the City of Rangoon, decided to link the
Upper P azu ndaung "Road which ran past the factory
fron.1 the direCtion of Rangoon City with Kyaikkasan
Road which came frotn Kyaikk~sa,n. This new link
road .was designed to cut across the appellants' l~md
and for this purpose an area of a bout 8 ~cres . of :the
~ppellants' l<t~1d was required . Instead of. acquiring the.
~ acres; the Rangoon Development Tr~st ariived at an
timicable . ~greement with the .a ppell,ants whereby
the latter rece.iv.ed fr9m the former 13! acres of
iar:uil in. -exct~nge for the roadw~y. 'fh~~ new lin~
r9~d., was tpen constn~cted aric~ , narned Masjiq
of
~oa,d. As -'a: r.esult this roa~ way . the ~p.pellan~s

: ~~re pra~t~cally cut off frqr.n 't he river front~ge . on .
- .J
 1931] BURMA LAW REPORTS. 421

Pazundaung Creek as only a small strip remained H.C.

1951
between the Creek and the road. This strip was
worthless for industrial or other purposes owing to Ao,nut' HAJEE
the sn1allness of its size and the danger. from DAWOOD& Co. LTD.
tidal erosion. This can be appreciated by reference v:
THE .
to the maps fiied as Exhibits N and 3 in the trial COLLEC~R
record. The narrow strip referred to is indicated OF !<ANGOON. _ .,
north of the Mllsjid Road in those maps. The SEIN, J. u THAUI\G

appellants were, however, able to maintain access

with the Pazundaung Creek by means of a sm~ll
waterway which ran from the Pazundaung Creek to
the factory. T his waterway had of course to pass
under the Masjid Road and . across the appellants'
lands.
The lands which the appellants recehed in
exchange for the construction of the Mas}id
Road have now been acquired by the Government
and forrq the subject-matter of the present appea~.
It appears that these lands h~ve been lying
vacant ever sinc'e they came into the possessio~
of the appellants; That they would be acquired
by the Rangoon Development . Trust in du~
course was perhaps a 'foregone conclusion . 'from
1937 onwards. In that year the Rangoon Develop- ;
ment Trust established what is known as a 11 Bu.s H"
area not ,far from the appellants' factory to . relieve the
acute shortage of ho.using accommodation in
Rangoon To"wn especially among the labouring Classes.
The "Busti" area is abou~ 800 feet away from ' the
appellants' l:inds and is separated ftorq it by a railway-:
Hq'e. This ar~a was acquired at a cost of Rs. 2,~-.
pe:r acre a nd the 'C ollector of I-<angoon ._adopted !fie
&arne rate as 'compensation to the appe)lants in re_spect
of the lands taken. ~ver .fr'om them. ', ' . .
T~e ~ppellants have ~ttacked the award by u :. Aung
Th~ Gyaw J., 'on three .ma~.n:
. .__grou_t ids based ori the
. ...
 BURMA LAW REPORTS.

first, third and fourth clauses of section 23 (1) of the

Land Acquisition Act, which read a~ follows :
AoAMJEE
H \JEE
DAWOOD & '' 23. (1) In determining the amount of compensation to be
: Co. LTD. awarclad for hnd acquired under this Act, the Court shall take
v.
THt: into consideration- . .
C''QLLiCTOJ{
bF.RANGOON.
first, the market-value of the land at the date of the
-
u THAUNG
publication of the noti6cation, under section 4,
SSlN, J,
sub-section (1) ;
secondly, .) ~ * _*
thirdly, the damage (if any) sustained by 'the person
intet'ested at the time of the Collector's taking
possession of the land, by reason of severing such
land from his other land ;
fvurthly1 "the damage (if any) sustained by the person
interested, at tbe time of the Collector's taking
possession of the land, by reason of the acquisition
injuiously affecting his other property, moveable or
immQveable, in <my other manner, or his earnings;
.* * * * "
It has b~en urged by the learned c~unsel for the
_appellants that the rate fixed by U Aimg Tha Gyaw J.,
is not in fact a true " market-value, of the land
especially as thepotential valueof t.he iand lri question
as an industrial s'l te has been left' out of account.
Further, it was contended that as a resu lt of the
acq.uisition the appelbnts have l'ost a valuable site for
,the:: er.ection of b;trni.c~s for their lahourer.s. It appears
-that under the latest amendment to t_h e FaCtory Act
the appell<J.~ts, in common with other factory owners, .
are bound to provide quarters for their labourers
.OS pay house allowance in lieu thereof. All hope~
9 f pr~vrdi'ng . quarters (or tbe- labou.rers have no.w
.v~nished- an.~ the appell~nts a~e thus 'sf).ddled with ~he
:pay.me.n t bf p.ouse allojv.ance to. th~if.l~bourers. . .
Now, ,- thet_'e - ar~~-~ certain . recogdized < meth~d~ . by _
~hiph the "rparke~~valu'e , _. sh<:>uld be. determine~ in :
;land (!.cqqisition procee~in.g~ an4 these .are ."se.t out at
 19.51] BURMA LAW REP.ORTS. 423

pages 187-188 of Om Prakash Aggarawala's book ILC.

1951
entitled "Compvlsory Acquisition of Land,'' l:tSO,
A DAMJJ.:E
Third Edition, in the following terms : - H All!.E
DA\\'001) &
Co. 1.-1o.
"Ma:ket-value cannot be calculated with mathe:-natical v. .
pteci:;ion. A certain amount of conjecture is inevitable liut court THE
COt.LECTOl!
should be careful not to ~o too far in this direction. Averages
are often a fallacious t~;"st in awarding compensation. Certain
__,
OF RANGQON.

U THAUNG
methods of valuatio:1 have, however, been recognized, by the StUN, J.
various judicial decisions, and will be noted below.
The ;;nethods of valuation of land acquir d under this Act
may be classifi~d under three beads: (1) the price paid, within a
reasonable time, in bona fide ttans:tctions of purchase o~ the lands
acquired, or of the lands adjdcenl to the I:~nd acquired and
.possessing similar advantages; (3) a number of years' purchase
of the actual, or immediately prospective, profit from the lands
acquired ; (3) the opinion of V.1lu1tors or experts."

This statement is based on a large number of rulings

which have been discussed in detail in the book.
In In Re. an Arbitration betueen l-ucas and the
Chesterfield Gas and water Bom-d (1), Fletcher
Mouiton L.J., l~id down as follows :
T he principles upon which compensation is assessed when
1an<:l is taken .unJer compulsory powers are well settled. The
owner receives for the lands he gives up their equivaleut,. i.e.,
_that which they were worth to him in 'money. His property is
th.e refore not dimipished in amount, bnt to tpat .~xtent it is
<:ompulsorily changed in form. But the equivalent is .eiitimaled
on the value to hin1, and not on the value to the' purcbaser, and
pence it has frotll the first been recognized as a.n absolute rule
that this value is to be estimated as it stood before the grant of
Jhe .compulsory powers. The owner is only 'to receive compensa.-
tion b<U!ed upon the market-value of his lands as they- stood
befpre t he scheme was authorized by which th~y are ; ut ro
publi~ uses. .S ubject to that he is entitled to be paid the fuli
price for his ~nds, nnd any and every element of val~e thich
they.possess:most'be' taken into consideration in so
far as they
i ncrease. the value to him."
. :: .(l T (1909) 1 K.H 16 at 29-30.
424 BURM~A LAW REPORTS. [i 9.51
H .C. These principles were rea1ffirmed in Cedat's Rapids
JV5l
A1atw facturing & Powir Co. v. Lacoste. (1) ; Fraser a11d
HAIR~::
ADAMJER c
olh ers v. i~y o1 F'raservi l l-e (2) ; and S1df t & Com-
DAwooo &
Co. LTD.
pany v. Bomd of Trade (3). These are no doubt
*'
Tli'.e
English cases, but in Reddiar and San Chein v .
CottEc'roR Secretary of State for India in CoU1-zcil and the
oFfANc;ooN. Special Collector of Ra11goon (4), which referred
u SEJN,}.
THAuNG to Fraser and othe'r s v. , City of Fraserville (2), a
Bench of the High C6mt of Judicature at Rangoon
8
stated :

"That there is no difference between the English and Indian

principle of determining compensation to be awarded for lam~
compulsorily acquired. The Court takes into consideratio~ tlre
market-value of tbe land ..which is the price that an owner
willing and not obliged to sell might reasonably expect to obtain
from a willing pu'rchas.er with whom he was bargajrung for the
sale and purchase of the land."

'c oming to Indian cases, there is Premchand Bunal

and arioth'er v. The. Collector of C'alC1~ita \5), according
to which the market-value for purposes of compensa-
tion in land acquisition pro'Ceed-in'g s is the 11 G'urrent
price ' Of similar prpperty in the neighb'o-q!illodd ,, at
the time of the acquisition. The sarrie view is to be
found in R. B. Lalal Na1-singh Das v. Secretary of State
for India (~), a~d)1a Sein a11.d others v. Co_llecfor of
Ran.g oon (7}, which lays do~n that the market-value
l'ne:\ns the value at 't he time o f the dedaration und'e:r.
secti'oh 4 ofthe Land Acqtii'sition Act The meaning 'o f .
the term 11
rnar1~t-valtte" has also been defiil'ed in
-~ci8eriiine.nt of Som:bay v. 'ilerwan
Mondi{iar A.ga (s),
as follows : ..
~~--~~--~--~--------~~----~--
,(1)' ,(1;~4) ,..~..569,: . (5) I:~.~ .2 C<!-1.103. :.. ,
(2) (1917) A.C..'lSz: i6) .(1925) .A.r.R. (f.C.) 91.
.. f3j 11925) .A.C.520. . .. .. m i.L.R.. 7 kim.'iz-7. :
(41 ~.L.R: ,s Ran:7Q9. t8l I:IJ.~: ~8 Hom. 190'.
1951] BURMA LAV.J ~EP'ORiS. 425

"The expressjon 'market-value', as u!:ecl in section 23 of the H.C.

1951
Land Acqnisition ~t (1 of 1894) means the value which a parcel
of land _w ould 1ealise if sold in the market. The seller must he a ADA~fJI:'E
HAIEE
willing seller ; a forced sale affords no crilerion of market-value. DAwooo &-
The purchaser also must be a willing pui'chaser, and further, he Co. LTD.
v.
must be a prudent purchaser, th:~t is, one who makes his offer THE
after making necessary inquiries as to the value r the lands; an CO.LLECTOR
oF RANlooN..
offer made by 011e who knows nothing of the valne d the Janel in
the locality and who mlkes no inquiries about it, affords uo test u THAUNG.
SEIN, J.
of market-value. The market-value is tile value that can be
re1lised on a sale in the open mark,et. The n'larket may be dull
or brisk. But whether it be dull or brisk it cannot be excluded
from consid'eration.. ,

That the 11 potential value " of the land acquired

should b~ taken in't o consideration in assessing its value
is further explained in Pribht~ Diyal v. Secretary of
State (1); Maung . Bow Khiu v. Special Collector.
Maubin (2) ; whil:h refers to Premchand Bun~al artd
another v. The Colledor of Calcutta 13); and Sri Raja
Vyrichfrla Narajiana Gajabaliraju Bahadur Goru v.
The ,RevmueDivisioNal Officer, Vizagapatanz (4). The
.last case is of soi:J1e interest especially with reference to
the following passage (at page 548) :-
. 1'The truth o{ the m1.tter is that tlfe value c. the potentiali'ty-
must beasc.e rtaine'cf by the arbitrator on such materials as.
are a1Jailable to him and without indul$!ing in feats of t.h'e
imagination."

lf a fairly exhaustive analysis of both the English and

~ridia'n laws on the subjec't of compensation in hind
acq\~fsition "proceedings is desired, then re.f erence may
be made to Moh1ni Mohan Banerjee a11d others v. The
secreta-r y of state '(s).
Applying the principles enunciated above tQ the
prysent
... .
case,. t~e. problem is to fix th'e
~ : . inafket-vahle
. ,
of
{I) "(i93J ) A:t:R. Lab. 364. . (3) I.L.R. 2 Cal. 103.
(2) (i935) A.l.R. Rarr.157". (41 (1939) t:li.R;'Matt. "!132lll'548:
CSl '119li) A.'I.R. Cal. t~3.
426 BURMA. LAW REPORTS.

H.C. the appellants' lands which have been acquired by the

19.51
Government. As the declaration u~~er section 4 of
ADAMJEE
HAJEE the Land Acquisition Act in respect of these lands was
-DAWOOD &
Co. LTD.
issued in November 1941,, the market-value means the
TAR
v. value at or about that time. Before proceeding further,
CoLLECTor. we regret to note that the Collector of Rangoon entirely
<iF ~NGOON.
overlooked Direction 39 at page 47 of the Burma l,and
UTHAUNG
SErN;"J.
Acquisition Manl.}.al whi.c h casts a duty on him of
inspe'cting the land persoo.-ally before fixing the market-
value. The intportance of this personal inspection has
been stressed in The Collector v. The Maftager, Kurla
Estate (1), in the following terms:-
''In cases of compensatio.n the Court bas to consider what a
willing purchaser wculci give .!or the land 011 or about the date of
the notification for acquisition. The Ju~ges while ascertaining
the value of compu'lsorily acquired land.s should consider, when
they have worked out the figures according to their calculations
from the evidence, how that' 1e.sult would compare with the
opi11ion whi~h the~ are entitled to form f~om their own inspecti~n
of the hnd.."
A fait:ly go.o d guide in esti~ating the market-value
i~ to compare the price (etched by sale of similar lands
in the locality ~bout the time of the acq~1isition. un-
fortunately there were no such sales in and around the
area. of the appellants' lands at or about November J 941
arid the only evidence of sales are those which took
-place some 10 years or so previously as p'er Exhil;:>its
H, Land M: Then ;tgai.il, .the. sales mention.cd therei:ri
were of lands situat~d on the Pazundaung Creek itself
.and which were thus entirely suited for industrial
j1tirpos~s, _ e.g., erection of dee ni.m~; t.irn.b~i; ~ill~, et~.
The appellants' lands, on th.e otHer hand, have no
:. :P~oP.er (ronfage on. the: P~zundat~~.g Cre~,k a.s a' ~esu~t .
(?f fhe Masjid Road. .No dou9t a sri.1!111 s~tip reinai~ed
between the Pazundaung .Creek a(id .the r<lad. after the
. lif(19l6). A.t.~, Bo,lll. 2~~. '. ;. . :. . .:
 l951 J UURM-A LAW REPORTS. 4-27

constrtiction of the 1oadway, but this strip is far too H C.

l 95 L
narrow to be oi any real industrial value. At present
the only usc to which this land has been put is by some A~~~~~.E
squatters who bave built small huts on it. Hrt:ce the DAwooo Co. LTo.
&
sales in Exhibits H ., L and M were by no means a v.
T HF.
useful guide in the fixation of the market-value of the CoLLr:c-roR
:appellants' lands. . OF RA, GOON.
The appellants also cited an instance of the sale of a u SEtN,
THAUNG
J.
certain piece of land in the vicinity of the lands in
question after the acquisition proceedings. Exhibit Q
is a true copy of a sale deed whereby the Tya:n Mob
Oil Company which adjo~ns the appellants' factory,
was sold to the Henzada Rice Corporation Limited for
:a sum of IZs. 90,000 . . This sale took place on the 15th
October 1948, that is to say, seven years after the
declaration under section 4 of the Land Acquisition
Act. Apart from this, the sale was in respect of an oil
mill whereas the land acquired from the appe)lants i~ a
vacant plot. Obviotl!sly this sale is of no real assistance
in fixjng the market-value of the appellants' land.
T.h,e app~llants appeared to have realized the diffi-
culty of relying on the sales mentioned above and
.accordingly called in the evidence of several alleged
expert land valt1.ers in the persons of Mr. M. Minus
{PW 2), Mr. V. C. French (PW 3), and Mr. T. A. Florey
(PW .4). Tbe learned t.rial Judge who s~w and heard.
the~e witnesses was not very impressed with .their
evidence. So far as Mr. Minus was conc.erned, though
he is. employed as an Assessor by Balthazar &.; Son,
Ltd., he confessed that he was not an ex:pert.in laT,~d
valuation.
in the following tenns .:. -

"Q. D::> vou pose as an expert in assessin~ the valll6ltion of

' land~, M~~ Min~s ? : . . . - .
. A . Notas an .ex.pe~t,' b.i.tt-1 have expedence ....
in
Q. Nor the indus.tri~ll building's afid machineries?
d~ No: - .. .
428 BURMA LAW REPORTS.
H.'.;. Q. You do nOt hold any diploma or any certificate from any
19Sl
recognised institutes about your ability in measuring and assessing.
.\DAMJEE land of inclushi:d undertakit,gs ?
HAJIU!
0AWOOD & A. Nothing except from experieuce.
Co. LTD. Q. Whatever opinion that you have given in the examina-
v.
THE tion-in-chief is founded on your experience?
Coti.ECToR A. Yes."
OFH.~G:>O N. .,

C 'fHAU!\G He then went dn to ass ert that the land irt question
SE!N, J.
was 11 industrial land" and that it was worth Rs. 20,00()
per acre a t the least and that the rate claimed by the
appellants at Rs. 1.4,000 per acre was a fair one. That
Mr. Minus had no right to pose as an expert land
valuer becomes clearer from the following extract from
his deposition : -
11
Q. For how many years wete you employed in the P01t
Commissioners ?
A. 22 years.
Q. What \vas your work?
A Superintendent of L:wd.
Q. You have been ~o all these lands. Tell his L:::>rclship what
yom dutfes we!'e an~ what you 'had to C.o in connection with the
indtistt'ial propertfes- ?
)1. My duties were to fnsp~ct all the site~ along the RitnP:oon
River a11d the Pazunclaunl:! Creek to see that no structures we'te-
being built cutside tlie land, also to see what \Vas_going on in !tH
those industrial sites. Most of the lands alongsi-de the River
belong to the Port Commissioners.
Q. When did you join Baltlia?ar & Son? ..
A. In 1.939. .
Q. As what?
A. Ass1stuit Assessor."
' ...
. Next there was Mr. French (PW 3), an ex-.E xecutive
Engi~~er 6f ~he Public Wor:ks
Departmefit, - '"~.o join~d
_the firm of Clark.& Greig, Ltd., Build_e rs and Contni.~
'tors, on the termin~tion of his s~rvice wi.th the Gove-r n-
ment of Burrria as
a result of the Dedarati6n of
l<JS1] UURi\'lA LAW" REPORTS. 429

rndependence. . As to whether or not he should be H.C.

