BURMA LAW REPORTS

SUPREME COURT

1957

CoJltaining., cases determined by .h:e:.-8-.ipreme

. Court of the Union.,ofJBttf.ma . . . ..

0 TU!'J MAUNG, B.A.,B.L., Bar.-af-Law, EDITOR.

.. ~ <:-,
DR. i\IAUNG 1-.IAUNG, B.L., LL.D., Bar.-at-Law, REPORTER.

l~dex prepared by-MR. K. NGYI PEIK, B.A, B. L. (Advocate).

U MYINT SOE, M.A., Bar.-al~Law.

Publisbed under the authority of the .~President of the Union of

Burma by the Superintendent, Government Printing and Statione-
Burma, Rangoon.

[All rights reserved]

 HON'BLE JUDGES OF THE SUPREME C1lURT
~ Ql! THE- UNION OF BURMA DURING THE
YEAR 1957
0

CHIEF JUSTICE
The fi&ri'ble Justice Thado Thiri Thudhamma,
Agga' Maha T.hray Sithu U THEIN MAUNG,
M.A., LL.B., Barrister-at-Law, Chief Justice
of the Union (from 1st January 1957. to 17th
[u.Jy 1957). .
The Hon'ble Justice Thado Maha Thray Sithu
U MYINT THEIN, M.A., LL.B., Barrister-at-Law,
Chief Justice of the Union (from 17th July
1957).

PUISNE JUDGES
The Hon'b~e Justice Thado Maha Thray Sithu
U MYINT, "THEIN, M.A., LL.B., Barrister-at-
-o:Law (from 1st January 1957 to J 7th July 1957).
The Hon'ble.Justice Thado Maha Thray Sithu
Q
. .
U O!A'N ,HTOON
- ' 'LL.B., Barrister-at-Law.
The Hon'lile Justice Maha Thiri Thudhar.nl!1,a
U Bo GYI, B.A., B.L.
The Hon'ble Justice U AUNG THA GYAW, B . A.~
13.L. (from 21st September 1957).
 LAW OFFICERS OF THE UNION OF BQRM~"
...... DURING THE YEAR 1957
-
Thray Sithu U CHOON FOUNG, B.A., B.L.,
Attorney-General (up to 28th February 1957).
DR. U BAHAN, M.A. . ' Ph.D., D.Litt. ' Barrister-at-
Law, Attorney~Gene~al (from 1st March
1957).
U BA SEIN, B.Sc., B.L., Assistant Attorney-General.
Thiri Pyanchi V TIN MAUNG, B.A., B.L.,
. Government Advocate.
U KYAW: TROUNG, Barrister-at-Law, Government
Advocate.
U Cmt, B.A., B.L., Government Advocate.
U BA ~INE, B.Sc., B.L., Government Advocate.
U BA KYAW; B.A., B.L., Government Advocate.
U HLA MAUNG, Advocate, Government Advocate.
U ToE MAUNG, B~A.~B.L., Government Advocate.
U Bi\. PE, B.A., B.L.: Government Advocate.
U BA. PE, B.Sc., B.L., Government Advocate.
U MIN If.j\.N:. B.A., B.L:, Government Advocate
. (frcin1 24th May 1957).
U HLA THIN~ B.A., B.L., Government Adv;cate
(from 23rd October 1957) .
MR. C. GANGOOLY B.A. , B.L. Government Advocate
' ' ,
(frqm 23rd December 1957).
U HNIT, B.A., B.L., Assistant Government Advocate.
U NYUNT TIN, B.A., B.L., LL.M. (Yale), Assistant
Government Advocate.
U TuN LwrN, B.A., B.L., Assi~tant Government
Advocate.
U MYA SHEIN, B.A., B.L., Assistant Government
Advocate (frvm 3rd August 1957).
Thiri, Pyanchi U CHIT TuN, B.A:, Barrister-at-Law,
Legal Dra,ftsman.
 2

:U LuN pE;B.A., B.L., Legal Draftsman.

U Ttft-f::SHEIN, B.A., B.L., L~gal Draftsman.
U TIN NYUN, B.A., B.L. , Special Legal Officer.
~

U HLA BAw, B.A., B.L.., Assistant Legal Draftsman.

DAw AYEKYI,B.A., B.L., Assistant Legal Draftsman.
U HLA THAUNG, B.Sc., B.L., Legal Research
Officer.
 ~ lr~bL o~soc.Cgceg
~eo , , g.nc!hl!;ro ccce>:cihpco3croe~co 7 7 gcCllecgbgcc.oCllccce~eo , , SoK!e
~e.G ccce>:clh;pcogccoeco 7' s:gclewg~pcec;e ~e.G ( :lseso ogche
g3cc:&.>) :~gg~~coe>ctl!3cc 3~ socc3c<'l~~co ( 9) SOG~ 0 occc c c~plhc0
tl!3wgllescoepro;;chco 6 f'l c g38ec:~gbg 9g8c~~S 1e l..Gtl c

"soregceggc0w
 .
LIST O'F '~:ASES REPORTED

SUPREME COURT

~Sc G-oo Soo c;p g ~ oSG-oo S~[S

PAGE
~.:M."S*d Mohamed v. M. E. Ariff and one 7..6
Lee Kyin Su (a) U Su v. The Commissioner of
Excr~. Rangoon, and three others 5
The Bank of Chettinad Ltd. v. U Taw 56
__ Burma Oil Company Labourers Union v. The
Burma Oil CoDJ!>any (Refineries) Ltd. 61
U Hla Kyi and one v. Commissioner, Irrawaddy
.
Division; Bassein and four others
_Lu 9hein v .. Rent Controller, Rangoon, and five
28

others ... 7_4

.
~~Oi?OO~~rn@oo::TaCJ.2bW ~I ~tc':l;G6):~: I q~Oi ~~ 01 0 46

G8TGG~~ 91~ 8~8b 01 J .... 81

o::l'JOOG800 (~) o:>~~G':l~o::lOO~~ o::lW'JGOJS)gtg@3: _

( O(l:OJ~gG6pt:o o5Gbj:) 1

s
GtS:0 o1 51~ 61~ot~~~ OJ6p:G~: rosp:~~:~a8 ol oo 14
GG':l5G011S)Grn:
. . .
o1 ?_ ~~ GOJ':lt!J(Cl~to ~GC: o1-j 49

GG':lb~~o~~~ @tGoo':l502~~G')~ScGroS 53
GG')tOJ5Goc:~~!>~5o~l o~~~ ol o 17

~O)')GoSr;po;~Od':lG551~ @t Goo':lt~~G':l~t cGooS oa~~61 1

~Ec':l:G 61 :,~: soa@oo~:ocCJ.25:o~ ol o __. 25
 LiST bi? .CASES REPORTED

~:v.Q~ ~9 ~OJC:o~t OObp!GI>):O~~:~'J'i'> :t"! 84

~w~'J; ~9 s:1:1>)S:gffi:bGI>):O~ o1 ? :~ 90-
@:~'J~m o1 c; ~~~CcGooS)8~0J~'J.Prr.l06<f>t OO'JO~~
OObp~OOs_) @:GOO'JWe;l 01 ~ @: _ 37:
@d~:@~~ @:&o'Jo:> 01 0 71.
@:ot:Gl9~9 @e}Gco'Jt~ @~~'J~tcGooS @tooGI>):o~~~
~'J{> rr.l065:o~ .. .. __ _ 32
~:~aa20a:>~~ .poS~Eoosr:~oosp:~~:t G@'J5:'~ o1 G 68
 LIST OF. CASES CITED.

Eqt~~gG8,)') ~~sg~pg

>'AGE

Ah Nywe v. Commissibner of Police, Rangoon,

(1948) B.L.R. 737, referred to ... 10
Attorney-General for Australia v. The Queen, {1957)
W.L.R., 607 at 614, referred to ... 67_

B. S. Mohamed Eusoof v. Bakridi and another,
(1952) B.L.R., 248, followed 59
Babu Lal Ray v. Bindhyachal Rai, J.L.R. 22 Pat.,
181.-referred to
Bharat Bank v. Employees of Bharat. A.I.R. (37)
(1950) (S.C.) 188 at 209. referred to 64
Cooper v. Wilson aoo others, (1937) 2 -K.B. 309 at
340, referred to ' ... 62
D. D. Grover v. K. C. Kounda, C.M.A. No. 36 of
..
J 955, ref~rred to
Daw Aye Nyunt v. The Commissioner of Police,
62

Rangoon, (1949) B.L.R. (S.C.) 5, referred to ... 9

- My a Tin v. Commissioner of Police, Rangoon,
(1949) RL.R. (S.C.) 82, referred to_ 10
- Mya Tin v. The Deputy Commissioner, Shwebo,
(1949) B.L.R. (S.C.) 98, referred to 9

Dayaram v. The State, A.I.R. (1955) M.B. 65,

.
approved
Gajanan KrishnaYalyi and others v. Emg,eror, A.I.R.
22

(1945) Bom. 533, at 53'6. approved ._.: 20

Hwe Eve Hain v. The King. (1948) B.L.R. p. 40.
distinguished .. . ..; .. !
J. K.,Iron and Steel Co. Ltd. v. The Iron and Steel
.
Mazdoor Union. (1956) A.I.R. (S.C.), 23 L
referred. to 66
 X LIST OF CASES CITED

PAGE

Ma 'fhhn Sint v. The Commissioner of Police,

Rangoon and one, (1949) .B.L.R. p. 3,
approved 19
- Thaung Kyi v. The Deputy Commissioner,
Hanthawaddy, (1949) B.L.R. (S.C.) 30, ref~rred
~ 9
Maung Hla Gyaw v. Commissionez of Pdlice,
Rangoon, (1948) B.L.R. 764, referred to 12
R. Subrao v. Venkatro. A.I.R. (1918) (P.C.), 188.
referred to 59
Raman Lal Rathi v. Commissioner of Police,
Calcutta, and others, A.I.R. ( 1952) Cal. 26,
approved 2:t
Rangoon & Co. v. Maung Waik, 6 Ran. 263, followed 16
S. T. K. Chetty Firm v. Balasundram. 10 L.B.R.
199, followed 59
The Waterside Workers Federation of Australia v.
J . W. Alexander Ltd., (1918) 25 C.E.R. 434,
referred to 66 .

. d3~u?oo~~9 ~CCGOJs:i8JGm o1 J I O@~J ~5l~l q>~qo<J

S<3G8J~na~ Gcgj')o5~')crc 51 oS J ~ J ~s')~mt ... : 47
.r &1r o~~<91~ ~~ G!Ull ~~ 02~a1g u1 ?I OJEi'()~<2$oSGooS~[O
006p~GG8Jg~ 80!o) ?(3 ~~~~ 0@~~ <ill ~~G')~t
~G)t~g ~ 9 ( <2$oS"roS~[Ei) ~tmt 87
~ccGmSTo06Ew~'l~ GaS~ (;;,)) mf~grGmi~CrTo') (~) 1
O@CfOI O~~GO')')t~ 00~ 88

tGoo'JCO(B~G')~CcGo:,S~~ @mo1JS~1 oe~G ~5l~' sr~

oo) !U!G8.)g $~~GC\jpc<3$') 82ijrh 00 0 ~ro.p
mt ..... .... ,_~ ~ .... 54
&cSc~~G~5l9 ~tGco'JCt~~G'J~tcr O@Cf@ yi~l @~~')
t~b]CCX(g oo o ~~tm~ .... .... 87

D<l0f?c{3o)O'tg') ~~ 0 oSOl(@~~Gb]gt]~')gGG)W ~JG!Ul I ~C I

sa')(~) JO@~? <f'l~fCD')CQmffi'J~ ~90 ~~mt 88
 LIST OF CASES CITED Xl

. PAGE "

m~)IOOl91g ~9 ~gGOi!S~~~ O@~o ~9~1 ~~~'J@t~G)C

-~~ J 00 q6~~t. ,..__, 88
~gGcg;(G;;lT)G8al ~51 G8l~~ 9~g~,g~1 ~~~~
8@Cf0
@~G'J~t~b)C~: ~Cf8 ~~o.:>t ~ 87
~W~ 9~ o)ot~:GOijg8l'JGoo'J~CD'JgG6)gGmS~d5i 8@ Cf o
~~,@~\;)')~t~qt~? '2~@ ~6~0Jt ..... 88
@d~g@~9 ~g8ro'J:n o1 o 1 8@ ~(3 :r' msp;~cf.iGooS9ll Ei
oospg(,) OCG~WCl~ GOjJ'Jcfj~'JOClSJd) CfCf ~cf){"J
:nt ~ -~- ~ --- = 66
 INDEX

PAGE

ACTS:
CITY CIVIL COURT ACT.
CoNSTITUTio~ oF Tl\E U>:ro:-: oF Bumr.~.
co-oPERATivE socJETms AcT.
COURT FEF.S AcT.
CRIMINAL PROCEDURE CoDE,
EMEHGEXCY PROVISIONS AcT,
l'oHEIGNERS AcT.
Iml!GRAT!O~ {EMERGENCY PROVlSIONS) AcT.
lNDE~INITY AND VALID.-\TING ACT.

PENAL CODE.
PUBLIC ORDER (PRESERVATION) ACT.
SEA CusTOMS ACT,
SP.;IFic RELXE.F AcT,
TRADE DISPUTES ACT.
"CNION CITIZENSHIP AcT.
- - - JUDICIARY AcT.
URBAN RENT CONTROL AcT
VINASAYA ACT.

AHREST mWER PUBLIC ORDER (PRESERVATION) AcT-ILLEGALITY OF
FIRST ORDER-WHETHER IT AFFECTS THE VALIDITY OF THE
FINAL-
CUTIORA~I";"""Wril of-Rule 8 (b) atld Rule 29 (21 and Rules 55
and 57, MzmiciPal Electo1al Rules-Candidate's eligibility aud
qualifications to Mtt1ticipal Comm'ittces--Qrwlificatiou nt t-'1e
time of nomill<ttiou-Ss. 10 a11d 72, Co-oPetativc Socictres Act
(Act XV of 1956). The two applicants are the Secretary and the
Treasurer of a Co-operathe Society, w_hich has a ferry Contract
with the Municipal Committee. They stood {or eltction to the
Municipal Committee and theY. were declared ineligible because
of Rule 3 of tt1c Municiral Electoral Rules. On an application
for direction in the nature o Certiorari, it was contended, that a
Society created under the Co-operative Societies Act (XV of 1956)
does nt>t come within the terms, "person, firm, or incorporated
or rc:gistered Company" of Rule 8 of th e Municipal Electoral
Rules. Held: while a Co-operative Society may not fall within
th~ terms" firm" and" incorporated Company'', it would be a
''registered Company" as one registered under s. 10 of the Co-
operative Societies Act. Held frtrtllcr : The word "pr::rson "
is defined in the General Crauses Act to inch;de " any Company
or association or body of individuals whether incorporated or
not" and it is con1prehen$ive as to inclu:le a Co-operative
So:icty. ,.
U HLA KYI A~D ~NE v, Co~ImSSIONER, IRRAWADDY DIVISION
AND FOUR OTHERS 2
XlV GENERAL INDEX

PAGE
CERTIORARI-Reut Co~rtroller,
wl!etl!cr comPetrJzt to set asidt
ex parte order-Rent Coufroller 1m adminisl1atio1t officer a11d
1td a Co~tri-Frccdom of acltolt in Procedural matter.s.
Held: The Controller under the Urban Rent Control Act is an
administrative Officer and not a Court, Subject to statutory
direction> or principles of natural justice, he has freedom of
action in matters of proced:re. He can set aside his own
ex parte order.
U Lu SHEIN v. RE:>;T CONTROLLER, RANGOON AND FIVE
OTHERS 74
CITY CIVIL CoURT AcT, S. 35 14
CON"STITU'IION OF THE UNION OF BURMA, S. 11 (c) 46
CONSTITUTION, S. 11 {b) 25
- - - - SS. 16 AND 17 (d) 32
---s.l21... S
COOPERATivE SOCIETIES ACT, ss.lO AND 72 ... 28
COURT FEES ACT-NOT A WEAPO:-l OF TECHNICALITY AGAINST
OPPONENT BUT DESIGNED TO SECURE R E VENUE lOR THE STATE 56
- - O F INDUSTRIAL ARBITRATION-WI! ETHER A" COURT " UNDER
s. 6, UNW~ JUDICIARY ACT ... 61
CRIMiNAL PROCEDUHE CODE, S. 190 AND S. 4/6. 76
DIRECTIOKS IN Tim NATURE OF HABEAS CORPUS-$. 5 (1), Ptt.blic
Otdcr Preservation Act-Initial arrest by luspector of Excise-
Ftert T:cr arrest by Inspector of Police mtd del cntio11 by tire Deputy
CommissiOitcr of Police 1111der orders of tile D : puty Secrctmy,
Miuistry of Home Affairs itt anticipation of order of dele11tio11
tmdcr s. 5-il (l) (d) (e) aud !h)-Order XIX, Rule 8, SuPreme
Court Rules-Return vaguc- Refclencc to Home Jllimstry File..:...
Powers of the President, s. 121 of tlte Crmstitretiott-Dclega/ion
of Powers under s. 7 , Public Order Pl'cservailon Act. The
applicant was arrested by an Inspector of Excise on tit<> 24th
March 1956, under s. 5 (I), Public Order Preservation Act, On
the 3rd April 1956, an Inspector of Police, under orders of the
Deputy Secre!ary, Ministry of Home Affairs arrested and
detained the applicant under s. 5 (I) of tl1c said Act for 15 days,
in anticipation of an issue of an order of detention by the
l:VIinistry of Home Affairs. On the 17th April 1956, the Deputy
Commhsioner of Police ordered the applicant's detention for
. two months with retrospective effect from 3rd April 1956. On
4th May 1956, an order under s. 5-A (1) (d) (c) lind (h) requiring
the applicant to reside in Myanaung until 1st May 1957 was
passed in the name of the President by the Secretary, Ministry
of Home Affairs. The applicant was granted bail lind released
on 7th May 1956 on which date the Deputy Commissioner of
Police also revoked his order of detention. For the applicant it
was submitted:-
(a) The detention at the instance: of the Deputy Secretary,
Finance and Hcvenue, and the actual arrest by an Inspector of
Excise who is invested with no powers under the Act, were
illegal.
(b) The attempt at edifying this ille~ality by subsequent
orders pas sec\ by an Inspector of Police and then by the Deputy
Commissioner of Police were also illegal in that they had
 GENERAL INDEX XV

PAGE

automallcally comp~led with the order comeycd to them by the

D~puty Secretary, lVtlnistry of Home Affairs, instead of deciding
for themselves wJJether !her~ were grounds for suspicicon
against the applicant that would justify arrest.
(c] ~i detention in anticipation of restricting: the applicant's
residence to Myanaung w,\S also illegal.
Held :The liberty of the subject is made indefensibk by the
Coastiluiion and ttut S1ch personal liberty is not to be interfered
with save in accord;tnce with law and with strict compliance
with the procedure prescribed. The sufficiency or otherwise of
grounds against a suspect is a matter !hat has to be solely
deci<!ed by the officer empowered to act. An order passed by
an ofi\cer so ~mpowered.merely because of a direction made by
a superior authority is manifestly illegaL Ma Tlrarl/lf! Kyi v.
Tlte Deputy Commissiouer, Hardltawaddy, (19491 B.L.R. [S.C.)
30; D.1w Mya Tin v. Deputy Commissioucr, SIHocbo, (19~9) B.L.R.
(S.C.) 98, referred to. An order meant to be re!ro~pective is also
illegal. Dmo Aye Njuut v. Conrmissiou<JI" of Police; Ra11goou,
09491 B.L.R. {S.C.) 5, referred to. Heldfltrtlzer: The illegality
of the initial arrest and detention will not render any effective
JJe!p to the applicant for the Co1rt is concerned only with the
final order pa~sed in the name of the President by the Secretary,
Ministry of Home Affairs. All previous orders were vacated
when the applicant w;~s released on bail on 7th May, on the
revocation of the Deputy Com111issioner's order. Held also :
The variO:JS orders of arrest and detention do not forrn a
c,mti~uous series and that an ill egal arrest at the out~et would
not ,-itiate a final order, as the orders were issuer! by different
authorities and the final an:! effec!i,e order was made under a
different 2eclion. Ah Nywe v. Commi.swuer of Police,Raugoou,
{1948) B.L.R- 737; Daw M ya Tiu v. Com111issiouer of Police,
Raugoon, (1949) B.r..R. (S.C.) 82, referred to. Held az,o: A return
made by the Deputy Secretary, which merely said tlwt the
President was satisfied as t0 tlJC necessity of the enTer is vague,
is of no help and not in conformity with Rule 8 of Order XIX of
the Supreme Court Rules. All Nywe v_ Commissjoucr of Police,
Ra11goou, (11148) B L.R. 737, r~fer; eel to. Held fttrtiier: The
~atemeQf~ contained in the Heme Ministry file relating to the
applicant 1~1ay fall short of p~oof in a criminal trial. but in cases
of preventive justice, the statements are thtrc and the compcten
authoritv h<1d chosen to believe them. It is not for the Court tc
say he s-hould not have and thus exercise an :1ppellate jurisdic-
tion. Naung Hla. GYaw v. Commissio11cr of Police, Raugoou,
fl948) B.L. R. 764, referred to. Ouartre: In this case, was the
Secretary merely following a direction given to him by a superior
authority or did he use his own discretion? Desirability of
having a properly delegated authority pointed ont.
LEE :({YIN SU (alias) U SU v. THE COMMISSioNER OF EXCISE
AND THREE OTHERS ... 5
E~rERGENCY PROVISIONS ACT, 1950, S. 3 17
FoREIGNERs AcT, s. 3 lb)
. 46
!MmGRATION (EMERGENcY PRovrsPoNs) A cT, s. 7(1), 13 (1) 25
MUNICIPAL ELECTORAL RULES, 8 ((), 29 (2), 55 Al\D 57 .. , 28
ORDER TO MOVE:~ INTO ANOTHER DJSl'RicT-PURPORTED TO BE MADE:
UNDER PUBLIC ORDER (PRESERVATION) ~CT-BAD BECAUSE
INFRINGES CONSTITUTIONAL LlllERTY 32
 xvi GENERAL INDEX

PAGll:,

PENAL ConE-S. 193 n11d s. 196-Crimimll Procdr.nl Code-S. 190

a11d s. 476. Held: The question of delay is qv.ite irrelevant whee
the:; Magistrate is to take-co~nizar.::e of an offence under s. 190 of
ihe Criminal Procedure Code. No Magistrate can refuse to take
cognizance of an offence on ground of any delay. This is,
however. a m1tter for consideration in proceedings under s.476
of the Criminal Procedure Code, ~,here a Court is to dele'nnine
whether it would be expedi(.nt in the interest of justice to make
an enquiry and thereafter lay a complaint for offence under s.
195 {1) lb) or (c) of tt.e Penal Codt>. The question of delay is
relevant only in considering whether "it is expedient in the
interest of justice". While acting under s. 1<.0 of the Criminal
Procedure Code, the 1\Iagistrate has no choice but , to take
cognizance of any offence brought bebre l1im, ex-:ept wl>ere it
is specifically provided requiring compl~int by or on the order
of a particular person or authority, such as is provided in ss:'195,
196,196-A, 197, 198 and 199. Therefore, the ruling in Hwe Ei1e
Hain \'. Tfte Kiug, (1948! B.L.R. p. 40 is ap(llicable only to
proceedings under s_ 476 of the Criminal Procedure Code.
E. M. SEYEO MoHAMED V. M. E. ARIFF AND ONE 76
''PREVENTIVE DETENTION "-SCOPE OF- 5
PUBLIC ORDER (PR ESERVATION) AcT,S, SA (1) (b) l7
- s . 5 ( 1 ) ... 5
- . . . - - - - - - -- - - - 5 . 5 (A) (1) DE-F AND 5-J (2) ... 32

RELIEFS NOT SPECIFICALLY PRAYED FOR-SHOULD BE GRAN'fEQ IF

PROVED FACTS IN THE PLAINT SO WARRANT 56
RENT CONTROLLER-WHETHER CO:\!PETENT TO ,,SET ASIDE HlSOWN
ex parte ORDER

SANCTION FOR PROSECUTION-WHETHER VALID THOUGH PARTICULARS

OF OFFENCE ARE WANTIN~ 53
SEA CUSTOMS ACT, s. 167 IS) ' c
1
SPrtcrFrc REl-IEF AcT, ss. 12, 4~ 56
SUPRE}IE CouRT 0RDE1~ XIX, RULE 8 5

- 14
_ _ _ CouRT-SUPERVISORY JURISDICTION oF

TRADE DISPUTES ACT, s. 9.-The Co!trt of Industrial Arbitration,

7~/zetllcr a "Co11rt "7vit hin tire memzi11g of s. 6 of the UniotL
JrtdiciarY Act. Held; That the Court of Industrial Arbitration
ronned under the Trade Disputes Act is not a Court within the
m<;aning of s. 6 of the Union Judiciary Act, but it is 2> Tribunal
discharging quasi-judicial functions. D. D. Grover v. K. C.
Kozwda, c::M.A.. No. 86 of 1955; Cooper V- Wrlson and others,
ll937)2 K.D. 309at340; BlraratBank v. EmPloyees of Blzarai',
A.I.R. (37) (t950) (<;_QJ 1R8 at 209 (l'ara. 61]; J _ K. Iro11 atld Steel
.Co. Ltd. v. The Irv11 and Stecl)IJazdoov U11ioa, (1956) A.I.R.
(S.C). 231 ; Tire Waleisidc Workers Fedcratio11 of A11stralia v.
J. w. Alexander Ltd., (1918) 23 C.L.R. 434; A ttomc:v-Gc,reral
for Australia v. The Quce.n, (1957) W.L. R 607 at ?14.
THE BURMA 01:. CO~!PANY LABOURERS UNION v. THE BURMA \J\
OIL CO~IPA~Y {REFINERIES) LTD. 61
 GENERAL INDEX xvii

PAGE.
Ul'!ON C!T!ZEl':sH!P ACT, 14-A \1}, 14-.t (3} tt 25
- - - JcorcrARY AcT, s. 4 14
---------s. 6 ..... 61
U::\ION Jt:DICIARY AcT, 1948, s. 5-Mouthl! Leases (Termillalion) Ac 1,
194b-Suit for Declaration-Pro1Jiso, s. 42 Specific Relief Act,
failur~ to compty with Court has 110 jurisdiction to dismiss the
suit-..lmcudmeut of Plai1tl to conform with t ftc Proviso-Reliefs
fllol:gl:.uot sPccifiet~lly Prayed for s/wuld [e granted ijtlte proved
facts ilt tlzc Plai11/ 2Cari>11nl it-TI1c object of Court Fees Act.
The appHlant instituted as~ it under s. 42 Specific Relief Act
against t!1e l.~espoudent who was appell:mt'~ monthly tenant
for a bare dtclaration that the appellant is the owner of a
Cine:1;a H:lil and its site and for damages, etc. without a prayer
for posse:>sion. In fact, the I~esponclent \\as found to be a
mere trespasser in possession by virtue of the Monthly Leases
(Tem~inatio:t) Act, 1v46. The suit was decreed, but' on appeal,
the High Court dismissed the suit holding that under the
Pr~:niso to s. 4Z of the Specific Relief Act, tl;e suit wa~ not
maintainable. Oa :tpp~al to the Supreme Court, by special
leave held: Prm'iso to s. 42 Specific Relief Act does not
waaant the assertion th:tt the suit is not maintninable ; for
the PrQYiso merely enacts that the Court shall not make ~~
declaratj,pn where the plaintiff being able to seek further r<:Jief
failed to do so, The Court has no jurisdiction to dismiss the suit,
it can only refuse to make a declaration unless the plaint is so
amende d a~ to satisfy the requirements to s. 42 of the Specific
Relief Act. S. T. 'K. Chetty Firm v. Balaszwdram, 10 L.B.R.
199; B.S. Mol1amcd Eusoof \'. Batwirii atzd a11ol/ier, (1952)
B.L,R. 248, followed. Field also: That if a plaintiff is entitled
to certain reliefs upon proof of necessary :act alle~ecl in the
plaint, it is for the Court to gr::.nt such reliels although the
reliefs specifically asked for may be inartistically framed.
Babu Lal RZY v, Biudh,racllal Rai, I.L.R. 22 Pat.187, referred
to. IJ.ld fur11!cr : Tile Court Fees Act w, s passed nol to arm
a litigant wit': a weapon of technicality against his orponent but
to secure rennue for the bene!]! Of the State. R. Submo \',
Vcukatro, A.I.R. {1918) (P.C.) 188, referred to.
THE BANK OF CHETTINAD LTD, l.'. U :Ct\V 56
UNLAWFt'L ASSOCIATIONS ACT, S 17 (1) 17
VINA~AY.\ AcT, s . 25 (1)(21, 22 (J)(.;J 37

~d.ieoG~"lJ'J~n
me: qsa'3<l]S:OJ'Js9~9oot@Gbj:~cf.i 80G~ (o~ ~o yj~~).t
~cc@o:OJ'J~[J;Jd.ieoG~u
o1c3Q~Gl~GO)'Jd.i~ [J;Jd.ieoG~.(O~CjO ~96):~
ocmoSG0-:JC~ ~Gm'JC'bGooS ~d.ieoG<311
gtiio;?.So&!J@ .~Gbj: (c~~:JS:G0'J9Gl'Jd.i~) ~d) eo:;~ (oe 9? ~~S )'
~08:D18~[8~~G@~ oad.ieoG~H ~