1951
dassed as an exp<:rt land valqer m.ay be gauged from
AllA)lJF.I-:
his own statement on the Origin.al Side: HAJrK
DAWOO:J &
'' Q. \ere you ever at any time in Burma connected with Co. LTo.
;;.
the Government of Burma Factory Department? THl'
A. Yes, I was formerly Inspector of Factories. CoLLP.~OR
OF RAN<'OON.
Q. Fot how many years were you Inspector of Factories ?
A. 1938 to 1942 , till the time of evacuation." U THAUNG
SRIN, J.

He was also questioned specifically on his competence

:as a land valuer and his reply wa$ as follows :
" Q. H:we you any experience about the valuation of private
land?
A. 1 have experience only mainly of Government land.
Q. Not of private land?
A. The private lands, too, while I ~as in the P.W.D.
Q. H we you ever acted as an assessor or valuer of lands in
the neigl1bourbood of this factory?
A. Never in this neighbourhood."

Despite these admissions, Mr. French ca!mly fixed the

market-value of the appellants' lands at R~. 20,000 . per
acre. His exact words in this respect are interesting:
'' Q. As between a williJ;lg seller al'ld a willin~ buyer, what
would you say would be a fair price per acre for the land to be
acquired.by Go,~ernment now ? -.
1 I would say at Hs. 20,0Qq.per acre.
Q. Why do yousay it would be a fair price? .
A. Because tbis laud is just of the same type as that 9
Eng Thong ~il Mill, for they have t~e railway facilities as well .
as water facilities in coming lo the road."

Finally, there was Mr. Florey (PW4) who styles

.
himself. as "Architect .and Surveyor''. He was of
:

the opinion that the price claimed by 'the appeit~nt.s

. ....
at Rs. 14,000' per acr~ was a fair one espe~ially as
'the land . WaS ((industrial l.~nd II .., pOS~eSSing gr'e at
potentialities. Tho~gh ~e w~s ready ' and willing to
430 BURMA LAW REPORTS. [195)

H .C. accept the appelbnts' valuation, he. admittea that

1951
there had been no sale of industrial Ian<! in that locality
A~~;!.;e for at least 10 years prior to the acquisition . In this
DAwoor> &
Co.LTD.
connection the following extract from his deposition .
v. may be of interest:-
THE .
Co~ECTOR
OF RANGOoN.
"Q. It bas been suggested that. industrial undertakings
U THAUNG in Burma weon the decline and therefore the vah1e of industrial
SEIN, J. land is c1eclirci'ng ; in assessing tne value of land would you
consider tht! pri~ which a willing seller is ready to take
and a willing buyer ready to give is a factor to be taken
into account ?
A. Yes.
Q. In assessing the value of land to be acquired, would you
consider the prices given in forced sales?
A. I would not take it into account
Q. Within the last 10 years, between 1930 and end of 1941.
did you know of any industrial land havin g changed hands?
A. I did not know . .
Q. Nor since after libcration.of R1ngooa?
A. No."

. To all appearan ces Mr. Florey relied mainly on his owri

imagj.nation to fix the value of the lands in question.
On the whole Ute evidence of these so-calied
experts could not possibly have been acc.e pted. The
l earned counsel for the appellants has argued at some
length that even if i.he evidence of these witnesses is
unconvincing there is indisputable documentary
evidenc.e that the value of the lands was not less than
Rs. 7,000 per acre. For this he relies on an alleged
~opy of a certain letter from the L?-nd Officer of the
. Rangoo~ ,Development Trust to th.e appellants and filed
as ~xhibit R in the proceedings. If: that letter is in
fact~ true opy of the o.rigirial whichwas said to have .
been written by.the Rartgqq~ O.evelo'pnient Trq~t ~o the
appellants; then . the task of Jixin~ the market-value of .
thea~t:ellants' lands would .be an ~asy pne~ . Accordin~
 1951] BURMA LA VI/ -REPORTS. 431

to this letter, in the year 1929 the Rangoon Develop- H.C.

1951
ment Trust agn!ed t0 sell to the appellants a portion
of the lands which were later exchanged for the AOAMJEE HAJEE
an:!a required by the Masjid Road at Rs. 7,000 DAWOOO& Co. LTD.
per acre. It is said that the appellants agreed to v.
THF.
buy the lands in question at that rate but later there CoLLE<J'OR
was an agreement for the exchange of th ese lands OF R AXG OON.
for the area given up to the Masjid R oad. If these uSEIN,
THAU N G
J,
facts are 1:'a tisfactorily proved then. the price of
Rs. 7,000 per acre \;I,'Ould certainly be the price
between a willing se ll ~r :md a willing purchaser.
The letter in question reads as follows :

''RANGOON DEVELOP~1ENT TRUST

228-234, MONTGOMERY STREET.

Rangoo11, 27th September 1929;

No. TM. 136/28.

U Po THAUNG,
OjJg. Land Officer.

. To.
MEssRs. AoAMJEE HAJEE DAwooo & co. LTD.
RANGOON.

SuBJECT.-Proposals for sale of land in Surtey Block No. 4-B,

Tamwe Circle.
G i:NTLEMEN,
With reference to .your applications for lease or purctlase
of various pieces of land in Block No. 4-B. I am.directed to 'tnal;e
you the . following prcip'osals. It must however oe unde;stood
that any sales will .require the approV.al.of.t.he Board and sanction
of the Loeal Government.. i. am prep~red to. consider modi fica
tioos of the areas. to be. leased .or sold. . ..
432 BURMA LAW REPORTS. [1951
fl.C. HoldiJ.l"S Ncs. 4, 2-c and 2-B shown in blu.e hatch on the plan
19.51. t'>
are offered. for sale at the rate of l<s. 7,000 at\ acre. Th~ ar.e a of
AoAMIEE these holdings is approximately 1'116 acres. 'fhe portions of
DA~:6~~ & 11oldings 38-B and 2-n and th~ sm.all corne~ ~ 2 and 3 as shown
c o."L'rn. on the plan in red hatch are offered for sale at Hs. 7,000 an acre .
v.
THE The rem<incler of holdings 38 -B and 2-n together with n portion
CoLLECToR of 35-A shown on the plan in yellow hatch are offer ed fo1- sale at
<>F ~NGOON. Rs. 4,000 1n acre, or a lternatively will be leased for 30 years with

U T!f~UsG ~ne revision ot rent after 15 year~ at Rs. 100 per ac1e pel year.
SF.IN; T l'he areas of these pieces of land are 1116, os56 and 3321 acres,
respectively.
As for holclin~?:s 38 and 38-A I understand that you have no
partic11lar use (or them at present, but if you wish you may
keep them on a year to y.ear lease .at the present rate of rent,
namely, Rs. 26 per acre per year:
I shall b.e glad to h.ave your reply ""~th any suggestions you
wish to make in' due cou.rst::. ' .
I have the honour to be,
Gentlem~n,
Your most obedient servant. "

The question is whether Exhibit R is admissible

in evidence and, if so! what is its probative val1,.1e ?
To all appearances Exhibit R is merely a piece of
' .
typewritten paper and -accord,ing to Mr:. Jamal
(PW 6), the General Manager of the appellants' factory
he found it in the factory precincts after . the war.
The main repository of the documents relating to th'e
appellants' firm was its Head Office in Mogul Street
which was damaged during th ~ar and all doc~ments ..
COf\tained, ther~~n werr eHhet lo:~t o.r dt"stroyed. From
the mere fact that all documenJs lying in the Head
Office were lost or desfroyed it does not ~ecessarily
f~low that Exhibit R was a trne copy of a letter lying
in that ofike. Sec~mdary ~vidence of such a document
wou~1J oo dqubt be ad~issible if there .~a~ proof that
the origina~ was ~n fact received by t4~ appellant ~,. t.ha't
. -: .... 1. \ '

.it ,v~~ tat~r lo~t or qestroy.~d, ~fie\ . tha,t ~:lf:hibit ~

is
.
.a copy " n:a~.e from. or
.
COIJ;lpared with
.
the original. H
1951] BURMA LAW REPORTS . 433

No such proof was forthcom ing in the present case and H.C.
1951
.all that the lt!arned counsel for the appellants could
say was that the language , wording and contents of A~~~~~
Exhibit R bespeaks its genuineness as a tru e copy DAwooo& Co. LTO.
of the original and that it coul d not be a fabrication. . v.
This is hardly the way in which secondary evidence CoL'l!'~ToR
ShOuld be led Of a loSt Or destroyed dOCUment and OF !~ANGOON.
th~ provisions of section 63 . of the Evidence Act u i'HAu!-IG
should be adhered to strictly. It is .not clear whether SEIN, J.
the admissibility or otherwise of Exhibit R was gone
into on the Original Side but on the strength of the
r ulings in Maung Po Ni and one v. Ma Shwe Kyi and
three (1), and Kanto Prashad H azariv. ]agat Chandra
Dutta and others (2), the appellate Court is in a
position to question its admissibility.
E ven assuming that Exhibit R was admissble in
evidence its probative value still remains to be
consiaered. Documents do not as a rule prove them-
selves, and it was incumbent on the appellants to prove
the genuineness of Exhibit R. All that the appellants
did was to file it in Court and fhen assumed that all' the
contents ther ein would be accepted as gospel truth.
Actually they should have tallen pains to prove the
circumstances under which the letter was r eceived and
of the manner in which the copy "v.as prepared. In the
absence of -such proof, Exhibit R is quite worthless
.and cannot b e relied upon as establishing 'the tru e
market-value of the lands in .question.
As ag~inst the above, the respondent contended'tb 4t
'the land in question was similar in many resAects<eo
the one acquired by the Rangoon Development Trust
in 1937 for. the setting up of a '' Busti'J) .area. The
distaricP. between the two lands is about 800 feet and
' they . are separated by a raHway. line; ~he " B:usti "
. . .
l u J.L.R. 2 Ran. 397: (2l_LL.R. 23 C~3it
2H
434
-
BUR!\'IA LA\V RE;PORTS. [1951
H.C. area was acquired at a cost of Rs. 2.000per acre and
1951
this figure was accepted by the Collectr>r of Rangoon
A~:~~:" as a fair price for the appellants' land. On the other
DAwoou& hand, U Aung Tha Gyaw J., pointed out that part of
Co. LTD.
v. the acquired lands flanked the Masjid Road and that
CoL~~ToR lands bordering on a highway are always more valuable
oF R~ooN. than those away from it. It was on this account that
uSEIN,
THAuNa the rate adopted by the Collector of Rangoon was
J.
increased to Rs. ~,000 per acre in respect of the land
contiguous to Masjid Road. The appellants assert that
their land is "industrial land '' with vast potentialities
and hence different from the "Busti area. The II

''experts" who were called in to testify to this matter

were not in-fact competent to certify on the quality of
the land. Unfortunately for the appellants, the land in
question is without any river frontage and hence it ~as
difficult to compare it with any of the industrial sites
on Pazundaung Creek. Besides this, the land has
been lying vacant ever since it came into the possession
of the appellants. The alleged experts Mr. Minus
(PW 2), Mr. French (PW 3) and Mr. Florey (PW 4) who
insisted that th e land in question possessed gn::at
potentialities as an itldustrial site, appear to have
indulged in feats of imagination.
The evidence of U Kyaw Sein (DW 3), Chief
Engineer.of the Rangoon Developmenl Tru.sf, leaves no
room for doubt that the acquired lands are low-lying
and that a good' deaf of money would have to be
expended before they are fit for residential purposes.
T~e lands in question are in .a 'sense contiguous to the
" Busti" area from which they ar.e separated by only
a rait.vay iine <!.nd hence shoul~ be considered to be of
the same class. . . ~ .
In.. Atmaram Bhagwant G'lz(Jdgay v. Collector of-
Nagpur (1), the following principies were ~aid 'do\vn
. .
. (ll (1929) A.~.lt., (P.C.) 92.
19.51.1 13URMA LA'vV REPORTS. - 435

by the f>riv y Council in dealing with appeals in volving H.C.

1951
questions of valt.I"a.tiofl in land acquisition cases :
ADA\!JI::F.
liAJim
"In appeals involving questions of valuation, the decree DAwooo&
complained of will not be interfered with by lhe Privy Council Co. LTo.
1 '~
unless some erroneous principle has been invoked or some T111;
important piece of evidence has been overlooked or has beeu CoLJ.F.cloR
01' RANGOON.
misapplied. ''
U 'l'HAU~G

T he same principles should be applied in the present SEIN, J.

case and there is nothing to suggest that a wrong
principle was in fact applied by U Aung Tha Gy~w J.
On the contrary, we are of the opinion that the method
adopted for the valuation of the appellants' lands was
.exceedingly fair. .
Accordingly, this appeal fails and is dismissed, with
costs.

U SAN MAUNG, J.- I agree.

436 BURMA LAW REPORTS . [ 19.51

APPE LLATE CIV IL.
BefOJe U San Mau11g, J.

MEE N AKSHI ACHI AND A~OTHER (APP ELLANTS)

Ja~t.16. ~.

S.K.A.R.S.T . CHETTYAR FIR M AND ANOTHER

lRESPONDENTS) .* .

'H indu la7v-Kar!a -PartnershiP arra11gement between k .trla arrd st ran;:.ers

- Whether f amilY becomes Pal'tncr-Karla when aged.
Held: Where the Managing membe r o[ a joint rami ly enters into a
partnership with a stranger the other members of the family do not ipso facto
<become partners in the business.
Laclrhmaa Dasv . Commissiotter of Income!a:c, A.LR. (l948) (P.C.) 8;
:SokkmUidlra VMznimunde~ v. Sokkanadh.a Vanuintrmdar and others, 28 Mad.
344 at 345-346; Samalblrai Natln~blwi v. Somesh.va r, .Mtmga.l t1-11d Harkisatt,
il.L.R. 5 B)Jm. 38; Gra11dc Gangayya v. Grande Venkaframiah, 41 Mad. 454 at
456-457; Rantanatlzan Chclly v. Yega ppa Chetly, (1916) 30 M.L.]. 2:J.l ;
:V11dilal v.Sizafz IChtlslral, (1-903) I.L.R. 27 Born. 157; Daii:a Anmal und others
-v. Selvaramamtia Nt1yalatr awl others, A.I.R. (1936) Mad. 479 ; l'.K.P.S .
.PicblP(>a 'ChettiaY and others v. Ckok.rlillga111 Piltai a nd others, A..R. (1934)
~P.C.I 192.' followed .
But for the purpose of forming partnership wi th a stran ger effected
through the mecli!tlll or its Jc~ta a Joint Hindu Fami ly is regarded as a unit
<eap:~ble of being represented by ils manal(er bee:~use the Hindu Join t Family
is a legal unit which can be rep re>ented b y its karta.
Milh tlYnJ Kishe11 v. Hargobind and Bashes'zar Lal, 49 Punjab Record Jud i.
.'377 ; Na1ai" Das and others v. Ral/.i Brother;~, 50 .Punja!J Record Judi. 270 at
271 ; Moli Ram v. Muhamm.lCl Ab:iul ]alia, 46 All. 509 at 510 ; Mewa Ram
v. Ram Gopal at~d Hot i Lal and others, 48 All. 395 at 396; Gauri Shankar v .
.K eshab Deo and ot hels, \1929) All. 148; Khari.ler Kapra CJ. Ltd. v. D .zya
.Kishan and oth~rs, 43 All. 116, referred to.
It is a question of fact in each case whether the partnership is-
ta) between the karla in his individual capacity utilizing his own
separate property and a stranger, or
. (b\ between the karta acting for the b~nelit of the famil:r by using the
. joint f~t1lily property and the stranger, and
' {cJ. whether the karta' acting as' agent of the family and the stra n .ger.
,.

Ci'llil 2nd AppealNo. 38 of L9W against the ord.e r of t:;e District Court of .
H ,antha.waddy in Civii 'Appeal No_ 1 f>f 1949, datej 8th O.;t.Jber'l9~9 :
 19.51] B UR.MA LAW "REPOR'"fS.

In the first case the family is not interested in th e pa rtnership. In the H.<;.
second case, the family" property is affected by the p:~rtnership ol the karta 1951 .
with the strangt:r, bu t tT1e fami!y as such is not a partner in the partnership.
MJU!NAKSHJ
In the third case, the family itself, as a unit and not the karla, isjthe partner. ACBI AND
A11uam.1lai ~ Chelty v. Muruges.-s Chelty , (1903) I.L.I~. 26 Mad. 54~. at 545, A~OTHER

distinguished. v.
S.K.A.R.S.T.
CHJ!TTYAR
P. K. Basu for the appellants. FJRlfA~D
ANOTB~.

]. N. Dut{ for the respondent No. 1.

1'. Wan. Hock for the respondent .No.2. .
u sAN MAUNG, J.-On the 31st of March 1947 a
suit was filed in the Court of the Assistant Judge of
.Hanthawaddy . by. S.K.A.R.S.T. Chettyar Firm as
represented by its agent S.V.L.L. Lakshmanan Chettyar
against Mee~a~shi Achi, widow of P.R.A.L._M. Muthu
Karuppan Chettya1:, deceased , who was c_a rrying on
money:-lending busin.ess under the ~arne and style -of
P.R.A.L.M. and one O.L.. Chokalingam Chettyar for
the re~o.very of .Rs.' 4,t60' being the value qf paddy
entrusted to P.R_.A.L.M. Firm or in the afternative for
t~e recovery ;f . the same.' amount as damages for.
wrongful conversion of th.e paddy so entrusted. TI)e
plaiut~ffs _ alleged that prior tq the tvacuitio~ ~f ~urma
in 1942,),190 ~askets of paddy were stored ih a granary
b~longing to P.R.A.L.,M. Fiqn i~ Tetti Village, Twap_te_
Township, and that after the ieqccupation of Bur ma
. by the British the secqnq ._defendant :aCting for a:Od. on
behal'of. P ..R:A.L.M. Firm disposed of the plaintiffs~
paddy~- ~ithou:t th.e .'kno~ledge .. or consent of the
.plaiptiffs .and that therefore the defendants we::re liable
t~ p'a y the valtie.of the paddy' o.r damages. for wrongfu'~
co nversion of it. . T.he first defendant Meenakshi Adii
i~ her written., s.tat~~-~-~t dat~d. the 17_th of.June f9.4~
. 90ntended th~t 1!0 papdy; was eyer entrusted by the
. piai'n~i!fs .to th:e defendants' firm at
any time . pri~r 'to
th.e evacuation. Qf . Bur~a by.. th~ British, th"a-t_- tp~
438 BURMA LAW REPORTS. [1951
~ . c. godowri which had been built at Tetti Village was
1951
meant for the exclusive use of P.R.A.L.M. Fii-m and
'MENAKSHI
AcHt ANo in respect of which Chokalingam Chettyar had no
ANo;:HER authority whatsoever to let out to any other person and
~.A.RS T that in any event the plaintiffs' story that paddy
s..CHETTYAR
F1R._M A:-Jo belongmg to the plaintiffs' firm was stored in the
ANWrRER. defendants' godown could not be true as the plaintiffs
. u SAN had a godown at Tetti Village on the other side of the
MAUNG, J.
river. The defendant also contended that the suit as
framed was not maintainable as both the principal and
the ex-agent could not be joined as defendants in the
.same suit in the ab~ence of any special allegation to
the effect that th.ey. were joint tort-feasors. The
in
second defendant a separate written. statement filed
on the same day, viz. 1the 14th of July 1947, followecl
the same line of defence as that of the first defendant,
and also contended that the suit against him was not
maintainable in law as he was merely an .ex-agent of a
principal whose name was disclosed. On the 26th of
April 1948 an' amended pl_a int was filed adding .the
third defenda'n t P.R.A.L.M.M. Annamalai Chettyar as
a pa.rty-defendant on the -g round that Annamalai
Chettyar had been ~adopted by the \rid~w of Mutlm
Kamppan Chettyar in accordance with -th~ well-
established C!Jstom prevailing among the . Nattukotai
Chettyar in south India and that the effect of the
adoption was ' to vest in . the third defend~nt; by
survivorship, the pr~perty anci assets of the P.RA.L.M.
firm subject to the rights d the first : defendant as a
::widow. on the 9th of . October 1948 the first
vdef~ndant filed ~n addit~ona~ writt,eh statement whereby
she0 contended
.
that
. .
S:V.L.L. .. Lakshmanan
.
Chettyar
.. '
couM not repiesent he firm of'$..K.A.~.S.T. Chettyar
(which had in f~c.e d1ssoly.e<lJ;.a~ : tne. powe-r..:>f-atforney
w~s given to ~aksh~~~lan. 9~.etty~~ :?y. the ~wo sons of
~ithambarain Ch~t{yat . in t~_ei( individual -capacity.
 1951] -BURMA LAW REPCRTS. 439

The second defendant also filed an additional written H.C.

1951
statement dated the 6th of October 1948 whereby he
contended th~t S.K.A.R.S.T. Chettyar Firm having r;t;;~A:~~~~~
~onsisted of three partners, one of whom had died AKOTHJ::R
v.
before the filing of the suit, S.V.L.L. Lakshmanan s.K.A.R.S.T.
CHETTYAI~
Chettyar could not represent the d1ssolved firm on the FLRM AND
power-of-attorney granted by the two other persons AN?.'THEH.
jn th~ir individual capacity. The third defendant MAUNG, u SAN J.
Annamalai. Chettyar who had filed a written statement
on the ~nd of. August, 19+H, on t he same line as
his adoptive mother Meenaksh.i Achi, filed an amended
written statement on the 9th of October 1948, in which
he contended, inter alia, that the firm of S.K.A.R.S.T.
being a partnership could not bring the present suit
without prior registration as required by the Partner-.
ship Act and that since Chettiappa Chettyar, who was
one of the partners of the firm, died in or about 1946,
the suit was not maintainable without adding his
legal representatives as parties to the suit. This
~mended written statement of the third defendant was
filed after Lakshmaoao Chettyar, who was examined
<>n the 5th of October 1948, had st~ted that the
plainti.ffs: . firm had thre~: proprietors namely
o,
Arunac.h alam Chettyar and h1s brother Karuppan
Chettyar . and. Chettiappa .Chettyar (a stranger to the
family I, and that Chettiappa Chettyar died four months
1 after the general power-of-attorney was given to him.'

On th~ 9th December, 1948, the plaintiffs fiied .what

w.as called a fort her reply to the additiori~l written
~tate~el:lts of the first ~nd second defendants.. In th~t
reply the plaintiffs s tated, . inter aJia, that the jci:nt
cqparcenary f~mily of S.K.A.:R.s.T: consisting: of
Sithambaram Chettyar and .hi.s two sons. Artinao4alam
Ch<:ttya-ran~ Karuppan Chettyar carried ~n bahk.irig
b.usi,n(i~~ iri.Rangoon in the family ' 1,1ame, ~hat in the
. y~ar 1929.the f~rtiily:througl) thea~ency of. it~" manager
440 BURMA 'LAvV REPORTS.
H.C.
1951
Sitha_mba.ram Chetty::~r and employing the family assets,
entered into partnership with one Chettiappa Chettyar
ME:ENAKSHI
ACHI AND under the name <ilnd style of S.K.A.R.S.T which
. ANOTHER .
fl.
partnership was subsequently registered in 1933
S.K.,\ . RS.T. according to the provisions of the Partnership Act,
CHEl' TYAR
FIRM .AND that Sithambaram Chettyar died in 1941, that on his
ANOTHER.
--..:..). ~eath his elder ~on Arunachalam Chettyar assu.mt'd
U SAN
MA'Ot-:G, J. the managership of the family of S.K.A.RS.T.
while the partnership firm of S.K.A.R.S.T. .co.ntinued
under the same cname and style as hitherto, that the
partnership was dissolved .on the death of CI'letti-appa.
Chettyar.in .January. 1947, but that the affairs of the .
dissolved firm of S.K.A.R.S.T. not having been wound
up as yet, the famUy of S.K.A.R.S.T .. as the surviving:
partner of the dissolved firm had the right to instil ute
a
the present suit as step in the process of winding up-
the firilJ. which in law must be deemed to be
continuiQ'g: to. exist and . that the general power-of~
attorney, which:was given on the 18th :of June 1946 to
S. V.L.L.- Lakshmanan' Chettyar by SJ{'.A.R .S.T.:
Ai'uQachalam . Chettyar and S. K.A.R.S.T.": Karuppan.
Chettyar:. ( th~.. only, two surviving-' 'm.e mbers of the:
S . K.A.R.S.T. family) was valid' in l.aw; as theS.K.A.'R:s:r-
f~uJ:lily had no other "'busi.rie~s .in Burma exce pt as..
a partner,of the nrm .o.f S.K.A.RS.T. ~ To this furthet: ..
reply., , the third d~fendant _flle.d a written .objection:
contending that th~ . plaintiffs were n ot e~(i.tled tO:
improve : thei'f. case . by making statements in:' ~heir .
'fur.ther. reply w.hich should really be: piade 'in' the
arpended plaint,.that the par.tnership fiim:Of S~K::A.R:.S . T.:
wiNch was formed.between 8ith~mbaram Chettyar'artd
Chettiappa Chettyat.and registered inll933 under the;
Par.tn~rship .l\~t must be deemed. to have been
..dissol;ed in ' .t9.4h on: the death~.-of : Sithambar.am:
Chetty~r : a~Q.. ihat Ghettiappa Ghetty.at w.flo , was 'the
. s':un;..ivi.O~- t>alltri~r:w~~.. the ofiiy- .PeFSQll' .entitled' lo sue.
 BURMA LAW REPORTS. 4-H

the re<llization of the assets of the dissolved firm, H.C.

1951
and that if after thct, death of Sithambaram Chettyar his
l'l'lf:.E!\AKSHJ
_two sons had agreed with Cheltiappa Chettyar, t11e ACHJ .-\KD
surviving partner of the dissolved fi rm, to carry on A KOTHE!~ 'i/.
.

business under the style and name of S .K.A .R.S.T:, this S.K.A.R.S.T.
CHETTYAR
arrangement was tantamount to a fresh partnership Fl~M AND
requiring registration under the Partnership Act, t_h at ANOTHER ..
the present suit having been filed by Lakshmanan MAUl\G u SAN
, J.
Chettyar under the power-of-attorney granted by
Arunachalam Chetty.ar and Karuppan CI1-ettyar was not
maintainat>le in law, and that Chettiappa Chettyar
having died prior to the institution of the present suit
h~~ l~gal representatives were the only persons who
could file t he present suit. The written objection of
the second.defendan t was on tl.e same line as that of
the third dtfendant. On th e 17.th of January 1949,
the learred Assistant Judge, Han~hr. waddy, after
hearing the arguments addressed to him on the. point
held that the proposed further reply of the plaintiffs
did not.contain a,ny matter: s_etting up a new case for
the plaintiffs or any fact inconsist\!nt.with _the previous
pleaJiIlgs, but that it was an attempt to clarify. th~
whole position; and that therefore.an amendm~nt of
t.h~ plaintwas not called for as the furth er. reply could
be treated as par.t of the pleadings. .. .
Thereafter the. learn~d Assistant Judge framed:
s.even issues .o n the 9th of April 1949 aft~r abandoning
t_he previous .issues framed by his predecessors. rhe.s e
seven. issl,ies are as follows :

1. Wliethet: -~he ~uit is bad for misjoind er of_parties?

.2 ~ . ~hether the suit is ?arred by limitation ? .
. 3. Is a partnership entered into ~Y a Hindu- joint fa~Y:"
\vith .a stranger through tbe agency o its mana~er illegal?. .
. 4: ~as th~. fi~ o~, S.~.A.R.s:r. dissol:ved jn l~~v on, th~
..dec:th of-Sithambaratn Chettyar I
- ,.: "!' ,. .,
442 BURMA LAW REPORTS. [195 1
H.C. 5. Is the suit m1intainable for want of registra:tion of the
1951
firm after Sitbambar.tm's death ?
MEENAKSlll
6. Whe ther the suit is maintainable in the name of the fir m
.
ACHlAND
ANOTHE R
~~
.
S.K.A.R.S.T.
without bringing in the le{.!al representatives _of Chettiappa
Chettyar?
C HETTYAR 7. Whether S.V.L.L. Lakshmanau Cheltyar can file the
f<'ntM AND
)"-NOTHER.
present suit on the strength of the power-o-attomey filed ?
U SA"N
MAUNG,J
He then answered the 1st issue in the negative on
th ground that the principal and his agent could be
sued as joint;tort-feasors. He answered the 2nd issue
in the negative on the ground that the paddy was only
sold subsequent to the British reoccupation of Burma
in 1945. ..He answered the 3rd issue in tl1e negative
because it was conceded by the Advocates for the first
and second defendants that it was not illegal for a
Hindu joint family to enter into a partnership" with a
stranger through the agency of its manager. He,
however, answered the 4th issue in the affirmative on
the ground that a stranger ~an enter into partnership
only with the karta of a joint Hindu family and not
with a family itself and that the partnership would be
dissolved on the death of the karta of the joint Hindu
.
family. He answered the 5th issue in the negative. on
the ground that if on the death of Sithambaram
Chettyar a partnershi}J was formed between the
surviving members of the jo.int Hindu family apd
Chettiappa Chettyar, a fresh partner&hip requiring
registration }WS -constituted and that the suit . was not
I .

~aintairiable for w<tnt of r~gistration.- . He answered

the 6th issue in the sense that the present plaintiffs not
being pa.rtne~3 of the rlis~qlved s.k.A.:R.s.'t . firm
could not file . the ptes~nt :stiit and t~~t the proper
pl~intiffs were the-legal representatives of. the de~ea~ed
Chettia{?pa C.}:lettyaf.. The ith isS.Ue-Wa~:.aiso an~wered .
in the negative .for..the Same-reason. In the result the
plaint'iffs' s.uif wa~ dismiss~d. wi~h.cests; . : ..
 1951] BURMA LAW .REPORtS. 443

I n their appeal to the District Court against the H.C.

195 1
dismissal of thei:r suit by the trial Court, the plaintiffs
MEF.N AKSRI
contended, infer alia that the trial Judge was wrong in ACHI A:-10
ANOTHE!l
.answering the 4th issue in the affirmative after having v.
.answered the 3rd issue in the negative, that in any S. I.{.A.R.S.T.
CHl!TTYAR
event he has failed to note that their Lordships of the FIRM ANO
ANOTI~lrR.
Privy Council had ruled that the joint Hindu family
-can be regard ed as a unit capable of entering into uS All
MAONG, J.
;partnership with a stranger, that in any event the
question whether the joint Hindu family of
S.K.A.R.S.T. or the then manager Sithambaram
Chettyar alone was a partner with Chettiappa Chettyar
was one of fact which could only be decided after all
the evidence in the suit had been recorded and that
the learned Assistant Judge had failed to appreciate
the meaning of the expression ' ipso facto' contained
~n the ruling cited on behalf of the d efendants in
-connection with the 4th issut!. It was further contended
that tve~ assuming that th~ finding of the learned
trial Judge on the 4th \ssue was correct in law the
learned Judge had failed to note that the plaintiffs
had also pleaded the fact of a fresh arrangement
having b een entered into . between the - surviving
members . of the joint Hindu family and Chettiappa
Chettyar for continuing the partnership after the
deatl~ of Sithambaram Chettyar, the suit should
not have been dismissed without affording the
plaintiffs an opportunity to establish this fact
by means of evidence, and that the presen! sui t
b~iog one for the realization of the property of a..
d_issolved firm absence of registration was no bar ~
the filing of the suit on the alternative plea of a fresh
a rrangement having been entered into bet~een
f?ettia~pa C~etty~r and the s~rviving me~bers ~f the
'J omt . Hmdu famtly on the death of . Sttl~ambaram
Chettyar.
444 BURA LA\V REPORTS. [ 1951 .
?,
H.C. The learned District Judge relying mainly up_on thd;;::
1931
observations of their Lordships of thA Privy. Council ,
MEENAKSHI
ACH!ANu in Lachhman Das v. . Commission:;r of lncome~ta;~ (1}, .
AXOTH'ER
v. held that a joint Hindu family is a legal entity which-
S .KA.RS.T, can enter into partnershp "vith a stranger through the
CH I::TTYAT<
FiH.\ l ,\Jill> agency of its karta and that it 'vvas a question of fact
.AX~:fl:lER .
'~hether the partnership which Sithambaram Chettyar
{J SAN
1\IAUNG, J. had entered with Chettiappa Chettyar was. on his ownr
behalf or aS' agent of the joint Hindu famHy of which
he was karta. He al~o h~ld that if it wa~ the joint
Hindu family whicl1 had entered into a partnership
with Ch.ettiappa Chettyar, members of the joint Hindu:
family could file the present s~it without imple~ding
the legal representatives of Chettiappa Chettyar; He:
according~y set aside the judgmeDt and decree of
the trial Court disrnissing the plaintiffs' suit, and .
rem;;tnd.e d the suit under the provisions of. Order : 4l.t
Rule 23 of the Civil Procedure Code for iits trial . on
0 ~

the issues involv~d~ lfence this a;ppeal by t~e :

defendants under Qrqer 43, Rn_le .1, Clause (u) of the
=

Givil Pr~cedure .C,ode;. . : _ .- ..: . .. ,

In this Court it is contended on behalf of the:
def~ndant-appell~nts ~that the le~trnect' Judge ~( the.
tfial Court .was wrong in allowini" t~e further reply .of:
tl1e. plaintiffs, date9-. tl~e 9th of December 194~ to b_e:
treated. as p~rt of the pJt;:adings in the case as the sui~.
as origin~lly. fra~ed w~s <m . behaif of s.K:A.R.s:t..
Ch~tty(lr. Fir~ by its agent: :f-ak~.r~an~n Chetty~r.
wh~reas ~n the furt~er r~ply the plaintift:s sough~ to>
~ritrod~ce _ new fac"tors, _n"amely, that S. K.A._)~.S.i>.
$ hettyar Fir~ was qiss0_lve4 Q.ri the d!=a!h o,f Ch~ttiappa ,
c~~fty3;r and.that Hre rn.emqers of theS.K!A._~.~.:r. joi~t; :
.Rt,o1u .family Gonsisting: of Arunachalam Cbe.t(yar ariq_.
~'~ruppan Qhetty~r,. flS. the survivi~g partn~isj ~?d (h~~
rig~t.t!) !TI~fntai~ "the_s~it. in, tbe
"' .
naf#e
of th' . . dissolV:~d .
....~ ...
(1) A.I.R. (1948) (P.C.) 8'. . .
1.951] oURMA L AW REPORTS. 445

'f irm. There is no doubt considerable force m this H. C.