.
"'msr:oaOJc: ~o5eoG811

2
XV!ll GENERAL INDEX

PAGE

~~~~C6f?91~qS~;, ~~bG6): ozoSeoG~II

6)~0(t~GOJ~ 006f?W~g moSeoG~II
Cli(OC~ cod3ooGm? ([95ro6~d3'1J?:) moSeu,;~ (oe<t? :r~~).1
8~&w~?{> oaoSeoG~ ( o? oo '?~~ ).1
8~&w~?{> (Qcroc~oS) moSe()ro (O?:J(; '?}~ >
o3:-:> ::JJaS::m 89 md3eoG~u
ndG6):GoT3 <7ll ~aS eoG.~ ( 0@ ~ 0 ::r~S) .I
m5:~cf.l9JS:::J.:l?89~9 cn~@Gq:md.ieoGs<?~G 9 (J) (oe ~o <?~.)1
oo6f?:2~s9~::J.:lt&mS~~~ <;f:mS~D25Gt:JJi&mG-:>c:~5:op~p=
OCJD,;ld.i ooop:2~z;:;o:::DtCJt cq:ow11 ~G::D~ m.g~mS~O(d.i
Go:q~ GOji'JoSa:)'):::Dt Gcn?f:~4l'JC72C @~qjoS::J.:ltmG?c:
<iJS:sp~~o;;cot Gl3T@oo-:J:G'Jc: rng9acS~cn'?:r::Dt Gt::Dt
rn;:;?S:m9:aS9p:~9 t&~~:JJ?O]C CDE>p:otG:XJ? mg~mS~
tJt Oj(ro6)Gt'\'tl!i ,l ~:@cf.)<ljoSI: 110@~ 0 y~.1 mC:~QS<jj5;
::D?g~~ ootGS!,:~aSeoc::<tE~ 9 (J) :::~?b)lo:J>p:2~89~:JJ~
mS~4l'JC72 6 CD6f?:29~m z9m S~Go:q:JJt mG'Jt i<j)C~6f?'IJ?:
Gl9Tco?:S: cq:oG~G:JJ~cot: mg~mS~Gmo1qt Goo?t:~
:XJ&0?02c :XJoS~cE>pmG'Jt:<Jif:qJp: ..Jd~mrocGl9T[9co?:
i:g.~ ~mz9mS~Q)'J:JJt CD6f?~G::J.:l'J mg~mS~ @S:JJ~II
8~Gco'J5 112@G'J~ccGcn~~9 ~:G<Jis~ , :::l.e~i3 :t 9 &, GIJ~oo5
8<1G:JJ:D3~GOjj?d3~? m5100 ooo ~oSp'OJtu

G(:J'JC~f:O~~~~ @tGoo'JC~~~ G'J~CcGoos:i 53

o'lc{5G~G~:Gm'JoS~saoSem~o'(oe 7o <?~.) qS(:J ~91 ~ ~ 84

. .
o1o3G~GB]:~mJo5g 'l't:eoGD o'2 ( o) ~9 (?) s4

@tOJ?oSo o8?<Gq:c8~::::3S~GI!l'J~G!jl'Jd)G6)l rnceoGD<(5g ~ (m )n

~:cb<lJrf.i II II ~5 :@~~G:Ja :;>JS~:XJ ')(.l)'JSCgQ ~ BtOjl_@bo 08
@'J:Gq:(c8~::::3S:G4l'J9Gl?c~) moSeoGD~to e9'{ <(~S motoS
i9~~6J::Dtu ~D<!rf.i eoGo~DG ~ (m) 8<16]1 cqoo@:ooGoo?OO!).)~
~~.~rn5l~9 @aOJ?o~o 88~'J:Sl~ c8~aSGm'Jc oo 'l't:'l'tg
19 ~~S :~ 8oSotcn-:J~cl3, 5l ~ mo;).)~ at 01 ~So ~~,~5 :m02oo cgJC
~o~~~JfOG;I?to:n:q~ 80S~Go:~c:uc.1 glcYt~Oj(006f?~ Q~C
o ~GC::JJt mG'Jt:G'Jt:~GO ::D~G)G~II :XJd3G.JJ8<1GO::)'Jd)
rncm:~ 0SGoo~6JcJtn SS~~cmC725: rnG@~G'!'.cf2cot: ::Dd3~
qgtiu ~D<IG?t:G0'Jt:~GOO'Jo5oo?:~ ::J.:l9Go::S:l:JJtuta:;S
5GC))'J::JaS~~OIJ~cf.)"l~ O<J'JCl!)'J~::J.:ltu SSm:XJ:f3G:JJmGro-::aS
 su&leoeeco~~ ~~~~@~ gccftgcc ~b:ccogc~eg~'}g,u .u3cc.
~pmoo:.ccecc ~ (} jl: "(.l"TSJ (6t-61) r LO :g:,:~e~ 1~3Co~b
3~ gre:scceu r3&~ccc~b~ccogde~]l'e g~4-:::e;;ccce.s;_,w
cwpcibgc@e:~g::~SJ rP:be.:c~gg os &? cfipleso~scb
~(e)( c)(w) G egtseocpeo (l!isucl9egc0e;~g::38J) :be~c
89o~ol:c? ~~~e ~b'i>cl' IISCJ!ep:?;er !l:g~:ccwf:g
gcfeg]le ~bpcl9sgc0s~~g::38J Sc:lse.~cggo~'&3 3~~~~
S'J O.o>cBJJ IIC mpcirosscos3!ec0 ~gecscoe~sll !1:3:c003C~!'l
gli~ g~(e)( c)(w)l> eghGsocpeG (~pclsgc@e:~~:3SO) :be
~cgg oso&3w 3og'~e~:~6l3goc fi:3& eo:~il II~ 3SOSo soffi .
cc::mhco w~~&:chcopo..:Jdsf&:ccopdroerbec:c~ c egbGe>
ocpeo~C:I!'loe:bees ~~~e oG'i>cu u(c)0c egoGeoc:jcces:chcoe
rs oGc r0o 1~0 r.re)
(c) !J(, rGG rGr 1(6) 0c ego Gsocpen~seo9gliegb3l=o~
.!.
1: ... <i>mg&ec
kS:rBs o :be.<p? sccs938ce3 0~co:::sscB" g~~:::;sc:g
u:)ccg~
p!klsoo scos3!ec0:~&scoslb rP~SeGLo?Fec gccso8JrP
;cf~:lse.essgecOJ~ sgse:eecgg,<i-s 1fechz~S:cc3e :g&es
?3~ G3ccoe3 g~~smsc& cccs:cco SGsowcw rbec
(ro) 0c- :F egoG::v:-,Bs;~ec9sllhgffi~30~Scos?-32ce3~0sccoe.
? :Jcc~aec~1r ,,J'es~e~~:ca:0 wscos:~~ rPPSJep?f>
)O~I'e3aes ~~rP:ceo:~ ?ff:gS slro~:c!f. :coc ropce~ec
:gr.~eG n?cc~~scJ ccc?f~~~:c!b:co:;ecpcco~es:gc)ees
1bsoM~ rP3~esSo 3&~s~ggcmceo cccsso~!esaec 3cc
seas:~~ Leesccc~gccopc!ros prorosco~1!ec@ :g&scoel!b
3bp!Qsoo rP:clhsseccccssofile 1beof( r) 3\ c)(co) G flgoGeoc
peo (lc)suc:.l!ie.gc@e:~sc:~BJ) :lse:csggo~ol'c? 1glfe 0be!c
I' rso!eso~:i!e'!l r( ro) (., c egog~
sc egnceoc~~esi?gll'egffi
:30~ I SCOB?38c~3~gccoe3 scos3jgc0:g&scoe~e> 3ses
:gcBsso<k 1beo (f) (w) G~go 3 (0)(o)(ro)(c)(w) G eg6
I ( ~~e
0 6 tl c) csocpeo (~pcl!i~gc0eg~bc'.38J );bw:.Bsgo~o&?~
61"> ... r LO :ge~og~e~3CCO~ 3~ 0 LO ~roe>c}we>:f-fle>
.
113cc3~~~ bpccp<D
~scoe:~~ wLol!mbeec rbee (co) G flgo 3~c;p~~m~;cooes
pccoeeccc~succ sccesc ~~ fl3gggc.~ wp~~esum SOSo
S2~fl rP:ccoeopccoe.esccepccSo 3~eeo~ecscos3!ec0
wstoe:~~ giroLo~s,ofi!e3ses :~g;ro3~ ff:c~:ccoec
,
3:9/d
XTX XCIGNI 1Y~T3.NtiD
XX GENERAL INDEX

,PAGE

s-J~~Q,~ ~:oS~5G)~ 00~02C:0~:11>?!6)Q~ D<lG::~a~d3<ij?:

O)t Da~~q;p?:O)e1.1 11~00~: o:JGOO?cbo~ 0)')9~GpeO cf)
G?f:eoG:rr.l6) o:>Ef:~~ !ldB~CT.jjGIV~CO?rbGDa'JCO)rb~:x;~go?
Gco?o5 9GDa?t@tC1jjt ~:l(~ S~Oi?. So88?:Gbj:a<JCJ,5o5
~[Oro?:q~~GO)~:x>tO? mG?t::x>~~P GCT.jjoj>DC\)!b Da~:&"t:x>e1
~Oj?~ ~~5~oo?:~CG0G?t:n Gaia1za1t Krishna Yal)'i a11d
others \', Emperor. A. i.R. ( 1943) Bom. 533 at p. 536 O)G::-J?o;?
:x>tn IIO)')I:l~6peo oSG?t:eoG::>"jp:~~ g~Oi?.So 8S@?:G6).
DaCl,2oS ~[8Gptro'J:G6):~t6p 8<?oSeoG:::~~-:J::x>t ro~:~ro@:
et~oS@t::x>?@~G6?t:l ~~ OJ':>4GpG'OoS5l~C rosp:GO)
~oS~:x>~DaCJ2rb tOi?.Sc88@?:G6):~ m-::02c.Ecfl~:~%~ Ei[~
~[DGiji?COO'J!~t4~}:>t:.t Ra ma~t r..al Rat hi v. Co1111111ssioue,. of
Police. Calwtla, and others, A.I.R! 1952) C~l. 26 ; Da;aram v.
The Slatr , A l.R. (1955) M.B. 65 O)G::r.l':>IJ2:x>tzl I!GpG-Od35/
OJ<:~CJ2C o:>Gp:G:x>cgd3~~':lli~ ~cgoS~Ji\82!GOT~58tOi?.So 88
B?:G6)l8'ClCl,2o5 ~[0G5l?CI:la:>':l:~tOjll:l~~ctaf~};,bJ
G9'JCo:JCG82!li d~CO~I O~ffin@. o1 0 "\ 17

~l:l~bGp ~1:&)S:d~:OGEi)l Dacb20G!3<(5G 09 ( m)I <(tG oo ( o )

( ru h(c)n n~:soS~oSu .t~s~EGp 91:6)S:d @:EG&J:
8<!cfeoGm~6~,~ o 9 ( m )~~0~0j!C t c::qfig~6} <Dbf:~~~c
89rocs:?oSco?:spo.;EI ~a<Jo5eoG!)y5~.~ o o (o) ~ ~~Be<
"1j'J~Cl,2C o1~Go.:>? OO~Jrfj"l)'Jlrf? IOU'TgEi)GtO{Q~G~II :l::r.lG~
~:OGG)l o~rr. cot~ I GCijl-::oSoo?l 0,1::>.:>~ rosp: ~~6)~
~~oS r qfi~,~ o9 (m) (?) <Y6SG~T@ro?::x>~oc~ttr~
Go:.JcGo.:>? 801106':/t:~ G~~OJ':>~~~l[&:G~':>c1 GO:WbCijjt
oo6[)=21l~ GotbjQtg~:x>tn ~0:~[GE>)~ o~~ ~~oS~rE.
:x>~1 aJsp:2~:x>~ ~.:GroS~?: G~O)~~t:~~~ ~[~<l!J)~t
g~G~G<1JII 82!CY.>J)~ I &)~G:x>'J Dagrf? 82!GOO':JrbOCOJ"::: @~: 1
w~GojpoSOj?ro :x>oS~Esp ~:GroS~ o:>Gp:~~Oj!CI Sfht
@~~So;p s:1:~S:d~:8Gf>1: DaoSeo:.D~5~,~ oo (o) ~Eo1~
G::>.:l? Grf :x>f 00~5o1 !J?~c OOCOcb"lJ?:D'2bjl ~~O)~~ol?
~')~ GI.9T@SjGOQe1!t wc:~G<:/fg)Ojjtl rosp~~=~ooSroQ~OJ~
oo~5~m01Jim6Gf!}::5: ~~~:@d3r;;g~@o.:>tn '
GDTGg@: ~9 S~bco1 J .. st 1
fu!~.~~tGp s:1:S)S:~ ~:5~61= oorEeoGD !.(fig o!S ( ro) Da&)t
oe~~ fil ~o::f.>?co j j 6)cG~I GOj!'Jcb~'JOJtoJe11 0~~)7 'tl
G-i!?o1~co ?O Ei)rbG<fl!re.; Da)t0~spc;t:occb20GDC(bg j e !32611
oo518d:it:r ocstR~':l~6)E::p Gcgj?oSroo;:Oj?82!~o?!OGOt1
g)8<151~c GCSJ?~OJ?lOj?CY.> 8<1GOj!?CJS~IiiOj?fOl o) j Oi't1 ~~~:
 GENERAL INDEX xxi

PAGE
...;

~ .f.o1oS ? Od'J:rows:1:q$~o:ltCJ? 't!::~@~G1: Odrb80G~C(b~

oG ( ro )aofi)l roliP:??~$~ C1@~~ ~~ ~o:h?cc J j qoSG~m
GCSJ?rbco?:!ip 1o~ ~ '( Rl ~~?o l~ro ? o b)rbG~?.Odc81!l~Gw:ro'J
qt~Gj;02t y51:1 j@ 8db)OdSi8oS~rbOJ~Il J~g~ci)~d).l I
ern~:~ J@ 8611 s%01~:~ o;;S~oo~ro!ip~"!Xi~ rooo~91 :qG:
OJtG~111l E C\.'3210,25; OJ~ :f!~~o:J'J OO!ipi~~GroSm 82Cff~
C))rbQ~E 8 ~0Jt
~:0~p: 19 9~:b):;i:Ol@:oGbJW ~ o1 \) 90
C)~O(~~G005 OJ6p!(:}~:G<lrb80G~<(bl:l ?~ ~rb'i06)~~o:lt~~ IJd?rb
?'J::D q;oS02oS~OJ@9 SS6)~oSOJt~ llb]C~oS::D t5f>'J~:~:GOJ'J
4i3'J9 OJ'JO~~O:{ <D'JGhF!J[S86Gol0,2C 82Gb]!o;)O16)~ GO?j'Jrbg;p
~ OJq:>::))I~:~![Sm ~Eq:>~S~:~S::noS~n-a?: 6'J:f>?0SGoo:
IJ~0S:Xi 0'JGq:~[O~ !3<l~SjCQ0')o? O?oSii),j:ooS~oS@S: I G<lstG~T
0'J.J~Goo5 GCSJ?rb0!'JII u[gtGco'JC~ 006p:~SjCGSj:rnoSeoG8<ibll
c;.1 .1;;qg@oS~oSu :1g}i0~ .pSp:x>~ rB~8402oS roq:>:~:02S
OJ~:~~~cz~:~~::Dt~p cotr)'J:o:lti! . Raugo:Jn & Co. v. Maung
Waik, 6 Ran. 263 ~rbf>'J::Dtu J~rB~o:ltl 006p:~SjCG~>j:
otSc~:~ ~oS~oSGuTGo1oSCoSro:n::o'JrB~@0~~~ Gt~oESG0
QtGcxd:"2 OJ6p~~"jtGSj~ 8drb80GO~b~:~ 9 806)1 ~~:G0')5:.:vt
[9tGm?S"2 ~Sc7<102E~~ roliP:~:8d?:~<~ ~:e3S6~1\l~E8~
!JD?m'J~o,)~ rosr~~:@::o~84~S: corbG8d'Jrb~roopg~:royym
SS~8609S:oo'J:OJ~80?m'J~l ~llc.J?OS OJ'JO ~o oSooqJ:OJ~yrf?
~:~GW'JC~cfi!ij}tl;rf02J.)0]C rnSJtOOb[Ji~G6poSG86"Jt oCGq:>oS
~roe1cf,l~ g]~:GO?S~oo"Jo~ ~GroClJtt ,!Gcgj'Jrfoo?:~m ~0~
CO?l::Dt86<1Jrb4j'J:~'J ~~lly} ID'JGq:9][0GOlG~?lf <-lJrbC'J2oS5(~1l~l
~CSJS~ti:lJGCSJ"JoS oo:n~~ ~0p~: ~:OJ~ 0G:.:V'Jrn~oS 9j'J :rf?
9s~~~s:noS~C6p~8'6'J: ? :p00Goo :~ IDS:q OJ6p:oy,@3:~ tS,;
oo:;o ~ ooSooop:@b:.tu lt~~otf~GooS O?qJ:~:~~: rnoSeoGs~5(,)
\)~ 86bjl ~IDQ:00Goo:Q}~ 86S~~yoS~d.iOJ~II
GtS:il o1 9 9~ 't~ot~~~ rospw~: ro:;pg:)j(~'~lS o1 oo.... 14
G5)GOOS:)2 E:~'J8!~Gro5, ~Sc'J:OJ':':80oSeoG8 'tlE(,) ? (;;l) 86G@~eoG8
<?fie,) :l::J( 0 )n .1:)~:8oS9jrbll il~:@oS~rbiD'JJ~GooSrnji~:4j'J:
c2S Ep~o o'3roq:>:~~~G00~4J'Jl~I!)0G~:::JS0-)0~ OJrbG::D4J":nw9
G<lT~: ~::U~jj~XO~'J9j'J:Ct3 86~:86~oSID~GW1GU:~E"l~ ~w:
OJtu oot~S:::ut CY.JJ$:cf-J~ID?~?:d?::o'J 6~~~ "toSQtrn'J:~~
;;JJYd)G~'J82S~~? 80G8~W~CY.JjtOJtr goo~CY.Jjt::Dtrf?ClJ'J
e3~ll!b)~GGt11 d3~~0?~:ji~ ~CCGOJ50J~0') o1 j II ::l@~j ~~01
Gpl!'oo586G::o:8d~;;a;poSc:~P 86rych J ~J @'):::otu
~~o;~ro~.~ rn@ro~:84CJ2C:o~l ~Ec:m~q:~:l q~cq~~ o1 ::J 4
XXll GENERAL INDEX

?AGE

C)IO CJI( cy~ooGro'J8cco8<1ld3~?: )nad3 eoG'J (~ @9 '( 'r~: 1 C(bQ :::>?

(o) Dill;[' (9S~co81?:~6!5@5:1c;,c~eoG!:lC(5Q 7 ( o) Da6[1 @~Q'J~cc
GroS3 'i OiloS06'JlG06[ ~naS~ 1gjtGco-:;c,~~g')~ccGro5~0t:.~59J[O
qrnG@.;,80G!3C(8g o o ( Q) !336[1 @~g'J~CC:::Q'J:@SG?@ ~80G!3C(bl:l
'2 (~ )9$ ~:o ::ooS ~cg~cu .iGCijpoSco'J'Oil::ot o@ ~ ~ :r~Sm
o1m~ro~ ~Ec~:rooS'}oS@~ [9to c~cs-'J"!~f:' ~Q'J~cc~ro'J
GspoS;;l1 ~G'J~cc02c Gtz~~co'J:::oe2qoScooS GOiJSCI6~Gt~E
o::~~ rncooSGt!l T@o1 !33oSeoGoC(5~o~ o? (~ )~r [9S}ICOGlJ:~G'[f:
@E:~~G'[G::D'JGG'J~ C(DG '2 (::J) 0211>)1 OjlO CSc~~:08G6[ :o ~m <=iC:
rn'J: ~5c'}cgi1306'J:G06[~ 9J9 oS~o'3::Di&021S~c1 oc6~00G"J:o16'[ ~
Grn'JoSo1021~5: 021G6'Jc: GcgpoSco?~Gm::Dtu .~SS~rnS
o:>oS'j 021~1:@SOiiG!3TGG::Dt ~g')~t:G'[C:OJ'J:8So::~021[9t ss
'}") ~~o~'J~Cc~ 1:@S~ @~Gco'Jc~~~G'J{i::cGooS ~0t~~5;;;Il5~
rnG@~20G8'(fig ~ o( ~ )D<l"!I@~G'J~CcOJ'J:@alG'f::DB~ o@ 9 '2 1~~~
QtoCJ1021d380G8C(DQ '( ~~ ~:0021<'7ijj:GOCG6?t:@~ GCSJ'::d)
co?::Dt.i J~:~o5<1joSil ooG'Jc:89Jrh rn~C: 'j~G000?W
GCSJ?oScxn:::Ji?:Dtt (o) u1m ~ro ~ ~Eco.:o:021~S~ :) @~ ~ '?~~
e~co o qoSG~~;~S~ ~~~oS@c: ~J~~::Dt mG'Jc:J (J)
o@ ~ ~ ~~S1 ~fro o ~,cG!2GG[Xi3f:OJ&G;>?cb o1m~ro~~tc:
rn~ :E>Jo:J'} ~S:::o?:rnG;;~~ ~Sc~:rooS'ioS 6'10ji~:DtroG6'Jb
~.G'J~ ~g")~CC:D?o@alJ1021oS euGDC(D<l :) 9 (OJ) (~) G<l&)qE :I
:) 9 (ro)(?) 021GJsE: ~G?~CC:D'J:~~s'} G'[biO~fut :toSoaste::t I
~V)?I:loSE>tJOi2rn'Je::5 51~ @~Gco'JE,<l? ~f"?~tcGroS!:l'a~:ql ~Ee:
@-:: :G6'[:~:021@ro:rn02t:o o1 o . .. : ,. . . 25

8~c..D5::~(@EcoE<:jjoS)~r.n' 8UG:J \:)?oG ~~al)1 <JlbG?~'?I$'?71?01

97 to?:) o :t:i\~,8~w~p~!:l<loSeuGD<Jli~,~ o ~ 1o 10 o 10~ 1 'rJ
~c68?o.:>~p;;(5'S 021S~~'dGCY1j~C::o~~ Q~c8~&m~?~ G~'JD
f>'J c tGE;'JC: G0'J!:lf'JO E~" @:Qo5G:)2 :~u E ~oS~cmsp:~; mop:
Oi/@:o:JG'f'Jd)~ 8?00~~0t:G01~;j~GO?I'Jd)CX:01E>p OOS()1:ljl0:
m :)?:) G~~S1 8~m~p;; (@Eeoc~aS) :JioSeoGs<]>fill ? o GOG'[i
8~@,UJ~~G0@: ~to58~00~'J~~ !3<lS~c-1uc6~oS~oSGro~e?.l
~:~oS<]JoSt! .l~fo58~oog?romS~9]yoS~~Gf?oS <)~68~c..D
g?~: GaJ'J:;mo CGE>poS6pQ2C ;;Ji~C::06p:Q~.~Gro6m o CG6pcf
:6t
~oS(!;oS~ 8~ m~~0~ Gu:@E ~E::Pt 021 J (1J)')IJG(}Jc :u

~:~:9~ :8ro'J::P o1 o 71

8~22,m~'J~ (i9EcoE~oS)moSp,uG!:l ( o? oG ~ ~S), <(n<J ?o 1 6?w~

~0f:@E:1 ~fuS8?m5'J t~ !30S~a?GGCY.JlfO:D~f ~~58? w
g?~~ G0':SmOCpOo5 G0'J"m5~ ~80Jm ~20t ~82:
 GENERAL INDEX XXlll

.. PAGE

::..k:r.no;~u~'J20-::~[0 <lJ[b~ wspGoo'S~~'J~ ~:@d.i<lJ:fJ

GO~O 1}fc:2:J<J83J@~ qt:~m~@o'S~mG<.>:GCO:lJ~.I ~~:@d;
Cl]d)~ o ~(,l~::h~oS~toosp:g~r;;oo$)~8~ OJ ~~0~ :GO:b[ ~GO]'Jd)
CXl'J:sp~~0t:~o:eq~~cnc..S~:@d3~oS~5loSGroOJ~u J~:@oS
Qj:11 .lf>oS~toosp:g~:r;;ooS~ ::>? o'G ~~~~ 8?&0JS'J? (@[
wt911i) :J<JoSeoG:J~fi(,l ? o :3<lE>JI 8~0J ~~0~:Go:~to.:>&
:J;)'JC1D'JQ~G~I @d~:g~s; :8ro'J3J o1 01 O@::J(3 ~~~~ OJt;p:
9;lc;?~ooS~[~ ror;p:0~G.3J::J<J~r;;cgpd39;1'JOO~oS 9Cf ~~oS.p
::D~I

:G:J<J'JtO'J~~ toS~Soor;p:goor;p:O:(~: o1 IS 68

::J3:@'Jl::Dm3J'Jg~:J<Jm2UGO~Og Cf J 84

:J<J~G QT0-:~rf.i0'J8J~GmS-o1 c8;; G8):Gm'Jd3goj>t:eoG:J o'2 o )(? )1

0@ CfO ~~~ olc8g~Gl1G("])'JcfJg aomeoG:J<(EQ ~Cfl <ib~o~ ~~~
20t:~b<lJ[O~:J<JGS~80GD'itJ0 r;c; (o \ (~ )1 <(bg J::; 1To<;~~: J 1
((bg ~~ l ((b(S 0 "( ( Cf )1 ~5g "2(3 I ~b<.t 0 :J01 ~fig 0 '(I :::.3:@-:J~
xrSo.:>'Js9 moSec.:Ga C(bt> c; J 1GojpoScc'J:Oj?::D~I ('lS J o8
~9ct8GOJSG ..1E:~:G;~ ~ ~~I G2)1GO'Yld3g ot~01J0~cf
G~~'Jblt:o;sc CXl~~t:G\.9T@b GQS:))t20002oSJ oe 90 t~S I
ot c8g~G8J:Gm'JmgTccfJ8uG:JC(bg j 9 9~ ~0t:~D<lJ[b~mG[3i!l
eoGo C(bg '29 (o}(~) meq1 c1:5i~m'Jrooo02E: o1o3g~:J<J;,)oS
Gl:~oS~@t: l ()oo~Go:~tc:~g9G~~ o1~g~G1Gm'Jmg f>t:
eoGo O'(l ooeq~m4JC:Y]d3CJ'6d3:lji@~3Jt<.q ~CcGmS o.:>0mm
G0'1!ts'J6'()1 .~G01jt;3'J~rt_j~ GGOiJfO ~0~:~0~[5~ OOGEJQ
eoG:J<(Slol. J ~ 036)1 m~G<;~T0'J8j~GmS GCXjprt.ico-::6CO::Dtu
~l!lt:~O~[S~mG;;}euGa me>~: J ~oi~GOJ'J ~coms9m'?E>J;
C:jj'JW~ gc8~m::D~I c;t::JaGS~8UG8C(6{cl j J ffi!ijl GCSJ?rt.iCXlJ~
~bg~G~O{ OC1D'JGm~o;2d)~d)@~ {tcGo:>S5G~G~4J[OW GTc'Jd3o1
~6\Ecx?m~ OG~:mm'J:~~OJC::Dt.t~CcGOJS:JC02C:o~5i9raoS~( OJ)
Tcb~:IGOdl~tJm'J(~)IO@ 90 IO~~GW'JCi5 :JO::J l u:;x?:~d)~d)
11 uu1c{3gtGl;Gm-::;oS~ <JaoSeoGa <(bra J J ~ Gl!lT@co-:::Go:>"J
mz9naco6):~9 ml'J:fb.p~:l[~l'l"ll-:: : c8~oSo.:>~9, ~Ecw:S
:uramc;\) ~:@o'S2JoS:lJt ~0t:"'!o~[O~mG[3;}eoGJ~tlG ::>"2 ( 9)
m~Gmco'J:r;;o:o 1/rooo.9mG6'N~:~ c8~d.ir;;ro:ue;u ~CcGooS
o.:><Joo:ut OJ~o)~l ~b~[O~ffiGEJ~80"1Sl <(fig oo:'_) Tc6)1
c6sp:~b)tG6)~~9 :JC'JC1D'J~'J;~~:~oi'it1 stg<(f)G '(IS 006)1 o]djg~
mc;oSm~~ffiG8jl~91 G~aGo;~tz?ca~ c8~rG;;).)@~ g),~:
GmSm ~;tJ<JS~~ rnS(GOlT0'J8J~GmS@9 o<.{)~oS~tG0GCOo.)i.t
31 !51 o~tG1:~9G:J,;j al1 CJ'6to1: u1 ?I msp:~oSr;;mS<\:[0 mr;p:G
cvO):S{Tclo'S ?IS /":J:'J 6t:))tu gt~g~ ~S::::q[gto.:>'J:~'J:
XXlV GENERAL INDEX

PAGE

dil Gag9oaG6)~~~0Dcqj:~l ~:@~~t~$~ 8oGDGa6)!3001t~t;

. ~b~~:1 rot:q~oq:@oSbp~cut:l eOGD8a~C:GOO?Clcf.ib)~ O??O~
CSJCI ~Oil~Goo:Jtlcf.i<l]cf.io:>t qD9JlDG!;j:::>:>cf.io:>rbno06oS
GOO:JCjoS(;Gt I00bpl~S[CG6j!~Cq:> 8<\C\(00 S?tp:"jp:~~ !)O'JCU)')
~p~ o.?:~Goo~E)oSq:>GGpa3o:>t'&l ~:GCJ6: (G~T) GDOI ~:1 GD1:~
99 :azl~:~l O c;o ~~tl @~~J?(gt~6)t~: :;c;o ~~cS::S~:G~/jl~
B~Go:d:'\lB~G?~CCI oec; ~ ::r~5J B~>i?@t!31>)5~: 000
~o:>t&J oospl~6)tG6):~Er s-aC\(So g:;['=~9 Ga'J?<iJS:O~
~:2Goo?c81d3bp g]rn~::>:>tooe:e:oa?: - G9)08~GGo':::D ,5,p~0
G::D? GaS~~~oSC\3jtl ~QJ~cbG::D'JDOS~o:>t ::>:>:::r.)')OOJtp:;>t:
ro~:19G~oSe:1::>:>@$ Goot&@~CII ~:ot99::DCJ(~!GO':l):)? G@o:>?
9)CO:J ;G6):Gm'3~o31 0@ <; 0 y1bl B~G?@t ~li)C~: "2 ~ I e
Gag~o Q(J1!19:GrY.Ji'322~ I O@ ~ 0 <r5ltl B~G?@t~I>)C~: J :j o
~o:>tu oa@?:G::D? o:>d3o:>?s961~~E~I:l1@91 OOjGQT0?~
GooSDOS~~ ~wo~:J:~Sfl~G~tl{ 8oSoEm?:@tom@E~G~
G9J.i Gao;(dlWCl(G:J~9ooSOi(*~6): ~~?:G6)!o~ l GD31 ~c I
!JO'J(g)1 :::>@ ~~ ~q\&")1 OJ')CUOJffi':i! ~ 90 to:>t,l ~G-:>~1
GCSJ?d3co'):Oil::nt SS~0::noS sp DJ f.G ~r ID'Jj~GOJ'3 no~~~
GCSJ?mco'J:~Co:>t.i ::D'JG~~:G,J?:~cut: 0?6fJ:2~~to:>f.i
~:0oE:i982~t:o~l mGp:G6):o~@:~pf> 84

m~t.::<T0?8J+GooS-oSrooSG6-::5: noGcmoSGmS 1 Gad3eoGo <lSY

:::> G'( ( 0) oa::J)oS!JOGO)'JoSGooSJ~E :~:~noS~ I ::J)~')GO?S)g E:[!;:Jn
GalJ?.~n;JS~I ~<l8r.<Bab[l ooS~oS<io:>? <Jai3Gg::>:>t:xJd3~tGpo~t~
oo~d?~~ ~:;;o~0~tG::nSJcut:l rqjOOOGCO-:JCco:~~~ 20GDS~-:J~:
C!JoSicjj':J:O~ oa881oSGo::?d30i(@t: (Speaking Order).1 I;~:~ aS
"l)aS.1 .m~-JGOJS5"'5:@3:dil oatli1~8aS~~ooS~oS9~ GaJIGQt
~f,Gcnl)@~ GC\3J'Jd)GOJ~!JO 0>1 cQ~rf300GO)?d)GO?>_i gf;~:~
rot: GC\3J-::oSco'J:QE>}~oa@~:j~9co~~f1: <;C:~rnS~cRo1 O?C
~t::o<~d)6)~GOJ'Jt:~66)GC!J~t.1 IIOCrooSG6?c~oaGm:Jo5
GcpS rnoSeoGD~fi~,~ o lSi (o )~coo8~oS~tG::>:>? ~ai3Gg'lj'J~O~~:
oo~~~g'i) ~:oocooSG~G06)1 ~oo~:~otoS Oi)OO?Gco?tcoro g~
Gll6)o;(~o1~::>:>t I ~~?~:ClJoS836) o~t:oof~:~ ~:.;oooro~,~~'J:
G::D? oai3Ggd3Go:>S<;t:l Oi)bOOGOO?CcooS ~GJ?:G::D'J Dai3Gg~
G::>:>Sc;S: oo8~ro~5Gt~~G<lJ::>:>t.1 o~t~oo~~: ~:oocooSG~'J:
G0qo;(G::D?B~?~~qjaSs,tl ~~:;;o:).)trq]OO'JGCO?tcooS~,p:;:::n?
rn~ 9p:~ qt~~:::>:>tur Gm?oStJii6)1.ltr OiJSmGco'Jccoro ~s
G0"\ o;(G::D?~?f:qjoS::ni'&l 02?t:oofd?:f't1~1 <;b:)~:oo:xJt'
rqOooGCO?tGi9fG::D'J ~O>C:GJ:m~ 6)t~~:::>:>ttl{ Gro-?JoSOi(6)~t !
O':l)bCDGCO:JtCOroi,I~G0.~o;(G::D'J ~~?$:<l]oS::>:>Eri i ::oot:G~d) 11
o;(G::DJVOO?:?:@G.pG::JJ'JG(@')9 O'l?t:oo~~: ~:oocooSG'lj?:G06[
 GENERAL INDEX XXV

PAGE

~G.OJ'Jqj(Y,J'J;c;;'i;8<38~tloS~CY.JJ2~G.Q'Jt~GO<l'JtQ~[oSfl]oS~c.r li80GD
Bl5'J~:~d3~'J:~ O'<l881uS Gm'JoSCJj(spy-::ro~: @~:>~g<lld)c.~E
o1~Go:>:>0m'J:)_0~p~8<3'J1cqi ~881Ji~G8<3:>CGct.l'Jcf.jc..ll(6)GCf;~~ll .I
~::r.)(f5~Gm:>J3GmSYc~@:99 ::n~\~PGOJ5Ytz@:~y'JI <(5~ :::>~\)
(o) ~6jl ~(;jt~ts~ ~'Jctn'J~GO)'JG@'J9 Oif~~~6)tfl]009J?::::D~
(Speaking Order) @~@~ S<lOOCS<l:iJ'J: y'):UJC~yO)'JC\j]C~q;l~:t!S~
~'J:~ ~~:GooSm!:B~GdT 0'Jg)fGo:>S@~ ooS~oS~EO)~.I GOjj'JoS
9:p uoS~oSO)~II
O?J; o ~ooS(S) m~~Y~~::noS~~O?~')GOJS Qt:~~( o;)~OJ~:GspE::
otbG1.:)
~JIG~T0'J8)~GooSGo;r'JoSgp-o? o o ~~~~8~&m~'J~~oSeuGo<(5Y
J ~ (o) ~~ (J )rcr5Q J J (o) (m).1 Hb)tot~@r ~CcGroS8&m
~'J~O>'~ O? :::>0 yi~l G0'JOoj>'JOC5(8<3yOO 9 ~ 0EGQO!'l~ 8~~i~~
~:o~:~~ cx?:@oSGo:6)~ ~8oom~~:m ~ ~:o1:~foS ~:~:~
o1otcx?i@oS(5: Q~Ol6)~0J~02o5t:.r m~02oS~J'J~ ~m~02oS~6j
G::D<"J QOGpGo:>S~So1:99 c;c:~~:o.25o1o5GOJ'J ;;ospGooSooo1:
mo1 o6c%f.i G')c: r oJl@:OJtG.poS ~QObpGooS~:o1:0Jt
G0'J0-t''Jo 5sr~oooSrooS6'J ~'t'')@:. ~6JEflloSfllGooSw@cu!56Jccx?:@oS
fjjoS:::D~C\Jt: m~02o)~~r18<3!:Go:GOJ'J~6)Cfjjm@:@c:.l .1~:
@oS<lJd).! .rm~o;2iJ@t~~6)GOJ'J OOGpGOOSi~o1:0J~ m~02oS~oS
~p: ~o1utiS5:~C\jjt ~006pGOOS~pl:::>.:J~ m~o;;lo5<J;o5~j'J!!91VO
CClJ:~ (it:CY.Jj~GOJ'J 8~f:q oospGro.S~j'Ji6p ~:~oS~d:i~ .p@
66JG<jjYt.l. o:>~~~S<l'J:@~~GO)S CY.>~o;;loS<l]o59j-:: y~Ql~~
t:Oi/~i>J'J ~ccGooS8~t~~~oo6pGOJSmo:J'JC\jfC c9:@oS@~G'lJ
Yt.l rn5~CY.JJ~GO)'J ~CcGooS8't't:~~ro6pGo:>'S,;Jp~q:;m ())~02~
<jjcf.j~.J: GlG6')czcx?:@oSyO)')C\jj9 CY.>~CJ2rf5@t~Q6)GOJ'J ~CC Goo6
8?t:~qooGpGo:>S3~')~0Jt ~GII)')opoC5(~ rooSrooS~ '):p
~~C~:@o5Go:>~~~~t0C:l~.l ICY.>~02oSt:~~6)GO)'J Q06pGo:>5!~
u1:0J~mE:D:Jf~GOJ'J ~tcGro58~~:~~rospGo:>5<:p;~ ~~:
S<loS~C:J~~dJ SS~~OS~E ~:@oSGv:>S~ji~@c~:Dt ~?::JO
<r~E1 8?&mg')~~o5euGo~5C:J J ~~ t(fi~;~coS (J h-9 ~ootoose:
ro~CY.JJE GII)'JrJf')OSSi~ :noScooS~ Y'J:1'-:>G~:@oS~5.r ,,;;o
6pGo:>S ~w1:G~!5G)c~oS~oJ)llloS ~CcGoo58f&m~'Jf~ o:>D~
'):~')II)~G;;mcx?~@oSst~ !:BJio1Bt~OJ~oS~t.r
~:G~')cBm o1 9 ~: :11 ~tcGoo58~&m~pf 8<3CJ.2o5o:>')oF~
;;o6pG~5 ~~Gm'J~~ o1 @ ~: 37
 BURMA LAW .REPORTS

HIGH COURT

1957

Containing cases determined by the High Court

of the Union of Burma

U TUN MAUNG, B.A., B.L., Bm.-at-Law, EDITOR .

DR. :rvlAUNG MAUNG, B.L., LL.D., Bar.-at-Law. REPORTER.

lnclex p'reparecl by-MR. K. NGYI PEIK, B.A., B.L. (Advocate).

U 11YINT SOE, M.A., Bar.-at-Law.

Published under the authority of the President of the Union of

Burma by the su;e~intendent, Government Printing and Stationery,
Burma, Rangoon.

[All rights reserved]

HON'BLE JUDGES OF THE HIGH COURT" t>F
THE UNION OF BURMA DURING THE
YEAR 19.57
CHIEF JUSTICE
The Hon:ble Justice Thada Maha Thray Sithu
U CHAN TUN AuNG, B.A., B.L., Barrister-at-
Law, Chief Justice.

PUISNE JUDGES
The Hon'ble Justice 1\1aha Thray Sithu U SAN
MAUNG, B.Sc., l.C.S. (Retd.).
The Hon'ble Justice U AuNG THA GYAW, B.A.,