1951
contention, and I am bound to say that the proper
meth od by which this' new factor should have b een llluE:xAK:>Hr
ACIH A~U
introduced was by way of an amendment of the plaint AXOTH~. R
and not by fi ling what has been called a further reply s.K.A~R.S.T.
to the written statement. However, it cannot be said ~~=~r~:~
:that by introducing this new factor, the plaintiffs had AI\:OTHER.
changed their cause of action or .fiad introduced a u SAN
. T MAtJNG, J.
totally new and inconststent case. h~ cause of action
,r emained the same, viz., the alleged wrongful conversion
of the paddy belonging to the S.K.A.R.S.T. firm by the
deftndants, the only new factor introduc~d being the
bet of . S.K.A.R.S.T. firm having been dissolved by
the death of Chettiappa Chettyar. Whether or not
there was such a firm of S.K.A.R.S. T. consisting of t he
s. K.A.R .S.T. joint Hindu family an d Chettiappa
Chettya r or merely between Sithambaram Chettyar,
ihe'manager of S.K.A.R.s.T. joint Hindu family and
Chettiappa Chettyar, is one of fact which need only to
.be gon e into during the hearing of t he case and which
)n eed not really form part of the pleadings in the case.
No question of limitation seems to be involved, and
since the m0dcrn trend see::ms- to be in favour of
.allowing amendment o'f the pleadings .to the largest
extent possible rather than to compel parties to file a
;fresh suit on the .s~me cause of action, I_think the only
gricvan~e \.vhi_c~ the defep~ants i n the . case under
:appeal can legitimately .ventilate is tJfat they had been
mulcted of the costs which they would '.otherwise . have
-received had the leatned trial Judge insisted upon the
'filing of an al?en~ed plaint ' instead o'f allow~ng th~
particulars obj,ected to .by th~m tq be mentioned in the
~a-called fu,rther.repiy to 'tqe writ!e~ s.t~1e_n;tent. ~his,
however, is a. g rievance which can be re.c tified when
-costs are finally awarded on the conclusion of the suit.
in
The real cjuestiori fn i~sue this appeal is whether. th.e
446 BURMA LAW REPORTS. L19Sl

H.C. learned District Judge was right in interpreting the

1951
observations of their Lordships of th.::: Privy Council
"~.a;~,\:;~ 1 in Lachhman Das v. Co1mnissio1ter of Income-tax ( 1) as
AMTHER meaning that a joint Hindu family as such can enter
"
s.K.A.R.S.T. into partnership with a stranger and, if so, whether
CHE1TYAR
FI~.M AND their Lordships themselves have laid down the law
AN~HER. correctly in ruling that a joint Hindu family is a legat
u SAN entity which can -enter into partnership with a stranger.
MAUNG, J. d ffi
If this quesh~n lS answere m the a rmative
it is a question of fact whether the partnership
which Sithambaram Chettyar had entered into with
Chettiappa Cheltyar was for and on behalf of the joint
Hindu family of . S.K.A.R.S.T. If so, the death of
Sithambaram Chettyar would not have the effect
of dissolving tbe partnersl1ip whi~h . would rtmain
undissolved till. the death of Chettiappa Chettyar in
which event any one who can validly represent the
surviying partner, namely, the S.K.A.R.S.T. joint
family can "bring the present suit. as against the
defen'd ants ..
Although quite a large number of cases have been
cited before me, I need only m~ntion a few of them.
In Sokkanadha Vam1imu11der v. Sokkanadha Vanni-
tnU1'ldar and others (2) Subrahmania Ayyar and
Boddomital JJ., held :
" It was urged on behalf of . the plaintiff-appellant that
Kandasa~i's death did not dissolve the p~rtnership, but this
cannot Qe upheld. It is scarcely nt!cessary to say that a joint
Hind~ fainily tP,ough at times spoke~ of by Judges as a corpora-
'tion cannot, as contended for the plaintiff, be takeR as a legal
P:hson in the strict sense of the .. term so as fo constitute a.
partnership sucp as the present one subsisting between the
plain~ff on the ope hand, aucl a real corporation on the other.
N 6 d~~bt when busi:ness. is caried; on ~y the members of a joint
family for:the be~efit of the fl!-mily. ~i..t.hout a .contract
.. . .
amo~g the
. .
.
. ..
. (1) A:.I.R.'. (l9_4~) IP.C.) 8. : (2) 28 Mad. 344 af 345.346.
1951] BURMA LAW REPORTS. 447
members con~tituting .themselves actual partners. the leg:~ I relatic n H.C.
subsisting between them m:~y have some ~ort of resemblance to 1951
that 0 partners, but it is not identical with it. The death cf a MF.!'IAKSR.t
ACHI .~ NO
member of a family thus en$!aged in bu:;iness h1s in truth no ANO'I HE R
oth er effect upon the ri(!hts of the surviving members in the tl.

business th;;n to enlarge their interest to the extent of the share S.K.A.R.S.T:
CH F.TTYAR
to which the <!eceased was entitled in his lifetime if he left no F 'IR&i AN';
male issues, and if he left such issue, then to enlarge the shares ANOTH.I!R.
of such iss.te, similarly. It is to such results that the observa- U S AN
tions of Mr. Justice Melvillin Sa11wlbhaiNnthubhat v. Som,shvar, MAtiNG, 1-
ManJ!.al a11tf. Harkisan (1) on which reli nee vtas pl :~ced on
behalf of the plaintiff should be taken to refer. Therefore
whether the contract of par tnership 'entered into between the
plaintiffs and Kandasami be taken as creating that relation only
between the two or between the plaintiff on theone hand and the
adult members of the family on the other or again between the
plaintiff and all the members of the family in cludi~g the minors,
the death of Kandasami necessarily caused a dissolution of the
relation which was the .creature of a contract as between the
plaintiff on .the one hand and the rest on the other."

In Grande Gangayya v. Grande Venkatramiah (2)

Kumaraswami Sastriyar J., who d elivered the
judgment of the Full Bench of the Madras High Court
observed:

" It is well settled that a contract of partueship between a
member of a joint family and a stranger does not make every
member of the joint family which the managin~ member repre-
sents a partner so as to clothe him with all the rights
and obligations o a partner as defined in section 239 of the
Conb-act Act. I need only refer to Sokkanacha Ttannimu11der v.
Sokkatzadha Vannimrmdar (3) ; Ramanathan Chetty v. Yegappa
Chdly (4) an Vadilal v. Sha h Khushal (5). It is no doubt
true that as between the memb!!rs of the undivided family and
the ccparcener who enters into a contract of partnership for
the benefit of the family they will be entitled to call upon him to
. . . . . . .. ..
(1) I .L.R. 5 Rom. 38. (3) 28 Mad..344 at 345-346.
<2) '41 Mad.45J at 456-457. .. . (41 (1916j 30 M.L.J. 241.
. (51 ( 1903) I .L .R. 27 Bom. 157.,
448 BtJR1fA LAW REPORTS. [ J.~Sl

H.C. account for the profits t'arnecl by him from the partnership and to
1951
, share in such profits but this will not plac~ them in any posilion
MEENAKSHI of direct COntractual relationship \\'ith the other ' partr'let'S Of the
AA~~TH~D . firm. Nor .,,ould the fact that the ent ire assets of the joint
v. ~amily might be available to the creditors of the firm make any
s~!~;..~J difference. The position of the plaintiff in the present case
~lRM AND cannot be higher than that of a sub-partner. Th.e managing
ANOTHER. member of an undivided family thcugh he b<1s the power of
u SAN representing the interests of the other members ils not their
MAU~G, J, agent in the strict sense of the term so as lo clothe the other
mem'bers of tfle family "\ith all the rights of principals in
respect of contracts entered into by their agent. His position is,
as pointed ool by their Lo1~dshi'ps of the Privy Council in
Amzamalai Chetty v. lV!twuges,z CIJ(tty ( 1) more analogns to that
of a trustee."

Subsequently the Full Bench held that a contract

of partnership entered into by the manager of. a
joint Hindu family with strangers does not ipso. facto
make the other. members of the family parh1ers ; and
not being partners, the other members whether
divided or undivided cannot institute any suit in
respect of partnership, e.g., a suit for dissolution of
partnership. . Tllis Full Bench ruling was followed in
Daiva Ammal and others v. Selv..ararnanuja Nayakar
and others (2) where Madhavan Nai and Stone JJ.,
held that where the Manager of a joint Hindu family
is a member of a trading partnership, the ~a.mily as a
whole does not become a member of th,~ partnership
firm and .,the partnership terminatesat. his death, l;>ut :
that if such a partnership is continued with the heirs .
or the legal representa.tives of the dece~sed, it is. not
'the same partnership,' but a .new one. . . . .
In p. K. P. S. Pichappa Cheftiar an d . others v.
lhokalingam Pillai
.
and. others t3Y
.. t.heiir
. Lordships.
. . of: ~

; ~, ,' .
(1) (1903). I.L.R. 26 Mil'd. S-t4 at' 545.
(2) A.I.R. (1936),Mad, 479.
(3) -A.'I.R. 11934) (P:C.) 192 .'
 1-9511 BURMA LAW REPORTS. 449

the Privy Council who had to consider the same H.C.

1951
question observed :
Mt.ENAI,:;H(
" In their Lordships' optnton, the la" in respect of the AcRr AND
AI'IOTIII!R
matter now under consideration is correctly stated in Mayne's v.
Hindu Law CEcln. 9) at p . 398, as follows : S.K.A.I?.S.T.
CHETTYAR
4
Where a managing member of a joint family enters into F'rRM e"No
a partnership 1With a stranger the other members of the family ANOTHER.

do not ipso facto become partners in the business so as to u SA N

<:lothe them with all the rights and obligations of a partner as M.AUNG, J.
defined by the Indian Contract Act. In sucl~ a case the family
as a unit does not become a pattner, but only such of its
members as in fact enter into a contractual relation with the
stranger: the partnership will be ~overned by the Act.'"
In all these above cases it does no.t seem to have
been considered whether a joint Hindu family as
such could or could not have entered into partnership
with a stranger. All that the learned Judges who
decided these cases . seem to have laid down is that
when the karta ot a joint Hindu family enters into
partnership with a stranger fot:, the benefit of the
family, the members of the joint family do not ipso
facto become members of the partnership so as to
clothe them with all the righ.ts and liabilities of a
partner under the Partnership Act. Th~t a joint
Hindu family could be regarded as a unit has,
however, been envisaged as early as 1914 by the Chief
Court of Punjab in Malzaraj Kishen v. Hargobind
and Basheshar Lal ( 1). Later in the year 1915 the
question was considered by a Judge of no less
eminence than Shadi Lal J. (later. Sir Shadi La!) 'itt'
Na1-ain Das and others v. Ralli Brothers(2). There't
was held that where the father of the minor was a
partner in a firm, he, as the Manage~ : of thejoint
Ripdu f.amily, consisting of himself and his minor
.. so.ns, represented the whole
' .
family in' the partnet:ship
.
. .
H) 4~ P1njab Record Judi. 377: (2)' SO Punjab Record Judi, 270 a~. 271. .
'..
29
450 BURMA LAW REPORTS. [ 19.'11

H.C. and his death d id not therefore cause a dissolution of

1951
the partnership, 1he family, which niay be regarded
MEENAI{Sfll
ACHI A l\D
as a persona, remained a partner after his death as
II NOT HER
v.
it was be/01'e 'his death.
S.K.A.RS.T. In Moti Ram v. Muhammad Abdul]alia (1.) \Vhere
CH~TTYAR
F1~1 AND a question arose whether a joint Hindu family could
ANOTHER.
be considered as one person for the purpose of the
u SAN Indian Companies Act of 1882, a Bench of the
MACNO, J.
Allahabad HigJ. Court observed:
"The Companies Act of 1882 nowhere defines 'person'.
We are therefore thrown back upon the General Clause$ Act
(No. X of 1897). 'Person' is tl1el'e defined to include any
Comp:my or Associatkn or body of individuals, whether
incorporated or n~t. It is therefore obvious that 'person' can be
used to include a collection of people and an appropriate
illustration which will at once occur to Indian lawyers is that
assoCiation of individuals knowu as a joint Hindu family."
Although the question to be decided in this case
was whether a joint Hindu family could be considered
a~ one 'person for the purpose of the Indian Companies
Act of 1882, the view held by the learned Judges
regardin g the nature of a partnership between a joint
Hindu family and astranger seems to be more in
accord with the Punjab decisions than with those of
Madras. Much more explicit on the point is the
judgment of Sulaiman J., in Mewa Ram v. Ram. Gopal
and H ofi Lal and olfiers (~) where the learned
Judge observed:
'' The only way in which the defendant can urge that the
ftumber exceeds 20 is by saying that 'many of these executants
are members of joint Hindu families consistirrg of a large number
o oter ~embers and if all the othet members of each family
were to be co.unted, the total number exceeded eo. We are of
opinioti. that this is not .the . right . ;:lethod of calculating the
number in order to ascertain whether the association consists of
20 or more members. If each of the executants entered into'
(I) 46 All S09 ~t SHi. {2) 48 All. 395 at 396."
195 1] BURMA LA\V REPORTS. 451

this p.trtnership i:1 his own indiviclu:tl cap;~city he

admittccll~:
coulits as one. On the other hand, if he entered into the::
partnership in his representative cap::city on behalf of his fnmily, l\1EF.:-:At;SR I
then his joint fam ily must be considered to be a unit and m ust be .~CH! AND
A':'OTI-IER
deemed to be on! person within section 4 of the Indian v.
Companies' Act. '' S.K A.R S.T.
CHEij'TYAR
This observation is the precursor of th e view which J.'IRM AND

n ow seems current that th e karta of a joint Hindu

family can enter into partnershiij either in his M,\I:Jl"G, J.
A~orHFR.

U SAN -
individual capacity or as representing his family, in
which case his family, and not he, is the partner.
In Gauri Shanlwr v. Keshab Dco an d others ( 1)
a Benc h of tbe Allahabad Hig h Court consisting of
Sulaiman and Kendall JJ., were specific in that a joint
Hindu family can become a partner in partnership
business and that where a joint family is a partner,
the partnership is not dissolved on the death -of the
managing member of the family inasmuch as a joint
fam.ily does not die o~ the death of the manager.
It may be mentioned that a discordant note was
l)ounded in Kharider Kapra Co. Ltd. v. Daya
Kishan and others (2) by another Bench of the
Allahabad High Court which d@ubted the decision in
Narain [)as and others v. Ralli Brothers (3) and
preferred to follow.the. Full Bench case of Madras High
Court in Grm1de Gangayya v. Grande Venkataramiah
(4). However in Lachkman Das v. Commissioner of
Income-tax (5), the dual personality of a coparcener
in a joint Hiridu family has been fully emphasised.
by their L9rd~hips . of the privy Council whose ~ie'i;
have been aptly summarised in th e headnote, which
reads: . . , .
''It is now firmly established that an indi~idual copat~ener.
while r emaining joint, ca~ p~ssess, enjoy and utilise, in, any. way
' .
(I) (1929) All. 148. .: (3) 50 Punjab Recor.d Judi. iio at 271-."
!2} 43 Ali. 116 . . (4) 41 Mid. 454 at 456-457.
(5) A.I.R.. (1lJ4"8) (P,.C.}8; .
452 BURMA LAW REPORTS. [ 19S1

H.C. he likes, property which was his individual property, not ?.cquire<l
1951 with the aiel of or with any detriment to the joint family
Mr:llNAKSHt properly. H follows from t his that to b A able to utilise tlds
ACHIANO
Al\OTH!i:R
property at his will, he must be acccrded the freedom to entH
1), into contractual relations with others, including his family, so
S.K.A.R.S.T. long as it is represented in such transactions by a definite
CH,TTYAR
FIRM AND personality like its manager. In such a case he ret::~ins
ANOTHER.
his share and interests in the property of the family,
..-:::t""
U SAN while he simuitaneously enjoys the benefit of his separate
MAUNG, J.
property and th ~ fruits of its investment. To be able
to do this it is not necessary for him to separate h imself
from his family . This must be dependent on ot het
considerations, and the result of a separate act evincing
a clear intention to break a\vay) from the family. ln this
view o the Hindu Jaw it is clear that i a stranger can
e 11 ter into partnlrship, with reference to his own property,
with a joint family through its karta there is no sound reason
to withhold such opportunity from a coparcener i n respect
of his separate and individual property.
The c~se of a partnership with a stranger cannot be
distinguished on .the ground th'it the karta's entering ii1to a
partnership on behalf of a joint Hindu family is in substance
of the nature of an alienation, b ecause the acceptance of a
stranger to the benefits of a partnersljip with the joint family
c1nnot be. regat~ded as an alienation and further a joi,nt Hindu
family c:tn alienate an asset belonging to it to a member of the
family without causing a clisl'uption of the family.
Though in its natul'e a joint Hindu family may he fleeting
;~nc\ transitory, it has been regarded as capable of entering
through the agency of its karta, into dealings with others.;
and the principle that a fitm, not being recognised as a legal
'entity, cannot as snch, enter into partner~h ip with another firm
as such, cannot be applicable to a joint Hindu . family in
~ansactions where it acts through the agency of its karta.
1herefore, it cannot be said that a. joint Hindu family being, by.
its nature, frequently chao~ing entity no partnership could be
.
fo ~a with it."

In my opinion there is no real conflict bet~een the

views expressed by thir Lordships of the Privy
Council in th~ earlier case, 1.riz.,: P .K.P.S. Pi'chappa
 1951] .BURMA LAW R:SPORTS. 453
~

Chettia r and others v. Cltolwlingam Pi/lai and others H.C.

1951
(1) and in this c;;ase. What their Lordships had said
MEENAKSHI
-in the earlier case was that where a managing member ACHIAND
of a joint family enters into a partnership \l.rith a ANOTHER
v
stranger the other members of the family do not ipso S.K.A R.S .T.
CHETTYAR
facto become partners in the business. T hey did not FIRM AND
A!\OTI-iER .
also say that the family as a unit could not also ..,.;.!!_

become a partner in the partnership with a stranger. U SAN

MAUNG, J.
In Lachhman Das's case, their Lordships did not go
so far as to adopt in toto the view held by some of the
eminent Hindu Judges that a joint Hindu family is
in its true nature a " corporation " capable of a
continuous existence in spite of fleetiug changes in
its constitution. Nevertheless they held that for the
purpose of forming partnership with a stranger,
effected through the medium of its karta, a joint Hindu
family has been for a long time past regarded as an
entity capable of being represented by its manager,
and that th.e principle of law by which a firm not
b eing recognised as a legal entity cannot as such
enter into partnership with another firm, as such,
cannot be applic~ble to a joint Hindu family in
transactions where it acts throu~h the agency of its
karta. Thus their Lordships have clearly recognised
the principle that a joint Hindu family is a legal entity
wh~ch.- can be represented by its karta ac~ing as its
agent .
With great respect I may say that the views
expressed in LachJiman Das's case set?m to be clearly
. in accord with the accepted principles of Hind.ti law<
relating to .a. j.oint Hindu family. A Hindu, even ~
he is joint, may possess separate property belonging:.
exclusively to him. He. may . sell it, make a . gl.4, or
bequeath it by will to any .person he likes:. . It is not .
.~ia:ble to 'partition ~n~ on his. death intestate it passes
{l ) A.I.R. (19~-4) (P.C.)192.
..
454 BU.RMALAW HEPOI{TS. [1951 .
~B.C.
'!95 t.
by succession to his heirs, and not by !:>urvivcrship
to his coparceners. In the case of.' joint famil y
'ME'ENAKSHI
ACH!A :"D property a father has no greater interest in it than
A:-IOTHER
'/1.
any of his sons or son's to the third generation.
S.K.A.RS.T. However, as manager and head of the family he
CHETTYAR
FIRM ,INO is entitled to the possession thereof. The male
ANOTJIER.
....,4. issues in the family takes an interest in it by birtb .
USA~
MAUN<;, J.
Among the separate property which a member of the
joint Hindu family may pos!:)ess are gifts, Government
grants, income of separate property, separat_e earnings,
gains of learning, etc. Whereas in the case of joint
family properly all the accretions go to the benefit of
the family, in the case of separate property all tlie
accretions go to the benefit of tbe member of the family
in his individual capacity. Hence it is but logical
that a member of the joint Hinqu family, whether he
is a karta or not, sh.o uld be able to enter into partner-
ship with a strp.nger dther in his individual capacity
or in. his representative capacity; except that the
special rules governing the Hindus debar a member of
the Hindu family other thari the kaita from represen-
ting it to the outside world. Although the karta, as
such, cannot always bind the memb(;rs of the family
0 .

by entering into p::utnership with strangers, it does not

i1ecessari1y follow that the family as a unit cannot be
represented by fhe karta as its agent in a padnership
With strangers, \:Vhetber in any partiCIJ]ar CaSe a
partnership is (a) .between the karta in his.indi'v idual
capaCity utilizing hi.s own separate property and a
-_.sj:ranger, or (b) betwe~n the karta acting : for the
" b~nefit of the farrii~ by using the joint .family prop'erty
and:the -.st.ranger, or (c) betweee.n the karta . a"cting as
a:ge.nt}Jor .his fa.mily and . th.e stranger; is a q~estion .of
fa~t w.bich ~us.t. be .deCide d with .. teference to the
facts . and Circumstances: of each p~rticular case. In
t~1 e first case, th~ .. f am.i l y is . n.ot ir'~ te~csted m. the
 1951] BURMA LAW0 RE.POR.nTS. 4~5

patetnership. In the second case, the family property H.C.

1951
-is affected by tpe partnership of the karta wi t h. the
MENAKSHI
stranger but the family as such is not the partner in AOHT AND
ANOTHRR
the partnership. In the third case, the family itself, v.
:as a unit, and not the karta, is the partner. There S.K.A.RS.T.
CHETTYAR
may also be cases of the karta acting in both the FIRM AND
ANOT!;p!R.
second and third capacity in the same partnership -.::-tr
with a stranger. Where a jomt Hindu family as a 'V SAN
MAUNG, J,
unit is a partner in the partnership, the death of the
karta would not dissolve the partnersllip because the
karta is merely the agent of the principal (namely,
the joint Hindu family), and on the death of one
agent the principal <.:an be represented by another,
(namely, a. new karta). In coming to this decision
I am not unmindful of the observa"tions of their
Lordships of the Privy Council in Amzamalai Chefly v.
Murugesa Chetty (1) where th eir Lordships h elp that
the karta as such is not the agent of the members of a
joint Hindu family so as to make them liable to be
sued as if they are the principals of the manager and
that the r elation between the karta and the other
mem~ers of the joint Hindu family rather resembles
that of trustee and ceStui que tmst than that of
principal and agent. Ho~ever lheir Lordships were
not considering whetper a karta ~ould not in fact
become ~n agent of a joint Hi.ndu family considered
as a unit, and the view expressed by them in their
latest decision o'n the subject namely, Laclzhmaf!-
Das v. Comtnissiorie1 of Income-tax (2} ' must. be
deemed to be their considered opinion; In' thiso1
connection it is interesting to note th.e observations Qj
the learned authors of Pollock and Mulla's~~

. .
.
.
.
. . ~at
(1 1(1903) I,L;ll.P
-
Indian ~ale of Goods and the Indian.~p-.::r-oi ~the
Act," 1950 Edition, in their r.o~_.. ~-~
.

s.i5.- . (2) A:I.R. 119-tS) IP.C.) 8.
456 BUE.MA LAW REPORTS. [1951

:is~ Partnership Act at page 313. It reads :

MEDIAKSHl "~The Privy CounCil has held that a jo.int Hindu family
ACHl. ANO
ANOTHER through the agency of its karta can enter into contractual
v. relations either with a stranger or ev~n with an individual
S.K.A.RS.T.
CHETTYAR coparcener in respect of his sepal'ate property and also with a
F'll!ll! AND firm. A joint Hindu family has, i!l substance, been accorded
ANOTHER.
..:b- a legal personality."
u SAX
MAUNG, J.
This in ~y opinion is the latest and the correct vtew
on the subj.ect. _,
For these reasons I hold that the order of the.
learned District Judge of Hanthawacj.dy remanding the
su it to the trial Court under Order 41, Rule 23 of the
Civil P rocedure Code is correct. This appeal hils
and must be di&missed with costs ; Advocate's fees ten
gold mohurs.
 19511 BURMA LAW REPQRTS. 457

CIVIL REVISION.

Before U On Pe, 1.

H.C.
KO PHAN N GA (APPLICANT) 1951

v. A;;i.i
DAW PWAY AND OTHERS (RESPONDENTS).*
,.
Sui/ for specific Perjormauce against party to ngrecmeii/-Impleadilg of
purcflasers with uotice of such agrument-Whelller 111isjoinder-Specific
Relief Act, s. 27 (b).
Petitioner sued for specific perform~nce of contract to sell a house against
the 1st l~espondent who was party to the agreement and Respondents Z, ' 3
and 14 as purchasers with notice of the agreement. ;The District Judge
recorded a finding that the Sl}it was bad for misjoinder of the subsequent
purchasers and that plaintiff ~hould elect to proc.,ec! with one claim in his
suit. Upon revision-
Held : That a person with knowledte of a previous contract to sen.
purchases property, the purchase is voidable at the option uf the prior
promisee and the contract can be enforced specifically against the subsequent
purchas-er.
The proper decree in a suit for specific performance of~ contract to sell
land when the same has been sold to a third party subsequent to the contract
with plaintiff; ia to direct the subseq\lent purchaser to execute a conveyance
to the plaintiff.
Under s. 27 of the Specific Relief Act acontract C'ln be specifically
enforced not only again'St the parties to the contract and the parties claiming
tinder them by subsequent Iitle but also a(lainsfpersons claiming under a title
which might ha~e been displaced by the defendant.
Consequently the facts in the present case do not warrant institution of a.
separate suit and the s~it as framed was co~petent.
. 1'. Ra11ga-yya Redtly v. V. R. Subramania AiJar atul others, 60 Mad. 365;
Ni/af Lal Duita v. Gobinda Bfwshan Sen and olfitrs, A.I.R. {1936) Pat.142.
distinguished. .
Gullftilli Ramulz! m1d others v. K~klm Venkala$Uhb<t Rao lind others~ 0
A.I.R(I944) Mad; 554; Kali Char4n Sit1gh and a11~ther v. Janalt DeO
Sint.h and others, A.I ~R. (1932i All. 6~4 ; Kanshi ' Rani -and a nother. v.
Ishwardas and anothe;, A.I.R; (t92"3) Lab. 108; Shannwkha Madan and
olhen v. Amnachala (,hettyar and olhen, A.I. R. 11922) Mad. ~32 ;.
Gauriihankar a nd other~ v. Ibrahim 4li, A.l.R. (1929) Nag. 298, referred to.".

* Civii .Revisioa: No. 45 of 1950. against the order of the District- Cou~t of
Magwe in Civil Regular . Suit No. Z ~ 19j0, datea 28th October 1950.
4 58 BURMA LAW REPORTS. [1951
H.C. San Thein for the applicant.
1951

Ko P.RAN
NGA P. B. Sen for the respondents.
v.
DAW PWA Y
AND ll ON PE, J.-In Civil Regular Suit No. 2 of
OTHERS,
1950 of the District Court of Magwe, the petitioQer
sued for specific performance of contract to sell
a house to him for Rs. 13,000 or in the alternative
for da.mages for the same amount. The defendants
were the first ._respondent, as party to the agreement1
and the respondents Nos. 2, 3 and 4 as persons who
had subsequent to the date of contract of sale
purchased the suit property, the relief asked f<?r
-.as a.~;:a in st them (defendants 2, 3 and 4} being that
.as they had purchased in bad faith atid without
any consideration and with notice of the agreement
"'the sale effected by the defendant No. 1 in favour
d the defendants 2, 3 and 4 embod ied in sale deed
No. 19 of 1950 of the Sub-Registrar of Yenangyaubg
be declared invalid". The lower Court framed three
preliminary issues the decision on one of which, now
under revision, is in respect of Issue No. 1 which
reads as follows :

" Is the suit bad for misjoinde r of causes of action and

;parties ?"

Its ciedsi~n reads :

!"ollowing the analogy of the il.lustration ~iven above

1
'

.(CoH}mentaries under Order 21 Rule .4, Civil Prqcedur.e Code by

~~arkar, Z~d editioi1) the plaintiff's suit !against Daw Pway
~ . and
the subsequent transferees is bad . for misjoinder of parties.
1 also find that the two claims and causes of action fordtklatation
ll}al'the s~le deetl is invali'd . ana for 'specffic performance of t lie
:q.o ntract ..ot' damages . are absolutely ~n<leperiderit: The. suif
;theref~re is bad. :for misjoincer .of causes of actio~?- ~s iw:ell a.ud
1. would. d~cid.e tliis issue acemding~y~"
....:
 1951] BURMA LAW REPORTS. 459
~

Holding that the suit is in respect of two ciaims H.C

1951
and causes of actiqn _which are absolutely indep~ ndcnt,
Ko PHAN
the lower Court has directed that the plaintiff NG.~
should elect to proceed with one claim and that DAw -v.PwAY
he should amend the plaint accordingly. o:;~Rs.
Before me it has been contended by the applicant's -
C ounse1 tnt,
l
. h 1 c
amongst oth er t h mgs, t e ower our
t u ON Pr:, I
:
0

has overlooked the provisions of section 27 (b) of the

Specific Relief Act. I have reason to think that the
learned District Judge would not h<we arrived at
the decision which he did, if the case reported in
40 Madras quoted by him had been made available
to him. It is a Full Bench case in which tbe
headnote giving the decision of tbe Full Bench
~Abdur Rahim J., contral reads :

'' 11) That the claim for partition was wrongly joined with
the claim for specific pedornunce, as at the date of
suit the plaintiff had no ri~ht to sue for partition
not having c0mpleted his title by a salc;-deed and
(2) that by reason of lbe subsequent partition the other
members of the joint' family were properly made
p~rties to the suit (o\' specific performance as
subsequent transferees with notice."

The decision of .\bdur ~ahim J., is as follow:; :

"T~e suit a> Tram~d fv~ specific pertormance as \Veil as_for

partition ant .p);-;e.H ion a! \in:;t all the members .of th.e hmily is
maintainable under-Order 1, Ruie 3, Civil Procedure Code, and
section 2_7 (c) -of the Specific ~elief Act:"

. This case [T. Rangayya . Reddy:~: V. R. Subramauiac

Aiy_ar a~ four others (1)] is distinguishable ih th~t
the subject-matter of the dispute relates to a s.hare .of a
member of an undivided Hindu family -~nd the que.stf<?ri
there was whether the -relief_for specific performanc::e
(11 60 Mad. 365.
460 BURMA LAW REPORTS. [1951

~9~i against the party to the contract would give the

Ko PHAN plaintiff the right to the relief of parti.tion and separate
NGA possession from the other coparcenets. The transac-
DAw vPwAv tion which would entitle the plaintiff to such relief
AND
oTHRns. agamst the other members of the family had yet.
U ON PE, ] . to COme into existence, namely, the execution by the
vendor of a proper conveyance of his share. That
is to say, he has no right to sue strangers to the
contract for partition and possession till he gets his
conveyance, and before one is obtained his suit
for partition and possession against strangers.
must be said to be prematqre. It is in this view
arising out of the peculiar _natur~ of the share o~
a coparcener in. a joint Hindu family that it was
held that thoe plaintiff had no ri_ght to sue fo}\
partition along with the claim for specific performance.
In the present case it cannot be said as in . the
case in 40 Mad-ras that the right to partition has
not arisen and that it ,would require the plaintiff
fir~t to ~nforce the specific performance of the
contract of sale and. then to institute a separate
suit for partition . . .
If the . attention of the learned District Judge
had been drawn to osection 27 of the Specific Relief
Act, he would have seen that there . are provisions.
made under that section as to against what persons .
contracts may be specifically enforced. It l.s laid.
dowri there that they include not only .(a) .parties
'to the contract and (b) parties claiming -under the~1
. by title arising subsequently to the contract other
jhan . transferees 'for valu~ .. who have paid .their
money in good faith and .without' notice o('the '
orisi,nal contr~cts, but also (c)_ any person .. cl3:im~ng
under a tttle which, tho'ugh prior 'tq th~ , c<?ntract'
an<i"known to the ph\jntiff, :might have been displaced .
by the. <,iefendant~
 1%1] BURMA LAW REPORTS. 461

In Gullipilli. Ramulu and others ,.. Kok'?u H.C.

1951
Venkata subba Rao and others ll ) it was held'' A contract
Ko PHAN
which cannot be enforced in full at the time the NGA
~ontract was entered into may nevertheless be o.-.w v .PwAv
enforced if it can be fulfilled at the time of t.he AND
OTHERS.
filing of the suit. Such a contract can be enforced ~:
U ON PE, J
against transferees with notice of the contract. They
are proper parties to a suit for specific performance.,
The same view is held in [(ali Chamn Singh and
another v. ] anak Deo Singh and others (2} from
which the following may be aptly quoted : -

"When a person with knowledge of the previous contract of

:>ale, purchases the property, the purchase i~ voiclahie at the
<>ption of the prior promisee :.net the contract with him can be
enforced specifically against the subsequent purchaser. In such
a suit the Court should declare the second purchase as null and
void and cancel it, and order the original promisor to carry out
his contract by executing a sale-deed in favour of the prior
promisee."

Also see Ka11Shi Ram and another v. Ishwardas

and anot her (3) which lays down the maxim "No one
can convey a b etter title than lte himself ha~., and
ShamnukhaMadan and otllers v. Arunachala Chettyar
and others (4); Gattrishankar and others v. I brahim
Ali (5) lays down a decision which strengthen s. the
view . that respondent~ .'2, 3 and. 4 are necessary
parties to a suit like the .present. It reads :

'' The ~roper decree in a suit for s~cific performance 9 4

contract to sell.land when the same has been ~old to a third part~
subsequent to the contract with plaintiff is to direct the suhsequen
. purchaser to execute a conveyanc~ to the plaintiff.".

1) .A.I.R.- (1944) Mad. 554. (3) A.I.R. (1923) Lah. 108.

(2) ,U,R. (1932) All. 694. . '(4) A.I .R..-(1922) Wad. 332,'
. (5). A.I.R.
. .
(19,29). No\&t. 298.
~ :..
. .
462 BURMA LAW REPORTS. [19Sf
H.C ..
1951
This is a dire ction which may be borne in mind;~
although I do not wish to anticipate the conclusion
Ro PuA:-.
)JGA which the learned Dist rict Judge may come to.
DAw v.PwAv Before I come to the order which I am passing,
A~o it may be neces~ary to touch on :mother case
OT!illRS.
. . cited by tlle learned District Judge-Nitai Lal
u ON Pe, 1 Dutta \'. Gobinda Bhushan Sen and others (1) which
also was not available to him. That was a suit for
the declaratit;m of the plaintiff's title to some share
in certain plots ot lanct on the basis of his
purchase from the predecessor-in-title and for partition
by metes anrl bounds between him and defendant 1.
In that suit the plaintiff also impleaded raiyatst
defendants 2 to -1- and asked for a permanent
injunction against them restraining them from
erecting any house upon the suit land and for an
order that any house which may have been built
by them upon the land should be removed. It has
been brought out in the judgment in the case that
two causes of action against two sets of defendants
have been combined in one iuit. Thus it is clearly.
distinguishable from tli e present suit.
In the light of' the principles laid down in the
above mentic.ned. cases, I am clearly of the vie-w
that the facts in the present case do not warrant
institution. of separate suits. The order of the
lowe~ Court is s~t aside iu~d the suit as instituted
,c ari . p-roceed trial. Costs will abide the result of
the case.

. h) -~.I.R. (1936) P~t.142.

191) 1] BL'RMA LAW REPORTS. 463

Af=> PELLATE C I VIL.

mrore u s.w 111.11111/!, J.
DAvv CHI ( APPELLA~T) H.C.
v.
l';fAUNG CHET (RESPONDENT).*"
-
1951 .
Attg. 23~

!Vnivcr of ric,ltts -Ri glt t to ntldrtss Court uucltr t:te t visions of Order 41 ,
Rttle 11 (ll of tlre Code O/ Ctvil Procedrlre-Wildlur cau be wa ited .
Held: W here a rule has been enacted solely for the protection of a class
of persons and their e$tatcs, and not upon grounds of public polky or in:erest
of tbe public generally, then the person in whose bvour the rule opera tes
may by his conduct debar hin;self from the right o! insisting upon its
enforcement.