B.L. ~(from 1st January 1957 to 20th September
1957).
The Hon'ble Justice 1\!laha Thiri Thudhamma
U THAUNG SniN, B.Sc., I.C.S. (Retd.).
The Hon'ble Justice U AuNG KHINE, M.A.,
Barrister-at-Law.
The Hon'bl~. Justice U BA TROUNG, Barrister-at-
Law. "
The Hon'ble Justice Maha Thray Sitlm U Po ON,
B.A., B.L.
The Hon'ble Justice U SHu MAUNG, Barrister-
at-Law .
.. The Hon'ble Justice U BA NYUNT, Advocate.
The Hon'ble' Justice Thray Sithu U CROON .

FOUNG, B.A., B.L. (from 14th March 1957).

The HonJble Justice U MYA THEIN~ B.A., Barrister-
at-Law (from 21st September 1957).
 MEMBERS OF THE LAW REPORTING
. COUNCIL DURiNG THE YEAR 1957.
The Hon'ble Justic~ Thada Maha Thray Sithu
U CHAN TuN AUNG, Chief Justice of the High
Court (Chairman).

lV.lembers .
.
The Hon'ble Justi~e Maha Thray Sithu U SAN
MAUNG.
The Hon'ble Justice U AUNG THA GYAW (up to 21st
October 1957).
Th-e Hon'ble Justice U AUNG KHINE (from 21st
October 1957).
The Attorney-General, Burma.
DR. B'A HAN, M.A., Ph. D., D. Litt.,Barrister-at-Law
(up to 18th July 1957).
U TUN AUNG (1), B.A., B.L., Advocate (from 18th
July 1957) .
Rai Bahadur P. K. BASU, M.A., B.L., Advocate (up
to 18th July 1957).
.
MR. K. R . .YENKATRAM B.A., B.L. Barrister-at-Law
'
(frdn'l 18th July 1957).
'
U BA MAUNG, B.A., B.L., Advocate.
U TUN MAUNG, B.A., B.L., Barrister-at-Law (Editor).
DR. MAU NG MAUNG, B.A., B.L., LL.D., Barrister-
at-Law (Reporter).
U SAW BA THEIN, Registrar, High Court- Secretary
(frorh 1-1-57 to 21-3-57).
U tiN MAUNG, Registrar, High Court-Secretary
(from 22-3-57 to 21-7-57). 8
U SAw BA THEIN, Reg~trar, High Court-Secretary
(from 22-7-57 to 3 .1-12-57).
 CORRIGENDA

8d ~:n@ E;;a E41 oS u

O@~~ ~~ @~C:l'J~tc~Ei]t~~ ~~t~ o ''} c; 1 a:JGp:~d3GroS3m~l w
~d.i~p o '}aS~ l~ <D'J"Vrbp ? G~'JoS~~~~5o#o1m~-
,." ~lJlGGpoS~ xoSGm oo3:n'J:::D'JO 5 GOJ'JC~p:ro@:l ~GCJ'td)
~0@: '51~ S~:u::noSG:x> 5'10@:cGSJOJC''
~Go.J'J0C'D'Jl6]0~0'J:-
'' Od')oSGGpoS~ mrbG:x> oo3:n'J:x>'Jo 5 GOJ'Jo~p~ l0~:r ~~otoS
GOJ'Jr~p: ro@:l~ S~:u :x>rbG:x> 910~:~GS]C25 ''
~GOJ'J 00J'J~ 6]0@~ 8<l~'J:~: :noSjjo 16]~ G\,l~'J 6JO@o1m~ II

The following words appearing in the first line

of the second paragraph of the head-notes between
the word r;< agent" and the word " it " at page 322
of the Burma Law Reports, 1953, should be deleted:-

.
.,at the time of the foan"
 LIST OF CASES REPORTED

~b(tcqg~G8J'J. S?QCg~')g

!IIGH COURT

PAGE
Abdul Hai v. The Union of Burma ... 118
Ah };!Itaung v. Tbe Union of Burma and another 122
Ai Htwe and two others v. The Uilion of Burma 134
Daw Daw Shin and two others v. U Aung Pe and
two ~thers 5
__ Hla Ohn & Co. v. The Income-Tax Appellate
Tribunal 143
_ _ Hla Shin and .seven others v. Daw Aye Khin 242
___ Saw Myint v. Daw Mya Thin 152
Kamini Kumar Malick and one v. Zermaini Ranjan
..
Chowdhury 10
Ma Than Sein and three v. Daw Yi ... 251
_ _ Thaung v. Maung Pe Tin 259
Maung Kyaw Nyein and two others v. Maung Kyaw
Kyaw and one .. 266
___ So San v. The Union of Burma 157
___ Tha [Iaing v. Ma A in Tha 16
Messrl;. Arakan Carriers Syndicate v Chandmal Birla
a,pd two others . . . 273
_ ____ The Asiatic Corporation v. Messrs~ Mercantile
Bank of India. Ltd .. .. 288

p. S. K. Asee~al Beevi v. V. S. Syed Ammal and

eleven others 22
Q. S. Mariano. v. ~ J. Grant 164

3
Vlll LIST OF CASES REPORTED

PAGE
Ranchroddas Jethabhai & Co. v. The State Agricul-
tural Marketing Board and another 30

S. Sabir Hussain v. R.M.L. Ramanatha Chettiar .... 172

s. Sham v. The Union of Burma 55
Saw Tha Oo v. Ma Aye Thi 179
Sitaram v. The Superintendent, Rangoon Central.
Jail and another 190
The Commissioner of Income-Tax, Burma v. The
Burma Oil Company (Burma Concessions) Ltd. 316
Official Receiver, High Court, Rangoon and
one v. Tan Gwan Lye and another 63-
___ Union of Burma v. U Nyo 58.

U Ba Chit Tin v. The Union of Burmg, 196

_ Htan Hmat v. Daw Gon ... . 73
_ Kan Tha v. The Union of Burma (U Nyi Lay) 336
_ Khin Maung Gyi v. The Union of Burma 213
_ Kywe (a) U Aung Myint v. Daw Mya Mya
and one 88
_Saw and one v. Lake Mani (alias) Lo Mani 221
- Shwe Lone v. Mr. Kha Choung 106
_ Tl.a Hla v. The Municipal Corporation of,
Rangoon 224-
_Tin Eng v. U Ba Yoke 341
_ U Nyunt v. Daw Kyin Sin 230
_ Za Tila v. Union of Burma 237.

~1cJ3g')d3d5 ( G@T) GGOJ~~~l~ GOO I 8061 1')6p~ 155

80ctJ (~) :1 ~I<XlJ!l~ o1 Cj_ ~~@tGco'Jt~@~G')~CCGmS3 49
808)lG') C\J~ 5l9 GG80g , ~ 1

~g~~9 @tGco':lt~~G')~tcGooS3 102

~go:>2~ o1 J ~9 @tGco')tot~G':l~CcGmS) 67
~:B~9~ _GGrcgS . . 96.
 LIST OF CASES CITED

PAGE

A. P. Jost:ph v. E. H. Joseph, A.I.R. (1926) Ran. 186,

distinguished . . 175
Ahid Khondkar v. Mahendra Lal De, I.L.R. 42 Cal.
830, approved and followed 167
Ahsanul Haq and another v. King-Emperor, A.I.R.
(1949) Nag-. 327, referred to 162

Ali Akbar and others v. Khurshed Ali and another,
I.L.R. 27 AU. 695, referred to 168
Allen v . Farquharson Bros. & Co., (1932) 17 Tax
Cas:59 at 64, referred to 320
Ariadne Steamship' Company Ltd. v. -James
Mckelvie and Company, (1922) K.B.D. 5 18.
referred to 45
Audh Behari Singh v. Sailendra Nath Bhattacherjee,
A.I.R. (1954) Cal. 339, referred to 19
_Beijari Lal ahd others v. Faquir Rai and another,
A.I.R: (1951) All. 236, relied on 78
Aziz Khan v. Ekram Hussain. 38 C.L.J. 213, refer-
red to ... 56
Babulal v. Jagat Narain, A.I.R. (1952) Vindhya
Pradesh, 51, referred to 47
Bai Nemat~u v. Bai Nematullabu, 42 Born. 295.
;~;eferred
to 168
Baluswa tpi Aiyar v. Lakshmana Aiyar and three
others, I.L.R. 44 Mad. 605 at 6@8, relied on 276
Balvant Babaji Dhondge \1: Hirachand Gulachand
Gujar, 27 Born. 334, referred to 94
Bhagu Dhondf~v. Emperor, 16 C.L.J. (1915) 213 ... 56
Bhuban Mohan Rana v. Surendra Mohan Das, (1952)
{L.R. Cal. ~eries, Vol. II, 23, referred to 183
X LIST OF CASES CITED

PAGE
Bhub.an.Mohan Rana v. Surendra Mohan Das,(1952)
I.L.R. Cal. Vol II, p. 23, followed 339
Bisheshwar Pratap Sahi and another v. Parath Nath
and another, 61 I.C. 378, referred to 262
Booker v. Palmer, (1942) 2 All E.R. 674, referred to 349
Borthwick v. Bank of New Zealand, (1900) 6 Com.
Cas. 1 ... ... 297
Brazilian and Portuguese Bank v. British and
American Banking Corporation, (1868) 18 L.T.
~23. referred to 297

C.I.R. v. Falkirk Iron Co ., 17 T.C. 625, approved 326

Chinnaya v. U Kha, 14 Ran. ll, approved ,83
Clore v. Theatrical Properties Ltd., (1936) 3 All
E.R. 483, facts distinguished 347
Commissioner of Income-Tax, Burma v. Hajee
Abdul Ganny Ayoob, (1941) R.L.R. 529,
approved 322
Central Provinces
and Berar v. Sir S. Chitnavis, 59 LA. 290,
approved 322
Continental National Bank v National City Bahk of
New York. (1934) 69 F. (2d) 312. referrec1 to 300
.,
Cricklewood Property and Investment Trust v.
Leighton's Investment Trust, (1945) A.C. 221,
referred to 269

Daw Tol.;.e v. Ma Tin Ohn, 12 Ran. p. 703, referred to 250

Dawsons Bank Ltd. v. C. Ein Shaung. (1951) B .L.\~.
308 at 311, distinguished 256
Dayabhai Jiwandas and others v. A.M.M. Muruggapa
Chettiar. (1935) i'2 Ran. 457, referred to 154
Dies and another v. British and In'ternational Mining
and Finance Corporation, Limited, 1 K.B.
(1939) 724. referred to ' 115
Donald H. Scott & Co., Ltd. v. Bartlays Bank. Ltd.,
( 1923) 2 K.B.I., referred to 297
 LIST OF CASES CITED xi
PAGE
Dr. A." Karim and arl'other v. Pandit Laiq Ran and
others, (1939) R.L.R. 263, followed 228
_ Gordon Seagrave v: .
The Union of Burma,
(1952) B.L.R. 44 (S.C.), referred to 60
_u Chit and one v. Daw Ohn Yin, (1952) B.L.R.
176, followed 14

Errington' v. l::rrington and Woods, I.K .B. 290,

followed 348
Fairman v. Perpetual Investment Building Society.
(1923) A.C. 74 at 85, approved 354
Fir111 of Khushi Ram Behari Lal v. Mathra Das
and another, A.I.R. ( 1917) La h. 404, referred
to 42
Foster v.. Robinson, (1951) J.K.B. 149. referred to 349
Frey v. "sherburne and the National City Bank of
New York. (1920) 193 App. Div. 849 ; 184
N.Y. Supp. 661. referred to 300

Ghula m Muhammad and others v. The Crown.
through Musammat Allah Wasai. (1933) I.C.
512. refer_red to 240
Girisb Chaqder Lahiri v. Sasi Sekhareswar Roy,
I.L.R. 33 Cal. 329, referr!!d to ... 276
Gopal v. King-Emperor, (1925) A.I.R. Ran. 328 ... 57
Governor-General-in-Council v. Pandit Awadhoot,
I.L.R. (1946) Nag. 246, referred to 222
Gurbachan Singh Bindra v. Jos. E. Fernando, B.L.R.
(1950.\S.C.) 255, referred to 354

H. Pascal v. The Secretary of State in India in

Council. 12 Ran. 124, referred to 228
Hambro v. Burnand and ot..l.ers, (1904) K.B.D. 10,
referred to 42
Hans Muller,. of Nurenburg v. Superintendent,
Presidency Jail. Calcutta and others. A.I.R.
'(1952) (S.C.) 367, referred to 195
Xll LIST OF CASES CITED

Heap v. Hartley, (1889) L.R. 4:2 Ch. D~v. 461 at

16'3, referred to 129
Higgins and others v. John Seni9r, 58 Revised
Reports (1841-43), p. 884. referred to 44
Hiralal Hariram Bhatad v. Mt. Durga Bai Murlid-
har Marwadi, AI.R. (1937) Nag. 413, refer-
red to ... 85
Hup For v. The Deputy Commissioner. Inseiri and
two others. (1950) B.L.R. 86 (S.C.), referred to 127
Hurst v. Picture Theatres Ltd., I K.B., 1 (1915),
referred to 127
Husain Bhai and another v. Beltie Shah Gilani, 46
All. 733, referred to 19

In Re. C. Devanugraham, A.I.R. (1952), Mad. 725 ,

referred to 161
_ ___ Chouthmal Golapchand. (1938) I.T.R. (VI)
733=(1939) A.I.R. Cal. 559, referred to 325
Inder Pershad Singh v. Campbell, 7 Cal. 474, refer
red to '' 270
Indian Starch Products, Ltd. and another v. Control-
ler of Rents and another. B.L.R. (1950) (S.C.)
64, referred to 354

Jamsh~d Khodaram Irani v. Burjorji Dhunjibhai,

40 Born. 289 (P.C.), approved 83
Janardan Triumbak Gadre v. Martand Triumbak
Gadre, 45 Born. 241. referred to 18
Janki Kuar v. Lachmi Narain, 37 All. 535, referred to 93
K.K.S.A.R. Firm v. Maung Kya Nyun and ozi'e,
I.L.R. 5 Ran. 675, referred to 262
K. M. Modi v. Moh<j]ned Siddique, {1947) R.L.R.
423, followed 270
Khan Bahadur Haji Golan Sherazee v. Empress.
(1941) R.L.R. 599. relied on 52
- -- - - Hajee Gulam Sherazee v. The King,
(1941) R.L.R. 599 , referred to ... 188
 T T'lT OF CASES CITED xiii
I'AG~

King v.
David Allen"& Sons,)3illposting Ltd., (1916)
2 A.C. 54, distinguished 347
King-Emperor v. Nga Lpn Maung, I.L.R. 13 Ran.
570. referred to 264
Kshitish Chandra Mondal " Shiba Rani Debi and
others, A.I.R- ( 1950) Cal. 441. followed 270
Kunja Behari Cha)s:rabarti v. Krishna Dhan
Majumdar. (1940) 2 Cal. 477. referred to 93
Kyauksema v. Aparna Charan, 10 L.B.R. 326,
referred to 18
Kyi Chung York v. The Controller of Immigration,
Burma, (1951) B.L.R. 197 (S.C.), referred to... 194
L. Hoke Sein v. The Controller of Rents for the
City of Rangoon and one, (1949) B.L.R. (S.C.)
16,P. followed 65
Lake v. "Simmons, (1927) A.C. 487 at 499, referred
to 210
Luxrnan Anandroa and others v. Ramchandra
Wasudeo Aj~sty, A.I.R. {1938) Nag. 145,
referred to 263

M. Palaniapp?- Chettiar v. Narayanan Chettyar, 226

.
J.C.lll=A.I-R. (1946) Mad. 331, referred to
Ma Kyin Hone and others v. Ong Boon Hock and
306

others, A.I.R. (1937) Ran. 47, referred to 177

__ Gun Bon v~ Maung Po Kywe and another,
(1897-1901) U.B.R- (Buddhist Law. Inheritance)
p. 66, referred to 248
__ Mya 'I;' Maung Kywet, B.L.R., Agabeg Vol.
.
II. (1'905), p. 228. referred to
__ PwaShin v! U Po Sin and one, A.I.R. (1937)
250

R~n. 324 8 & 101

_ _ Thein v. Ma Mya and _one, I-L.R. 7 Ran. P 193,
199, referred to 249
Maganlal Pranjivaa Mehta v. Mrs. Charnpakunvar
Ratilal Mehta and others, ( 1952) B.L.R. (H.C.)
.192, referred to 154
XlV LIST OF OASES CITED

PA(}Ec

Malkarjun Bin Shidramappa Pas~re v. Narhari Bin

3h\'va-ppa, 27 I.. A. 216, relied on 99
Manepalli Satyanarayanamurthi v. Thommandra
Erikalappa, A.I.R. (1926) Mad. 410, referred to 115
Manoo Ali v. Hawabi. A.I.R. (1936) Ran. 63,
referred to 261
Markanda v. V.K.R. Naidu~ 26 Pat. 717, referred to 93
Matrumall Satnarain and others v. Mt: Rami, A.I.R.
(32) (1945) Pat. 463, relied on ... 13
Maung Ba Tu v. Ma Thet Su, 5 Ran. 785, approved 7
- - - Chit Po and one v- The Union of Burma,
( 1948) B.L.R. 175. followed 160
- - Wait and seven others v. Maung Nyein, U.B.R.
(1897-1901} 146, distinguished 100
- - - Zaw v. Maung Hla Din, I.L.R., 12 Ran. 163,
referred to 261
Mohamed Golab v. Mohamed Sulliman, 21 Cal. 613,
referred to 93
- - - - Idris Haider v. Mohamed Hab1bur Rah-
man, A.I.R. (35) ( 1948) Pat. 97, referred to 255
Mohendro Narain Chaturaj v. Gopal Mondul, 17
CaL 7 69, referred to 93
Mote .Shah and Co. Karad v. Commissioner of
Income-tax, Bombay South, Bombay, (1952) 22
I.T.R. 39, referred to 149
Muskett v. Hill and Tozer, 5 Bing. (N.C.) 694=Eng.
Reports 132 Common Pleas, 1267, referred to I 29
Mussammat Daropdi v. Mussammat Sada Kaur, 115
Punj. Record (1913) p. 436=22 I-C. 24:.:!,
approved 246
- - - - Durga Deyi v. Hans Raj and others
11 Lab . 402, referred to 19
N. A. Annamalai Chettyar v. Mohamed Yava and two
others, (1954) B.L.R. 86 (H.C.), referred tv ... 128
N . N. :Burjorjee v. Emperor, A.I.R. (1935) Ran. 453,
referred to 209
 LIST OF CASES CITED XV

PAGE

Nancy de Silva v. Unfon of Bu,rma, Criminal Appeal
No. 99 of 1957 (H.C.), followed 183
Nandalal Mullick v. Panch.anan Mukerjee, 45 Cal.
60, referred to 167
Narain Das and others v. Chiranji Lal, I.L~R. 47 AIL
361, referred to 168
.
O'Meara !=o. v . National Park Bank of New York,
(1925) 239 N.Y. 3~6; 146 N.E. 636, referred
to 300
Ockenden v. Henly, 120 English Reports (Vol. CXX)
K.B. 590, referred to 113
P. Aodul Gaffor v. The Official Assignee, 3 Ran.
605, followed 27
Parker v. Winlo\v, 119 English Reports, K.B. 1497,
ref6'rred
,. ... 45
, Patel Bald.evdas Karsandas v. Mohanlal Bapalal
Bahia, I.L.R. (1948) Bom. 145, referred to ... 93
Pattan Ahmed Khan v. Pyda Venkatachelamayya and
another, A.I.R. (1942) Mad. 511, dissented from 168
Piari Lal and others v. Mina MaL Balkishan Das,
( 1928) I.L.R. 50 All. 82. referred to 114
Queen v. Okijoy Coomar Shaw, (1874) 13 B.L.R. 307
_ (l874), 21 Weekly Reporter, Cr. 59, referred
to 181
Rai Sahib Chranji Lal and Sons v. Commissioner of
Income~ Tax, Punjab, (1937) 5 I.T.R., 44, referred
to 148
Rajah of Bo~bili v. Marandana Venku Naidu, A.I.R.
{1948) Mad. 340, referred to 168
Ram Ra.tin Lal v. Bhuri Begam. 38 All. 7, referred to 93
__ Sewak Koeri Mosadi Koeri v. R!ai Bahadur
Harihar Prasad Singh and one, A.I.R. (1927)
Ran. 175=5 B.L.J. 242, referred to 306
Ramalinga Adaviar and others v. Meenak
Shisundaram Pillai and others, A.I.R . (1925)
Mad. 177. referred to 84
 xvi LIST OF OASES CITED

PAGB
t Ramasami Reddi v. Thalawa~al Marudai Reddi,
, I~L.R. 47 Mad. 453, referred to .. . 133
Ramireddi v. Subbareddi, I.L.R. 12 Mad. 500.
referred to 234
Re Devabhai Jiwandas and others v. A.M.
Murugappa Chettiar, 13 Ran. 457, followed ... 27
Rhodesia Railways, Ltd. v. Income-tax Collector,
Bechuanaland Protectorate, (193:3) LT.~. 227
(P.C.), referred to ... 327

s. A. Nathan v. S. R. Samson, 9 Ran. 480, relied on 99

S.M. Ahmed and one v. Bakridi, (1951) B.L.R. 156
(H.C.), relied on 232
s. R. Raju v. The Assistant Controller of Rents,
Rangoon and two others. B.L.R. (1950) (S.C.)
10, referred to 354
' '
Sakhisona Dasi v. Gour Hari, A.I.R. (1952) Cal.
567, referred to 269
Satyabrata y . Mugreeram. A.I.R. (1954) (S. C.) 44,
referred to 269
Saw Tha Oo v. Ma Aye Thin. Criminal Revision
No. 112 (B) of 1957. fo1lowed ... 339
Shazadee Begam (a) Khin Khin Nyunt and one v. P. C.
Dutt, (1954) B.L.R. 34 (S.C.), referred to 235
Shepherd v . Robinson, L.R. (1919) 1 K.B.D. 474.
approved 256
Shyam Sundar Padhi and others v. Indramoni Das
and another. A.I.R. (1951) Orissa 46, reliedon 78 & 86
Sonaji v. Motiram, LL.R. (1949) Nag. 502. referred to 169
Soper v. Arnold. (1889) 14 A.C. 429. referred to ... 111
Sri P. Guruviah v. The Union of Burma. C.R.S. No.
163 of 1947, relied on 126
Subramanian Chettiar v. Sinnam3lal, 59 Mad. L.J.
634 at p. 640, approved 277

T. C. Leong and one v. U Po Thein. (1953) B.L.R. 1,

explained and distinguished 26,28
 LIST OF .CASES CITED XVH

PAGE

T. C. Leong and one 11. U Po .Thein, (1953) B.L.R.

(H.C.) 1, referred to ... 154
T. H. Khan v. Dawood Y~soof Abowath and others,
(1947) R.L.R. 354, relied on 13
T. Muhammad Shamsuddin Ravuthan & Brothers
v. Messrs. Shaw Wallace & Company, I.L.R.
( 1939) Mad. 282, referred. to 46
Tarahai :JivanlJl Parek-h v. Lala Padamchand,
A.I.R. (1950) Bum 89, referred to 269
Tarini Charan Chowdhry v. Amulya Ratan Roy,
I L.R. 20 Cal. 867, referred to 240
Thakarsi v. King-Emperor. I.L.R. Nag. (1949) 620,
''referred to 210
Than Myint v. The Union of Burma, (1 953) B.L.R.
342, referred to
~
141
The Emptess v. Pitambur Singh, I.L.R. 5 Cal. 566 56
King v. David Allen and Sons. Billposting Ltd.,
L. R. ( 1916) A.C. Vol. 2, p. 54, distinguished 131
King v. Secretary of State for Home Affairs,
( 1917) K.B.D. 922. referred to 195
Vellore Taluk Board. By its President v.
popalasami Naidu, I.L.R. (1915) 3g Mad. 801.
referred to 114
Thomas v. Sorrel, Eng. Reports 124, Common Pleas,
1098= Vaughan (330), referred to 128
Thompson v. Park, (1944) K.B. 408. referred to ... 349
Traders and Miners Ltd. v. Dhiredra Nath Banerjee,
23 Pat. 115 94
'
U Ba. Pe v."MaSaw Yin,(1951) B.L.R.113. approved 4
_ Ohn Khin v. Daw Sein Yin, (1949) B.L.R. 201.
foflowed .. . 27
- San Wa and others v. U .Chit San and another,
9 .Ran. 354, referred to 18
- Sein Ban ,.._,_ The Union of Burma, Criminal
Appeal No. 107 of 1955 of the High Court.
Rangoon, referred to 61
XVlll LIST OF CASES CITED

PAGE

U Wa Gyi v. The Union of Bl!rma. (1gq8) B.L.R.

, 6!12, referred to 18 8
Union Bank of Canada v. Cole, (1877) 47 L.J.C.P.
100, referred to 297
____ of Burma v. Maung Maung and two, B.L.R.
(1949) (H.C.) p. 1 at 12, referred to 264-
Universal Steam Navigation Company J:-,td. v. James
Makelvie and Company, (1923) A.c: 492;
referred to 45

V.P.R.V. Chokalingam Chetty v. Seethai Acha and

others, I.L.R. 6 Ran. 29 (P.C.), distinguished 275
V. R. M. Ramaswamy Chettyar and another v.
C.T.M.N. Nachiappa Chettyar. R.L.R. (1939)
711. referred to 177
V. V. Reddy v. K. C. Reddy, (1941) R.L.R. 547~
referred to 186

Walton Harvey Limited v. Walker and Homfrays,

{1931) L.R. 1 Ch. Div. 274, distinguished 132
Winter Garden Theatre (London) Ltd. v. Millenium
Productions, (1946) 1 All E.R. at p. 685 ;
( 1948) A.C. at PP 189-91. referred to 349
Wood v. Leadbitter, 13 M & W. 838, referred to' .:. 348
Woomesh Chandra Datta Chowdhury v. Jabed Ali and
others, A.I.R. (1944) Cal. p. 42=211 I.C. 388.
~~~ w
Yusofalli Mulla Noorbhoy v. The King, 76 LA.
(1948-49) 158, followed 160
 INDEX

PAGE
ACTS:

BUR~! A .EXCISE ~-\CT.

CHI~ HILLS REGULATIOXS, 1596.

CITY OF RA;)IGOON :\lt:;>;JC.:JPAL ACT.

CIVIL PROCEDURE CODE.

COXTRACT ACT.
C~DflNAJ. PROCEDURE CODE.

E~L;L!S!i lNCO)JE-TAx A cT.

E x CISE AcT,
ExTRApiTION AcT.
FOREIG~ERS AcT.
GENERAL CLAUSES ACT.

hD!!GRATION (E)IERGENCY PROVISIONS) ACT.

l xco~!E-TAX ACT (BfR)IA).

LnnTA'Cio::>~ AcT.
PENAL CoDE.

SALE OF GOOD~ AcT.

St:PPRESSi<>!i OF BR!DERY AND CoRRUPYI0::-1 ACT.
TRADE DISPJ)TES ACT ,
TRANSFER OF PROPERTY ..\CT.
- - - - !M)IO\'EABLE PIWPERTY ( RESTRICTION) AcT.

()~ JON JuDICIARY ACT.

/URBAN RENT CONTHOL ACT.
"ACQUITTAL" FOr! DEFECTIVE S ANCTlOI'<-NO BAR TO FRESH Tr!!AL 157

ADmNISTR.nHiN ~urT-Order for payment ofmaitzfcnatlCC allowauce
fo!' t!te. Respo11dent a11d lzer four chrldrcn duriug tltc
j>ciUtell(;y of the administr<~ tion suit - Such order, w!rdhcr a
"Jud!!,mcut "withi11 tile metmi11g of s. 20 of tire Union Judiciary
Act or a11 appealable order tmder Otder 43, J?ulc 1 of tlte Chil
Pr ocedure Code? The R~spondcnt filecl an adtnini:>tration suit
against the appellant and o~ta ined an orcler for payment of
maintenance allowance . dunn g the pendency of the suit.
The appellant appealed agai nst this order. H <ld: The ~ppea l
is not maint~inable, bec::tuse the order is neither a judgment
within the nean i ll~ of s. 20 of the Union Jud iciary Act, nor an
appealable order Lmder Order 43, Rule 1, Civi l Procedure Code.
Mc..f!ll1tlal Pra"jivat~ ,lfcltta v. Mrs. Clramfal:tmvar Ratital
ltlcltftl a11d .otJ~ers, (1952) B.L.R. (H.C.) 192; DayaUttri
XX GENERAL INDEX

,, PAGE

Jiwqndfls 1111d others v. A.M.M. Mz<~uggapa Chettim, (19351 12

R.\n p. 457 ; T. C. Leong aud 011e v. U Po Thci11, (1953) B.L.R.
{H ,C.) p. 1, referred to.
DAW SAW MYINT !1. DAW MYA THil\ 152

APPEAL-CONTINUATJO:;" OF A SUIT 273

APPELLATE CoURT-POWERS CONFERRED TO IT IN APPEALS 273
APPEAl-S TO ASS!STANT CmB!ISSIONER OF 1:-ICOME-TAX AGAINST
ORDERS OF ASSESSMENT JlY INCOME-TAX 0FFlCER-Rc7eCt:on
of applicatiJu made during Pmaeucy of tire ai>Peals. for
:Permissiou for registtatiolz of the firm ~mder Rtzl~ Z{c) of the
Burma Income-Tax Rilles, I vide Notification No. 37 of tIre Office
of the Fiuarzcial Commissioner, dated the 21st APril 1939)-
Furtfler appeals to the Income-Tax Appellate Tribzmal n1zdcr
s. 33-A, Burma I11come-Tax Act, against the confinnati01z of tile
Jucome-Ta.~ Officer's assessmeuf a11d also against the reJection
of tire application for :Permission by the Assistant Commissio1zer,
dismissal of-Application to liiCoJIIe-Tax APPellate Tdbzmal
mrder s. 66 (1), Burma Iucome-Tn~: Act to slate a case to Hrgh
Court, refttsal tiJereof-.4/>PlicatioJz under sub-s. {2) of s. 66,
f!Jurma Iucome-Ta.t' Ad to the High C-;urt requiring t!Je lucome-
Tax AP Pella! e Trib1111al to state a case on questiotz Of Law.
Held: The rule that the assessee requiring the Income-T"lx
Appellate Tribunal to refer questions of Law to High C, urt
s hould formul~te tlie questions he wants to refer is a rule c,f
practice based on consideration of comenier.ce to prot(ct the
Court from unnecessary apl)!ication tlnder sub-s. (2) of s. 66 of
the Income-Tax Act. The Appellate Tribunal is not bound to
refer only the questions so formtJated. In cases where the
Appellate Tribunal refused to state the case un8er sub-s. (2) on
the ground that no point of law arises, the High Court, under
subs. (2) if not satisfied with. _the mrrectness of the Appellate
TribLinal's view, can require the Appellate Tribunal to state the
caGe, i.e. the case which the Appellate Tribunal ought to have
stated under sub-s. !2) and to refer the case to the High Court.
Howe,er, the actual framing of the questions rests wilh the
Ar~ellate Tribunal. Held also: An application under Rule (2}
(c) of the Income-Tax Rules is not by itself an application for
registration. All that the appellate Assistant Commissigner of
Income-Tax is in effect empowered to do under that Rde is
either to condone the delay, or to refuse to condone the delay in
preferring an application br registration of a firm under s, 26-A
of the Income-Tax Act. The Appellate Assistant Commi~sioner
of Income-Tax has no authority under that Rule either to allow
or disallow registration. Heldfur!frer: A decision affecting the
very quantum of assessment according to whether a particular
assessee firm is registered or not registered, or whether
permission for registration should or shot 11 not be granted, or
whether there are sufficient materials to justify the rejection or
acceptance of such an application, even thotgh such a decision
can be said to have been left to the direction of the Income-Tax
authorities, yet !he question as to whet.her such d;scretion has been
exercised perversely, illegally or arbitrarily is a question of Law.
Rai Salzib Cftranji Lal and Som v. Commissiouer of Income-Tax,
Ptwiab. (1937) 5 I.T.R. 44; ltlote Shalz and Co. ,l(mad v.
Commissio11cr of Income-Tax, Bombay South, Bombay, (1952)
22 I.'.r.R. 39.
DAW HLA O:JN & Co. v. THE INCOME-TAX APPELLATE
TRIBUNAL 143
 GENERAL INDEX xxi
PAGE

A!'PI.ICATJO:;; TO SUE iu fo,cma pauper~s-Rcjcction mzdcr Order 33,

Rule 4 (4) Code of C-ivil Proccdttrc-Appcal ttuder Rule 7,"
Originnl Stde Rule.; (Civil) -S. 204 (I) City of Raugcon Muuicipal
Act. Held: I tlle Rangoon Corporation or its Office! s are sued
for ads done in their Oli1c:ial 'capacity it must be deemed thr,t they
were doing them in pursuance or execution or intended execution
under the provisions of the Rangoon Municip:-.1 Act. Ci vii First
Appeal No. 61 of 1955, referred to. Heldfurtlzer: T'.here is
nothing in Rule 4 or in any other rule in Order 33 which expressly
prohibits tile consideration and determination by the Court of
tho>e circumstan:es under cl~.uses (a) or (b, or (c) after i,suc of
notice ~nd he<.-ring of uw case under Order 33, Rule 4.
Dr. A. Karim and a11othcr v. Paudit Lui] Ran a1:d others,
(1939) R.L.R. p. 263, follo\\'ed. H. Pascal v. Tltc SecretarY of
State i11l11dia in Cozmcil, 12 Ran. p. 124, referred to.
U THA HLA V. THE MUNICIPAL CORPORATION OF RANGOON 224

APPLICATION UNDER S. 491 OF THE CRIMINAL PROCEDURE CODE FOR

DIRECTION IN '1'1-!E NATUWo OF habeas corpus-Foreiguers Act, s.
J(b) and 4 (2)-Burma E~tmdition Acts. 3 (2J-Preamble of a11
Act, w!te1l to be C011Stll/ed. The ;tpplicant was arrested unders. 3
(2) of the Burma Extr:tdition Act. HeJprliecl under s.,91 of the
Criminal P.-ocedure Code for a direction in the nature of htrbeas
cor{ms. and the High Court ordered his release. But a few days
before t~1e order of rele~1se was passed, he was served with :l n
order under s. 3 (b) of the Foreigners Act to remove him~df from
the Union of Hurma. The applicant then applied for a w rit of
hal:ea s corPus in the St:preme Court and wl1ile the application was
pending, the order was cancelled and his release was ordered by
the Supreme Conrt. Upon his release, a fresh urcer was issued by
the President of !he L~ion of Burma under s. 3 (b) of the Foreigners
Act in Foreign Office Memorandum No. 431 Nga Kba 55, dated
8th September 1956. Thereupon, the applicnnt filed an applica-
tion under s. 491 Criminnl PriJcedure Code. Held: Tllat the
fact that actio fl. had been taken against the applicant unsuccessfully
un.der the Burma Extradition Act cannot preclude an order be ing
plssed agltl!~st him under s. 3 (bJ of the Foreigners Act. Iia.m
Muller of Nurenburg v. Suteriutcndcut, Prcsidctrcyl ail, Calc11tfa
aud ct fr; rs, A.I.R. ( !952 ) (S.C.) p. 367, referred to. Held also':
S. 3 (b) of the Foreigners Act is couched in a language which is
not open to doubt and therefore the preamble ofthe Act need not
be consulted for the purposes of interpreting the Section. Max-
w ell on Interpretation of Statutes, NinU1 Edition pp, 46 and 48,
referred to. Held further: So long as the person concerned is
a foreigner it is not the Courts of law to qnestion the desirability
or otherwise of .his deportation under s. 3 (b) of the Foreigners Act.
This. matte'r is entirely within the province ol the e~ecutive
authorities. Kyi Chung York v. Tile Controller of Jmmigratio11,
Bt~1ma, (1951) B.L.r~. p . 197 (S.C.); T!Je King v. Secretary of
State for Home Affairs, (1917) !(.B.D. p. 9Z2, relied on.
4

S HARA::-.1 'II THE SUPERINTEl'<DENT, a,\NGOO:-J CENTRAL

JA.ILAND ANOTHER ... 190'
APPOINnlENT o~ RECEIVER, 0RDiR XL, RULE 1, CIVIL Pl\OCEDURE
CooE.:.._Order rckcti11g, whether appclaabfe-Ordcr XLII I, Rule 1,
Civil Pro ccd~,.c Code-S. 20, C1zion Judiciary Act, 19-!8. Held:
An Order made by a judge rn tlle Ori gina! Side of the High
Court coming under Order XLIII, Rule I, C1vil Procedure Code
is >Jppcalable. P. Abdul Gaffor v. The Official Assiguce, 3 Ran,
p . 605 ; U 0/uz !flzin v , Daw Seiu Yiu, (1949) B.L.R. p. 201 ; Re
:X XU GENERAL INDEX

PAG2

Dc-abllai Jiwaurlas aud others v. 4. M. Naru'i;aPPa Cltelliar, 13

J?;at. p. 457, followed ; T. C. Lcoug aud 011e v, U Po T/ieiu, ( 1953)
B.L.R. p. 1, er.plained and distinguished.
P. S. K. ASEEZAL BEE VI 'iJ, V, S. SYED .il.~!~lAL AND OTHERS 22

BANKERS DUTY IN RESPECT OF LETTERS OF CREDIT 238

BLOOD TEsT OF CHILD 1'0 ASCERTAIN PARENTAGE !}I }!A!NTENANCI':

PROCEEDIKGS-NO LA \V TO ALLOW THIS ... 155.

BUR~!ESE BUDDHIST LAw-Suit for parf~{iim-Mai;.tai1lability.

Held: A suit for partition and po~session among Buimese
Buddhist hdrs i~ not mai11Lainablc in Law. The on'y way in
which one htir can obtain his share of inheritance from lhe
other heirs is by an administration suit. Matlltf! Ba Ttt v. Ma
Thct Su, 5 Ran. p. i~5; Ma BwaS!tiu v. U Po Siu aud another,
A.I.R. (l937) Ran. 32~. approved .
DAW DAW SHI N AND TWO OTHERS v. U AUNG PE AND TWO
OTHERS 5
BURMESE BUDI)HIST LAW-Claim by cltildrcn of a Slef>falhcr by a
subsequent marriag. to the est ate of the deceased ;tep-cilild of a
former marriage--.Attclldaucc in illness a11d Performa11CC '' of
ftmcral obsequies-'' ht!ermeddling ., within t ile pur:icw of s. 2
tl 1) of tire Civil Procedr1rc CJde. Can the c hild ren of a step-father
by a ~ ub sequent m'trriage succeed to the estate of th! de~cas ed
step-child of a .former nnrringe 1 H c:d: A step-child of a
step-father's former marriage, once he seve; s his connection
with U1e step f'lther on the latte r's re-marriagf- is no more a
member ol the step-father's new family and as such he is a
stranger so far a s that new family is concerned in matters (,
succession and inheritance. Ma Gtm Bm v. Nazmg P) Kywc
nndan<Jtllcr, (1897-1901) U.B.R (Buddhist Law, Inheritance),
p, 66, distinguished. J,la Tltciu v, M a illy~ a11d 01r~, 7 Ran.
p. 193 at p. 199, referred to. Held fztrllicl: That .person~
naturally entitled to inherit can b~ e~ c l udcd from in!\'eritancc
b}' the person who supports the rlecea~ed and rerforms the
funeral ceremonies. .ill a lllya v. lllatmR K~wct, B.L. R. Aga beg,
Vol. II, 1905, p. 228; Daw Toke v. Ma Till Oh;t,12 Ran. p. 703,
U Gaun g's "A Digest of the Burmese Buddhist L1w" [Vol. I,
Inheritance, p. 388), s. 816 at p. 38/, Dhammathatkyaw
referred to. Held al.<o: That the very word "Intermeddling"
connotes interference by a person either acting bv himself or
through some one with the properties of a deceased person
which do not really concern him. To justifv acceptan;.e of a
person as legal rcpres ; ntative in tl1e sense of an interm:;!ddler
with reference to certain property, it m:1st clearly be shown th at
he Ins taken pos~ession of s:tch p:opcrty as an intenneddler ..
That unle;s one has in fact taken possession of the decea~~d
person's es tate, one Caflnot be held to be :tn intermeddler a nd be
accepted as his legal reprecentative within the purview of s. 2
(11) of the Civil Procedure Code; ilfussanrmat Daropdi v.
lJ!ussammal Sad a Kartr, 11 5 Punj. Record,(l9J3) p. 436-22
I. C. 242; Woo mesh Chall(/ra Dutta Cfrolcdlmry v. Jabcd Ali aud
otliers, A.LR. (1944) CaL 42 =211 I. C. 3SS, approved. "'

DAW HLA SHIN AND SEVE!< OTHEfi!S <'. DAw AYE KHIN 2H
BUYERS [~E~lEDY AGAINST SET.LER 289
 GENERAL INDEX XXlll

PAGE
CHl:-1 HILLS REGULATIONS OF 1896-WHETI!ER STILL IN FORCE .134
CITY OF RANGOON iVIUNIC!P.~L Ac1~ s. 204 (1) .224
CIVIL P!WCEDC'RE CorE, ~. I 07, ORDER 43, RULE 1 fw) AND ORDER
47, RULE 7-A.PP /late Court, ~o!tc/ her Precluthd fr,mz quedioni11g
tl:e proPriety of a rci~w granted by tire Lowa Court 011 the
grouwl of i1zsufjicieucy of C'ilidCIICC-ftitaPrctatioll of the word
'' Strict troof" i11 Order 47, Rule 4. Held: Order 43, I~ule l
!'<v) must be read together ,with Orcer 47, Rule 7 :>f lhe Code of
Civil rrot!edure. 1he phra~.e '' Strid proof" in Order 47, Rule
4 refer$ to the fonnal correctne$s of the evidence offered and not
to its effect or res~tlt and so far as the sufficiencv of eYi(lence
is concerned it is purely a m1tter to betaken care of by the ori!(i-
naj court, and the appella~e Conrt is precl,tded from going into
the suffi::iency of Ihe quantull1 nf the evidence adduce:!. Ahid
Khoudkar v. Malicudra Lal De, I.L. R. 42 Cat. 830, arproved and
followed; Nandalal Mullick v Pa1zcltanan ~ftlkcrjec, 45 Cal. p.
60 ;Bai Nemalbu v. Ba i Nematullab11, 42 Dom. 195 ; Ali Akbar
and others v. [(/wrsl1ed Ali and attotller, I.L.R 27:All. p 695 ;
Ra}alt of Bobbiliv. Mara11da1;a V~nku Naidu, A.I.R (1948] Mad.
340; Naraiu D.rs and others '" Clliran;i Lal, I.L. R 47 AIL p.
361, referr<:d to; l'attau Afrmad Khatl v. Pyda Vertkatachel,r-
mayya a1td another, A.LR. (1942) Mad. 511, dissented from;
SvtwJi v. :tfotiram, I.L.R. (1949] Nag. p. 502, referred to.

Q. S. MARlANO 'IJ, C. J. GRANT 164

CIVIL PROCEDUHE CODE-Order 41. Rule 20 read with Rule 33, 01der
1, Rule 10 rtad witlz s. 107. .The firm of Chandmal Nathmal
claimed a sum of Rs 5,006-14-9 aucl not knowing exactly from
which of the four defendants, namely : -
(i) British India Ste:tm Navigation Company,
(ii) The Ar."lkan Carriers Syndicate,
(iii] The Port Otlic~r. Akvab and
(iv) Tll'e.Union of Burma:

filed a s~tit against all of them, leaving to the Court to deter.ninc

which defendant is liable. The trial Court decreed the suit
against the Ar tk.m C:trrie;s Syndicate alone, dismissing the st it
against the rest. The Arakan Carriers Syndi<:ate filed an appeal
;~gains! the finn alone, without impleading the co-defendants as
co-Responc!ents. The Firm also dicl not appeal against the
judgment and decree dismissing the suit against the other
co-defendants. Th~ High Court, on app<!al directed under Order
41, Rule 20 rrad with Rde 33, Civil Procedure Code to implead
the 3rd defen"dant, the P0rt Officer, Akyab, as a co-Respondent
in the appeal. It was ~:ontended that tile Port Officer should t: ot
be impleaded since no appeal was fi!ecl a~ainst him and that the
period or limitation had expired. Held : An appe;tl is but a
continuation of the suit nnd the powers of the appellate Court
cannot be limited by Order 41. R,:tle 20; th e appellate Court still
has t!le power to ad nncler Order 1, Rule 10 read with s. 107 of
the Code of Civil Procedure. Iicld also : The powers
conferred upon !h~ appellate Court by Order 41, Rule 33, Cidl
Procedure Code are Yery wide and the question of limitdion
cannot be urg ed as a g!"ound <~i!ainst the exerci8e of tl1e Court's
cliscreJion under lhis I~ule, V.P.RY. Cltok,rlingam Cl.-efty v.
Seci!ICii Aclw aud olhus, I.L.R. 6 Ran . 29 (P.C.), distin-
guished. Girislt Cl:audcr La/liri v. Sasi S eklrareowar Rt>y, I.L R.
33 Cal. 329, referred to. Balttswami Aiyar ~-. Lahsltmana Aiyar

4
XXlV GENERAL INDEX

PAG$

d11d three others, I.L.R. 44 l\I:ad. 605 at 608, relied on.

Subrnwauin11 Cilettiar v. Simtammal, 59 Mac!. L.J. 634 at p. 640,
approved. ,
:MEssRS. ARAKA~ CARRIERS SYNDICATE V. CHASO~!AL BIRLA
AND TWO OTHERS 273
.CIVIL PROCEDURE CoDE:, SS. 2 (2), 47 16
- - - - - - - - - s . 107, 0 1, H, 10 273
-------s.114 259
------------------0. 21, R. 90 88
- - - - - - - - - - 0 . 23, R. 1 (2), 0. 41 1 R: 23 230
---0.33, R. 4 (4) 224
- - - - - - - - - 0 . 40, R.l, 0. 43, R. 1 22
- - - - - - - - 0 . 43, R. 1 164
- - - - 0 . 47, R. 1. 259
:c.J.~f.~l!SSfON-lSSUE OF-FOR EXAMINATION OF WITl\ESSES IN A
DISTANT COUNTRY ... 289
"CONFESSION "-IRREGULARITY IN RECORDING-HOW CURED,, 134
,CONTRACT AcT, ss. 230, 233 - Burmcse A gencies Ltd. is the Purcflasi1lg
Agent of the S.A.M.B, A special term of tlte co11tract
bctwcett them was tltal all Procuremeuts 11mst be Paid for by
tllC Agent out of !Jis own money at first aud subscqttc11tly
claim for reimbursement from tltc S.A .!Jl.Bi Burmese Agencies
contracted with the plaintiff for the purchase of rice in their
personal capacity, 110 mention whatsoev er being made that
they were buying or acting on behalf of the S.A.M.B. except at
the beginning 0f the contract form that they were the agents
of the S.t\. ~I. B. The Plaintiffs sued both the s.A.M.B. ;Jud
the Burmese Agencies for payment of rice, cont endi~:g th,lt both
the principal an d the agent are liable on the contracts. The 5.A.
'M.B. replied that the Burmese Agencies were primarily liabie
to the p laintiff and they i.e. the Burmese Agencies are liable to be
reimbursed by them subsequently for such payment. The
Burmese Agencies contended that they were clearly acting as
Agents and that the plaintiff should look [or payment to the
S.A. i\LB. the principal. The question is which of the two
defendants are liable? Held: The Burmese Agencies by
executing the5e contracts in their own name made themsehes
li:lble and the S.A.llf.B. being the principals cnUtled to the'
benefit of the contracts are also liable. Tire India I) Company
Act, (l882) 18 Cal. p. 31 ; Firm of K!Jusfli Ram Bcltari Lal'
v. Matlrra Dasa11d a nother, A.I.R. (l91i)Lah. p. 404; llambro
v . Bumand a11d othc1s, (1904) K.B.D. p. 10; Higgir:s and,
others v. John S(}:7iOI", 58 Revised Reports (1841-43) p. 884 ;
Parker v. Winlow, 119 English Heport, ILI:l. 1497; Universal
Steam Navigation Company Z:.td. v. James Makclvic and
Company, {1923) A. C. p. 492; A1iadue Steams/tip Co., Ltd. v.
James Mckelvie & Co., (1922} K.B.D. p. 518; J. Muhammad
Sfwmsrtddirl /(evutTzan & Bros. mtd otlurs v. J.fessrs. Shaw
Wallace aud ComPanY. I .L.H. (19391 l\Iad. 282; Babulal ,..
Japat Naraw, A.I.R 11952) Vindhya Pradesh 51, referred t?,
RAXCI!HODPAS }ETHABHAI & COMPANY ~ THE STATE
A GRicvLTUHAL MARKETING BoARD AND ANOTHER 30
 GENERAL INDEX XXV

";AGE
CONTRACT AcT, s. 24 172
-----s.56 122
- - - - - - s. 56 266
- - - - - - - s s . 57, 58 172
-----~s. 73 106
s. 74 74
Co~TRA~T OF SALE-Time tile essence of Collllact--E.wcttliOiz of
Compromise dccr1:e-S. 7-1-, Contract Act, aPPlication ojequitnble
prmc'iplcs-Issue depcndinf! 011 credibility of wrltJesscs-An
APPellate Court nnd tire jiudi11gs of fact by tire trial Cottrt-
Stipulatiou trmt if Seller could not give Possession to the
buyer 011 or before a sPecified date, tire Purchase price <i!ould
be reduced from K 34,000 to K 20,000 whet Iter a Penalty. The
Appellant sued the Responcl~ut for specific performance of
contract of sale and the suit was compromised on the !allowing
amongst other terrr:s : -
{i) That the plaintiff 1Vould purchase the suit property for a
snm of K 34,000 if the defendant was in a position to ghe
vapmt possession on or before the 11th March 1952.
,. (ii) That if the defendant was unable to give vacant
possession of the pr(Jperty on or before the 11th March 1952
the price payable by the plaintiff to the defendant should be
K 20,000.
On defendant's failure to give possession on lHh March 1952
the appellant applifd {or the execution of the compromise
decree. The tri~l Court hclcl-
(1) That time was of the essence of the contract.
{2) That default was due to a third party and not to any act
of negligence or lack of g ood faith on !hi! part of the
Respondcn t,
(3)~That the judgment-debtor \vas entitled to indulgence
and equitable principles laid clowr: in s. 74, Contrac t
Act and therefore the appellant would be entitlec:, to
:1 convepnce upon p;1yment of K 34,000 in terms of
the first clause of the consent Decree, relying on A udlt
Eelzari Lal a1zd otl:ers v. Faquir Rni and mrot/ler,
!\.I.R. ( 1951) All. 236 ; S!ryam Smzdar Pad!ti a11dotlrcrs
v. lndramo11i Das a11d anotlzcr, ;\.I.R. {1951) Orissa
46.
On appeal by the appellant. Held, where there is a conflict
Of oral evidence, and the issue in the case depend s upon
the cl"edibility oi the witnesses a Court of appeal ought to
bear in mind that it does not see or rehear the witnesses
and should not interfere with a decision arrived at by
th~ trial Judg e unless it comes to the conclt~sion that the
trial Court was plainly wrong. Clzirl11ayaev. U lOra, 14 Ran. 11
appro\ed. Held also : Under the circumstances of the case,
time was of the ess ence ol contract, though in contracts for the
sale of land Equity looks r.ot at the letter but at the substance
of the agreement in order to ascertain whether lhe parties,
notwith stitndirrg that they named a specific time within which
completion was to take place, really intended no more than that
it should take place within a reasonable time. Jamshcd
K!zod.!lam lrmzi v. Bttl}OI'jl D/tzmjiblrai, 40 Born. 289 (P.C.)
approved. Held also: In the circumstances of the case, the
s tipulafio,l that if vacant possession could not be given on or
XXVI GENERAL INDEX .

PAGE-

before 11th March 1952, the price should be reduced from

K 34,C'OO to K 20,000 w:::s a stipulation in the nature of penalty.
Ramaliuga Ada:iar l!lzd ethers v. lolcet~ali S!zi.<zmdartrm Pillai
aud otllcrs, A,I.R. (1-925) i\lad. 177; Hiralal liariram Bltalad
v. Mt. Darga Bai Murlidlzar Naruadi, A.l.R. (193i} Nag. 413,
referred to. field furiltC1': A compromise decree merely
embodies the agreement arrhed at between the parties and is
therefore no more than any other contract between them.
Shyam Stmdar Padltiand others v. lndramoni Pas and a11of her,
A.I.R. (1951) Orissa 46, referred to. Ordered a redl!.~tion Cl
K 5,000 from the stipulated price of K 34,000.
U HTAN H1IAT t'. DAW GoN
COUNSEL'S AUTHORITY To COMPROMISE SUlTS ON BEH.~LF OF HIS
CLIEJ'T-Lawyer's Power of atloruey. Held: Counsel has no
power to compromise a suit on behalf of his client, without the
knowledge, consent or instructi on of his client. Though his
lawyer's power of attorney empowered him to do so, he should
not exercise that power without first obtaining the ccnsent of his
client and without his knowledge to a settlement. Mohamed
Idris Haider v. Molramcd Hal;ibur Ralrmau, A.I.R. (35) (19-18)
Pat. 97, referred to. Shepherd v. Robinson, L.R. {1919!,
I.K.B.D. 474, approved. Dawsons Bank, Ltd. v. C. Eiu Sharmr,
(1951), B.L.R. 308 at 311, distinguished.
MA THAN SEIN AND THREE v. DAW )."J 251
CRl!>llNAL BREACH OF TRUST BY PARTNEH ... 336.
CRIMINAL PROCEDURE CODE, s. 145-Proceediugs Calt.rot be l'Ctlewed
after terminafio1~-A 11ew proceeding should be opc11ed, if there
is afresh disPute- S. 556, Crimitzal Proccdme Code applicaUeio
s.145, Criminal Procedure Code. Held: A settlement between
the parties in a proceeding 1mdcr s. 145 Criminal Procedure Code
puts an end to the prccecdint_S. It cannot be r enewed. If
there is a fresh dispute likely to cause a breach of the peiotc~ .a
new proceeding under s. 145 Criminal Procedure Code must be
opeJi.:d. Tari:li Clraran Clwwdllry v. Amttlya Rafa1~ Roy, I .L. R.
20 Cal. 867; Gfmlam !tlaltammad aud otliCI'S v. Tlze Crown,
through llfusalluua/ Allalt Wasai, (1933} I.C. 512, referred to.
Held further. : The principle underlying s. 5So Criminal
Procedure Code is applicable to a proceeding under s . 145
Criminal Procedure Code.
U ZA TILA v. UN!O~ OF JlUR~!A 237
CRllJI~AL PROCEDURE CODE, SS. 263, 264 (1) ns
s. 403 (1} 157
---------------------- 5.491 190
DECI510N OF TWO BENCHES OF EQUAL STA!'DING-D UTY OF Lo',\'JW
CounT ... 259
DOCTRINE OF FRUSTRATIO~ IN CO~Tfi ACT 122
DOCU)!ENTARY LETTERS Ol' CRE~rT-CONSTRt'CTION OF 288

EARNEST MONEY DEPOSITED FOR CONTRACT OF SALE-BUYEJ<

BREACHES CONTHACT -DEPOSI T WH I::THER RECOVhRABLE BY
HDI 106
 GENERAL INDEX XXVll

PAGE
"Eju~dcm Geucris"
ENGLISH I~cmrE TAX AcT, 1918'...

''ENTRCSDIE~T" lJNDEII S. 4 (1) (d) OF THE SUP PREs S!ON OF

CORRUPTIO~ AcT-.\IEA:o;I~G OF 196
EXCISE ACT, S. 18 122

EXECUTION OF DCRE-0rdcr staying or rcfusiug to stay C.\ewt io11

of a dtcrce, whet !lcr aPfealab/e-S. 2 (2) and s. 47, Civil
Pro~cdure Code. Held : No hard and fast rule can be !:lid
clown as to when an onler shl\ ing an execution will be appealable
as a oecree tmder s. 2 I~) read with s. 47 of the Civil Procedure
Code. Each case must be decided on the facts and circLmstances
arising therein. U Sau IVa aud others v. U Chit Sa11 and otltcrs,
9 Ran. p. 354; Kyauksema v. AParua Clrarau, 10 L.B.R. p. 326 ;
Jauardcw Trimnbak Gadre v. Martaud Triumbak Cadre, 45 Born.
p. 2-H; Hmai11 Bltai ami mzoi!Jer v. BcUieS/1ah Gila11i, 46 All.
p. 733; ;\Jussammat Dmga DC'IIi v. Ratts RaJ and others, 11 La h.
p. 402; Audit Be!wri Sinf{lt v. Sailendra Nath Bhattacheriec,
' A.I. R (195~) Cal. p. 339, referred to.