Thus wl}cre an advocate engaged by a party bad the right of being beard,
waived that right and filed written argu ment, then his client cannot make
failure to hear the advocate a ground of appeal. The right to be J1eard has
been waived.
Saslli Hhusnn Prasad Sing/~ v, DoliP /l',lraiu Sirtglt and dlurs, A .I.R .
(1936) Pat. 75 ; Bm1al11ll11dan Prasad v. Tile U11iterl R e{itter ies Ltd. aud
others, 11 Ran. 79 ; Raja Shyam Su11der Singh and others v. Knluram
Aganuata aud others! A.I . R. (19381 tP.C.) 230, referred to.

Thein for the appellant.

!3a Gyan for the respondent
. .
U SAN MAUNG, J. -In Civil Regular Suit No. 2 of
1950 of the Court of the Assistant Judge, Monywa, the
plaintiff-appellant Ma Chi sued the defendant-respon-
dent Maung Chet for a su m of Rs. 2,720 on the ground
_that it was the amount of the rent due to be paid to
h_e r by Maung Chet as the tenant of the house, which
Maung Chet himself had. mortgaged to her by way of4
usufructuary mortgage. The defendan~ Maung Chet.
in bis written statement, denied that he . was a te~nt
of MaChi., H e contended that the h ouse ih questi.en
b~lon.ged -to hi~ mother and that he was living therein
Civil 2nd Appeal No. 30 of 1950 ar.:ainst the decree of the District Court
. of J,o~r Chindwin in Ch:il A~lieal No. 1 of 1950, dated 5th Septemb~r 1_95C)o.
464 BURMA LAW REPORTS. [1951

H.C. with his mother who knew of the two mortgage deeds
1951
which he had executed in favour of \tra Chi and had
DAW CHI
v. herself attested these deeds. J'he mortgage deeds
MAUNG
CHE:r.
had to be executed in the form of usufructuary mort-
gages under pressure from lVTa Chi. No rent was ever
u SAN
WKG, J. paid to her anct the 2nd mortgage deed was executed
in respect,. of the principal and interest due on the first
mortgage. On the pleadings two issues were framed
by the learne<i trial Ju~ge, namely-
1. Whether the plaintiff and the defendant stood
in the relation of landlady and tenant ?
2.. To what relief was the plaintiff entitled?'
After examination of Ma Chi and her witness
U Ba Thein (PW 2), Maung Chet and his witness
Ma Hla Yin (DW 2), (Maung Chet's mother), the
learned trial Judge came to the conclusion that on
Ma Chi's own admission the house in question never
came into her possession ~!though the mortgage deeds
executed in her favour purporled to be usufructuary
mortgages and that on the evidence on record it has
not been established that Maung Chet was the tenant
of Ma Chi. On appeal to the District Court, L.ower
Chindwin, the tearned District Judge dismissed the
appeal under Order 41, Rule q (1) of the Civil Proce-
dure Code without hearing the appellant, or her
ple.ader, 1 but after perusing the written argument
submitted to him by the learned Advocate for the
appellant. .
In this appeal by Ma Chi under section 100 of the'
Civil Procedure Code, one of the grounds raised by.
hGf.learned Advocate, is that the order of 't he lower
Apf'ellate Court disnii.ssi.ng the appeal summarily after.
merely reading the writt~n. iu:gument of'the appellant's'
Advo~at.e but wit}:lout heari.n g the . appella~t .o r 'her
~dvocate personally, .a~. requited by' law; was illegal.
1951] BURMA LAW ~REPORTS. 465

Now it. was quite irregular for the learn ed District H.C.
1951
Judge of Lower .. C hindwin to have disposed of the
DAWCI!l
appeal at S;lgaing after merely perusing the proceedings 1/.
of the trial Judge, the memorandum of appeal and 1\T AUNG
CHET.
the written argument o the appellant's Advocate.
Order 41, Rule 11 (1) of the Civil Procedure Code
u S AN
M AUNG , J .,
I
enacts :
" The Appellate Court, after sending for the record if it
.thinks fit so to do, and after fixing a clay for hearing the appellant
or his pleader and hearing him accmdingly if he appears on that
.day, may dismiss the appeal without senclin" notice to the Court
from whose decree the appeal is preferred and without serving
notice on the respondent or his pleader."

Therefore it was incumbent upon the learned District

Judge of'Lower Chindwin to have fixed the date for
bearing the case at Monywa so as to give an opportu-
nitY. to t he appellant or her pleader to argue the case.
Th e procedure <tdopted by the learned District Ju dge
should therefore be deprecated and had times been
normal and communication between Sagaing and
Monywa not so disrupted or hazardous, as at present,
l would have strongly di;:;countenanced it. However,
in the conditions now prevailing there is some excuse
for the learned District Judge in ~ot visiting Monywa
regularly and 'for the learned Advocate for the appellant
.in not having insisted upon a date for hearing the case
at MoRywa being fixed. By submitting with the
memorandum of appeal containing the grounds urged
in favour of the appellant', a written argument
containing practically all the arguments which the
learned Advocate coul_d possibly utge in support of
the grounds of appeal, it is clear that the learned
Advocate for the appellant had waived. his riglit' to
appear and be heard in person. The learn~d Advoc~te
must have been aw~re .of the provis.i.ons of Order 41,
Rule 11 (1) of the Civil Procedure Code and by
30
 BURMA .LA\iV REPORTS.

H,C. hea.d ing his written argument as '' writtc: n

1951
for admission by the Advocate for lilaiutiff
DAW CJJI
11 .
Daw Chi ", he had clearly meant to convey
:O.L\U~<i
CHET.
learned District Judge the .impression that it
lieu of his personal appearance before the
u
.
SA!f
MAUNG, ] . District Judge. Hence it cannot be said that
fai lure on the part of the District Judge to fix a
fo r hearing the appellant or her pleader had in
way prejudiced the appellant's case. The Power
Attorney give~ to the Advocate in question b y
appellant is .sufficiently wide to enable him to
personal appearance on her behalf.
In the case of Sashi Bhusan Prasad
Dalip N arain Singh. aud others (1), a single Judge
the Patna Hign Court held that there is nothing to
prevent any litigant waiving any right he may have
under the Civil Procedure Code or under any sta.tute
for that matter, unless tbe waiver of the right or the
abserice of the right makes any particular matter
illegal. This observation seems not inapposite
although with respect I must say that it is much wider
than is ~trictly justifiable. A mere conservative at1d
better view of the law is enunciated by a Berich of the
late High Court o(Judicature at Rangoon consisting
of Page C.J., and Mya Bu J., in Btmalnandan
Prasad v. The Uniied Refineries Ltd.' ml d others (2).
In t~~t. case a question arose as to whether a p~rty can
waive the notice required to be issued by the Court
under Order 21, .Rule 22 of the Civil Procedure Code
and in tP..i s connecti~:m Page C.J., observed :

rhe.'coui-t sits to administer justice according taw, and to

wh;_pevet it is p~ssibl~ to
do so the Court ought to refuse to
,enTiit- mero technicalities to override the substance of the law: .
f.he. .Cou~t
. sb(>tild
. . . the u~oad
.move along . .stream of tlH!. law, and
. ..
r.' 75:
-:

. . .. (1) A.I.R. (1~36) Pa~. . (2) 11 Ra~. p. ~9, .

 t 9511 BURl\1/\ LAW REPORTS. 467
not a!low itself ln be ent iced into side rivulets where the \later H.C
is neither deep nor de~r, and it is e1sy to run ;~~round. It is to l 'i51
be borne in mind that Order 21 , Rule 22, was enacted solely in DAW CHI
aid of judgment-debtors and their legal representa tives, and to :.r.
l\1AUNG
prevent a ' snap' order being obtained for execution against a CHET.
judgment-debtor "or his estate."
u SAN
MAUNG, J.
Later on in the case the learned Chief Justice
observed :

.
' In each case, however, rt:gard must he had to the intention
o the legislature in enacting the rule, and in cases such as the
present _c ase, in ,,hich a rule bas been enacted solely for the
protection of judgment-debtors and their estates, and not upon
grounds of public policy or in the interest of the public generally,
in my opinion it is clear both upon principle and authority that
a person in whose hvour the rule operates may by his conduct
clebar himself from the right of insisting upon its enforceme~t.".

See also the case of Raja Shymn Sunder Sin6 h and

o!hels v. Knluram Agarwala and others (1).
In the case now under consideration the Rule
relating to the fixing of the date for hearing the appel-
lant or his pleade r be\ng made exclusively for the
benefit of the appellan~ it can be waived by the
appellant and or her pleader. -. Therefore the first
ground of appeal cannot be' allowed to prc\aiJ.
Coming to the merits of the case, it is clear that
both the Cc,urts below \Yere justified in the con cln~ion
arrived at by them that the relationship of landlady
and. tenant cannot be held to have been establi.~hed
upon the evidence on record. The house has been
' proved to b~long to Maung C~et's mot?er, M~ Hla Yin.,
at the time of the mortgages m question havmg been
sold" to Ma Hla Yin by Maung Chet by a registered
deed of sale E xhibit. 1, dated the 21st 'Of .J!.me 1..,39.
lt.never c_ame in.to tbe poss~ssion of Ma Chi-inspite: of
(1) A.fR.. {1938l{P.C,) p. 230...
468 BURMA LAW REPORT S. [1951
H,C the execution of the two mortgage deeds one after
1951
anothe,r. It has not been proved t!fat Ma Chi was
DAW CHI
v. ever paid rent by Maung Chet in respect of the house..
MAUNG
CtiET.
Before the Rent Controller U Ba Thein (PW 2),
Maung Chet stated that he had never paid any rent to
u SAN
MAUNG, J. Ma Chi for any month and this statement remains
unchallenged. Maung Chet has been Jiving all along,
both prior and sul?sequent to the mortgage, with his
~other Ma Hla Yin to whom the house belonged.
I n a suit prop~rly framed the fact that Ma Hla Yin
had ~ttested the mortgage deeds may perhaps estop
her from denying that the house belonged to her son,
Maung Chet. However, the fad remains that in the
suit :under appeal Ma Chi bas failed to establish that
Maung Chet \VaS her tenant: Her appeal was there-
fore rightly dismissed by the learned District Judge of
Monywa. rn the result this appeal fajls and mnst be
dismissed with costs. Advocate's fees three gold
mohurs.
 i951l BURMA LAvV REPORTS. 469'

APPELLATE CIVIL.
Before U Si Bu, J.

u SAN GYWE (APPELLANT) H~.

1901
v. Aug. 30.

HIRCHAND KALIDAS (RESPONDENT).*

.
Seco11d a{ljJeal under Civil Procedure Code, s. 100, Cltmses (a) /o (c).
Held : Where the question before the Court was whether there has
been a material alleration of a promissory nnte by change of figure " 1"
and word " one " to figure " 3 " and word three " and on evidence on
record both the Courts found in favour of a party, ,.;uch finding is one
of fact. the matter can 10t be agitated in second appeal in the High Court.
If there is no evidence at all or the Cou.r ts fail to appreciate or
determine the real question of fact, th~ matter will be one of Jaw.
Damu)a ami another v. Abdul Samad and ~/hers, A.I.R. (19i9) (P.C.) 29 ;
Sheilc Rahmat 11/al1i v. Mohammad Hayat Klta11 atzd other$, A.I.R. {194.3) (P.C.)
208 ; Mussamut Khoob Conwur a11d ollzer~ v. Baboo Moodlzarain Sinth ~end
others, 9 Moore's I.A. 1' ; Petamber Maniklee v. M11lel Chur1d Matlilc-Jee,l
Moore's I.A. 423; Mt. A.m~pa ~ai .... Bhatwant Sitzth a11d others, ( 1938) Nag..
470, distinguished.

Dr. _Ba Han for the appellapt..

P. K. Basu for the respondent.
: . U Sr .Bu, J.-:. This 'isa defendant's second appeal
from . the judgment of. the District Coi1rt, Amherst~
The . :fads are perfectly simple aud present no
difficulty whatever.
Th~ plaintiff instituted.a suit in the Court 9)
the 2nd Assistant Judg~, .Amherst, : at Moulmein,
against the defend ~m t 'for- recov~ry of Rs: 4,24.3 due
on 'a promissory note executed by hi~... The-- defertc~
. ! . . . . . . . . . .... ' ,..

.. Ci!il 2~d Appeal No. 12 o.19 :?1 agains~ thedccr:ee or the _DistriCt Gour
in
of .,mherat Jvil Apptal Mo. i4 of 1Q49, _dat~d the 16th December J9SO:
, , , , I : , l , ., ,, ; , :. , 1,~, . ,' ..
470 B.URMA LAW REPORTS. [19)l

Tht was a denial. Hence the follO\Vineg iwo issues were

U SAN G YWE framed : -
'II.
HIRCHAN O ( 1) Did the defendant execute the suit promissory
KALIOAS,
n ote. after. s ettl ement of deb ts?
U St Bu, J.
(2) To what reli ef, if any, is the plaintiff en~ itl.ed?
After hearing the evidence (including the evid ence
of the plaintiff's books . of ~ccounts), the learned
trial Judge aps\vered the . first issue in the
affirmative and decreed the plaintiff's claim. From
this decree tire defendant preferred an appeal to the
District Court and sometime later applied to th e said
.Court for leave to amend his written statement in
order to bring out the fact that the promissory note
contained a material alteration. It would appear from
the exhibit promissory note that the rate of interest
first written was " 1 (one). " per cent and later altered
.to "3 (three)" per cent. The learned District Judge
for the reasons he has giveri permit ted the ameqd
ment and framed the following issue : -

" Whether there b Js been ~aterial alte~ation of the promis-

sory note Exhibit ' A ' iti view of the fact that figure 1 1 ' and
word .' one ' have beet~ altered to figure 1 3 ' and word 1 three' " ?

The case then went back to the trial Court and

its flnding o~ that issue is tha.t the alteration was
made .before the execution of tl~ e promissory note
and with the knowledge and consent of thedefendant.
~.he nett result, in so far as the Iearnea District
judge is concerned, is that; he has agreed with the
trial .Court that t he promissory note was executed
by r~e defendant and also that the alteration was
made before t i1e pro~iSSO!Y note was executed and
with t he knowJedge a~d to~senf .of the defen4at?-t
-Now, it is hardly necessary to point ou t that ,
 l-951] BURMA LAW REPORTS. 471

b oth the issues referred to above, i.e. , execution and H,C.

195l
alteration, are issues of fact and that no second
U SANiGY\\"Jr
appeal lies on a qu estion of fact. v.
Attempr was, however, made to .bring this second H~~~~~~~
appeal. under section 100 of the Civil Procedure u s -
.
Code. F or mstance, the very first ground o
f I Bu, J.

appeal says that the learned District Judge has erred

"in law," firstly, in not comparing the d efendant's
signature on the promissory note with his signature
in the summons and next with his signature on
his l~wyer's power ; and secondly, in not noticing
that plaintiff had not pro~uced any account
b ooks showing that a promissory . note had been
executed. I must confess that L have been
unable to appreciate that these constitute errors
41
in law. " I may be wrong-bu t I know of no law
which says that a court, before it can hold that a
promissory no_te has been executed must make a.
comparison referred to, or that if such comparison
is n ot made, it would be an error of law. Indeed,
it would be placing a premium on fraud if such
a comparison were enjoined by law. For, no
person would, in that case, place his genuine
signature on the summons served on him or on the
power h~ gives to his lawyer, if he means to deny
his sign~ture on a particular document. Nor am I
aware of any law which says, firstly, that a plaintiff
must note in his account book that a promissory
note has been executed and secondly that h'e must I

produce that account book or the failure of thy

Judge in noticing these omissions would be an _e rror
of law. At tl~e best, these may in a proper case qe
factors in th~ consideration of the issues. involv..!d"-
but their non-consideration cannot be a legal error
particularly if there. is oth.er ~videnc~ which ~tisfies .
the Judge.
472 BURMA LAW REPORTS. [1951
H.C. Dr. Ba Han the learned Advocate for the appellant
1 9~ 1
has cited the following cases : -
' U SAN GY WE
v.
Hlllt:HANO
Damusa and another v. Abdul Samad and others
KAl.IDAS. (1); Shtik Rahmat Ilahi v. Mohammad Hayat Khan and
tl S1 Bu, J. others (i) ; M ussamut [{houb Couwur and three others v.
Baboo Moodhm-aht Singh a11d ojter his death f!Wo others
(3) ; Petamber Manik-fee v: Motee Chund Manik-]ee (4}
and MI. Anupa Bai w/o Gorelal Kirar v. Bhagwa11t
SinJ;,h atrd other~ (5). In the first case, their Lordships
of the Privy Council in the course of their judgment,.
observed at pages 30.:.31 :
'' The view of the Judicial Commissioner was that the
l st respondent was ready and willin2 to pay the purchase-
m~ney on lhe 26tii June, and that it was due to the action of the
Sub-Registrar an<l of the appeUants in leaving the office when.
they did that he was pre\rented from doing so. He was also
rightly of opinion that in point o'f Jaw there was no evidence
at all to support the finding of fraud. I~ is unfortunate that ari:
issue . was not framed on the real question, . which was whether
the 1st respondent was ready and willing to pay the purchase:-
money on the 26th June, ~nd was prevented' from doing so
by the actionlof the appellants."
In. the case before
. .me-can. it .be said that there
~

is no evidence at all
to support the finding of
execution or that no issue was framed on tha~
question ? I am afraid not.
hi the second . cas.e, their Lordships .of the Privy
Council
I.
held:
'' There is no difference in principle between a failute-
'a ppreciate and determine the real qnestion of facf to be-
fried and a failore to appreciate and determine a questioD
. of fad which vitally affec~ the issue s~ted in t~e case. In
eithu case the Jailure is a failure in: the duty imposed by
law ~po~ the Court . "
OJ ..q.R. !1919) (P.9.)29. . . (3) 9 MQOre'a I.A. 1.
C:ZJ AJ.R. (1943) (I>.CJ 2~~ . (4) 1 Moore'a I.A. 4~3.
(S) (1938) Nag. 470.
1951] B.URMA LAW REPORTS. 473
In the case before me-has the learned District H. C.
1951
Judge failed to appreciate and determine the real
q uestion namel)'-execution and alteratirn of the u SAN GYwE
' ~
promissory note ? And what is that question of ~:~;~~~
fact which vitally affects the iss~es and which he ~
U S1 B_, J.
has failed to appreciate and determine ? It cannot "'
be, the failure to make the comparisons already
referred to.
('

In the . third ca<>e, their Lordships of the Privy

Council held :

'' Though the onus of proof of the !genuineness of a.n

instrument in its altered state lies upon th6 party producing
and claiming Under it 1 yet the altered and SUSpiciOUS appearance
o( the instrument m:~y be explained by proof of its original
state when executed, and its existing sta te sufficiently
ac~ou~t.e ~:l-:.01, to rebut the presumption of the <~eed having
been falsified .,all,g .~taJI)Per~d with after! executiop. by the party
claiming . uoder it."