MAUNG THA SA!NG v. 2-lA AIN THA 16

E:r-parf.c DECREE-Setli1rg aside-S. 18, Articles 164, 166 aud
181:._Limi'alion Aci-AuctH'11 Sale by Court, setting aside 011
ground of fraud-Order 21, Rule 90, Civil Procedure Code and
Article 1{>6 aud s. It, Limitation Act- Actual Positive fraud
must be Prorcd-Cutificate of Sale, mcessity of Proaj. Held :
Unless a person aggrie\ed by an , ,v- parte decre e arply within
the time presented either under Article 164 or s. 18 of the
Limit ation Act toosd it aside he is botmd by it. Markauda v .
V.K.R. Naidu, 26 Pat. p. 717 ; Fatal Baldc'l!das Karsaudas
v.Molla11lal B,rpalal Baflia, I.L.R. 119-lSJ Born. p.I45, referred to.
Held also: UniO;ES ;1 person file an application to set aside the
sale under Order 21, Rule 90, Cidl Procedure Code;: within the time
.prescribedby .<\rticle 166 and s. 18 Of the Limitation Act, the sale
is binctin.g upon him. If fraud is alleged, it must be actual
positive fraud, a meditated, and intentional contrivance to keep
the parties and the Court in ignorance of the real facts of the ca:\'e.
la11ki Kua1 v. Laclmzi Narain, 37 All. p. 535; Ram Rat in Lal v.
Blruri Begam, 38 AlL p, 7 ; Kunia Befrari Cltakralmti v.
Krishna [)/~an Majrtndan, (1940) Cal. p. 477 ; Mohamed Galab v.
MoltamedSttllim<w, 21 Cal. p. 613 ; Mol:eud1o Nmai11 C!tatmaj v.
Gopal ltloudrtl, 17 Cal. p. 769, reierred to. Held further: A
certific:lte of sale is not con<:! us he as to the property which had
been purchased at the sale as the prop~rty offered for sale and
bid fOr w'as in fact the property ordered to be solei and proclaimed
for safe. Balvaut Babaji Dlto11dge v. Hiraclzand Gulacltand
cuiar, 27 Born. p. 334, referred to. Held also : Mere production
of the sale certificate alone would not entitle the plaintiff to
de~ ;ee . It is the duty o the plaintiff to p~o,e !1) the existence
of a suit, (2) the existence of a mortgage l!ecree and (3) the sale
of the mortgaged properties in pursuant thereto. A sale
certificate, if p7operl y proved to be ~enuine, is a document of
title and is the best el'idence to prove what was actually sold.
Traders a{~d Miners Ltd. v. Dllircdra Nath Banerjee, 23 Pat.
p. 115.
U KY\\'E (alias) U AUXG i\IYJNT V. DAW MYA l\IYA AND ONE 88
XXVlll GENERAL INDEX

PAGE

"FOREIGNER "-\VHETHEI~ HE CAN SUE ON PERSON.~L CoVENANT

TO PAY WHEN l\10RTGAGE Ol' IMMOVEABLE PROPEl.TY TO HD! IS
. ILLEG,AL, 172
FoHEIGNERs' AcT, s. 3 (b), 4 (2) 190
FRUSTRATION--Tlte doctrine of-S. 56, Contract 24ct-S. 4 and s. lOS,
clause (e) Tramfer of ProPerly Act-Applicability of doctrine
to leases. Held: The doctrine of frustration comes into play
when a contract becomes impcssible of performance a{ler it is
made, on account of circumstances beyond the control of the
parties. "\Vhen such an event or change of circumstances occnrs
which is so fundamental as to be regarded as striking at the root
of the contract as a whole, a Caurt shou)d pronom~cc the
contract to be frustrated and at an end. The doctrine of
frustration applies to leases under special circumstances.
Cricklewood Property aud Investment Trust v. Leighton's
lrrvcslmeut Tmst, (1945) A.C. 221; Sakhiso11a Dasi v.
Gozw Hari, A.l.R (1952) Cal. 567: Tarahai Jivaulal Parekh
v. Lala Padamclmrrd, A.I.R. (19501 Born. 89; lndcr Persllad
Singh ,-, CamPbell, 7 Cal. 474 referred to. K. M. Modi v.
Molramed Siddiquc, (1 947 ), RL.R. 423, follo\ved. Appeal
dismissed,
MAUNG KYAW NYEI N AND TWO OTHEFS V. MAUNG K YAW
KYAW AND ONE 266.
GE:>:ERAL CLAUSES AcT, S. 26 157

Habeas corpus-APPLICATION TO HIGH COURT 190

IMMtGRATION (EMERGENCY PROVJSIO~s) AcT, s . 13 (7) (b)-Act No. 26

of 1G56, 110 rettospective cffcct-Ss. 2o3 and 26f (1) Code of
Crimirral Procedure. Held: Burma Act No. 26 of 1956. The
Burma Imm igration Emergency Provisions (Amendment) Act,
1956 has no retrospective eHect. Held further: Under s. 264
(L) of the Code of Criminal Procedure, it is imperative on the
Magistrate trying such a case summarily to record a judgtnent
embodying the substance of th e e viden ce and also the particu~.l'l'S
mentiqnecl in s. 263.
ABDUL HAI v. THE UNION OF BURMA 118
lNcOMETAx AcT, s . 66 (1)-Rcfcreocc to Iliglt C~urt-Thc Cnmpa11y
dislmrs.-d [, 38,258 to its emPloyees iu compliauce with the award
of tlze Cor&rt of Iudusltial A r/;itration in 1952-Whether such
disbterscmeut permissible e:rpe11d1l11rt 1111der s. 10 (2) (ix) of tlle
Burma Iucome Ta.v Act, or allowable commercial loss a11d is
tlrereforc dedttclible from tIre tcz..mble profits for tlte assessment
year 1953-54- Distinclion between" E:cpe11diture'' mzd "Less
in~idc11t al to the b~tsilless "-E11glisll l11comc-1'a.v Act, 1918-
Vital cousidcraiion for fleciding ~olretlrcr a certai 11 item is
deductible or ttot-S. 20 (11 Trade Disputes Act-Paymmt wlretlrcr
correlated to tlze accotmnng year or Mty year prior to tltat.
Held : That for purposes of deductions of certain items as loss or
expenditure, the vital ccnsiclcration th-.t should te gi\en is ,
whether sm:h less or expenditure is laid out, expended or
inctured wholly and exclusively for p urposes of the said business,
or one connected witb or arising out of the trade or profC"3sion,
or one which it is necessary to incur for the purpose o f carrying
on the assessee's trade, profession or business. Alleu v .
Fatqultarsoll Bros. & Co., (1 932\, 17 Tax Cas . 59 at 64, referred
 GENERAL INDEX XXIX

PAOI!
to. In TJzc Commissioner of l11come-Ta~. B11Jma \-. Ha)ce A!rdul
Gamz:, Ayoob, (1941) l~.L.H. 529; <:;.ommissio11er of l11con:c Ta.,-,
Cent,al Provi11ccs aud Berm v. Sir S. Cllifnatis, 59 I.A.
290, appro\ed. He'd fur/Iter: That the payment can only be
correlated to the accountil'g year in which the liability to pay
was incurred by the company, that is, the year 1952. In rc
Clzoutlzmal Golapclzaml, (1 938) I.T.R. (VI) 733 {1939) A.l.R. Cal.
559, referred to. C.I.R. \', Fa/kirk Iron Co., 17, T.C. 625,
apprO\ed. Rhodesia Railways Ltd. v. I ncome Ta.t Collector,
Btclmcwalaud Protec/OI'a/c , (1933) I.T.R 227 (P.C.). referred to.
THE Co~DIISSI ONEI' OF INCOME TAx, BURMA t. THE BURMA
Ort., Co~tPAI\Y (ll u>lMA Col\cESSioNs) LTD.
.~
316
I NCO~!E TAX AcT, 5.10(2) (ix) 316
- - - - - A C T , SS. 26-A, 33-A, 66 (1) AND (2) 143
RULES 2 (c) 143
INGREDIENT OF OFFENCE UNDER S. 4 (1) (c) SUPPRESSION OF CORRU P
'l'ION -J\CT 213

INLAND \VATER TRANSPORT STAn-WHETHE:R PUBLIC SERVANT 49

INTERPRETATION OF STATUTES-PREAMBLE-WHEN TO BE CONSULTED 190

" l NTERMEDDLq<G" ;.;:.;o "INTERMEDDLER " -M EANING OF 243

LANDLORD AND TENANT-Suit f or cjcctmet~t-Nolice 111/dtl' s.ll (a)

Urba1; R ent Co11trol !let a11d s. 106 Trausjer of P1operty
Act-lizterpretaliou of ambiguous 11olice. Notice, dated the
lOth 0-:lober, 1952 set out iul <'r alia as follows : -
"This notice is I~ereby given to you to pay the said arrears
of K 133 to my client Zarnami Ranj:m Chowdhury or to leave
the premises within 21 days from the receipt of this notice
failing which legal action will be t:>.ken in Court for recover y or
the ar.real s and for ejectment from the premises".
The notice \~:tr. received on the 11th October, 1952. Conten-
ded by the Appellants that-
(1) 21 days after the receipt of notice falls on the 1st of
?\o\'ember 1952, and hence ;t fresh period has
begun from the Jst No\ember, and
(2) Therefore, a (resh notice to appellants gi,ing fifteen
days ending with !hat month \vould be required
relying on MatrmuatSal11araina11d others v. zllt.
Rami, .<\.I.R. (32} 19H, 1-'at. 463. was relied on.
(3) In a suit for ejectment, the provision of both s. 106,
'l'ransfer of Property and the Urban Rent Control
Act must be complied with relying on T. H. J(/um \',
Dawood Yusoof Abowath aud otlters, {1947) R.L.R.
p.354.
Held : The wordings in the notice are a mbiguetiS as to whether
the appellants are to stay on till the lsi of No,ember or quit by
the end oi October. In interpreti11g ambiguous words in notices,
the test is to ~ee what the words would mean to tenants well
cotwers:mt \\'ilh all the {acls and circumstances of the tenancy.
Dr. U Chit aud"o~tc v . Daw 0/m Yilz , ( 1952) B.L.R. p. 176,
followed. Held further : The 21 days' time ghen in the notice is
only f? r the p\lrpose of paying up the arrears of rent and si t~ce
XXX GENERAL INDEX

more than 15 days endin~ with the m,nth of Odobe1 has

been given to quit, it m' st mean that they ar~ to quit by the ctid
of .October.
KAMIN! KUMAn i\fALlCK AND ONE V. ZER~IAINI RANJAN
CHO\\'DHURY 10
LAWYERS POWER OF ATTORNEY 251
LEASES-DOCTRINE OF FRUSTilATJON APPLIES IN CERTAm CASES 266
LETTERS oF CREDlT-hrcvvcable letters of credit or "documcnlary
or conditional /ctlci'S of credit ''-Basis of Plaintiff's clai1z ou
confirmed il-rciJocable Idlers of credit alchze-Ball/!cr's duty 'iu
,cspect of ldtcrs of credit-Construct ion' of" docmneutary letters
of i1edit "-Exallliualion of wit11esses on commission. 'The
appellant purchased from the A$ialic General Trading Company
of Hong Kong Cigarettes an:l Toilet requisites and opened two
irrevocable lellers of c.-edit with the R~;-pondent in favour of the
Hong: Kong Firm, who however sh;pped useless odds and ends.
The Respondent Bank claimed n:imb:Jrsen.,ent {r'lm the appelbnt
who re-sisted the claim all ging negligence on the part of the
Respondent in not as-:ertaining whether the rackages contained
genuine goods in conformity with the Bills of lading, invoices,
etc. Held: That as between the buyer and the banl;er, it is
only on the bank's departure from the exact terms of le tters of
credit can the bank be held responsible and the buyer ca.1not
resist any claim for reimbursemed by the bank, on the str~ngth
of the letter of credit opened at h is (buyer's) in~tance. Brmiliarr
a11d Portugese Bauk v. Brit ish and American Bnnkillf! Corpora-
tion, (1868) IS L.T. 823 ; U11iou Bank of Canada v. Cole, (1877}
47 L.J.C.P. 100; D onald H. Scott & Co. Lfd. v. Bmclays Bauk,
Ltd. (1923\, 2 K.B.l; Bortflwlck v. Bau"._. of Ne w Zealand,
(1900) 6 Com Cas. 1, Hart's Law of B tnking (4th Edition, Vol.
lll , pp. 650, 651, 632 and 654, refer red to. Held further: If
the terms o f the Letter of credit are fully comphcd, any payment
mad e or bills negotiated by the Bade in accordance therewith
cannot g ive rise to a complaint either by the Seiler or the buyer.
That the relationship between the Banker and the buye:r ;'lt whos.:
instance a letter of credit is opened, is determined by \he precise
,+erms l)f lhe letter of credit The Banktr mt:st rigidiy comply
with the>ete rms. In such a d eal. the Banker only makes the credit
amilable for ti1e benefit of his client. T he banker is neither an
agent of the buyer, nor of lhe seller, and in the words of
Professor Davis" on the credit being isst:ed, the trans;:ction is
purely a trust between tlle seller and the buyer". The banker's
duty is to pay against documents and not ;~gains! gnods. allCI tlBt
if the documents are in order, it is notopeu to tlu: banker, or ha s
he any right to enq uire into the q.1estion of quality or quantity.
The deal being based upon documents, the question of'' actual
conformity of the goods to the description on the clocmnents w2s
immaterial". Frey v . Sftcrbunze Mid t ftc Nafio11al City Bau!: of
New York, (1920} 193 App. Div. 849 : 184 N.Y. Supp. r>6l ;
0' Mema Co. v Natifmal Park B,wkof Ne1u Yo;k, (192 ~) 239 N.Y.
386; 146 N.E. 636; Coutinctzfal Nat ioual Ba11k v. Nnfioual City
Bank of New York, 11934), 69 F. (2cl] 312. "The L aw rd:ning to
Commercial Idlers of Credit" by P.-o:essor A. G. Davis, referred
to. Held further : In the matter of issue of commis~ion to
examine certain witncs~es in a d istant conntry, espGcially where
his examination would carse delay, the Court must be fully
convinced that the evidence of such a witness is reallv rel<:\ant
and necessary for the proper decision of the case. Ram Sew:~ k
 GENERAL INDEX xxxi
PAGE
Kocri Mosn. ii Kocri v. Roi Ba.ltadur ll<Zrihar Prrr.<ad Si"gft a11d
oui-, A.I.R { 1927) ,;Ran. 175 ~ 5 H L.J. 24 2 ; M. Palar~iapfa
Clzclliar v. Nara:yauau Chctf';JifV, 216 l.C. 111 =A.!. H. (1')-!6)
Mad. 331, referred to. Held, Per U SAN MAUNG, J.-That a
buyer's remedy when goods of tl1e right quality and quantity had
not been shipped is as aga;nst the seller for damages.
IIIE~SRs. TJJE ASIATIC CORPORATION v. :\IESSRS. :\lERCA!\Tl LE
BANK OF INDIA LIMITED 288
LJCEXCE IN' EXC!~E-I!\TE~RCPTJON BY 1!\St:RRECT!n)('-CO~IPLETED
~ONTIIACT in pcrsoJtam-NO QUESTION OF FIWSTHATION .. 122
--- ~\'ITH A. CONTRA'C~,l-AL HIGHT-lNTEHVE:-iTJON BY EQUITY 341
LIMITATION AcT, S.18, ART, 164, 166 AND 18!... 88
LDl!TATlO!\ ACT, ARTICLE 1~9-Tra1Zsftr of lmmovca: le Pmfel'l y
(Rest 1ici ion~ !Amcudn:eut) A~t. 1916. Article 149 Limit~ !ion
Act has no app!ic.1tion to Sidts brought by assignees and oth~r
persons deriving or claiming throngh or under Government.
,I .L.R., (194~) ~a g. 246, rdtrred to. In enacting the Transfer of
Immoveable Property (I{estriction) Amendment) Ad, the legi I.t-
ture co~J!d not ha1e intended to deprive fordgners of immO\e-
able property which h1d been ac ~uired other than by transfer.
l.J SAW AND O~E v. LOKE MA:\1 (alia s) Lo :'IIA~I 221
.,
MAI!>:TE:->A!'\CE ORnER PASSE'l !N AD}JIN!STRATION SUIT-WliETHER
"JUD Gl\1 Dl'f" WlTH!N THl' ~!EAi'IJNG OF S 20, U~ION } l'Dil'IARY
:\cT-OR APPEALABLE ORDER t; NDER ORDER 43, R. 1 CIVIL
PROCEDURE COllE 152
MARRIAGE--sTRicT PR,;JOF REQUIRED WHERE n 1s r:>G:JEDIENT IN
cRmiNAL CASES 55
Mc11s rea-WHETHER NECESSARY !l\GREDIENT IN OFFENCE t.:NDEH
St PPRESSION OF CoRRUPTioN AcT 5~

MOitAmlEDf-~, ~,\RR!AGEs-REQU!S!TES OF 1

NAGA HIU.S-.~PPLICABILITY OF CRDUN.\L PROCEDURE CODE, ~.5.

25(', 342 TO 134
KoTlCE-INTERPRETATION WHEN AMBIGUOUS 10

PARTITION-SUIT FOR-A~IONG BUI<MESE llUDDlllST HEIRS l\OT MAIN

TAlNAlLE 5
P.~RTNERS-l~fSPONSIB!LITY OF-IN CRO!lNAL BREACH OF TROST ... li9
PENAL Coo~, S, 302 Ia) (b) AND 404, 2\Jl (2) AND 404--Ss. 256 a11d 3-{2
''Crimiual Frcccdrti'C Codt rrs ammdcd by Burma Act 13 of 1945,
apflicability to Nag a Hills Did,-ict -The Chi11 Hills Rcgulalio11s
of 1896- Code of Cn"mi11al Proccd,,le, 1882-Burma A ct 33 of
1947-Prewedit at h1-!J regularity in 1"Ccordi11g C01!fessiJ1l,
/to:u cure.i. Held: The Chin Hi !Is r~egulation s of 1896 areS!i!l in
force within the Na~a Hills !Jist ric' ,as ex isting Law. Held also:
In the case of Chins residing in the Naga Hills District,
amendmcn.l.jl toss 256 and 342 of the Criminal Procedure Code,
1898 bv Burma Act of 1945 cannot arply unltss Burma Act 13
or 1945 is exte nded to the Ch ins in the Naga Hills District under
~- 3 of the Chin Hills Regulation of 1896. Hcldfurllrer: ~either
XXXll GENERAL INDEX

PAGii

of the amended ss. 256 and 342 of the Criminal Procedure Code.
apply to the non-Chins in the N~ga Hills Dii'Jrict without
amendment of s. 9 f2) of the Chin Hills' Regulations, 1896. The
proct.dlire to be foll owed in the tdal must be accorcling to the
procedure prescribed by the Code of Criminal Procedure, 1882
for the trial of warrant cases by Magistmtes. field also: To
constitute a premeditated killing it is necessary that the accused
should have had time to reflect, with a view to determine
whether, he would kill or not, and that he should ha\e
determined to kill a<; a result of th,\t reflection. Tlzcw lllyint Y.
The F11iou of Bun11a, (1953) B.L.R. 342, referred to. Held also;
Where there is any irrc~u l ari!y in the recording of a confession
by a Magistrate empowered to record such ..:::onfc~sions the
Magistrate himself can be called and exaroined as a' witness
;vith a \'iew to consider whether the confession should or should
not be admitted in sr.ite of the irregularity.
AI HTWE AND TWO OTHERS 'II. THE UNION OF BURMA 134
PENAL CoDE, s. 497-Marri.,ge i11gredieul r'lz the offe11ce-Necessity of
s fl'ict proof. Held: In criminal cases where marriage is an
ingredient in the offence, the fact of the marriage must be strictly
proved in the regular way, i.e. as an event whkh took place and
not merely as a stnte in which tl.e parties were living. A ::iz
Khan v. El:ram Fbtssaiu, 38 C.L.J. 213, referred to. The parties
might have lived ns husband and wife but their conduct alone is
not sufficient to prove marriage under s . 50 of the Evidence''
Act. Bllal!,u Dllcmdi v. E111peror, 16 C.L.J, (1915) p. 2!3 ;
Tlze Empress v. Pitambur Siugh, I.L.R. 5 Cal. 566; Gof>al v.
Ki11J!,-E111peror, (1925) A. I.R. Ran. 328.
S. SHAll 'II. 'l'HE UNION OF BUimA 55
PENAL CODE, ss. 21, 120 49
- - - ss. <105, 406 179-
...:.-----s. 405 196
- - - - s.406 .~ ~~ ... ''336
PREMEOIT~TI0:-1-INGREDlENTS OF 134
"PRE~IISES " - DEFl!\lTION 01' -IN URBAN RENT CONTROL ACT 63

PUBLIC SERVANT-ELECTRICITY SCPPLY BOARD STAFF-WHE:rHER

PUBLIC SERVANT UNDI!.R S. 21, PENAL CODE 67
- - -- - - - - - ,STAFF OF STATE AGRICULTURAL MARKETING
BOARD-UNDER S. 21 PENAL CODE 102

QUASHING OF CRI!IIl:-IAL PROCEEDINGs-$. 406, Pe11al Code-Prtdsc

crimmal res Ponsibility of a Partner in relation to Parf1lcrship
fwoperty-W/Jether a partner could le f>1osecuted for Crimiual
breaclt of tmst rluriag tile exist wee of tile pmtucrs/lip. Held: '
If it could be establichecl that a partner having been
entrusted with partnership assets or with dcminion over it
converts to his own use in breach of '!;pe:ific terms of t; us t
imposed upon him or d>c:; anything with the properties or assets
of the partnership, there can be no doubt that he can~ under
certain circun:st;~nces be pr osecuted for crnniual breach or trust
as laid down in s. <105 of the Penal Code. In the absence of
such special agreement, a partner cannot be said to ha\c received
 GENERAL INDEX XXXlll

PAGE

the propert~- in a fiduciary capacity, and be prosecuted for

criminnl breach of bust. <;..partner cannot be lial:le for criminal
breach of trust in r('spect of the partndrship properly re.:ehed or
held by him on behalf Of the partnership in the ordinary course
of partnership. Bhubau llfo!Jan Ra11a \', Surc11dra Moflau Das,
(1952) l.L.R. Cal. Series, Yo]. (11) p. 23; Na11cy de Siba v.
U11ion of Burma, fol!O\\ed; Criminal Appeal No. 99 of 1957;
Quec11 v, Okhoy Coomar Shaw, ( 18741 13 B.L.R. 307-(1874), 21
Weekly Reporter. Cr. 59; V. V. Reddy v. L. C. Reddy, {1941)
R.L.l{. p. 5~7, referred to. Held jurtl!er: That in order to
constitute an offence of criminal breach of trust the el~me1t of
tn:st must be definitely pro\ed. The \cry conception of
partnership r,recludes the po:;sibility of entrustment of partner-
ship property by one partner ~s ~gains\ the other, tmless the
pro,isions of the partnership are subject to any Special contract.
Held also: The High Court does not deal lightly witl1
applications to qnash pending criminal proceedings. It is onl)'
in cases where there is some manift>st and patent injustice
apparent on the face of the pro~;eedings, or where the evidence on
record for the prost:cution clearly does not justify a charge of any
oftenc-; c>r where the trial is on the face of it an abuse of the
process cf the Court, rare remedy of quashing pending
proceedings are given. Kliau Bal1adm Jlajcc Gulam S/Icrazce
v . The King, (1941) :R L.R. 599'; U Wa G;-i v. The U11iou of
Burma, (1948) B.L.R. 652, referred to.
SAW 'lh1,A Oo t'. MA AYE THI 179
QtASHI~G OF CRD!INAL PROCF.EDINGS-S. { O(o, Pcual Code-Crilllitllll
Breach of trust committed by co-partner dttrillg the subsislwce
of a par/tlcrsltiP. Held : It is only when it is established that
a partner who has been entrusted with the partnership assets or
with any dominion over r.roperty converts to his own use st.ch
specific property or a3sets, in breach of specific terms of the trust
impos ~ d upon him can he be prosecukd for criminal breach of
trust. In the absencr: of any special agreement concerning as to
how he should di~pose of, or otherwise deal with specific
partnership propel ty entrusted to him, he cannot be saicl to have
received or de~lt with the said prope1 ty in a fiduciary capacity
and be prosecuted [or criminal breach of trnst. Saw Uta Oo v
llfa A)e Tl!i, C iminal Ro!dsion No. 112 (B} c 1957; Blmban
Moha11 Ran a\', Surcndr-a Molia11 Das, [1952) I.L.R. CaL Vol. 11,
p, 23, followed.
U KAX THA v. THE UNIOX OF BUR~lA 336

:RECEIVER, APPOINn!ENT OF 22
~EFEl'El\CE TO HIGH COURT OF QUESTION OF LAW llY IKrOMETAX
APPELLATE 'l'R!BUNAL-PROCEDURE AND POWER OF J-llGH
COUR'l'' ... 143
Res Judicata 230
REVIE\\' -APflica!ion for-S. 1J.f, Oni<r 47, Rule 1, ~ivil P1ocedure
Code-Tile phrase" auy other suft)o:ic11t nasou "-Dccisious of
two Be1zc/zcs of equnl slatldi,lg - Duty of Lower CoJ.l'l. Held:
It is settled law that the word $ " any other sufficient reason" are
ejusdc111 gmcris ln.ving re~erence to grounds analogous to those
other two mentioned in the n!le. K.[{.S.A.R. Firm v . Mmmg
Kya Ny1111 aud o11e, L L.R. 5 Ran. 6i5 ; Bisftesll7uar Prat ap Salli
a11d auoJiler \, P,walh Nath and mzollzcr, 61 I.C. 378, referre:l
XXX'lV . GENERAL INDEX

to. Held frrrllrcr: It is settled law that-a \,rong or incorrect

e~position of Jaw is no ground for re,ie,v. Lu.11tum Auau(.roa
aud oiltcrs v. Ramc/randra IFawdco A;asty, :\ I.R. (1938) Nag.
1'45, referred to. H cld furflrer: "\Vhen there are two rulings
by two Hencbes of equal stand in!-!, it is not for the lo,,er Court to
say which rule is right and which rule is wrong. He should
follow the rule which appeals to his reason. Mauoo Ali v.
Hawabi, A.I.R (1936) Ran 63; Mau11g Zaw ,._ Maunt,: Hla Din,
I.L.R. 12 ({an. 163; Kin~-EmPcror ,.. N[!JI Lull Mmmg, I L.R. 13
Han. 570; Tile Uuiou of Buntza v. Maung Marmp and lWtJ,
B.L.R. (1949) (H.C.) 1 at 12, rt:fcrrcd to.
J\1A THAUNG v. 71-!AUNG PE TIN 259
SALE OF ExCISE L!CFNSES FOR ONE YEAR-Jut erruptiou by Com-
tJlUtlisl luszwgcuts-Rewmption of busiucss by licensee on
cessation of interruption till tire expiry of llt~ ycar-APtlicatiou
for remiSSI011 of rctctwc due for tftc Pt;l"iod of i11i!rluption-
Rejcclion b1 GtJ<crmuc.nt--Suit by liccusc agai11st Go:crumcul for
a dcclaatioll a11d a11 i1zjrmctio11-Tirc ualwe of e'cise ltceuse
iu Rurma, a l'i!lM in per-,;nnam-Comf'/ctcd contract-Obiter
dictum by the Suprrmc Court-S. 18 B11rma Exci,c Act-S. 5]
CoJ!t1act Act, tire doctriuc of frustratioll. Two Ex, ise Lkenses
were sold by p :blic auction at Bog:dt- to the highest bidder, the
appellant forK 9J,00fl for the year 1949. The appellad carried
on his bnsincss from 1st ]anua1y, 1949, to 6th FebtUary, 1949.
On 6th February. Bogale w;ts o\"errun by Comrmmist ins 11gents.
He had by then paid K 27,000 towards hi s lie, nse fees''lor the
year. l:l0g:de was reoccupied by Gmenurent in August, 1949
and appdl:.nt resurr:ed his l:u ; ine~s till !he end o the year.
He had paid a further sum of K 13,000 leaving a balance of the
K 45,000. .-\s appe~ lant had heen preYented entirely from
carrying on his tade during the ins~1rgent orcupation of Bogale,
he sub:nitted an application for remission. which was rejected.
The appellant therefore filed a suit ai!airost the Go,ernment
fcr-
(a) a declaration that he was not liable to p;-t_Y the sum of
K 4~,1JOO and ,
(b) an injutclhn re~tra:ning the revenue autlwri~its frcm
enforcin g full p:tyment against him, b2.sing his claim on
two main grounds, dz:
(i) That the auction sale carried an implied condition
that law and order would be maintained in Bogale
Town, and
(ii) That the prohibition of his trade by the insurgents
in occnpation of the Town for nearly seven m<'nlhs
rendered the contract impossible of perfonrance
and conseqr.ently ~oid.
The defence raised by the Government w;:~s !hat tbe excise
sales w~re ccmp'e!ed cnntr:Jcfs . The Trial Cot:rt dismisstd the
suit, rei~ in!! on Sri P. Gumdah v. Tit <Uuion of Burma (Cidl
Rrgular Suit No. lf>3 of 1S47). On an appeal by pl~intiff.
Held: That an exciue license Lnder s. 18, B.trma Excise Act gi,es
nothing more than a ri ght c.r-cJnltac:u which is a right
w tcrsotzam. There is no room <under the Excise Act fa r a
license cmtpled with an interest. HttP For v. The DePuty
Commissioner, lnsciu and two oiJ;crs, {1950) B. L 1R . 86 (S. C.);
Hur:t v. Pictures Ti1catrcs Ltd . I K.B. l (1915), rcfernd to
The above conclnsion is not a mere obiter dictum but e,en
assuming them to be so, s ch observation by the Supreme C~mrt
 GENERAL INDEX XXXV

PAGE:

shot.ld be recehed with the greatest respect. N. A. Auuamalai

Cllct/yar v. Mol;amed Yam aud tu:o ot!Jen, (1954) B.L.R. 86
(H.C.), referred to. Held also: That unle<S the license is coupled
with a grant, it is purely a contractual right ill personam.
Tilomas \, Sorrell, Eng. l{eports, 124, Common Pleas, 1098-
Vaughan (330); Muske!t v. Hill and To:cr, 5 Bing (N.C.) 694 =
Eng. !{eports, 132, Common Plea~. p. 1267 ; H. eap v. Hartley,
(18891 L.I<. 42 Ch. Div. 461 at 46~, referred to. Heldfurtltcr:
The licenr.e gr.mted Llll der s 18 of the Burma Excise Act is a
compleh:d co~tract and the -doctrine of frus~r:ttion a~ embodied
in s. 56 n( the Co'ntract Act ;ipplies on!~ to contracts which are
merely exec.ttory and not to executed contracts. The!eforc, the
license had not become void owing to the Licensee's in, possibility
to perform his part of the contract nor was there any implied
guarantee by the Government that the aprellant wonld for the
whole period of one )ear be not disrupted by insurgents, there
was no bteadi of contract. The Kiug v. David Alle11 aud Sous,
Billf?sliug Ltd. L.R.(l916) A.C. \'Ol. 2 p. 54; JVallon Hcltrey
Limited v. Walkcraml Homfrays, (1931) L.R. 1 Ch, Div. 274,
distingdshed. Appeal dismi ssed .
AH HTAU:i:G v. THE UNION OF BUR~fA A :>ID ANOTHER 122

SALE oF GooDS,.-l.cT, ss. 55 to 61 (1)-Coutract Act, s. 73-Contract

of Sa le -Deposit by buyer as part paymelll or earuest mouey-
Brcach of contrt<Cl by Buyer-Deposit whctiJcr reco!erable by
lrim-IVlldlLcrSeller entitled to set off the deposit agai11st damages
ou re-sale or retaitf tire deposit iJL addition to damage. Held:
Tile Buyer is entitled to reco,er the deposit he had made st:bject
to the right oi the Sell>tr to se t off his d: mages on re-sale
against the claim. The Seller is entitled only to tl:e deficiency
and expenses incurred on re-sa le a mi cannot retain the deposit
in addition. Soper v. Aruold, (1889} , 14 A. C. p. 429 ; Ocke11dett
v. Hwly, 120 English Reports (Vol- CXX) K.B. P. 590; The
Vcllort: Taluk Bom:d by its Prcsidettl v. Gopalasami Naidu, I.L.R.
(19151 38 l\Ja<i. p. SO l ; Piari Lal and otlren v. Min a Mal Balkis-
ltau Das, ( 1928) I.L.R. 50 All. p. 82 ; Dies and aTlolher v. Briti~/t
aud lntemat ioual Milling aud Fir:ance Corporatiou Ltd., I.K.B .
(19391 p. 72+; Ma11ePalliSatyarzarayana111urtlzi v. T!tom11:audnf
Erikal.rpfa. A.I.R. (1926) Mad. p. 410, referred to.
U SH\\'E LONE 11. MR. KHA CHOUNG 106
ST..\Y OF EXECCTl0::-1 OF A DECREE ... 16
''STRICT PROOF" .}'); OtWER 47, R. 4 CIVIL PROCEDURE CvDE-
~!EANIXG OF 164
SuccESS!O!\' A '\D lNHER!'l'AXCE-BUI~MESE I3UDDH!ST LAW-C:.N THE
CHILDREN OF A STEP-FATHER BY A SUBSEQUENT UARR!AGE
SUCCEED>TO THE ESTATE OF THE DECEASED STEP CH!LD OF A
FOEllER ~!AfWTAGE ... <1> 2-12
SuPPRESSIO'); OF CoRRUPTION AcT, 1 9~8, s . 4 (1) (c)/4 (2)-" Obtains
for !Jimsflj or for auy other Person "-Tire Clrief i11gredicut of
s. 4 (I J !c). The appellant was convict ed and sentenced to four
months' r ig:orons icrnprisonmenl under s . 4 il) (cif.J, 12. Suppression
of Corruption Act, 1948 for obtaining for his wife and his
father-in-law two shares in the \Vin \Vin Cinema Hall business.
Held. : J'he facts in the cases are jt:st the reverse. The obtaining
is by the \\'ife of the appellant, who is a publi~ servant. The
case is one of a non-public servant, namely, a PL!bli c servant's
wife, accertin g or obtaining either for herself or for her hnsband
:XXXVl GENERAL INDEX

~AGE

)a valuable thing or pecuniary advant<Jge. It does 110! co~ne

within the purview of the above Section. What s. 4 11) (c) of the
s~,pprcssion or Corruption Act penalises is !he obtaining by a
public servant for himself or for another person any valuabie
thing c.r pecuniary advantage in the discharge of his duties.
Appeal allowed.
U KHIN :-.IAt:!><G GYI v. THE UNION OF BUR~rA 213
;SUPPRESSION OF CoRRUPTION AcT, S. 4 (1) (d)/4 (2)-Meaniuf! of t/1c
exPression,'' in respect of pr1blic propc1:ty entrusted to !tim "-S.
405 Peual Code-The wol'ds "entrusted", ami "C1Jtritstment ''
their mccmiug-S, 5 (1) (c) Prcveution of Corruption Act, (111dia
Act 11 of 1947). Held: The expression "in respect of public
property entrusted to bitn" in s. 4 t1) 1d}, Suppression of
Corruption Act, 1948 means public property which is in the
possession or under the control of the public servant in question.
It has the same connotiltion but much more restricted wordings
than thooe appearing in s. ~05 Penal Code. It is an essenlial
ingredient of the offence that the Public property either
immoveable or mcvcable or cash which is the subject matter of
the offence must have been entrusted to the public servant. The
word" entrusted" with reference to cash or money meilns that
such cash or money has been transferred to the accu,5ed and
remains in the possession or control of the accused as llt/milet in
trust for the complainant who holds the position Of bailor.
N. N. Bzn-jorjee v. Emperor, A.I.R. {1935) Ran. p. 453 ; La~e v.
Simmons, (1927) A. C. p. 487 at p. 499; T lzakarsi v. King-EmPeror,
I.L R. Nag. (1949) p. 620, referred to. To make an accused
person liable within the purview of s. 4 {1) ld) Suppression of
Corruption Act, I94S,,the ilccused persorfconcerncd must have
possession or control of the property, be it cas h or be it other
moveable property.
U BA CHIT TIN v. THE UNION OF BUR)IA 196

.SUPPRESSION OF CORRUPTIO~ ACT, S. 4 (1)/4 i2)-" A;:;quittal ,; 01!