In the case before me the rule of law hid down

above was fully complied with by the trial Court
and ~lso by the lower appellate" C9urt. -
Even the fact that the defendant would. call no
evideri~e has been a ppreciated ,by the trial Judge.
He has pointed out that having denied execqtion
of the pr.o missory note the defendant could not very
well ad~~ce. evidence of altera~jon. .,

In the fourth case their Lorci~hips of the Pri~

Council observed .;. . _ ..
. .. . : .
. .. The .question :depends entir~l; :upon facts ; ' and jft a
ca;se .coming b~for~' ti)is Court; de pen din~ upon facts, .which
h n~e received tbt< judgm~nt of two Courts in IQdia, this
Court ought ~ot ..tq set asid(i tlle las.t judg-ment, unless. it can
see very.
clearly. tbat tlfat judgt,nent i~ wrong. lt. must be
474 BURMA LAW REPORTS. l195t
H.C. most completely satisfied it was wrong and inconsistent with
1951
the justice of the c:tse, and against "the f?lcts. So far from
U SAN GYWE that being the cilse in the present case, their Lox:dships
Hu~c~~AND are of opinion that, if those facts had been presented to us
KAtrDAS. in the first instance, we should have given the same judgment
U Sx. Bu, J. as pronounced by the two Courts in India."
"
In the case before me both the lower Courts
have held that the promissory note was executed
by the defend<'cDt and that the alteration was made
befor.e execution and with the knowledge and consent
of the 4efendant; and according to that ruling I m~st
not disturb that finding. Following in the footsteps
-of their Lordships, 1 must respectfully add that had I
been trying this suit, I too would .have arrived at
the same findings as the two lower Courts have.
In the fifth case, the plaintiff who was a.Purdanashin
lady of sorts alleged fraud and undue influenceagainst
the defendant.. The trial and the appellate Court
negatived that allegation. The High Court of Nagpu~
pointed o_ut that in the first instance, the plaintiff
was not required to prove fraud, misrepresentation
or undue itifluence. All she was required to prove
was thatthe bargain ~as unfair an<;l that n~e. party who
benefited by it was in a position to in(l.uence her.
Niyogi J., then . went on to . hold at pages 472 and
4.73 i

. H That there is an error of law when a Court-'s finding

proceeds upon a misconception of the real nature of the

~sue fn the case when seve'ral facts aamitted ot .. proved
are ilof con-sidered in their relation to .each other and weighed
as a whole, when a certain legal consequence which naturally
"flo""'\'froffi. a.dtn1tted and proved fasts::is OVerfooked, or wheR
rt. .m.~t~r:ia.f part of- adrnis~iple evidence : wli'ic.b vitally. b'eat.-s on
the point at issue is. disiegarded .. .A ~ase :which involves sueli. an
of
. error: . law must in tny opinjon:.fall '-witliin th~<. ambit of
section too: of the c ivll ~rocedtlr~ 9_ ?,'de.''
1 <.75 1] B.U RMA LAW REPORTS. 475
H.C.
Now, in the.. case before me, I can find no 1951
misconception on the part of either of the lo\\er u SAN - !;vw&
Courts of the real nature of th~ issue in the case ; v.
H IRCHAND
noi can I find any admitted and proved facts KA LIDAS.
which have not been considered. U SI Bu,J.
The case before the lower Courts was a simple
-case of a promissory note involving two simple issues
relating to execution and alteralion. The onus in
J:he case . of both the issues was laid ~n the plaintiff
and he has been held by both . the lower Courts
to have discharged .it. I can see no poipt of law;
no irregularity and no failure to appreciate the case
''in its proper perspective.
Mr. Basu, the learned Advocate Tor the respon-
<ient has also cited several cases but I do not
think it is necessary to discuss them. They tend
to show that a second appeal canno~ be entertained
<>n ground of erroneous finding of fact, . however
gross o! inexcusable 'the error may see~ to be.
In the result, I hold that this second appeal . does
not lie and I. dismiss it with' costs ; Advoc~te's fee
five gold mohprs.
Even if it did lie , I would nave dismissed. it on
merits.
476 J;l._U RMA LAW ~PORTS. [1951

ORIGINAL CIVIL. .
Before U Bo Gyi, J .

H.C.
195 ~
P. B. SEN lP~AIN:rlFF)
sht. 3.
v. .
THE DEPUTY CONTROLLE:R OF EXCHANGE
(DEFENDANTJ,__*
"
Forei1t1i ExchauJ:.e Reeulatioll Act, 1947, s. { (4), ~- 6 (I) clauseS (bl- Whither
Conlro/.ler or Delmty Co1tfroller bound to issue permit f or remiflnuce of
mottey-i\la,damus-lf lies-S. 45-A , SJecific Relief Act.
Under the sc.heme of the Foreign Exchange Regulation Act, 1947 final
authority in respect of remittance of money outside Burma is the Controller or-.
Deputy Controller O'f an Assista,nt Controller appointed under s. 3. The
provisions of s. 6 of the ~aid Act read with other provision's prohibit remittance
of money to pers ons resident out of Burma and clearly include the contin
gency of a person in Burma remitting-money to himself outside Burma. In
the present case :application was made for permit to remit money to himself.
and his wife"and it comes within the mi~chiei of s. __ 6 (1) (v) (b).
Burma curre'ncy is iegal tender' in Burma aione. The 'Government of
Burmahas to husban-d- its holdings in foreign exchange td sec.ure - currency
stability ~nd economic s.ec_urily and applicant was not entitled to call upon the
Governl)lent of Burma to part with a portion of the foreign exchange
in consideration of Burma currency. The applicant therefore does not come
within the purview of s. '45 of the Specific Relief Act.
'l'here is no mandatory pr8vision in the Foreign Excha11ge Regulation Act
which makes it inc-u mbent upon the authorities to permit remittance of money
abroad. As the Deputy Controller in the present case considered the appli~
cation in the case according to cerl"!in principles formulated for guidance and
actedobotu1 .fide and not arbitrarily no application for n1andarnus can lie.
Ch~van Seng Chat~ v. The Commissiotter of Police, Ra11f.OOtt, (1937) R.L.R.
"414, referred)o.

P. i3! Sen in person.

Dr. Ba Han for the respondent.
~ou Bo GY(, J.--:-This 1s an _app!ication by M.r. P. B.
Sen:, a.n Kd vocate . of this_C ourt; for an order in the
nature of the Writ of Mandamus: .under section 45 of
.'
. . . .. . : ..,
Civil Misc. No.131 of 1951 _0 riginat Side.
1951] BURMA LAW RE.PORTS. 477

the Specific Relief Act, directing the Deputy H.C.

1951
Controller of E~change to issue a permit enabling him
P.B.S~-:1':
to remit the sum of Rs. 30,000 through his Bankers, v.
the Mercantile Bank of India Limited, Rangoon, to 6~~T~~~~!:
his account with the Central Bank of India Limited, EXCHAtWE. oF
Calcutta. It appears from Mr. Sen's affidavit that he
U Bo litti, T.
has sold his house in Rangoon for Rs. 30,000 and t I~at =
he desires to use the money for purposes of building a
house for him and his family in Calcutta. The Deputy
Controller of Exchange replied that Mr. Sen's ~ppli-
cation would be considered or. ly at the time of his
permanent retirement from Burma. Thereupon,
Mr. Sen wrote to the Deputy Controller tbat he was
contemplati-ng retiring from Burma, but could not
retire unless he had a house to live in after retirement
and also he required a little time to wind up his affairs
in Burma. To this the Depuly Controller replied that
the application could not be considered. This was
not a mere refusal to consider Mr. Sen's application
but, as appears from the affidavit and evidence of the
Deputy ControlJer, was a final order passed on the
application after a consideration of all the relevant
circumstances.
Now, .. Mr. Sen contends that his case is covered by
sub-section (4) of section 4 of the Foreign Exchange
Regulation Act, 1947. I find myself unable to see
how Mr. Sen could invoke these provisions of law
which merely provide for the scrutiny of an application
'such as the present by deaiers in foreign exchange, th'e
Merc.a ntile Bank of India Limited inthis case, through
whom Mr. Sen wants to remit the money ; and it ~
clear from the scheme of the Act that the final
authority it1 t~e matter is the Controller.or the Deputy
Controller or an Assistant Controller appointed undet
secti~n 3 of the 1_\.ct. The Deputy Controller on l1is
part states that Mr. Sen's application conies withi~ the
178 BURMA LAW REJ>ORTS. { 1951

11.<.: purview of section 6, sub-s~ction (J,) tv) (b) of th e Act,

l fJ5 L
which reads:
P. B.SE~
v. "6. (1). Save as may be provided in and in ac.cordance with
THE DBPUTY
cosTROLLEH any general or spectal exemphon from the provJ:>Jons of th1s sub-
or- section which may be granted conditionally or uttco nditi onn ll:~or
EXCHANGI!. 'b
_ y the c ontro11er, no person m, or res1<1en t tn , B n t1s h B ut ma
0 0 0 0 0 0

U ~ GYr, J. shall-
(v) make any paymenl to or for the credit of any person
as consideration for or in association with-
(b) the CKeation or transfer in fav our of any person of
a right (whether actual or contingent) to receive a
payment or acquire prope1ty outside Burma."

On the other aand, Mr. Sen contend s that since he is

cTemitting the money to the credit of his own account
in Calcutta he ?s not making any payment to the credit
of " any person" within the meaning of section 6,
sub-section (1) (v) (b) of the Act. These provisions~
when read with the foregoing provisions of the section
which prohibit r emittances of. money to p ersons.
resident outside Burma, seem to me clearly to guard
against the contingency of a person in, or resident
in, Burma, remitting money to himself outside Burma.
If, in accordance with the well-settled carton of inter-
pretation, every matei'ial word in an enactment is given
its full force and effect, the words "any person " in
section 6 (1)'(v) (b) certainly seem to include th e
remitter himself. This,. however, is only of academic
importan ce ; for in his application Exhibit A and his.
declaration ExhiOit B, Mr. Sen asks for permission to
transfer the sum of Rs. 30,000 to the credit of the joint
3ccount of himself and his wife Mrs. Lila Baty Sen.
Mr. Sen urges that he is trying to remit the money
for. pJirposes of rehabilitation _of his home because ne
has~'had to seP:d his family off to, Calcutta in ihe early
part of 1.949 _owing to unsettled conditions here an<:J.
that' he js trying to: set up a home in Ca1cut~ . This
1951-l BURMA LAW REPORTS. 479

may or: may not b~. an investment, although th e Depu ty .H.C.

1951
Con troller says it is; but, in any case, section 6 (1 ) (v)
(b) lays an embargo on remittances in association with P. fl v..ShN
the creation or transfer in favour of any person of Tit Dt:PUTY
CON'nlOLLER"
a right to receive a payment or acquire property oF
EX CHANGE.
outside Burma. I am of opinion that Mr. Sen's case
comes within the mischief of section 6 (1) (v) (b) and U Ho <?."'lr, J.
he is prohibited from remitting the money unless he is
perf!litted so to do by the Controller or the D eputy
Controller, as the case may be.
Certain cases have been cited before me in which
the public authorities were directed to do certain acts
under the relative enactments. But the enactments in
connection with which those cases arose are not in
pari materia with the Foreign Exchange Regulation
Act, 1947, which is now under consideration and
consequently, those cases will not help to a decision
here. Before applying the enactments in question, the
real facts of the case must be clearly borne in mind ;
and so far as l can gatherfrom the a rguments of Mr. Sen,.
and Dr. Ba Han as well as the evidence and affidavit
of the Deputy Controller, what Mr. Sen desires in this
case is not to sel1d the su m of Rs. 30,000 w hich he
holds in the Mercantile Bank" of India Limited,
Rangoon, bu,t to get the equivalent of this sum in Indian
currency in Calcutta. It is well-known that the Burma
currency is legal tender in Burma, and Bunna al-one.
Now, the Government of the Union of Burma has
acquired foreigri exchange and has to husband its
holdings i~ foreign exchange so that the currency
stability and economic security ofthe country may no?
be jeopardised. In these circumstances, can Mr. Sen
call upon th~ Government of the Unioq. of Burma. to
part with a portion of the foreign exchange under its
control in consideration o{the sum of Rs. 30,000 whick
h~ is willi~g to p~y in~er~? . I shouid, certainly, think
480 :BURMA LAW REPORTS. [1951
H.C.
\951
not. It follows then that Mr. Sen can not bring himself
within the purview of section 45, prQviso (a) of the
P. ~: S~N Specific Relief Act.
~:;R~~~~~ Furthermore, there is no mandatory provision in
or
EXCHAII:<"E
the Foreign Exchange Regulation Ad, 1947, which
-. - makes it incumbent on the Controller or the Deputy
u BeAG vx, J. Controller to issue a permit to Mr. Sen for the purpose
of remitting money, which in the circumstances
obtaining in the case is really to make provision
for exchange ktcilities in Mr. Sen's favour. Of the
cases cited before me, the nearest approach to
present is that of Chwan Sm.g C/1an v. Th~ ~"-~
missio1te1 of Police, Rangoon {1 ), where
of section 4 of the relative Act, the Rangoon nates::t~
Carriages Act (Burma Act No. IV of 1947} which are
much the same lines as those of section 6 of the
Foreign Exchange Regulation Act, read :
"No vehicle shall be let to hite, or taken to ply, or offered
for hire, except under a licence duly granted to the owner
thereof i n that behalf by the Commissionet of Police.''
and it was held
. in that case that
'
no order could be
issued under section 45 of the Specific Relief Act
against the Commissioner of Police requiring him not
to restrict the number of rickshaws which might ply
for hire and to consider the application of the appellant
Ch~an $eng Chan for the issue of licences to him for
plying rickshaws. Here also the ban imposed ~nder
section 6 of the Foreign Exchange Regulation Act,
1947, is general and it is only in certain cases that the
~oiltroller may provide .exchange facilities by way of
exception.
1\s regards the merits of the case, it ,appears from
tht~vidence bf the Deputy Controller fha:t the Con-
troller and th~ Ministry of. Finance ahd. ~e~enue
(1) (1937) R.L.R, p. 414.
1,951] BURMA LAW REPORTS. 481

consulted together and for mulated certain principles H.C.

1951
for guidance. -For instance, exchange facilities are
P.B.SEN
provided for marriage, sc hoolin g an d maintenance v.
THE 0JtPUTT
expenses of tht members ot the family of foreigners CoNTRoLLER
resident in Burma. In the present case also, the OF
EXCHANGE,
Deputy Controller is willing to consider Mr. Sen's ~

application if he is retirin g permanently from Burma ; U Bo Gn , J.

and I am nof prepared to hold that the Deputy
Controller has rejected Mr. Sen's application -arbitrarily
0
or m ala fide. Th~ application is accordingly disrnfssed
with costs.
Advocate's fees a1lowed five gold mohurs.

. 31
4S2 BURMA -LAW REPORTS. [ 1951.,

APPELLATE CIVIL.
Before U Aung Khine, 1.

. H.C.
19~1
- .,.,........
NAGESWAR RAO
MULLAlYA
I (APPELLANTS)
Oct. 3
v.
DUNGARMULL MAHADEV }
MOLCHAND (RESPONDENTS) .*

7eneral Clauses Act, s. 27-Uri.Ht;r Rent Coutrol Act, s: 11 fl) (a) -Notice tmder
-Whether must reach addressee-' sent
Htltl : S. 11 (1) (a) of the Urb~n Rent Control Act provides that a written
lemand for payment of rent must be sent to the tenant by registered! post and
10t complied with for three weeks. Neither under s. 106 nor s. 100 (g) of the
rra nsfer of Property Ad is it stated that the notice should reach o:: be rt~ceived
>y the addressee. Under s. 11 (1) (Ill of the Urban Rent Control Act all that
he law require!! is that a notice be sent and non-corr.pliance for three weeks
:hereaner.
L. C. DeSimza, Cawupore, A.I.R. (1932) All . .374, referred to.
K. M. Modi v. Mohamed S1drtique and a11other, ( L9H) R.L.R. 423 at
161-463, followed.
-Under s. 27 of tbeGeneral Clauses Act there i$ a .rebuttable preSumption
thai a notice properly addressed and sent by registered post reached the
addrcs~ee in proper time. Eve'h if in a notice to a tenant 40 months' rent be
demanded wh_en c laim for four n1onths has become time barred, the demand
:s not illegal. Rights as to part may be barred but they are not exUnguished
1nd will be held tQ be ac~ually due.

B~ [{. Dad.achanji for the appellants ..

P~llay and Pillay for the respondents.