grouud of defective 5allction-Appella1!t re.arrested and again
sent up twdcr requisite sa net io11-APPlication to quas/1 tlze
second procccditrg- S. 403 (1) Crimi11al Procedure Code-S. 26,
Gc11cral Clau~cs Act-Serztmcc scr.:ed w1der an abortive trial
camzot be treated as scncd mzdcr a lawfu{ couvtctiou. The
applicant was condcted and sentenced to ol'l~ year's rigorous
imprisonment under s. 4 W/4 (2) of the Suppressi'!Jn of Corruption
Act, 1948. On appeal, the Hi_gh Court set aside the conviction
and ".:J.cquitted him" because o! defective sanction. By this
time, the applicant had already served his sentence. He was
re-arrested and again sent up f or trial after obtairling proper
sanction. The applicant filed an application to qua~h the tri:tl
proceedings. Held: If the trial of the applicant is b;J,Sed upon
an invalid sanction, then the trial is void and that the " acquit tal"
or " conviction" thereunder is also void. The first b ial of the
Applicant under a defective sanction was a nullity and that the
ultimate order acquitting the ;q1plicant by the appellate Court
cannot operate as a bar under s. 403, subs. (l) Criminal
Procedure Code to the institution of a fresh prosecution a):(ainst
the applicant. Yttsofalli Nulla Noorb/loy v. Tile J.{iug, 76 l.A.
(1948-49) p.15S ; Maung Cizit Po and o11c v. Tile Uniouof Bunmz,
(19'1-S) B.L.R. p. 175, followed. Held also: The former trial being
no trial ab initio, because of a defective sanction , the. order
q uashing the case could only operate as an o:der of discharge
and no acquittal. /;z Re C. Devanugralzam, A.I .R. ( 1952) Mad.
 GENERAL INDEX xxxvii

PAGE

p. i25, referred to. Heltl further: The principle under]y1nf:

s. 26 of the General C!at:ses Act is the same as that in s. 403 of
the Criminal Procedure Code. One is completl1entary to the
other in reiterating the fundamental principle of criminal law
thal no person shall be put in jeopardy of !lis life and liberty
more U1an once ; and s. 403 of the Criminal Procedure Cod<: is no
more than an elaboration of this principle in detail. l\Ioreover,
the General Clauses Act is essenti<~lly, an Act to be invoked only
for ,purposes or interpretation of letjitilati\'e enactments and
st;~tntes. Held also :.. A sentence sened following a con\'iction
undet an ab"0rti ve trial -cannot, in law, be treated as sentence
sened under lawful cvnYiction. Ailsa!llll IJaq ar1d ai/Ollte1 v.
King-EmPeror, A.I.R. (1949) Nag. p. 327, referred to.
II'IAUXG So SAN v. THE UNIOJ>; oF BURMA 157
:SUPPRESSION OF BRIBERY A:\'D CORRUPTION AcT, S. 4 {1) (d) /4 (2)-
G ross 11cgligcuce amor~nted to mi~co1zdttct- Wlietlzer t ftc clemeu tof
. mens rea is necessary ingi'Cdtcllt ill an offence ttuder s. 4 il) (d)/4
(2), SuPPression of Corruption Act. Held: Gruss negligence
amounted to misconduct under s. 4 (1) ld) /4 (2) Suppression
of Corruption Act. The question of 1J1eus rm is irrcle~ant
for the purposes of determining the criminal liability of the
acc,Jserl ~ent up under this Section. Dr. Gordon Seagra"lJC \',
Tile Uniou of Bt~rma,{1952)B.L.R. 44 (S.C.); Criminal Reference
No. !6 of 1956; U Sein Batz v. The Unio11 of Burma, Criminal
:\ppeal :-Jo. 107 of 1956 of the High Court, Rangoon, referred to.
THE UNION 01-' BumrA v. U NYO 58
TENANCY OR L!CENOiE-Disfi1zction between a bare licence aud a
licence with coutraclual right-Enforceability of /iceucee's riglits
against tliird Parties. The Respondent was a tenant of a Room
of a hou~e belonging to one Mr. Jarvis, who subseqaently sold
the house to the appellant. There were two doors leading to
the main hall for the purpose of entry and exit into the room
occupit:d..,by the Respondent. The appella;-.t claimed that the
J~espondent had no cxclnsi\'e use of the two doors, and that the
right, if any , was a mere licen ce re\ocable at will. Tiie
Re>pOttdent replied that his was a tenant's right under the
tenancy \\"ith the pre\ious owner. The qt:estion was whether
the I~espon den t had acquired any te nancy right of fre e access
through the t\\"o doorways or whether his tenancy right was
Jimitecl to the room only. The appelhnt further contended
that a licensee's right, if any, only binds the licensor and not a
third party. Held: On the evidence, that the entire room was
rented erut witho tt any reservation whatsoever. The use of
the two- doorways was not given as a clisti net permission, but as
a necessary incident of the tenant's right accompanying th e
tenancy of the room in question. The Respondent has already
ac,gtired a tenancy right of using the two doorways from the
very inception of hi s attornment of tena~cy with the previous
owner. Held further: That the licence thorg h revocable at
will at Common L:t.w, ntJtwithstanding a Contract to the
Contractor, cannot now be revoked in Equity. Equitable rights
now prevaiJ. when there is a licence with a contractu! right,
Equity would a! ways intervene to protect by injunction, the
Jicemee's r;ght of any revocation or threatening interference
in breach of such contr<!ct. The appellant who has full
J<nowledge of the Respondent's right of usc of these two
Joorways, e;;en a.s a licensee, andr there being an implied
confractna I obligation ofthe former owner to allow the Res pond en t
xxxviii GENERAL INDEX

PA'>E
frc~ ahd tninterrupted use of the two doorways must be held to
be bound by such obligation. Therefore, firstly, Ule Respondent's
right is a tenant's right. and secondly it is a contractual t:censee's
rigiJ! created under an implied contract to last as long as the
tenanc.~- lasts. King \. David A lim & So11s, Billj;osling Lid.
(1916) 2 A. C. 54; Clore v. Tlieatncal Properties Ltd., ( 1936) 3
All E. R 433, facts distinguished. Errirrgton \, Errington aud
Woods, l.K.B. 290, follO\\ed. Wood v. T.cadbitter, 13M & W 838,
referred to. Booker v. Palmer, (1942) 2All E.R. 6i4; TlwmPson
v. Park, (1944) K.B 408; TViuler G,rrdeiL TlrcfJirc(Loudo11], Ltti.
v. Millcnuirnu Productions, Ltd. 11946) l All E.l{. at p: 685; Fer
Vtscotml Simon, (1948) A.C. at pp 18'LCH; Foster v. Robirrsou,
(1951) I.K.B. 149. "Licem:es and Third Parties" Profes~or \\'ade,
68 L:tw Quarterly Review pp. 337-345; Gurbacha11 Si1tglt Bwdra
v. los. E. Ferttmtdo, B.L.R (105!} (S.C.) 255; S. R. Raja v. The
Assis/a11t C01rtroller of Re11ls, Ra~tgool/ mrd two others, R.L.R.
(1950) (S.C.) 10 ; The llidia1l Starch Products I.imiicd altd
al!o/llcr v . Tlte Coulroller of Re11ts, Rarzgoon aml a11otliu, B.L.R.
[1950! rs.c.) 64, referred to. Fairman v. P<"rPetual Ime;/mcut
Building Society, (1923) A.C. 74 at 85, app~o1ed. Appeal
dismissed.
V TIN E:\G v. U B.~ YoKE 341
TRADE DISPUTES AcT, 5. 20 (1) >~-... 316
TRANSFER oF PROPERTY AcT, &. 4, S. lOS (a) .266
- - - - - - - - - - - s. lOIJ 10
TRANSFER OF BnJOVF.AilLE PROPERTY (RE STRICTION.~ (AMENDMENT)
ACT-N01 INTENDED TO DE-
PRIVE FOtmiGNERS OF PRO -
PERTY ACQU!RcDOTHERTHAN
ilY TRANSFER 221
(RESTRICTION) AcT, s.J, ., 172

UNION JUDICIARY ACT, S, 20 22.

UNION JuoJCIARY AcT, s. 20- S. 3 J'rall~fer of Immoveable Property
(Res'rict ion) Act, 19'17 -Ad 17 of 1952-''Forcignlr," whet her
entitled to a simPle mom:y decree when his suit is esseutially a
si111plc mortgage suit but I ftc claim was for r cpa)meut of tile
lomr on personal cotcnaut OHlY a11d uot ngai11st tlte sewnty-
Ss. 24,57 aud 58 Contract Act. A mortgage deed contained ( 1} a
personal cov, n:u,t to repay the loaq and (2) an offer of immove-
ab!e pr0perly as security for the loan. The respondent, a
foreigner wai\ed the security given and claimed the repayment
or the lo ;~n by enforcement of appdlanl's personal covenant.
'The appellant contended that the mortgage deed c:ont[!ined two
indivisible coc:nants Dnd the lran~action was \"Oid from it;
inception under s. 3 of the Transfer of Immoveable Property
!i{estriction) .'\.d, 1947. H cld: The firot part to repay the loan
on personal covenant is legal. The second part i,; il 'ega! under
s. 3 of the Transfer of Immoveable Proptrty (Restrict,ion) Act,
1947. To consi(ler whether a contract i~ void in its entirety or
not t;nder s. 24 of the Contract Ac', one mttst also look into the
SC\'erability or olhetwise of the illega l part from legal part in the
light of the provisions of ss. 57 and 58 of the Coutract Act, Lhe
three sections being supplementary. The nJe (\S r egards
enforce,1bilily of contracts appears to be that where a contract
 GENERAL INDEX XXXlX

PAGE

is indl\ lsible and when y )u cannot sever the illegal part from the
legal part of a COYenant the crmtri\ct is altogether void. If a
contract contains distinct covenants, some of which arc legal
and others illegal, the CJurt can enforce the legal ants. If
several distinct promises are made for oue and the same lawful
consideration and one or more of such promises are found to be
illegal, the Court will edo:-ce the legal one~. Even where a
person promises firstly to do certain thit~gs which are legal, and
secondly, under certain circumstances to do other things which
are illegal, the first part of his promise is a good contract and
binding c;n him; but the second part of his promise to perform
under cut<>.in circumstance1S, which is ille).(al, is \'oirl. Similarly,
in the ca;;e of alternati\e promise, if one pan which is found to
be le~al and the other illeg<l, the legal part ran be en0rced.
Appeal dismissed. A. !'. JoscPlt v. E. fl. Joseph, A.I.R (1926)
Ran. p 186, dis:ing:uished ; J1la K:ytn Ho11e atld ot/;~rs ,.. Oug BooTl
Hock a11d others, A.I .R. (.1937) Ran. 47 ; V.R.Jf. Ramaswamy
CIJettnr ami auot!Jer , .. C.T.M.N. NaclliaPta Cltcltyar,
H.L.R. (1939), p. 711, referred to. ,
. _,..,? .. .._t

s. s .uw~ HuosAr:-< v. R. l\L L. RA~l-\NATHA Cifltt!ruR 172

',
URBAN RENT CONTROL ACT, s. 2 ldJ AND S, 1(,-Deji:;;{pon of
tl1c word " Premises" -Electric gcuerating flanl. 'He(d_: :'):n
tlectric penerating plant means and includes mac hilies ,
buildings,:<.-ttlhovses, etc., as well as the lands on which they
stand and hence mctst come within the definitinn of "Premises "
ins. 2 (dl c.f the urh<'n Rent Control Act . !,Hoke Sci11 v. T'lte
Coulroflerof Rents for the"Cityof Raugoou aud one. (1949 : B.L.R.
lS C.) 160, follow ed. Held nlso: In a suit for arrears of rent due
on a lease of an e lectric generating plant. a certificate by the
Controller c ertifying We standard rent of the premises untkr
~. 16 of the Urban Rent Control Act is necessary.

THE OFFICIAL RECEIVER, HIGH COT:RT v. TAN GWAN L :E

AND A:\OT~ER u3
URBAN RE~T COX'f10L AcT, s, H (a) 106
URH.-\~ RFN'l' Co:-.:'1"}WL AcT, s. 11, sUBS. (1) ldJ --Cerlificat e u11der s.
1-I-.-1-!Vhctlter a Ci;1il Court IU!S Jw isdrclion to decide tlze
question of bona fide requiremcut, 71!/!tch /:ad alrcady leetl
dec ded by the Rent CottlrollcJ-Order 23, Rule 1, sllbrole 12)
C;dllroccciurc Code, terwis;ion to wdlu/1mv suit wit-h ltbcr!y
to institute afresh oue-Fres!t suit filed -Hes Judicat:t-Orclcr
41, Rule 23, Ci:,tl Proce.lure Code. Th( l~espond e nt hied ;1 s dt
for ejectment against the appr:llad tmdcr s. 11, sub-s. (1), Clause
(d) of the Urba!l Rent Coatrol Act, 194:3. after obtaining the
requisite Cer}ilicate umler s. 14-A that the land was reqJirecl
Lo;;a.ftde forercci i:l n of a building. The defence, into alia, \Yas
thJt the land was not required boua fide, by the Respondent. The
Respoml0nt replied tha t the Controller of Rents had already
de:id: d th e question of boua fides and that the Court has no
jurisdiction to go into the san~e tnattcr. This' contention was
accepied by tile Co~trt on a prdin-:.inary i ssue. The R"~pondent
however withdrew the suit under Order 23, l(ule I, sub-rule (2)
of the Civil Procedure Code with liberty to file a fresh one,
bec~use a notice4o quit tmder the Tr<1ns f er of Property Act had
not been. giyen. Subsequently, after giving a fresh and 1alid
notice, she filed a second suit. The <lppellant again raistd the
san:e ;>lea that the land was not required /;oua fide. The
Respondent conten~ecl that the matter was n s judicata in \iew

5
xl GENERAL INDEX

of the decision on the preliminary issue i~. the first snit. The
Trial Court held that (i) the matter was res judicata :\nd that (iil
;he had no jurisdiction to go into the question of bona fides and
decreed. the Resrondent's suit. The District Court, on appeal,
held that the Trial Court was wrong in holding that Civil Court
ha<l no j .1risdic!ion to decide the qt1estion of bo1za fides, but held
that the matter was res judicata in view of the decision in the
first suit. The High Court, on Sc:cond Appeal, held that : ii)
Civil Collrts have j.1risdiction to go into the question whether or
not the land \Vas bona fide required for erection of a building
thereon. tho.,gh the landlord had been granted a certifica:e tu
file a suit nuder s. l1 {i) (d) Of the Urban Rent Con.trol Act, 1948.
S.M. Ahmed and one v. Ba!mdi, (1951) B:L.R. 156 (H.C.) rcHecl on;
(iil The question was not I'CS judicata by reason of the decision
in the first suit, which could nnt ha\e been npcn the same cause
of action as i;~ the secO:l<l suit, inasmuch as in the first suit the
cause of action did not exist at all a notice to quit under the
Transfer of Property Act not having been given by the landlord
to the tenant. Ramasami Redtli v. Tltalawasal 11farudai Reddi,
I.L R. 47 Mad. 453; Ramireddi v. Subba:cddi, I.L.I~ . ~1ad. 500';
Slzamdee Begam (a) [(hin Khiu N:yuu( a11d o;J C v. P. C. Dutt, (1954)
13.L.R. 34{S.C.), re{erred to.
U U NYUNT v. DAW KYIN SIN 230'

ffi!cf.ieor;;~"ll:nn

OJGp~llOiJ~~:~g eor;;m
6p ~:nd:l~G80G!3 I
b[JCS'O oSCT.lJ$~:~G80G8il

ffi!O d3~cf.i0'):}/0J?:~~G~j: ffilrb80G~n

mqJ:IlOij~~i~G80G8C(bG OOIlC!COCl9]rtJ ffi!~b Cf

~G?tt~P')?OJ')80G!311 tt2:xl?::D')Ot COCG(.l.)?! 0?~:~: o;iJ,c:;2~02')!

o1m CT.lJ~E>j~~OjlGOO?o5p:@~G0t ll(.l.)'J:Bt.G0 qc:~~c~t~G:n?
o~t:an:~:~t~EE:u g]o?~ rnd3rr.lroC: ~qE~:~u10.:JJo599
CT.lJ~6[t,~:lj?GOO'J::nt ll6[~rbot ~:GooSro rn9":l:~:@d.la)'):t:.t
~~~ed:l~oS~ ffilo;(~G:nSrot:Gro?t:l @c:;oc~. G::>.:fScct:
Gm?t:l G0?BrooooSGo:&vt~Gro?5: ooS~cf.i@5:1l~~.l Gprb
llm?:@S:li?m 1SSco rbo dXj~GEj":Jt:O?qJ:o?~:oo 6g2@E:1 oosp:G
01J9~~~Q80GSC(6G OOIS)C:ruE:~rbrl<l~5 91 G<fOrbro&:t.~~Eg~
G~ll ~m~m~~[09":l d~:qE519 ~:9~9'J~ro&~ffilblt:@S0
o.Jtu ffi!S~~:~:~:f>tCetGo:>":J:9')ffiiOji~OObp!~GGffii:S@S~IY}g
qE ffil~ SlG6fl oS@:'?;,'o)oSrn~E:@~r;;:n~ 1llG.ffii:SrooS~@SGfto:>tli
rl<l~c:@&G:n~ 1'i(romSS~~ rl<lG'-~:GnTGo:>:~E@S~ tq5:~8'd5
~ji~Gm'JoSroGm'JoSmo oS~:n'J ~5~oS'J~Go:>Sro~: 1:~9ro
S~ro'J~t rosp:G o~Gco'Jcf.i~:l OE~::> yj!Sr ro~:6r~;5t ffil(j65
o 02Et GG~:mS~9 a<~'J:msp:~~?:roGoT025' qc:G"Jl'):O~ g)~
ro~"1~1il~C:6fl=2~~~m~9~ro-::>:1 !jro~~')~cq5 ~~02Eo1oc
 GENERAL INDEX xli

.
GOJ:l G~~?:~jl? ~:~cocf.iV6C:~ GE>pcf.i::Jil?oG:>t:.l ~~ol
rnS~ !'lm~~O?bf?:~@S~"'J?:m rnqg~611 d2aG?d3t Sffiru'J
t;;oS~Eooop:g~:l ::>@~J ~~S1 ooop:g~:}l~yoS ? ~t~~Grn:S
m 02oScg~~~:~:6'\E<::\irnG~rn~oS c;t:G@roS~ cooSo d3 6'\C'~o1
OJ~Of O:>E>tJ:2~o.J~.I ~~:::D~~~C:G~?cf.i~~Goo5~~~:1!lo?:m
::>@:J? ~~s, ooE>tJ:0~=w~5lo5 o 02 5 0to):: ~:@oS co'J:Go
CJ.??~I:)G~:S:::D~C'J2uScg~~~~~:!ijt~S~:g@~o.Jt&rnGC\Jj?ri5cod3
orF.!ijGI!lOf S'lm~q;jlo5Go:~o.Jtt ~rnS~!'lm~~~:~mooop:~o5
G0:>6~~q~op~o5Gm5~r J~:~oSqd3r .~~g:m:::D:>occoE
gm'J:CYJ@:@:C'J2oScg~::Jil?:o1mn'ij1ij~~~~m'J~'J:8~G01gm'J:@t
GID c;E:~~E~c~G:::D? oi?t:"li:nrr.:r:no?:eyc~EOJ~.I G0?t8oS~9
'2 :~~ Gl:l:>ttS:r qtd5J~?(~\t oo@'{l oeoot l!l?~chp
::><;Gil ~~GlE~:~ Grn?oS~:I~~wo?:m ::S~o1C\ild35<~ ::>@::P
~~~~ O?P:g[ill:srrn:;oS o 02E gGoa:Srod3ouS~ n<l<lJC: @~G
rn:>:o?:~ ~0oa,.1m :~jl? rocf.ior})OJ? q~oS:::Df~p
coC~p:o1cqJcf.i~~ G~Er.l?:o?:~ @:~rod)~ Er.lOGo:GIDtJt <jjyo5
~J;GOJ:>::r.lS~:::D~ coEcoC'!ll'J:p:~: jl?:~OJ.1 oo~:oo~:y
~jloSCO?IG:::D'J !'lm~~ ET.lo;?QG:::D6qt:t ~COOCJl~~~G:D6qt:l
G0'J9(7)0')oS~G:::D~qE: 00-fe}:;;~=~~ eoGgaa~E: ouS~oS@c:
(;l~~CSJCI qc~!Jm~:::Dt . Er.lJi0002Co1G:::D'J CDE>p~~ mop:Q9j'J:
O<JGof 02C ooe}~~oSot~:::D~.I :~~~ ::>@ ~ ::> ~9~ I O?E>p!l:l~:~
aa9oS o 02E 9jco'J:G:::D'J ~m~:::D~ j~'J:O~~?::S'J:G:::D6rot:
~~:@o5c:o?::::Dt& ~q59JoS~ ooS~oSGl~ rnqQ0o5~@5:G6'J~
G'E:rn~D65 .. 9JCO':l:GOJ?tlm~:::D~ ro~:;Ooc~OJ~II mop:l:l
. CY.lJ~~: C~G2()G0~60 0::> SCI6)1 gGET.l:Sj~'J @:~roy Er.lGgrooS
ooS!ij~Si c:oo~mGp:oo~:cra::D~ ~~5g~0~JI Gc6m?q]f:Y.lC~
lJ!>p(;ltJ1o1:n~~~ f>':l~OO~:J.JC~tloSo1!)>$ OJ~: I ~CIGET.l! J '2 1 ~?
"llcf.i~? J oGu sad5() I GO<l l-f>OJ~~~ sacf.i(S)1na'J(~)tooSoo8.1 @1
li}~"tfJ0'J(,jjoS~? 900 ~~~cf.ip:::D~II (;l~1~\C~~d,l:;;oc o1 J I
GD'di~CIOO'J(~)I ::>@?? <jll 6)~0{~1 l!l'J"td)P ? J '1 ~[3-:l::::Dtll

~:~ ~~ (;lGoo:S .. . eG
G'f?CS':::D;S ct!Jg p.1 O:]lO~~G1oSrn?:Go:Gq:rn~ rn<f'eoG~ ~~ 8~
CO?ZG:::D? 006p~"ij'J:y? [9t~co~co~: SC!b!f~(,jj?~@~l:l@S.I [9~
GCO'JC<@~0'J~CCG0::8 ~0t:~b<lJ[5q a:IGS~20GO C(SG <p! II

~:~oS9Jcf.ill ,iCI3Jbl!l~g1oSrn?~GO:Gq:::r.l~O C OOE>p~ a:l6pOOS:~

OJt E>(:>~::Dcf.i(60 J ::> ~rn8g1uSctrnCY.ll[:o5~~@t:lj?00~co~:
"lJ?:@S6:xi~Ji

::n8~ o1 J ~~- [9EGco?5'G?~CcGooS Grz

xlii GENERAL INDEX

PAGE

q:>~ooSCJ1]9c;R:~Q 80G8 c;oou wdS::n'Jo:>?oCC)l~:~'J: cBS:':l:cooS

roS 8CooG'JoS@t:u :l~:@oS~cbll .!od5::n?::D'JOtC)l~:~'J~ I,)(J
ro?GOO<JCq:>~ 8CGS[!~~G:D'J8C~cb~p Cf.lO?cb9~ro::noS8Ce~roCI]~
80GeJ':lt:~~ :DGO'::J':lo;l~~cbroro~~d)~')l~ Dd)oSGq_:>cbOi/
o:>roGooo:B::n<Jo:>'Jot Goo?o~p:ro~:l ~~:lotoS J :5l~ S~:l:l
o:>roGoo J ~:~G~~t md3@1>'!oot.i ~C~~GffiG~pc~8CG?t:
~S:1 coc~5:~~ ro@Soot: [9t~G8C'Jt~oqo:>tu ~~oo'J ~
CSJC cocro85: 8CroG@<J:f.ioot.IGo:l?lo'J:~~d)R~q:>~.Go:l':lc~p: .
@~:::lj{<Y.l S~:l:ltl'd'J: odS::n?oo'Jo S~:ooS:8CS[ rooSroSI:ltljltr;!GB'J
~~o1cgjb S~wotD:::lj{ m ~S :G~')~ ~d)~~ 'J:oot9wmoSoS~:o::.S:
rnq co:f.iroo:.ljiG'Jt:~ 8Cd38Ca:>J:Dd3G_o:>B6)~:~t_~ @:::nG~ 51~
l:lG0'JS[CI l1951) B.L.R. p. 113 OOG::D'JO'il::Dtu
808)ild'JC\J~ ~~ GGO<l: :)
q_:>c;-OJ3CY.>J~~: ~QBOGO <(01:1 9 oo .1 J<Y.lGCO:~~cbS[~G'JC: :::f.J~C
<Y.JI<Y.lGCO~:lJt S8:D'J:oto5 GCJtoS~G~:o~&E>~~ GC'jj':loSg;p1
~:@oS~rb.l ,180G;J8CS[I <Y.JGco:~ G~:~.;!.91:fi~oSo&Grog~E
:lJ~8C":lC1D~~?:~1 q:>~o o)<T.l]~~: ~Q 80GE:c006CGtoo~O'Jbp:
~0:~~Go:~~:JOJ'): I GC':1\?1)9$J~otJS~d);))t,t
!.91d3G'Jd3d3 ( GdT) GGOO~:~ 51~ Gad I 8CS )'JS[?~ 155

naod3~roo?:sto:o:5G&~: naoSeoGo ~6~:~ 9 ( o) (o) (J ) 5l~bp<.'l':Dcb

~5~:~ oJ o (d) 8CS[2~oS11 bp<.'l'::Do) 1.16C:l J or .jgtGro'JCri( ~G'J~Sc
Gooi3 Qt 02S:G6)G Jt:JJ oSOjiGro 'JCGS[_:,naj%~ ~bp<XlS:naJlroS:
~:Dtst8?.oo ~oo~:<Jp:@~G ~~~'tG CX?~f.~_~~~CcGm~ ,~0t:
~D~lD~~G;;, eoGCJ~tJQ 90.1 i~:@~~t. J;..~l@tGro?S~@~
~?~tC<;;-o::.S) e;cgt:G6!G'Jc;OJoStljl~Gro':lt~:8<1~~ 8CbpooS:
80JlroG:"1J':l~:ra-:>:~!~:l)t bp~oooS <(b~ J :::> ~ rn881oS8<lcgb:
oooSGbpoSGOO'JBtOi/o0 ~co~:~p:~G'Jt:.l Cl$t:JOJS);OJ'J~~co
l?q:>&~~ ::Ji6J.Cgb:@oSn ::J@<t:::> ~5l~l8d:>(~)18CoS( cS)IS3-:>(~)t 0'J
~oS5o ~@e ~rb?'JOJt.l
md3 (5) 1 ~~ mJl\: o1 9 ~~ @tGoo'JC~@~G'J~tc~OJS) S@
8<10 d3~ro0J:~m':l:~G6J.: 8Crb2oG~ ~5~:~ 9 to) (ro) 19 (J ) 8CS[~~d?.n
f5P00JJ.i tt6bl J ou ~Ec~-cos Gm-:>oSu:il:~G~c;o oSG6J.:8C)%~8<1bp
ro~:~11oo~:~'J:~:l)t tOil.o~roS:11p:~g0u n:;q:@d3~d3
.l .l~bCGOJi3Gro'JoSodS:~Gbpbo o5GS[:83~1 Cl~OO'J:GOO'J~~lcSm@:
o::.Goo'JoS:lJt ~e:lJoS~1:l j::J ~ 8C8g1oS8CS[ gtD)I.o~ooS:
m3:'G~oo:1'
v 0 '-'

:tt ~9 gjtGoo'JC~ g~C:l'J~tcGo:>S :::>o J

G.U .B. C.P.O.-No, 35, H.C.R., 3-S~S9-1,75C-1X .
 113ccso~le~ge.cg)le:0~o:chc.o 9c.o3::g~ g&pdd9BsitoBcccgcecB~@ =ill'! o
:chco g~~fB[fgg :fB~o~chco 1gc0B:~EF:g g~/e:~so:chc.o sm::>?g~ .J-
no0 sooe.cctbpclfuB~ec:cc:;,e.ce:chco ~~~e sGelc * .

u3eb&1pcw::> eoifcc:s&l~b ~:cMec; ccc::>:clflesucoscco:;,w

glo ~ecce:~~ r3ccshle:~c3 ccc::>l:'ob~:;,:clhosucooe:Sc :?f~w:31Eo
~ccleBg
see g3p~gco :g!J9CCBff8::>SSJGCCC::>:cih fl sucogccoBco#-o' I:gS scc::>~8BSSJEO
ccc~:cihfl pcoce:Sc ~~:?f3co:sc~o be.csole:sc3)~ II~CC~Lo ~l:'ob~~81'}
socogcco::>co gl!:.o SOCo~'>:scco~ ib~:;,ge :fJOOa:!:~ ~:?f~co:sc/Eo :cih8BSSJG
cccBg~gJ~gco g&( o) G~c egoG::>OCSCJe.G SWe>:fJCCJ.Jt)eo;gcJBSOmgo

usceb~:gccot) ~bplbsoo :~:g&gco l o?f~ge.c ~~gb :~:g&scco g~g~e.c&:\9

~:CCO:fJC.lfut) :scm?f;~:g!'l scoopccoae.G :f'CC~ It eec;~CCBSlJCifua 3sc.oB
3jgc@ J, ee~eG 3bsolbsoo?f~sec~&1ec~:f:S:ga9CO~Ca:a:r. rsofeso:~

'f(.IQ;JJO ~u!~Jc=>usl :g&socw~soL Bgec

?f:c!hso/e:gc3 c~oc g~geg~g sucogcOJ::>C')SI!:.o :3roscceg~g
ce:~ ~=[fscoz315o <hg~socc 3cc8::>SSJG cccBso~gco bee agbg:,
Jggec~&1e.c ~~:~:ge SCOBcd3cc r~gec ~:2:gescoasocCJ.JBe.G socc~
( o) 0 sc egoG:;,OCSCJ8 scoasocco~e.G :gcasorosoo scoe~jgc~l e~~ec

* (&b~ g ccoSDciED8)
upb ~c
( gb8so oggcJs8;3ccgW) g0gg~~C08CcJBt:C
mC<f08 ~~
~Gelc.j. ((lcgcooSDclfu8) soccgcB~3co (~) SOG~ooccc

Slfh ~CO$ SO g; g cb CO

S~1IOdH1I &V'I VW11flH

~cc8e::p9 cccsCf~9-c.orbec ( o) 0 ~c e~g0 r;so2soecsc.oesocc.o~ec
~scssorogo c.o~4sle sc.o~soro ~ccco ~ff>&sociEDe
'" n~fpf>3b3re3 3cecesoclhso
~cfbsole~g&l )!,e LosoooeB gcJeccee~cccscebsoo f?crosocfue~
gce~c leso~emgcec ccce'~rol6le> g&pceBe gfuchtb .
~ n~:g&S2ooe~ ~er;&b~ccogx!roe ~scrotf~fa:gf>
sc.oesocc.oeec socc~~ ~~~~e~~g:g&gc.o g&>gc.oe~~~- gdf:lf?llt8g
~StleBSo r~g o.s8::~:gcc.oe3bsu!bToSo3sec~cMco nsceteeb]~
:gccoe 3bsolk>.To Lobo~WB ~gfa:gf>scoesocweec:pce~ ~~~C.03b
rsccc~&pdfue sees~ g:cmg030 nsccc:coosociEDe c~scoe
:~~ sofuer; scoe3rgw .Lee~ec r3bsolbgm [p~gec ~:0:~eseoe
cal3:c c.cf?&tJd~e ~~tc nscccroesof?soo wcro~/!net; ~[f&
c.o~gge sc.oecooce :scrodiLeec cccego~&>ec cp ( ~beTmgch~
:3cc:&>) :~gescoec~cc c.o~&soc!fue ~rscccroeso~so~gcotf
gll:.o oo(/0c 8egos cceeg~ere~~ ~g~!co tbm( o) 0~c _eg0
Ge.lO 2so eG scoepcc.oeec:gcsTmTo3~:g&:gco~scB!olb[p:cle
3ibg\ CCCe~qil:.o n-; O' 0 C 8egbc!co~~f>303~lOSeG~ffl_lc:fcfue
I c.og~gge SWS:fJCC.Oe!eG :fCC~ r~3w3bu lJ Sc.e~ g S~ :g
usc ccso!3gcreeLosof?:gesll:.oe:g bscoeSo soo I so fu ecl_lc~cooso c!fue
u?ccsufl.:>sooctssucroeu l'g3ccg~sulbsoo 3~s-c.o~!jgc~
,Lee~eo cosc.oe:~~ g;:clbs~ec ~&Doc sffucccc!i~gc?mc~ :c!Seogcoec; :~~
( l;lf>JO ~tq)Je::JdS) sccc:cibSCJ!eg~~ ~~&: c~ccc::>~C<JIX.eG 3g~S3~~
rbec( 0) c~c egb cew:~:ges-coeca3cc 31f:0:gflscoepccoeeosucc~
. n(:besoa
J 13eleebl!osucwe gcece~srt B~ec:So:cec:c!flgb:cco~ :gche:~cc
ccce~Lo 3fu!:flle:~c3B :scrocc'ichm~ccoe:;nLBsec g;gc~su!e:3c3BGeoc ~~) 30~ge
s-c.oecCii3 cc
~~3~soleso\!ef> gceB~;gc~:R:.oksoLBseG gif
~:c.co~ ccc~oob0~:cihf> ~coce:~:Scsco:g3$o gceJcccecl>~ ~:c:cco~ socc3ce
CCC::>OO 11 sotoe:g3C.Ofp )) ?ccsuie:3c3 CCC5/:ob~~sesuCXJ3CCO::>C.Oglto ~SC.O (~):fG
u:!flbl!osucco~ tn3cc:~(X)~~ g;:clh;g(';~ cccesc(')gcco~cosfto ~~ce;'~ ~ooccc
~:gS ~:521-~tf;!co:sc~o ~~~sule:3c3B ccc:)oob:J>~8f)~co3cco:)c.og!l:.o ~G~c
LS'6T] s.r1IOdtnr MV'J vw-anu z
 II ~OJ~~Ot'> ~fichf;c3~8~
eosccc~~c.~ ( .rgp.ro ~upp~gds) cxe>:gfo:c&cl9w3cow ~~f)
go~&i~ccggfogcfi 'sccc~c~solegb~ ~bo~ cf>kcn n3ccg~su~tJsn:-;
gsco::>3~w J,ee>~w w:;com~A3 tf:cih~gec~tf& JgfEocccfi~s&
:c& gcl.el3COeG. ~~~ ( l<Jp.ro 1Jupru~ds) 13cc:c./flg;~gl9~~fp&:
gcJeccce ~caocm 8gggb~ 1beiJ ( o) 0~c eg~ dibb~~~se
sco~c~cc 3~g[i]~ge :;coe:pcw~ro pee~ ~~swgb gLooof)S:>
II !eeg~cel,loe c.o~coe~~~ ecg2eg~ce>n2
~chco,~cc:gp~p~:ps oo0'0c giW ~~~Sc n3e!he>b&ipccce
gcece~~l8SeG g~gcesgbgcw0 ccce~Lo gwso!e:3c!3~ ::lro
ce;ht'npcc.oeSDLBsec bo~clbsofeg3d5ceo2 n3etp~ ccc~8ec
pccsocc 1cp~e:PL8geG cf)gb~cc.o0 ccc~w (~?cegscco~ 1b0e
:c!l7e <pOJOOZSc :Sc~co g=!8o) :l\)(lopcc.oeg;-L8ges 2:ogggco'7:fG
~g:poogcooecoglto ( 0e~go~3e g&c3c.o:38o) IM3rolb::S2cc3e
:gtpecscccgcoocpdfue g04elescoept\J~c@o ~tf&:pcfue
ng~snlesolree gcroe>:gce:lto E?gt8geG ~~eeoc
ccc?~&1 bGI~:clae pcoce~~gSc'!cm3~o gc~ccce~~ ~gc~cwc
ecce~ , , p2:oegsccosc,, J3ccp!eg3c5 ccce(!h bcoe8esoco
gcooecogiW ug:?eb&lpcwe to3ccl3~scb w:c!l?:ge~ cccesce
gcroe:o glto 13ccce~S'c ~~gs r~:3~ gbc3cm38o 13ccg~!eg3c3B
ccce&ibcoege progcroecoglto u3eb&1pcc.oe 2:c3ocg~~:b
g.ncle~es. ccce~c!fl sooogccoec.ogiW 3ccceg~So 13ccsob3c5~
cccew b0egcR=le g;OJreg~ ~g:~co~sc~o u3cc:le~~SCf,3~SO~Sco
u(~b~~ 0 ~gbSJcce~8e>goG ccc~gcffle pmgccoecogl0 ~~g~scc~bo8egoG
~3ib~~~cc cccegclflepcoo:::~S'c ~~tf~cogsc~o b~soleg~c8~w u2cc~Lo ~~
g~l~~~~(') b!lege pcogccoecogitD sowmg:?co?f lb0~8esocoregS'c ~gf?3co
g!? gsc~o CB~bgos cece3~so~gco gro ( 0) 0 sc ego g&c1~
soc.csc(')
~~co (3):fG u3ccgcmpc'f.oe ~sc;:,
~ooc~ ~e3~ceocgcJ.sco,~cc:ggso~~G oo0'0c glto ~~~ 'g3c~3~
sGe>c 8esocogcm~cogftD gscroscc~g~~reg~ ~gf3cog:la~,cbqbepcc
'Sl.'HOdtHI M..V'l V.V"Jl!DH [L~61
4- BURMA LAW REPORTS. [1957

oe~ (5 :::Dt':l]JJ'XlCPG::ml OJW'JGO)S Gt~~g~ gos~025, GTo'Jcf.O1

oii
:.J)'JO To~tgo 1~G:::D::::Dt11 r

8oS(~) m~~ '' gllToG2)'Jt~~~ cdiJJcf.~rot:l ~~G'J~t~~

l,l')~:J:) oS ~ . ~
IJ!~ ~~wt~~@~oo@t ~O~J[O~~em ~~w88 To~g6)
:::t:lW'JGo:>S CYJ~:::D~:Gspt~oo5G6)~~'J~I ::>@J 0 :r1 ~~CIJ J ~ 6)dJG?,~
folC;~: ( ~: 01 ~')To~ oS c; J \) J 06.5 Tod3ToCDt: C1.1JO OOGCO'J 5
~~:~~~ cod3qG::D'J To@t~ GOg~~~G'JC: G(!)T[9~@: @~GCD
cotu c;E:~~@oS~oS~1 O@Cf '(_ <r~~mc8 oo~oo~~CP~
f:~@t:G~~sp c;f:~~CJ6,CI OJW'JGOJSGt~~~m Tog~
GooSm~~~ToSJoS c; -8-G@ OJQC m~'JGooS~:~5:~~CP
c:oOGro'JC:Tooot&~~@oS~Grocotu''

Tocorb~t G\9T@co'J:G:::D'J mw'JGOJSGt~~:~ m8~51 GCP'Jcf.

~oS~cf.{:)J'J: To) ~@::m.p'Jcot 1 O@J o <(~tmoS, G@1S:@:G::D'J
@::mp@~~ G~cotu ~tGO1t: \)~ ~~GCY.)jS)CP G@lf:~: @~G~'J
@::m.p'J~@~ ~~6)~ToG6'Jt: o::~oosr':ll~rot: ~~:GooS3m~:~@5u
~@~1 ~GC\3.1'J~'J~ otb~cf.cot11
195/l BUH.MA LA\tV REPORTS. 5

SUPREME .COURT.
LEE KYIN SU (alias) U SU (APPLICANT) t S.C.
1957
v. Jan.U.
THE COMMISSIONER OF EXCISE AND THREE
OTHERS (RESPONDENTS}.*

Dirccliom iu the 11alure of Habeas Corpus-S. 5 (1), Public Order Prcsena-

lioJt.dcl-Iuitialarrest by InsPector of Excisc-Furtfter arrest by hr
pector of Police a11d dcte11lion by ll1c Dcj>u(y Commissiouer of I'olicc
smufcr orders of file Deputy Secretary, Miuistry of Home Affairs
in anlicipatio!L of ordu of dd ent ion under s. 5-A (1! (d), (e) a11d !h)-
Order XIX, Rule 8, Supreme Conrl R!lles-Rctul'lt tague-Rcfcrwcc to
!1om/ Ministry File-Powers of tile l'residcltl, s. 121 of the Cousliln-
liou-DclegalioJL of Powers under s, 7, Pttblic Order Prcservatio11 Act.
The applicant was arrested by art Inspector of E.~cisc on the 24th March
19!">6, under s ..5(I), Public Order Presenation Act.
On the 3rcl ,~pril 1956, ~n 1 nspector of Police, under orders of the Deputy
Secretary, :tllinistry of Home Mfairs arrested and dtbined the applicant
under s. ) (1) oi the said Act {or 15 clays, in anticipation of an issue of an
order of detention by the Ministry of Horne Affairs.
On the 17th April 1956, ~he Deputy Commissioner of Police ordered U1e
applicant's detention for two months with retrospective effect from 3rd ,\pril
1956.
On 4th May 1956, an order undec s. 5-A (1) (d), (c) and (h) requiring the
;tpp!icant ~reside in ~1)-anaung until 1st May 1957 w;~s passed in the name
.,f the Pn:siclent b) ~he Secretary, ~Iinistry of Home Affairs.
The applicant was granted bail an:l released on 7th May 1956 on \\~lich
d;1te the Deputy Commissioner of Police also revoked his order of detention.
For the applicant it was submitted:-
(a) The detention at the instance of the Deputy Secretary, Finance and
l~evenue, and l11e actual arrest by an Ins pee! or of Excise who is invested with
no powers under the Act, were illegal.
(b) The attempt at rectifying this illegality by subsequent orders passed
by an Insn:::cl<lr of Police and then by the flep.1ty Comrnissionsr of Police
were also illeg'll in that they had automatically complied with the order
com'eyd to t~em by the Deputy Secretary, Ministry of Home Affairs, instead
ni cle ~ icling for themselves whdher there were gro:tr!ds for srspicion :tgainst
the applic;mt that would justify arrest .
(c) 1\ detention in anlicip;~tion of restricting the applicant's residence to
:\J yanaung was also i~egal.

Cdrnin:-tl Misc. Application No . 129 of 1936.

f PrcsCJJ{ : U MYINT THEIN, Acting Chief Justice, !VIR. JusTICE bo GYI
:lllcl Ml~. JUSHCE CHAN. HTOON.
 BURMA LAW REPORTS. [1957
S.C. Held: The liberty of the subject is m:ldc int:er~:tsible by the Constituthn
1957 and that such person:-~1 liberty is not to be intcr~;.rcd with save ir, accordance
LEE KYIN Su with .l;nv an~l with strict c-ompli:J.n'cc with the procedure prescribed. The
(alias) sulllc!cn:y or otherwise of grounds against a s sped is a matter that has tn
U Su be solely dccicted by the ollic:cr empowered to act. An order passed by an
v. oflicc:r so empowered mrrel y bec:ausc of a direction made by a stperior
THE ('Q)!M!S-
SIONER. OF authority is manif<stly illega'.
EXCISE AND Ma Tltauug [{yi v. The U<'Puty Commissioucr, Hauthawaddy, (1949)
THRF;~ ll.L.R. !S.C.) 30; /Jaw ilfya Tm v. D;puty C mmissioner, Sfrwe!Jo, (1949)
OTHERS.
B.L.R. (S.C.) 98, referred \o.
An order meant to be retro,pccthe is also'illegal. .
Daw Ay~ Nyunl .-. Commissioua of Police, Rangoo1~. (1949) ll.L.R.
(S.C.} 5, referred to.
Held furt/ler: The ille~ality of the initial arrest and detention will not
ren<\er any effccti\e help to the applicant for the Court is concerned on!}
with the final order passed in tlc nan:c of the President by the Fecrebr y,
1\Iinislry of Home Affair~. All previous orders were \'r,cnled wbt:n the
applic:.nt wa~ rcleasel\ on bail on 7,th l\Jay, on the revocation of the
Deputy Commiosioner's order.
Held also: Th; v<trious order> or arrest and detention cto not form a
continuous seri: s am! that an ill ega l .trrtsl at the outset wmtld not \iiiatc
a final orde-r, as the orders were bsned by different attthorilies and the
tina\ and effective or'der was mdc under a dit1'en:nt section. .
Air Nywe v. Commissiu11cr of /'olice, Rangoon, (19l8) B.L.R. 737; Dmo
Mya. Tin v. Commisdoner of Police, Ra1~gooo, (19Wl n.L.R lS.C.) 82,
referred to.
f-Ield also: A return mai:le by the Deputy Secrel<try, which merely said
th:ll the President was satisfied as to the neccs:~ity of the order i> vag,te, i~ of
no help and n1l in conformity with Rnle 8 of Order XIX of Lhe Supreme
Court Rules.
All Nywe v. Commissioner of Police, Rangoon, (19-!S) B.L.R. 737,
referred to.
Held fur tiler: The statements contained in the Home Ministry lite
1:elating to the applit:aut ll1<1Y f;~ll short of proof in a crimimd trial. bul in
cases of preventive justice, the statements are there and the competent
authority had chosen to believe them. It is not for the Court to s<ty 11e
shonlcl not have and thus exercise <~n appellate jurisdiction.
Jllmmg Hla Gyaw " Comndssiouer of !'olice, Ranr.oo1, (1948} B.L.R.
764, referred to.
Quarac : .In this case, was the Secrehtry merely followinc a direction
given t<1 him by a supe-ior authority or did he u~e his own discrdion ?
Dcsir_abiliiy of having a properly rlelegaled authority pointed out.

Tun Maung, Advocate, for the appEcant.

Ba Pe (Government Advocate), for the respondents.

1957] 13 U R1VlA LAW REPORTS. 7
The judment of l:he Court was delivered by S.C.

. 1957

U M YINT THEIN, ACTING CHIEF JUSTICE OF r,~En

LEE II:YrN
(aJias}
su
UNION.-On the 24th January 1956 the Commissioner usu
of Excise sent in to the Ministry of Finance and :run <~~Mms-
Revenue, un der w h .ICh t he E xc1se
. D epartment func- StONER OF
ExczseA.ND
tions, a recommendation to take action against the 0~~~~~.
applicant \yho w,as reputed to be an opium smuggler
on a large scale. On 22nd March someone
purporting to act for the Deputy Secretary of the
Ministry, directed the Commissioner to secure the
arrest of the applicant under section 5 (!) of the
Public-Qrder (Preservation) Act in anticipation of an
order requiring him to reside at a place later to be
specified. On the authority of this letter an
Inspector of Excise arrested the applicant and had
him confined in the Rangoon Town Lock-up on the
24th March. On 30th March the Deputy Secretary,
Finance and Revenue wrote two letters to the
Ministry of Home Affairs, the first of which was a
request to issue formal orders for the detention of
the apP.licant u.ader section 5 (I). The second letter
was a requeSt for an order directing the applicant
to reside in Tamu in the Lower Chindwin District
for a period of one year.
By a letter dated the 2nd April, the Deputy
Secretary in the Ministry of Home Affairs directed
the Commissioner of Police, Rangoon, to take action
under section. 5 (1) and the next day, 3rd April, an
Inspector of Police wrote out a formal order of arrest
and detei1tion for 15 days. On pth April the
Deputy Commissioner of :police issued another order
directing the detention of the accused for a period of
two months wi~h retrospective effect from 3rd April.
In the meantime the Home Ministry had taken
action and on 3rd April the proceedings were
 BURMA LAW REPORTS. 1~57