U A.uNG . KHINE, J.-Civil 1st Appeals Nos. 23

and- 25 of 1951 are taken up together and they . arise
out~ Civil_Regul_ a r Suit No. -189 ap<;I No; 580 of 1950
respectively of
. .
the_. Rango0n
. .9ity ,Civil Cour~
.; . . The ~

Civillst Appeals Nos. Z3/25 of. .195.1 against the decree of tlie. City Givil
Court, Rangoon, in Chil Regular No. 489 of 1~50; dated 4!11 day of Aprill951.
. . . . . .
 ;1951] BURMA LAW REPORTS. '483

facts in the t~.-vo cases are on all fours, and in each H.C.
1951
case the lega~ question involved is the same. The
N.\GESII' AI(
respondent Molchand sued appellant Nageswar Hao l~AO

in Suit No. 489 and appellant M ullaiya in Suit No. 580 MUl.I. IIYA
v.
for ejectment from room No. 1 and room No. 6 0UNGARMULL
MAililnEV
respectively of Hous e No. 108/116, 38th Street,
MOLo/HAND.
Rangoon on the ground that Nageswar Hao had been
U AuNG
owing 40 months' rent and Mullaiya 34 months' l<IIINE; J.
rent to the respondent. It is alleged that a written
demand 0!1 each appellant wa~ made on 6th July 1949
for payment of the arrears of rent through registered
post and the demands had not been complied with.
In each of the suits the defendant resisted . the
claim of the respondent on the ground stated in
paragraphs 2 and 3 of their amended written
statements. The language used in both .the written
statements are the same and they are reproduced here
for the sake of clarity :
'' 2. Without prejudice to other contentions with ref~rence
to paragraph 2 of the plaint the defendant denies that he has not
paid rent since September 1946. .
J. Without further prejudice, with re.ference to paragraph 3
of the plaint the defendant denies rec:eipt of a notice as alleged
therein, and further submits that even if the notice on the lines
expressed in the said paragraph was setved, it was not proper
. and legal as i1Ller alia the arrears of rent claimed therein were
not due." "'

. Necessary issues were framed and in 'due course

.the. two appellants waived their contention raised in,_
paragraph 2 of th eir written statements , and it wp ~ '
agre.ed by the parties to have the suit disposed of. on
the question of . notices-,.see diary entry dated the
15~h March . 195 f, ir{ each case. It is the.c'ase Of the
appellants that the noti.c es,. dated t,h e' 6th July i949
. w.ere not actually .served on them and therefore the
lower Court was wrong ~.n giving a :pecree in
favour of
484 .BURMA LAW REPORTS. [1951
a.c. the respondent in each case. On the other h and,
19.51
the respondent claims that the law do~s not require
NAif::"AR that notices should be actually served on the appellants.
MuLLAIYA All that the law required him to do was to send notices
DuNGiRMuLL by post to the appellants at their proper addresses. So
....MA~Ai,}ENv far as he is concerned, it does not really matter
... ~ ..~-' o.
- whether the notices were actually served on the
UAUNO
~iJJN:tt,J. appellants so long as he can prove that he had actually
sent by post the _notices demancing rent. As a.gains~
this contention the appellants say that the {)rb.an .Rent.
Control Act is a special Act and th:Jfttth~;~rJj~~
the Transfer of Property Act.can11ioib~d:fifill
mutatis nzufa1~dis to the cases under the
Control Act. It. is argued that section 11 (1) {a),
Rent Control Act requires first of all a notice to ~
sent and th en three weeks must elapse before the
landlord can sue tbe tenant in case of non-compliance.
If there. must be a compliance notices must be actually
served on the appellants, and therefore although in
the section the word 'sent' has been used, it really
means that ~he notices must be actually served on the
appellants. bt Re. L. C. DeSouza, Cawnpore, (1) was
the case in which to an income-tax assessee a regis-
tered notice was sent through registered post by the
Income Tax Officer,and it was held there that section
63 of the Income Tax Act, 1922 is to be re~d along
with .. section 27 of the General Clauses Act. The
words "unless the contrary is proved" in secti0'n 27
.-refer to both the service and the time. Consequently,
~hen a notice has heen _p osted, properly addressed
-and prepaid and in a registered cover, the presumption
raised even as regards the service is not conclusive but
is . f'ebutt.able. Mr. Hadachanji appearfng fur the
'a ppellants argues with great emphasis thafin this case
.'
(1) A.l,R. (19321 All. 374.
 191] BURMA LAW REPOR'tS. 485

also the provisions of section 11 (1) . (a), Urban Rent H.C.

1951
Control Act, mus~ be read along with ~ection 27 of the
N4GESWAR
General Clauses Act. Section 27 of the General Jh-o
Clauses Act runs as follows : }.fdf-.""LMY'k- .
'
"Where any Act authorizes or requires any document to be De.NG'A~JiULL
MMIA-DEV
served by p0:;t \Yhethe1 the expre~sion ':;erve 0r either of the Uou:ttAfo.
,expres5ions 'give cr ' send or any ether expression is uS'ed,
then, unless a different intention appears, the service shall be u Au~o
KHUlR, J
deemed to be effecte_cl by properly addressing, prepaying, and
posting by registered post a letter co ntaining the document, and,
unless the contrary is proved, to have been effected at the time
at which lhe letter would Ge deliver~d in the ordinary course of
post."
Now, referring to seclion 63 of the Income Tax Act
it will be observed that a notice or req'tlisition under
this Act must be served on the person named lh'e rein.
Therefore without a doubt section 63 of the
lnceme-Tax must be read aiong with section 27 of the
'General Clauses Act.
Section 11 (1) (a) of the Urban Rent Control Act
however reads ~s follo~s : Notwithstanding anything
contained in the Transfer of given

"any rent lawfully due from the tenant which accrued after
the resumption of civil government on the conclusion
. of the hostilites with Japan has not been paid to the
landlord or deposited with the Controller under
section 14-B after a written demand tor payme"nt of
such rent has been sent to the tenant by registei:e'd
post and has not been complied \vith for "three weeks
from the date of such demand, or any othe'r obligation
of the tenancy, whether under the contract of tenailc:~
or under this Act, so far as the same isconsistent with
the provisions of this Act, has been .broken ot not
Perfdrmed , o~. " . . -
Under this Act a writtex:t demand fox: paym.e nt ,of , reril
does, no.t require to be served on the tenanf but . the
onlv. pre-~requisite is that the demanCl for. pav~ent of
486 BURMA LAW REPORTS. [1-951

H.C. rent due should be sent to the tenant . In the case of

1951
K. M. Modi v. Mohamed Siddique m1d another (1), the
NA~!~WAR question of the determination of a lease of immoveable
Mu~~r~A property by forfeiture was, involved and section 111 (~)
OuNGARMULL of the Transfer of Property Act came into play.
' MAtiAUEV
. l\ior.caAND. D n d''er sec ttan 111 (g) b e f ore tl1e 1ease IS
. d e t ermme
. d
_, - . . it requires the lessor or his transferee to give notice
.:I~H-!~~-1. in writing to the lessee of his intention to determine
' .t~l.~ lease. Tl3e point taken up in that case is tha~ in
o'rrl er 'to be effectual, the notice given must actually
reach the l~ssee and before that there was only a
presumption that it has reached the lessee and whicJ1
presumption is clearly rebuttable. Section 106 a
the Transfer ci Property A~t explains the require~ents
of a valid notice to quit in cases of leases from month to
month. Notices under section 106 of the Transfer of
Property Act are either to be sent by post to the party
or be tendered or delivered personally to such party or
tqone of his family or servants at his residence or affixed
to a conspicuous part of the property. Nowhere in
either section 106or in section 111 (g) of the Transfer
of Property Act, it is stated that a notice . should reach
9 r be received by ~he addressee. In that connection
the observations of Sharpe:: J. in the ab<?ve case are v~ry
apposite. This is what he says:
"' "The appellant denied receiving th~ letter, and we must
take it that he did. not receive it. The first question is whether
the non-receipt by a lessee of a 'notice under section 111 {R)
d!'!p~ives tlie lessor of the right which l~e would otherwise have
. to re-enter for breach of an express condition . .. I do not think
:~does. 'Giving notice in writing to i is very differen:t~ from
, serving n:,.......__ upon.' There are some section.s .in . the T}!fnsfe~
of.:;li-operty'ittt which require a notice in writing to be sei-ved .;
sci se~tion 69 (2) (a), the ' secorid _paragraph of section :83 and
'"Section 114-i. It i.s, l think, impossible to..say that the .diff.e rent

(1) tl947) R.L.R. 423 al 46J-463.

195)] BURMA LAW REPOR'fS. 487

words employed in section Ill (!!) really nmount to the same H.C.
t hing as is mentione<l in t he other sections t0 which I ln ve jnst J95f '
referred. NAGESWAt~
I am quite sure that ' s,(iving notice ' is something less, in a RAo
legal sense, than 'serving notice' and that the posting of MULLAIYA
v.
thi$ l~tter to the appellan t was a sufficient giving of notice in DUNGARJ&ULL
MAHADEV :
writing to.him, although he never received it."

A general rule of construction of statute is that t~e

Legislat1;ll"e intends to have meant what -they have
U-
MOLCHANOI.

AUJ-;G
KHlNE, J.
actually expressed. Wh ere by the use-of clear _a nd
unequivocal language capable of only one meaning,
anything is enacted by the Legislature, it must be
enforced even though it be ab~urd or mischievous. In
this case, if the Legislature had intended that the notice
should be actually served on the tenant tt would have
stated so in clear terms. The safe and correct method
of dealing with the question of construction is to take
the words themselves and arrive at their meaning
without trying to read into it something that i-s not
th~re. Thus under section 11 (1) (a) of the Urban
Rent Control Act all that the law requires is ~hat a notic~
be sent and if after three weeks no payment .is made
.the landlord is at liberty tq sue for, ejectment of "the
tenant. IUs not competent for the Court to go into.
the. question. as to whetl:ler the notices had beeq
actUally served on the tenants or not. By parity of
r~asoning at1d following the general principles of .Jaw
set out in the case of.K. M. Modi v. Mohamed Siddiqm
and another (1), this is the only logical conclusion that
co.uld be. ar~ived at.
it is further contended that the demand of 4.0 .
m~nths' rent from appellant Nageswar Rao was Hl~g~l
inasmuch as 40 months' r~nt was not. legally dtJe.
The respondent could J}Ot, it is further contended,
claim . mo~e .than .36 months' rent. This to my mind
- . (1) . (1947) R.L.R. 423 at 461.-463.
 ..
488 BURMA :.AW REPORTS:. [1951

H.C. is rather a specious argument. Although the

1951
respondent by the application of Limitation Act may not
N.&.~:~v.~.n be able to recover aJ.I th e 40;,:months' rent, nevertheless
Mutut~A it is impossible to regard his debt as discharged. By
DUNo:aJoHJI:L the application of Limitation Act although the remedies
MAuAo~:v for recovery of 4 months' rent out of 40 months' rent
9
.M tcHAND. may be barred, the rights are not extinguished entirely
u AuNa
KHlNI!),, J and .must be held to be actually due. For all tbe se
reasons, I am clearlyof the opinion that the low-el"
Court was correct in its findin g. The appeals are
dismissed. Advocate's fees three gold mohurs in
each case.

.:
 1951] I3UR!\1A LAW R~PORTS.

CIVIL REVISION.
B efore U San /l!aung, J.

P.L.K. KASI CHETTIAR {a) u KASI AND ONE H.C.

!JCJ51
(APPLICANTS)
Oct:n
.
v.
SHASHAMMAL (a) -SHA YUSH AMMA

Suit on belthlf of a
(RESPONDE-NT).*
lunatic-WIICI~ Clltl
. .
be filcd:-Rtvisiou against iulerloCtttory
.

order-S. 115, Code of Civil Procedu-re- Order J2, Rule 15-Altemati"ve

cla~m iu . the same suit as n Perso11 of 'so1i11d 111i11d aurl a person' of
ptlS.JIIIId mitul-Not mai11l11i1wblt:.

l{eld: Befbrc a ~uit on behalf of a lunatic can be instituted by his next

fri~'ng, ,the ~lunati s;
must either he a persun who has .,been adjudged. to be of
utlsou.nd mind or a person who, though not so adjudged, is found by .the Court
ori enqu.ir~ by reason of unsoundness o! mil) d . or mental in6rrriity to be
;!n~pable cit protcctinl{ !'!is inter.e sts when ~uh;g . Otherwise a suit by a
per.soniP.o~ing himself as the next !fiend of the lunatic and on his behalf is not
.' compet~nt .. ...
It )s oren to a person t'o ftk :t suit as a person of unsound mind lhl'ough ~n
.agent or to have a suit fil<-d on that person's behalf by next fr.i end under
Oriler 32, Rule-15 of tl~e Code of Ci~il Procedure in which event there mu:st be
'a~ ailegation,11'\ the _plain.t liJat tlie plal;liff is. a p~rson or unsound 1J'!i.nrl .
. The pl.ea il) the flltc;rnavve_in the same s~tit is _u ntenable . .
. Maung Kya l'an aitd .auothei v. Mauut Tha E, A.I.R. 0936)-.Ran. 121,
i o!Jow.ed..
!'JiTendra Lall _Bhatfacharyya and, ottt:. v:
Bep;, Chtmdr~ BimttacharJya
and ctlters, A.I.R. (1935) Cal. 224; Ma1iue $at~ Buiin v. Maung Nyi, 3 Ran. 239, .
!_eferred t6. . .. ,
. 'I'Jle co~rt will revise an interlocutory order' when' irremedi;io~~ -ilij_ury will
b~.done and !1 miscarriage of justice w~ll ensue-.. . . : ~ .. :.
' :, M~h~.'neil Cho~too --~~~(l ~~~~r:;- v. Abdul Hamid Khan a;td olhr~. ti Ran:
.:36, follo\veti .'.

Ba' Tu .for the ,a.pplicarits.

~ . :. . . .
,4: : .K. R: vinkatrdm'jqr the respo~dent.
. U. SAN ),fA'tiN~, } ....:..This. application for - re,v~su;>n
.-m~:ts~be a1lo~cd.' In. Civil. Regular Suit N.Q. 3 .of ~t95t' ,.
.~f'the Go~rt. of the ..Dis~rict: J~-~ge, . BaS.s~io,. -~ __ suit fp~
declaration pf ~itle.. l;l~diot po~Se~~jo~ . 9(:a:jl<)U~~ ~~ld .
.. dvil Re~ision ~o..47 o'f.19$i'.against the order Qf; ~ District. judge, ..
'Bassein' iri. Civil ~egular. Suit _No. 3 of 1951, dated 7tb.. ]~ly 1951.- . _.:, _-, . ...

~~
:490 BURMA LAW REPORTS.

~z site was filed -~gainst the defendant-~tpplicant~ P .L.I{.

P.L.k. KASI Kasi . Chettiar and Daw - Tin by the plaintiff who
CR~~"fiA.R (n) .described hetseiJ as follows ':
U;: l eAS! ANI:)' ' - '

' -''O!a "Shashammal (aJ Shayush! Amma-daughter of late -~A, N.

s'HI,sli'ANMAL Govindan MaistJy and wife of M. Padmanabha-now\ince
(a) ~lfA.YUSH
AMMA. d ece:1_s!! d--'0.f 01am. v1IIagt>, .iN af;!apa t am T a I uq, T anJore
' . n-'1stnct,
.
- M1dras '. Province, by her agent M. A. Lrngam thi'Ough. the
U SANJ
M~UNG, .
sub~tituted agent P. Pangi, tr.~der: of 36, :Myenu Road, -'Bass5!in."
Tl1e defeqdants raised a preliminary objection ~~g~rdin g
the validity o~ the p'ow~r-of-at '~o'..lhe
so-ca lled substituted ag~_n t P. Pa -learned
trial Judge by an order dated -the e ~ 951'
_dis~Jlowed th~ objection. H wr1U.e n
S't<Hemeor and i'n t he coui:se:of' of"som'e :
o( i!Ye ,wifnesses for the pla-intiff it tha't;
ii1e plaint-i ff. \,;as a lunatic. P was doA~-
witiya-';v i~w to qlleshon tbe locus -s:~-caue4::
sul;jsti'ttit~d -agent P. Pangi to file belialf J~)f
th~j)Iatnti.ff.. Tbereforc, on the I e !9$1 _;~:~
app~i.catiori for 'leave- to amend was fiterJ,,
whr'ein it is stated {nter alia that affer.:
~n=.testi ng, the valid'l ty <?f the. .~w~~Qftorhey..tll~c'l.~
the\VJ-iHen _-statemcrit n:hert>in. -t~y had'~~sert~d -th~
(h~ plaintiff being of unsound min_d. the suit "sl.1oUfd
havebeen institi.i-ted by a next -friend. at~d lli~t. t{ie(efore.
itt order-t6.avoid fuFther delay :in thp.,djspQsaLofU~e
iSuit ..the plaintiff. intended to adopt'-~h~ . 4ef~~dants'
iuggestion by ~m.endi~g. -t.he -. pl~it1t.:.so_. tl);lt~ the stiit
. . appea'i: to'_ be:-'file.d ' in
-th.e alt~r.na_ti~,e - by fl..:~.ext
of~hasil~i~i~~t The titl~of t~e..a:rii~~-d,ed:i)J~i~i:t
~~H<t::o- 'f~}~O\V~~-{,::~_'.' -.~:,-'. _-:::'_'-., . : ::...- :.-::.: : .._:. : :. _ .' ~ . . ~ ~~.; :~\
:,~llraslJautm:~tl {a) . Sl!ay'ush Arin~.:t~da-ughfer of Tate' A.'i N ~
r-~v.li.rt<>ti "-'-+~'"- a'rid\~ile nf. r.f:.Pacl~nabh'a 'nO~ sine decea;ed
D<I~,....,, ~,~--.:Viflafie; . N'Ygapatarif{f~i:Uq; 1'.~tijor~ :..'Distiict, '.Mat't;as.'
W.c~v.iiJ,ce.-by. :he~ _agen~ M:,' ~: 1;-it,J~~in.thrci'ogf! t(1~. s~l:i-stit'tlte4 af!t~~ii
~: Pa_ngl,. ti-'1!-~er o1)6,. ~fp!nu -l~oad',)~a~sein i alicr1ZC;tliveJy- by ;pi~