s.c. submitted to the Deputy Secretal'y by the office. On

1957
the 6th April he recorded a '11ote recom.inending
LE!'RYINSu action as asked for by the Ministry of Finance and
(tzl(as)
u su Revenue. The papers were submitted to the
TuE ~~M~IIs Secretary. The Secretary in turn agreed and sub-
~~~~:; AO:n mitted the proceedings to the Chief Secretary who
THREE
OTHERS.
noted that Tamu might not be a place where the
applicant would have the means of .earning a
livelihood.
On lOth April the Home Ministry consulted the
Finance Ministry on the point raised by the Chief
Secretary. A reply dated 30th April was received
annexed to which was a letter from the Commissioner
of Excise suggesting Myanaung in the Henzada
district instead of Tamu. The office recommended
acceptance and the proceedings were resul)mitted to
the Deputy Secretary whose final note dated the
4th May was: "Secretary and Chief Secretary have
agreed. Issue orders." On th~ same day an order
under section 5-A (1) (d) (e) and (h) requiring the
applicant to reside in Myanaung until 1st May 1957
was passed in the name of the President by the
Secretary, Ministry of Home Affairs.
The applicant was granted bail and released on
the 7th May 1956 on which date the Deputy
Commissioner of Police revoked his order of
detention.
We have set out the events in some detail, for
learned Counsel for the applicant h&s submitted
that-
(a) The detention at the instance of the Deputy
Secretary, Finance and R~yenue, and the actual arrest
by an Inspector of Excise who is invested with no
powers under the Act, were illegal. "'
(!7) The attempt at rectifying this illegality by
subsequent orders passed by an Inspector of Police
1957] BURMA LAW REPORTS. 9
.
and theJ~ b.Y the 'Deputy Commissioner of Police s.c.
1957
were also illeg8l in tnat they bad automatically cqm- -
LEE l(YIN Su
plied with the order conveyed to them by the Deputy (alias>
Secretary, Ministry of Home Affairs, instead of u v~u
deciding for themselves whether there were grounds THE CoM~us
. .
for suspiciOn .
agamst t l1e app 11cant
. I
t 1at wou
. 'fy
ld JUSt! sJoNER oF
Exc1sE ANn
THREE
arrest. OTHERS.
(c) A detention in anticipation of restricting
the applicant's residence to I\1yanaung was also
illegal.
There is ample authority in support of these
submissions, but the matter before us cannot he
disposed of on the question of unauthorised arrest
alone.
Since the point has been raised \Ve would observe,
this Court has repeatedly pointed out that the liberty
ol the subject is made indefeasible by the Constitu-
tion and that such personal liberty is not to be
interfered with save.in accordance with law and with
strict compliance with the procedure prescribed.
The sufficiency or otherwise of grounds against a
suspect.is a matter
... that has to be solely decided by
the officer empowered to act. An order passed by
an officer so empowered merely because of a
direction made by a superior authority is manifestly
illegal. See Ma Thaung Kyi v. The Deputy
Commissioner, Hanthawaddy ( 1) and Daw Mya Tin
y. The Deputy Commissioner, Shwebo (2). So also
is an Qrder meant to be retrospective. See Daw
Aye Nyunt v. The Commissioner of Police,
Rangoon (3).
But the illegality of the.initial arrest and detention
will not render any effective help to the applicant for
we are concerntd only with the final order passed in
- - - - - - ---- -
(I J (1~49) B.L. !~. (S.C.) 30. (2) ( 1949) I>.L.R. (S .C.) 9:).
(;l) (1949) B.L.K (S.C.) 5.
10 BURMA LAW REPORTS. (1957

S.C, the name of the President by th-e secretary, Ministry

1957
of Home Affairs. Th~ original direction of the
LEE KYIN Su
(alias) t>e.puty Secretary, Ministry of Finance and Revenue,
U Su
v.
executed ~y an Inspector of Excise, _culminating in
THE CoM~!IS the arrest of the applicant on the 24th March was
SIONER OF
ExcisE AND substituted by the directions of the Deputy Secretary,
'l'lll~EE
OTHEl~S.
Ministry of Home Aff~lirs, under which the applicant
was detained as from 3rd Apr-il, firs.t on ~he rec;;pon-
sibility of an Inspector of Police and later on that
of the Deputy Commissioner of Police. These orders
were in turn vacated when the applicant was released
on bail on the 7th May and the Deputy Commissioner
took the precaution of revoking his own orde1. The
applicant is thus left with the order which has kept
him at the present moment in Myanaung.
It has been U( ged that the various orders of arrest
and detention formed a continuous series and that
an illegal arrest at the outset must vitiate the fina~
order. Some credence is ler1t to this view by the
decision in Ah Ny~ve v. Commissioner of Police,
Rangoon (l) where it was held that an arrest made
by a subordinate officer upon receipt <Of verbal orders
over the telephone from the Commissioner of Police
WdS illegal from its inception and that a subsequent
written order confirming his verbal message could
not cure the illegality. While it is true that the
various orders in this case relate to the same person's
continued detention, it must be borne. in mind that
the orders were issued by different authorities and
that t'he final and effective order which is now being
challenged was made under a different section by
which the applicant was. released from custody but
was restricted to the limits of Myanaung. A deci-
sion which is against the view advanced is Daw JVlya
Tin v. Commissioner of Police, Rangoon (2), where
--- -- - -~--

(1) (1948) l.l.L.R. 737. (21 (1949) B.L.H. (S.C.) 82

1957] 13UR!\l/\ l~AW REPORTS. 11

it was hetd that a person released under the order S.C.

1957
of this Court owing 1o a technical Haw in the orders
LE; l<YmSu
of detention may by rearrested or, if still unae1" (alt'as)
detention, such detention may be continued under a l' s ti
v.
fresh and lawful order. TEE CoM~!IS
SlONH~ OF
Turning to the merits, notice was issued to the EXciSJ; ANH
"rl!IIEE
respondents named in the application, they being the Ol'lJERS.

Commissioner of Exci~e, the Officer-in-charge of the

Rangoon Town Lock-up, the Commissioner of
Police and the Secretary, Ministry of Home Affairs.
No returns were filed by the first three while a
Deputy Secretary of the Ministry filed an affidavit in
which be merely said that the President was satisfied
as to the necessity of the order. A vague return of
this nature is of no help [see Ah Nywe v. Commis-
sivrzer of l'~;lice (1 )l and not in conformity with Rule
8of Order XIX of the Rules of this Court, which
reads:
"The return of tile \Vrit shall contain a copy of all the
:auszs of the prisoner's dett:ntion endorsed or annexed to the
writ, and the return may b~ amended or any other return
mbstituted. "
The leanloo Government Advocate however has
Jlaced before us the Home Ministry file relating to
:he applicant and we have looked into it. It appears
.hat subsequent to a seizure of a large consignment
)f opium near Rangoon in 1948 the applicant was
~ ep t under surveillance. It is said that he was ruined
)ver the seizu.re and remained inactive for some time
)Ut the "Excise Department had reasons to suspect
hat another big consignment seized in Meiktila in

952 was his . A strict wa!ch had been placed upon
im since then. At the end of 1955 there were two
uge seizures Gn board ships about to sai! from
~angoon. Enquiries were made and there are
(!} (l94S} B.L.R. 737
12 BURMA LAW REPORTS. [1957
S.C.
1957
statements on record that these~ a'ttempts t9 smuggle
opium were done at the. instance of the applicant.
LEE KYINSU
rauas\ These statements may fall short of proof in a
u usu criminal trial but, as pointed out in Maung Hla Gyaw
THE CoMms
S!ONER ol>
v. C01nmissioner of Police, Rangoon (1), preventive
ExcisE ANo justice which comprises restraining a man from com-
~~::~:S. . mitting a crime which he may commit but has not
yet committed, is common in nll .systems of
jurisprudence, and in applying it, it must proceed
upon the principle that a person should be restrained
from doing something which, unfettered and. free, it
is reasonably probable that he would do.
In the past this Court has explained its functions
in dealing with writs. We do not exercise appellate
jurisdiction in dealing with them. What we have to
consider is whether an authority exercidng powers
under the Public Order (Preservation) Act herd
materials before him to juslify the conclusion he had
arrived at. The discretion to e~ercise the powers is
solely his, and even if we wish to, we cannot sub-
stitute our discretion instead. It is for him without
question to decide whether he has re1;1sonable
grounds to act. if

" In this case, there were before the competent

authority the statements that we. have mentioned and
since he had chosen to believe them, it is not for u.s
to say that he should not have. The materials were
there ; on these materials it was within his discretion
to pass the order he had passed ; and it wquld not
be proper for us to interfere.
The appliqtion is dismissed.
We desire to make O\U observations on one point
which was not raised. This relates to the powers of
the President. The Public Order (Freservation) Act
invests the President with certain powers but the
1\ (!9481 B.L.R 764 . .
l95!] BURMA LAW REPORTS. 13

word is .,governecl"by section 121 of the Constitution ;9;7

which provides that all executive action by Jhe ~
Union Government shall be expressed to be taken i~ LE~a'~!~f [;
8

the name of the President. Thus in actual fact the uv.su

powers under section 5 are exercised by the Ministry THE co~tms-
~ror-:FI~
OF
of Home Affairs and not by the President in person. Exct;E AND
We have ~xamined the proceedings before us and we ;~~"~REE:S.
are unable .to discover who actually took the decision
which led to the order restricting applicant's residence
to Myanaung. As has been pointed out, it was the
office that made the recommendation to the Deputy
Secretary who submitted the proceedings to the
Secretary, who ultimately sent it to the Chief Secre-
tary with hi~ recommendation. If the Chief Secretary
was the authority, he should have issued the orders
but in thi.S...case his orders were verbal and the person
who actually signed the order in the name of the
President was the Secretary. In doing so, was he
merely following a djrection given to him by a superior
authority or did he use his own discretion ?
The delegation of powers under section 7 by the
Preside.nt to em individual officer in the Home
Ministry woilld ensure the exercise of individual
discretion which is urged by this Court in a series'" of
pronouncements. The nature of the proceedings
under the Act puts the burden of coming to a
decision upon one person who should issue the order
himself, and who should make the return in the
appropriate . form in the event of a writ being
issued.
 ' uscccsofile3gw:~ro!le:s :fel~ o~chco jCosucfi~l1~
~:soo'!ie:~ :fe13 o:chco 1:0B::g :0~ o~chco 1:~~3B:~ :0~ o:chco l
r3 el ~9t'iec d:Osoc.!fo~ ~ec:cc~ece:chco 13~e cG 3c ,y,,
I!SCCC3~:chco
p o~ occo ~~~lie:fel&:chco ~b:~0~:re~30d:c. ~cecf?chsS:esoc.c~~:~~~
So:c.!eso!e~ ccc~<Vpcc:~:~;rwil~~ &::c.cosod6)~1f>sces!Eo~ l~e~~sowso-~
l!i,clh:J~ro~glie:b~c.0'1~e~fi di:c!f>so!eec sccc~c,co~g~ co&::ccopclfu~
npccro~Mocco ~sco~:~~ 3bsoSJso~soch~ 3 o3 c.ro~
g;<h:;,sc:chco~fie.G slfuso~so'h3bsol!l3c.re:;,~~~ ~eeco:chcosoo! OGCO 'JCo
esc I~Gal)CeG sccc:c.co:s~gecscsa coeeco:~~clsco~socec~soco :sFeGSCCC
~:~:chco sccccooc,ec 383~~scg:0 So:~:Ge.G~~:<hco ~:3fux;?~~@
gcco:;,scscccsco~:wlbe.G b egoc~ocsorogb~sl:~:<hco0scco:;,sc (])~~so
scsce ~~~~8g.>c.CCBG~SOOOl OeJSO~SOSo ~:~og~:b=>gb~:chco S2cc8g.>'!f
11pcc
dsoS=> 1:9(: 'Ul!M 9 'YfViM SJU.IIVN 't> 'O;) ::j' ttooj!UV<J rsccc:c.\JCOCfisccc~e
g8s~Se~:chco sro:~:<hco sofuedtg.> scccc4<;g~ g:;c:p~r lso!eso:~
u6 eg~ceocsoe.G:b~sb~:chco 0
sccoBsc d:'i.)~"c.[uescoe~c.0leel!iro .1:3SO~PSOo :~~SOc.c Soc0~3b
gec ~~glbbee0 c_ce:g:g0 ):~e30d:c :cecf?soc.c~~=~~~ch3Se
coglie:~&:!<hco Socrosoc,l&:e 3bLolb:beec 3rol oerogl!e:bec0&
~occo 3c@J~ccce:~:~oi>~~~so~bfl [fscccso~bss ~cc~~wso!b
c_cokso~fl ?ff?sccc 3b::.4~~ Gc egoGeocsoro :~e:chc.osco:;,~~(o!b
* (gc!A&l9~gcro
g;clfu~) -oc Lo gllb.w&gchco g~0gchco ~~3co3l9 npb oc
3~ oope
( gclf?&g cro<tJciED~) 6 Lo ~g~30 GGBc L
'31Ib ~ ro~ ~-g; g c1 co
LS6IJ s.L1IOdtrn MV'1 VW1IOH tl
1957] BURMA LAW REPORTS. 15
.

~ & 91 cg ~: 11 11 ~Gcgi'Jch~:>~a ~>Jot~~GmSoospg0~gaad3 2 o
GfJ(./fl<-J ?~ acl6)1c;Eg~g~<D'JGI>)g9Jtb8dGoT~t 80G~Kli(01~>j~ GCSJ?oSm'Jg
~tGcgpoS~-::~ roop:Ojl~~1JtOOO ooS~d3~~1 G~T~Eg~oSm
~~gGmSc'2t GojpoSoo'J~GOJ'J G0jj'Jchsg':1@50Jtu
Gcgj<JoSo::og~ G:JT~Sg~oSm ow1e ~!&>rroop~~g~Ji8'3~o5 oo?
Cf?,'S GOJ~~~$~'Jgmspt~ro@~3ClGoT02S robF:2~GIJ~ OJ6pg~l:lj?t~tl
b]~P'?~~~ oo roQ~I 80:700 O(j Gt~Sjlrool~ 5'0S'JW2t&~ ~g.og~m@ql
c;tw~rf.JE~ @ooS~o 1g~~~mDoo'J~b]~Gcg::>oSoo?~OJ~36~tgl 6J~ot
~Go:):ioospgQ~gm tCJ.;to l~G]Stcqo56)~ 8'.38~~~cf.i~Gro:::otu c;t~uast
02E GcgpoSoo'J~Ojlm 8d~t~O~~>JG~:m;;J1f ua~ol~S~ G-:>~@CX?o
G6ps~9JGJ~Dd8~GOJ:>tg~GCO::Dt&ll ~'J<J;;Jl3CJ~O ~~~~ 88~ooSOJ[:
@54~3'Jtg>. ~cf"l]! gGGi'Jt~~Q~~
1 \
c8m
GC\jj'JchCO?~<D~Cf?oS6p ~d36cq
.

~~GroS~)!Xl8~sa6] ol:6)5:mb<D5'0~!m eo~~3d6} ~oSoji?GQO?t8)oS~~

~OJ~~~ G~oS.p::DqJOS~oS~m@~ l o 1~6]S:~;~'J 3droe}G@~GOJ')
GG'J9 o oSop.i/"/)'J~m 8dS2t;~~t~tCD':':l~OJ~ot O@ ~? ~1&;1 rospgG
::GGOJg8d~GOjj'JoS~p 8d~o5 OtJ 02t1 E>1<Jt~~GO'JS OJGp~G~gm ~6)t
8J.-h~~o5~:x>t&u ~o?::c~rhpSJ~:x>t~~ ~~rb.p:Y.l t)loS<{$o)~
~@~ ss51~c,SO)tJ? G6)~oS:Y.J .Y~r')~:~~GOJ')G'J~' oo?o ~~~
O'JG~:9Jt08dG~T<J6Si ~~O?~~G()')~OJt;pW~! saoSeoGsc;fiCJ ? ~ 8'.36)1
SJG~K~O11>]~ GOjpoSro'J~:)j(CY.l ~~:CQC G~~pd3ro'Jg Gro~en
20~olsaoSeoG~C(5<-J ? ~ Dd~(j'J ~1G6Jg~~~ro5~~ ToS?trooSG83?oS~
~s~Jl8G61~~ssr ct~t~oo@~~~g) Go1Go:JJ?st'<iloS~oS~ 0:nt~G'J~
a:-e~~~G::D')Pi?~'J .pS,p~~~~~cg,f ~~3Cl~~~m ci?f~'io~~~s~
:??CJ6d3 Gcqj~G~SJGt~ a:l6p~o.;(~g~~b()') m8~1!~J.jbjGt@~~tu
 u~eiig
p~!e~sro !B?f~C'l '~~xcpo3~SO~GS2cc!l:.o3C.O gt'oscoe>~~~
u~ccso~so~lb3sro ~b
:ree>~Gg~(]~Jb~ Gc egoGe>o~soro~~e~chcoscoe>~~C.O~b wglle:0&;
~chco HSGccso~solkl~o ~3aes ccce>pt!i!eg~~~e> :pb 0 r cog~~
te cG~c ~glieg~oc:chco g~gchcoscoe~~C.O~b tgceoto
11 ~cccoe~gctec
3coemchcopo ~occo 5glieg~&;gcJsco ~[sg~a>~gcee~a>dgcJ :ceo
fpchg~socc~~gg~~ So:cfflso!eec cccea>~cc~W~~c~~~ !FJ~e~e~B
Sl:c~crosocfue g!O: ~~~TWe.G ~CC~fl~CC~ fp~CCG~:fW:f_lh
1~clroe>LDe,. goo10e> eBgl!e:be>cG ~cc~t!ie'l ~cc~fi cf;:cfflso!eec52cc
~cco~g(b w&::crosodroe gEo~ff~ u~ccroe>~cCJDcecg~! occo 5
SJC.Oe>g~~ sbsoGJso(bsochego gceoe:pche~~chco~{ier; gfu.sofusolb
~bso~gccee>~:S-c ~eewchc.op o~ occo peoc=lsc tg;cCJDcro~cc
gcro:g~geowss weecm~~chco~socffiesoco g3boeG3cc~:~gchco
sccc~CCJDCeG Sg3~~scJg0~ ~gSugcer;g~gchco ~ggfueo;>g~o
gccuesc ~C:,:_"Scoe~~~ tbro .b egoGemcsorogbe>gl'lg:chcoogcroe
~ ICDe~gobC~fl il~~~tp CCCelCCD:fOOlOe>g->~:ftoe:~ogro:b~
glsggchco ~cc~tp~ di~0ro u~ccc..usoc!fue w:0~e\5eb:seo C.OLo
pm~~Bcc~b:plkl~o~3Seo ~gl!e:ffilbchco ~~~Bscoo~secscoe>
~jgCCDle~~ffi WSJCOS:~~ sccpme~so:begb~:chco ce8g.>~
uLosc~
(9Z ~UU(l 9 ''f!O M iJWIVJt.J 11. o:J ~ uoo8uoH) n~ccgclgco
c0~c;c~BSg3~~~:chC:o gfug~gcJsco sofuro~tp g:!ccd~~ ::0~
IIOC LO glib
u~ccroe~socfue co:~\l>el~e>~ccco ~ocgcco<fcifu~ g):gc)e>~B
:~]1~c:<hco
3g3~~~:chc.o gscrogw~~=chc.o u:gce~e mSug~C\)g~,} ~bg8b :l9A:<hco
qgcccsoccccce>:ceG 1:Locoe~b:cwsoclfue8:sco3:~'~ sofueG3sen r~3w~~
Cccso~~osc~ u;accroeso~~o ~c80soc!Eoe co~e scb 0 r 3~
b Lo ~:s=!e
rog~l) _te cG~c gfu~~ ~:;ace Sow~ gbgec ~gl!e:b~c0
g~d\Jsocroe> ~l_lcgcrosoclQJe l~ccgl!e:~l:c:chco sw~eGeco l.Gvc
lS6l] 'Sl.~OdH1I M.V'1 VW~flH 91
 t
1scccso~!e3set:. gc.fl~=~sc :~
gile:fB3o:cbc.o sco~?g8 geopc.6~l~ :!&sle~fi ~@~o~chco sco~?s~
1:5hC:g :gj3o:chc.osco~?3~ rgcfl~:~g:::g glie~~~~0:cbc.oscoe?3~ .j.
1' f~ p~eccropc.fu~~escc~e.opo~ch tS~e 3Gtlc *
----------~---~------
rS2cc~c.c~cc 9fS 'd lll S wag (Sic'6I) ~TV 'Jo.Jifm:J ' ;'
$.t:11f10 pt~IJ J"/Vtf. 1JlllfS,I~~)}11VUV{Vf) .l ;gc~:cc~g~:C.CO~glietp~.::~ S2cc\3:2eG
glfug<!IW~ c~gcc:gc$e~:; eosccc:cc~~ sb:ccoglle p&ec~l9S!~cBggo~
&:;~ tp~g, ~scruscceg~cec~~ ~g.;cco~~~~cct'pcc gceG$pcc\)''
oolto~eG cb~~cbco tbecceoc :gclepo~ch5ac.cc ~pcmeJco:co&>
rsccc:cc&lgroro 3cc:c!'elp!eec:gcee.o~~19:c.@:~
:g&scco ~b3~so:?te f)~ec p&et:;eeco~g g~:c""ptee.o :gc$e;:;
c.cceg~:cG:(ll :g&scro cbp:~ gccagcc ~b:cco 3c~egl!e g::~
""
. u:!cc
t;pro&>cccacc u }u ~tTa '(6J>6T> r fLo :~:3f)~ ~~swsb ~gce~scc6
uS2ccg c.ccsb:ccogc~~glle 4ee.o cccesofucw pdsec@a :gg:::s~
ff:~:c@ggog &=sc c.~p!esol=b~ (e) (c) (co} G f)goceocpe;:;
(~pc\9egc~$~~~p~~ ):be!c.8g o~&:scB ~~ie 0 6 el CH ;ip!esog:i?e
r:g
:ccfu ~:ggc~~gl!e 3bsoc\9~gw~=~hC~~~ tp:be:c.9g~l:cpB
i5:cib llg:>o.o>chl rcropcfu/;'J SCOeJ~~C.@ :gfusc.oetg~H ;:g:cco
gobgl;e f (e) ( c J (w l G agoG~ocpe;:; (~pc.l&~gccr.~:~g:::!~)
:b~:cggos ~sa wsog~e :s61s gocfi:g1:'oro~~ l':gg?g:>
p&cc~:ibco w ;fBtc:illc.opo.o>ch ff>tc:ccosocfu~ ~~e.o:c.if> flgb c
c~oc~ro (c)~l'H'')/;'J:b~ec ~~~e oGe.lc 3~ (c) 0c 6goce>oc:gccro:chc.ot"'
* (8c~&;b~2cmsoclfv~) c Lo~ll~e~_ ;~og~e
roc~~~ 3~ .
3t;eJc .\. ( OCgcmsoclfuB) g ew~gcogce?
gllh ~(.08 so 8) g c1 co
LT s~li:Ocltl.~ .M.V'l Vv'J:)JDS [!S61
18 BURMA LAW REPORTS. [1957

:::l@~G ~'JG~q:>~ooSG-:>c~ eoGD~'Je~~ QJi:::liL~0o08'J:G6Jg!JdoooS ~lOGOC

GG-:>CCDC~~: O:>'):c:;Eil:~f:!;(:l oooSeoG8(,ij'J~~t ())~~~())~ @~~c1.iE:::o?@alG-:>5n (~ms
~~ ~'.)G~!;(:JC!'O oS~06C OJbp~G::o~oS~G~Scot: Q8JilcSo o8~'J:G6j:~ OO?OJJ)
<l~Eo ~~ c8~~::8~:6Jt ~lDG'Ob co':l':~b:~t~:>@a;Gg?c:.l Raman Lal l~allrt v. Com-
o~rRII~ o1 :::>.1 missioner of l'olicc, Calcutta aud o/lrcrs, A.I.R. (1952) C:tl. 26; Dayaram
\', T/zc State, A.I.R. (1955) M.i3. 65 ~G:::r.J'J02::ot.l

Gp~OaSS{m~~06C CDGp:G~~o)~~{jj~~ ~~d)~~ !:ldcWT06C gt~o

So88s:>~GE>[:rr.l06J:) <lJlOG:j?tGo:>'J:~CO{G~~tG?b .

Gcgpcbco'Jg~8<J02d)l GCijj'Jd)OO')g~ ~J3~t GCO':)tqstg~GC\jj'Jd)

OO'J:OJ~Il

Gcgpcbco'JgQ~ aa'jcf.J : :> ~~ j oo~cbl ao~:b}GS)G~~g@:&2~~oS

0 1GOO'Jt)o5a.:>~11

e:::SS:ro-~-:>tn 118<l'jd3 ?I 9jt:G:::>.:>f>cf.J~5 m5~tg'i mcf3(8)

d3 ~fg~g~:G~1t:GQO'JtGOJ'J <D~a.)')g ? 0 ;;>~~9 ~60~g~gJ3~gGl9!
~!3a~ooS:gJJ~g8<liD~G:::>.:>'J ~::D'J:!Ycl~ ~ 'd:Go18:~: ~oSmc:OJ~
srI d3<D D)'J !J'a~:qs 5 G@@llCY.lJfg)'JOJ')gGcgj;d)~ G~'JC mtGoog~ G92
l'lS:c8:~GroOJ~H ~o Gcfocb ~mS~m5~5:~:m G~'JtmtG~:~
GOJ'J5: 011 ~:~ 8<laJ*G;;J1c:G'QO'Jt~: ~moOJ~ aaG~:on_qoo'JE 81oS
~~- ~~'Jf>'J~Dro.~ ~8<l5 ~cbGroOJ~u ~~-;;>1 6j~'Jf>~Om
G~'JtmtGoa:~goGoTCfd To~~G;;J1t:GQO'JC8<l3:l~~qcgt tGco'JtO{
@~~'J~CcGmS ~Go58(9'JgG~g~ c8g::{3QgG{>'J~Gl')cbGf8J~ ~5c
GmSoo~~ ~ roo5~cf.i~5~pg~ GoO'JC@cb~G!J'a'Jt~CG~: ~ G~'J9G~:
qjcf.i@'J:GOO'JC M~Gf>G::D'J~oo@~~9CJtgJ ~0Jbpg!Ja8Jtg 80GS~6~ : :> 7,
( :::>) SQ~c;cgt 8~~ o ~~~~ 8<lGb}gGoT~0~ !Yclcf.i8~G8~5~ ? To~gb
mbF:~oi?~GCD8J~u o~rnult ? t;pJJcf.it;p~ooS mbF:~~:mro~:
GG'Jtm5Gsog~ :::>~:J~ ~5?3)' qJ~ocf.J~:~UJ'}oS c;o o2S <D~Goog~g
!J'aro~~mqJgooOJtg~ C'rlta.:>~aa~cf.i ~mqJ:!YclOJt:eoG8<f5G 8 7.
( 8) ao~t o~G~~cbmC~a.:>~ll ~0Gf>'Jcb~oe:!'J~Gp:no5sp~ooSmqJ~
~~:OJ~ GG'JtOJtGao:~ :::>.:>cbGOJC:jj'J~~ <D3)GQOg~gG.poS G~'Jtm&
Goag~ mspgGa.:>~cf.J~oSGro::n~u
1957] BURMA LAW REPORTS. 19

~06o'3o.~dlGOJ'J8<1Cl1'~::Ddlm G<ntooCGmw~ ~~~~9.2f:~'Jot oe; ~(5

@~~<9G:~~Gro~tu ~oGr;oS JO ~0S~~sro@'J02C OJdlGOJGll~~ . GQ')E;EGaa:
G GOO'Jch~~ cgoS~rb<:jp:~ GcgpoSoo'J:@~~m~oS J Q~o ~ 3'1~
gC:oomt~ GG:)tOJCGna:rdJ: @t~6o58'J~GG)~ ( c8~::::SSgGID'Jt ~~~of 1
'

G1'JoS51) moSeoGs~5G ~ ( m) ( :J) ( ()) mG't! 9JjOCO'J:G)~ cra~61E~~

0 o::r~nllil 0

1 0.1

GCO::D~fl
dl0d0l1 Cl~Co~GC~G!> O~GG~'JtOOCGcragcra'J~t ~20G3<(5g ~- (J)
rrdllj 9J!OG~'JCOO'J&G)~ craS~~51oS@:1 GpoS<i?g06t Gg'JCOOtGcra:m'J:
~eoGsCfDG ~ (m) ( ~) ( Cl) mt>Jt G~'ooSooS~as~~SJo5@5:G~~066:
9Jt0Gj!'JCOJ'Jgb]~ ga)J~9l9d)~J.iGro::Dtu
~8aS~~5 Ql~Eo~Gtgm Gno'JoSo 1~~5g ~G'JE~@~co'Jg
:x>tn . .
'' Gll'JCOOGGna;::D0r ~5cG0058il~:~~ <(~ro~~rE~oSOiJoS~G::D'JCON~
~~ 0 ~G ~ 1C~Gs::d:oo:@$~ I O'acQ~O<l~~ qC:GI:d3mtG!Ja:OCl'JgJ GG(I!l@;l~<j>uS
22GJ~Ct .:::qb~(OG!i180?:l0 f~n<~8~~~ Gbjl!lffi~r-oS rfdl~:~t:G80J OOGcqpoSq~
:~;Goo'JCI!?8il~:) cv.;;d)~~OOO"lj'J:OO'JG!;poSm ~m~rb.1t OO'Jo ~GO:co'J:Oi/
':'ut:~~t.r ~.@t G(l'JCOJ5Ga~::ot rr.lcU~rr.l~ ~qGgE>JG6l:OaCJ6c GO":Jj:l'J
zdl:dh51 Go~01J~oSGC1:J!:G[S"lf'J: Gct.mn~~IJJ0m ;;uS l'J~8):J:o:J:qp:~~
:n~:~cvoSfo5~coob~'JWa?; n<~GO~a<llOOGmG;;Oilrot~ ~::oc:CJ? ~~'J;'>9
c5G;;ogG::O'J:J.X13GOJ<ij'J;CI;? C2o'3~6::o~n ~S~ GQ'JCOOCGOO:::Dtr @tCQ 0
Soo8'J:G61~~ cB~oSGI!lGaa'JS ~5~tG;;o')S 81 tn Gr::o~ut o;s~S~t.
;;~f'o::ot.r
GQ'JCOJCGaa:oo'Jg ooGp:~~Goo5~ 006(?:2roc~o1m' ~:GroSG~qac GoT
:2E~p :ooSG::oqsrE~o1m q&:,~ooo::l c;E~~naGt9 T<ij'J:~ G1to?"eSI~ <3'JoS
~~lb c;f:~q(Ol_'J:~~ m@:nf~~cvS:~~ OJ~m'J:~cc:G~uh:>@~ c;c:aa'Jg
~SG~'JCo;'J:y ::o~Go.!l?t:itot u;?;;oo1gtJ ''

~@~@ GG::>.boofGcra~oo Q~CO~GC~ G~'Jo5a?:4!~0SGOJ'J ~s~~
:,J)\SJ(}JG)~ ~~gGOJB06 5 GlGooS06cg 0'Jgj~Gro~~92J.i f?.C'3J'Jo5
P):O:Jtu
~O:J~~co$~~GJ~~~~~ q<ltg~w1J c8.G)m~~~td2g (~) 025-
~~gGcoSm Gt9T~@g ~50)~GO~tg O@<f '? ~~~~
(I) (1949) B.L.R. at p. 3,
 9r~ c11u fS moa (Sv6Il ~lTV (1\
g~~~~SO o.o)ch~t'lccc ~.co gE'oJ,o~m~&3ccb~gro
g!Eo~~g~lto ~eec.o ~~soo.Qlch 13ccpcco~c.o
:~co &S2M~3 jDch'ifro~cngcn f?gb~~cggoso&3
n:gc~:gro:ce 3cc~g~eo~g~:Sct'l ~
ec.o~!l:.o g!ED:~~~S'cro~ec.o ce~ggg~:ccogc~~gl!e
beG~:.!BG~oa~c: :b~sowcc.o Suscco~g:; ~8g~
be~gcJscobeGG~oa :gc,~soo.Qlch~eccc bosocm~c:D:~co&J
n3ccu)
~J,Iil~:gffroLosocro~ c.o (m:lfo'1) :~ :ffi~o:clsco goo (c)
:~gb~~eG .Jo.Ladw:J ,, s.LalfJO puv !A[V A VUIJS!.l)J zmuv{va
~ n~ccgc
c.w~~eG g3ro3ccgct'h{)b:ce~~CD 3bg~c;o:~ ~0
~~eG pfuroeeco~~ g~Q:~cn~ gccegcc~b:ccogc~~glle
u3cc
gccfu~~w 3ccgciflSDJeroggc~ro S2t'lb:w:cn
:g&scco . 5chg;,~~gb~ ~('J~~eG sofueG~~
ccc~~3ec~'38:J:llfW g~:c!Bpleeo:gcJ~eG ccc~
g~gcCD:CD~g&scco Schc;o:(;egccegcc 3b~ccogd~
glle pfuwpcc:ccwsc u3cc:ccfu~~eG 3cc
gng:o~~eG proeG~~ccc~~3~:111tog~:33c~~
gl!e 3b:;owcc.o ~cl~g(,(J)~:~sc.~~~ smb~:cggo~o&3
n3cc~
cccfS~b:o~ SSJG~eB ~roeG~cc~38:>:11!l:.o ~~~
chg~pcc Ce~'Soo.QlcJ.sccc~~~ ib8ff C t'l90G~o2
g.>eG~tt~lo~:be:~w s~ (c) GC t'lOG~o2g>eG :gccro:chcot'l
r c Lo ~llffieo
n3cc~ccc~b:ccogobgl!b gsbeG
1~03~e.
CCCSjDWCW pcl!isgc0~:~sc:3g:> bog(9~:cggo~ 3~
0
:eBe>3C.03Cfl~
&3 cfisoleT~3b ~ (e) (c) ( c.oi) G ('lgoG~o2
g.>eG c~so.dkw~:~sc:3w ).' :b~~cgg o~n&3 ~Gelc
lS6l] 'Sl"ccOd'tni M.V'1 VW"ccOH oz
 '91: '[1!:) (ZS6rl ~TV (J)
3ccgcff,ceo2soec chg8egbegcoogc~eglle soloeB
gJsegcggo~o&3 3~~c:bce~e ggcJesoo-o:ch
3eccc Jg@?f~c/BgjcJeec ~~cmec 'SCccgclf,g0!mdsco
-:3cocf; (c) g~giF>~/!;es s.t<JZflO
puv VJ111:Y[V:J 'CJ:YfJOd jo .l<JUO{SS!UIUIO:J A !lflVH.lV7 W1UI1J'U
uggcesccc?fccgcce
3ggcco~gc~egl~ tp&~ scccbggeo g!rog<i>ltoec~
~ccggcJeec C.03ccgcce~ 3bwx:>glle pfueo
g\.9egcggo~ &3 So&~ I!Jcco0epccoeSoe
t'cesocc gceoesoccoe~e!W~eo g&~~soo.Q)ch ~gsc
Jl :gce~ f} gscco~Jsgoegggcog J!l:Dro so.ooecmct-s-0
u:gce~3occ.ocogec ~b:gec :cc:begcggo~~
0
&3 cfig3ooe.G mccosoee _Loe:lseec uggce
g;croe~ g!rog4ltoe c~gccgsceec . eo3cc~
319:ccogc~eglJe co&sofi!e~sec 3bgcoogc~egl!ef?
Jct!i31stf:ccogc~eglJe pwec:lse:cggo~o&sc goocbf?
u:gcleb:oe :cw~:chco ...
So3g~CO g~w SCJOOei>CDCCSC~ gfu~ COCCSC
ccce3ccg3cleec ~socoes u:gcJe~3flb3~
~@~~ :gce~~eG C~:chco scccscoeg~ 31sg~.
:oe~es g;roweec.o#i:,oo.Qlch u:gcjegccw ce
:3coecgreec ~cceg;cccccegeB~ gcroeg~g~!We
S08 c8gcc:gce<>.G C:o3cc~:ccogc~egl!e sorow
t}~~ ~begcggo~ o&3 g~:3eoecg~eGg.>!e. "
cceg;x ccceg~G~ 31sg8mesec pwweeco#igsoo.oJcb
~Wl ~ ~
IC ~() Qluweo ..,. l *
'Sog~e i!ggcle
3~ .qcccscfl:~~ ~b:cco ~gobgl!e pfoec~be:cg
:ec~~c.cscM g~~o~SC f?o&;[: grugBgcecefl ~socme~fl
~G~c ~cc:?Jpcc
S2ccl!ieBB:> ~socoes pcci>~~~, 11ggce
rz 'S.L~Od3~ M V'J VW"HD g (L56J
22 BURMA LAW REPORTS. [1957

m~~~m~~ @~~0S(gt~;XJJ~~G(Q3'Jbl ,~@~~ ~'JG~

G~')Eo-.,SG8<l~ Gpe'OctJS?CJ2C COGp~GCD~oS~CD~ ~02cf) @t~o
51~ ~So 5 S'J:Gtq~~ m'J~J3d3~:::8S:6)~ Fl][DG!'Jt~
<l~CO~I GCX)')g~C~O? G~~tG6'Jtg ~6)C~:@oS~6GCD~~I!
Otffil!i 01 ::J .I
~mc502CGt3T@~G8)'J d?G::D~6)5o:2~~9 m'Jco~g:i)g~q5o:2:
~ GHm'J::n6)oS COGpg9;100Gm~m Dayaram v.
The State ~j?~qto:2.~ ( :::>) ?25 :::>yG::D~o;(CDcfj~~g
~m":lg0(?~6)C~cfj~ 4JSlo)~GCDC:Dtn

~~:GmSmmt: Epe'O o5~m~'l025 msp:GCD~0S~~~~9 ~C):lo)

~~~GoT026 t~o~So 58~')gG6):~02cf) ~tOG~'JCoo'Jg6)~ ~s~G~
SloS~C~<Jt G~~tG@'Jt: CDG::D'JOf?CDe3U
~O)G:))'Jo;?:::Ot~~Cgl ~~5 O~GC:~GS)CJ,;lC GG'JCOOCG~g~'J;
~[bG~'JCOO'J~6)~ ~s~~SJo)~ 8oSGCY.lJf>OGQ:JGCD'Jcf)G::D'J ffilG'Jt~
~GCD'Xb~CD'J:C:ij')g ~G~Q:J~Grog6~~bp G~'Jrf.iot~~Cg !d?2@t
6):::0~11
GG')COJtG~:~'J:msp:GOJ9;1o)~rf.iG~') oymJ!lisp:nrf.ibpc-OoS
msp:~~:~ ~6)5~oS&')otcg;5 GD'd'Jd:Jo1~~c~o 1~CDtu
11
qt~c G'=l'Jt::8~ :G<9 ( ~B ::>) m I oosp~~8<l'J; CffC\J mot ::8G'Jt: I
c;c:SJ':l 8<lcD~8<lo:>CmtooGro'JoS@~G'Jt: ~d)~Gco:::o,:: qc:~ ~o)~o);~
G~'JC::n~~~ ( ~B ? ) m Oji~W'J6)b:02,f oo~:~:::of 8<lCQ~cOO c@: Ga:l'J~
06-:J:G'Jt: ~oS~Goo'JoS~o,p:Gcoo:>~u
:x>oSG:::o G'=l?tO)lGI:)'Jt (~B <.f ) ~ 'J G23':JC:GOO'J::J{?~:@~~ 006p :~8<l'J:
G:J,J'JC:01j ~:~00 GOJ'Jd3U{oS ~UfoS '=ldJG':Jt: Di$d3~GCO:x>~.l
GO.:d::CY.Jj~:~OJG(X)'Jro8<l'J: ~:ooc OOE>f>:~sa[9$@9 ~:02f~~G;;o::x>~
8<l<lll sa~:Gp5{roS:I:)OfoSG:x>'J ~O~[OGq:rooSCI]Sw~sp~S Gf>6)G:::D'J oo~:
~s:::oroG:x>~(j? :::DcfiG:::D~6)t G5pcG;.@E:@~qc:l I:)Q'.)oS:::O')~ ~osG:::o~b)O1'i
rn~ ~(,) ~rot~@9qc: I G:x>':lt:01j~:~~~G<ji'Jrfibj~ Gp8'~cgd.)q:x>@9
~Oil ~:o;~:02oSmt~r'' o;?:;;o~: ~~<JtG~:x>'J~.I
~G~S) oSml C:8~GOJ') ~roG:::o cgoS<l] ro~sa b) I OJ6p:~(j':l YOJ
8<!00

6f>!::J<l;))C!8<l@b ~CCGooS S<l~~qm G01]23'J~:@~G:::0')L' rnro~~ o;(tG::O'JC)(

(ll A.I.R. f1955l M.B. 65.

 1957] BURMA LAW REPORTS. 2'3

OOGOJ'Jmoto;(~@l qt:30D: GOO~Wc::DC: (@td:>C~d3) eoGO<l5G 07_ (:::>)

( 0@~9 :t~f>: S'dcf.l~yo) J ~) ~b) ~~qlOOCGm~t.l ~G'JCOOCGoo:
* * * * * ,, . ~~
_. :;)~So~l
02J~Sdi\ ooSS4JcDY'J Ct.l6p=~~t G3jg()') GO)'Jt:0ij~:~ ~::Dtmc O<(ffin~ o1 01
OJGo:>'Jcf.i@5G;n'JC:~&o1c8~Gt.r ~G::DS m<rm'J: c;S:~j~~ OOd::lrb8<1~u5
G~::l'J Gd:l'Jb;l>j?C:Gm'Jt:oOS~~ 8d:Od3G~:QGfc8~GttY.I Ojld::lo1:oal 8d:nu5
G['J~~Gm :1(t.x>t&~GCY.jj>JG~'Jt: u~ J )e) ~d)4JcDOOE>1f OO~:~~'JG~5m
0006C:OJC ~~G:;ltoS~~ Gqv'ffi~ <JaGI>j?t:ooooS~~ CO'JCJ2:UtC'!JoS ~OJoSm
c,<!J$:Gc8::Y.lco'J:::Dtjl?l qt:~ro~> OObp:~8'a'J: DdGb't:(JlJ2~~G:O'J~OOGOO'Jo5
0{ jlo)OO'J:OO~OjlGro:Ot.l"

G~ntmCGS'd:o:>t 0~~0'JG6j0ffi~ OOGt;ptmaoJ3~9 <jl~GOllo)

m)::r;~'~ olcqoS SfYJoSm G<9Sw~g:iJoo'J:~::nt~sp~'J GG'JtmtGmg
OJt ~~C\J'JG&poS~G@'Jt: ~a:loScrxScqjrb5l9 ~0Js~0~~~0JG<.D'JC
GCO'Jt@~~~'\)cotn o:Jf0~GOJ~\n'J: ~a:lchWd3G'Jt~ ~rbGOJ~
8'0GOO'Jcnaco'Jg0~~~ cf1GO=Jl.SGO.J'JC: ~o)~frorot~ ( CQI~GCD~5''J
m r;p:~~'<~ro o 5cotGo t::Dr~ 0d3o1) ~nacEmcof~ ffioS~~
OJ~U .

~:rooo1g ~O"Jrbcn O.JMG::DO'aOJ~ G GlD'J(f)~~ o:J~G<>m~: 1

~~~mo:J5~~ttAJ'Jg~ 01~fo ~Gt;ro ro5~fg~GroOJtu ~O.JrtJGO.J
~p: OJ~ G~,oEoo tG80:~ cs-'JoS@~GOJ'J ~~'!-llfgl'J~~ GG'J fm5Gm~
~0JG:SGOJ') :05<Jt~:apyf,ootu ~~aa'J:a?~m GG'JtO.flCG82~
o:>t I 80 c0*GOl1t~G80'Jt@&iG'Jt:J G6)0ffi~ ~J3!1aG5j~Cg ~ DOJJJ 6 G~
OJ'JO~~@SG'Jt~l rra~~p:~o:J~Ganl: mQ~Go:Gcp~ ~G'JS:1
mo.)*o 10S5m02d3oooSG:~'Jg~ ~0DCJ'JgGo:saSbJG'Jt:l Oi?o:Yc3::J2
C9,0SC\:O~'JCXl_<JW1m @t~~<X(~ Go68@'J~G6):~ c8~rf1qd3@'J2
G~m~tB~G'Jt:l ::l.r(~G'\)'Jrb~oS~p~cf1 G'Jrf.i6]GOJ'JG6'J~ CDS(?g
~:GmS~')g0'2t ::uo5GcoG~9GG'JC: m0-)ro~:~oS~~6o:>tu
..
~SgmOGGmS~9 ~~~~~Golf:~ ~tfjrof: c:?tsr~f GG'Jt
ootGo-a: na'Jg .s~Q~ ~roSGGOJl3~cS~:m G0'J5oo5GDO:~'J: ~~P~~
~ooS~~~ ~~'Jcj)OO GG'JCOJtG~:~ 3d GoTcri CD6pg~~~~~ ~2~~
Go.J'J:Yo~C2f ~c:o.:>@:~~g~(9~~ @:~~;<:~ ~d)~~"l)'J:~9 G~'Jd)
24 BURMA LAW REPORTS. [1957

oe,G Co00~G;;o:GOJ'JOJcf.iGOJ ~ GOJ'Jd)~~ cg6~~~j'J~~GCO'Jcf.i;;oGxSI

G~'JCOJCGO<J~ ~~Eo~=>t~~j'J G~ntmtG;ToW~ @ffi~oSo53@'J:G~:oa06oS" 9Jl0GOC
~9 ~ , CO'='~SJ~~Gt<Jt 2cG0:lj~OGCD'Jri3Goa'JC xoSGOJ30G<Xl'JoSoaco'J:~pg
Oy~~~O~I ~XtCJt~~G~~:>tu
0.1

xoSGxoax~ ~ GCD'JoS~m l:ltx&::r3~oS S8~xtc;E:1

oa'J:Oi(tjj'J:xtc;E: o:J6p~~g.tJ]'JWJC GG-:>trotGoa: 8'dGoT~ 8'd@~Oil
GSO'JC xoSGxG@QG~'Jb soG[3-:>t~@~oS~, oyffi;~~~ 6pOJo'3
t;pG>ooSroqY.~~~~ ~5~:7 oacooS02S CX?aS~oSGl9Tj9~GOJ'J m~
m Gco'JoS@C\ijOS~xtu

~@~ ~~Eo~Gt:OJt oa5l~o5 @t~oSoS8@'J:GE;J: c8~::BS:

G0'J~Gl'Jd3bl~ Gl:l'JCO)CGGZ:O~ ~[OG'OCCO'J:~~OJtot 30(06-:>E:
x9~P GOiJ<j)D~X'JC\jjC 8'd~o1oaS~~ ~SJoS~OJt<rt ~~~GmSm
OJGJ:l'Jb)Xtll ~OJGOJ'Jb)OJ&oa~tg GG'Jto:JtGoa:~ G~'Jd)9p~
o'oS~oSxtn ''
1957] BURMA LAW REPORTS. 25

oo~~~~G'~ s9Jls
~(J)')CJoS~cr;l8Cl'JCJt ( GOjj'JoScn'JgJ)(: "I ~e~rs
~~ qoScu J 0.1
B~ GCD'J t 0(@~ CJ'J ~ tcG cnS8a ~gb) I ~fc(3'JgG6p~g8CJ@
m~g aaa2tgo~
. . o 1 ::) ( GcqpoScn'Jg~b)J)(~pg) *
;)ec;? '?~~~ o;{oE51 (cucf.iroGcu'Jcoo5~oS~'J~) oooSeoGCJcf-ll} ;)? (;)) OGJ6)1
@S5:1ro5 51 -:-:~ 9 55~~ sE~eoGD</-il} '2 ( o) OGI6)' @~n~5C:GOJ5~ qsoS::l2'J:
G~6)~0GJS~ @tGm')t~ ~G'J~5cGro5 ~~~:a,?O~[S~ ooG~eoGo<f-ig
;)O 0 ) 8d6)1 @~G'J~Cc:::>.:>'J~~SG;'~ ~8UGDC(DG ~ ( o) ~ 9 ~-o
:::>.:>cf.i~CG~C.I
GcgpoSa::r:n::lj?:::>.:>t o @~:'J '?i~O'J o1mS~oo~5cn;~:oooSSJoS@9 Q~o E
~~') 61~~: g;~,,v~~Ec:: m'JG6f:oS<J1 g~ .. 'J~Eco;sE "t8~~a:m:::>.:>~ stoSo:xf)
Gcr;/)~~Gt~E:::o@~ oomoSGGTo1 8<loSeoG8C(bG o? ( o) OOE>J 1 @~~cot~;:n
~tqcc:~~6)G:::D'JG6'J9 C(OG ?_ ( 0) 66)1 o;(O 5~~;60GGJ:O~O'J qt::J<J'J~~C~
'~oS~'J:G~b]~ ~yoS~oS:::>.:>~OGJS~Ji ooS i.jjoS GO:U 16)~ GOGJ'Jcf.iu10GJ~C: OGJ
c;63'J8s8GOjj'JoS CO'J:Gro:::>.:>tu -'
SS~ooSOJc51 OGJ~1:~::llf GDTGG:::Dt ~G'J~5::::D'J:@~:::otoo5 SSy'J
~G'J~Cc~1~S I;}~GiXnt~~--'J~CcGoo5 ~~fB:~O~[O~mG~ 8UGDC(5G
~;) (a) 006)1 @~G'J~L<C:::o:n@~Gp:::D@~ O@Cf'2 '?~S 1 @toc51 D<ln58UGOC(5g
?. ~~ ~: OD<lll.jj[:Go C~'JC:~9 GC\]poSm:n:::D~u
c;q:@aS<ijc,1 IIOGJG:>t:8<l)oS OGJ~E; SJ~G~O'J'JW GOjj'Jcf.ICO')!~:::OtH II
(o) u1mg?OJ~~Cc:::D'J:OGJ@~~ O@~~ '?~Sr (l~C\J o 6)oSG~G~c3 ~~~o55:
G~~:::otroG[j'Jt:.l
,. (j) O@:'J:'J <(~tr c;:@ro ~ qoSG~G<;pcf.l~::::>.:>eiiGt'Jc u1mgsoo~~CcOGJ~:6)
cCiy ~tc:::D'J<ooGt@9 ~Eco;~:rooS~oSq'1?~:::otooG'Jc:"
~.4~3'J9 G'J~Cc:::>.:>'J:~S~OGJo5euGDC(bG o 9 (m) (o) D<l6)CjC:I o c; ( m)
t?) OGIGJs&: fG'J~cc:::D'J:OGJS 9 9 o0~utyo5on"l ..~_,..
1.< :::l@ ~)IS y~Sr a:><;p:GOGJG:::>.:>:OGJ~G~'Jc92'JOGJloS J :'J"
1 ~tcGw?wq:>:d~@3~<JI[O e~o3G:GY'JCI ~CcGoo5ro<>p:o~ :@~o3~~~
~CcGoo5mq:>:o~@: ~:<l]~q;>~~~~Gj]G~')c025 a:><;p:o~!J: @:~t~t:OGJS~
<ij~oS~tll
26 ilURMA LAW REPORTS. . [1957

8 @~(3 Gcgpcflc:o'J::~nGl~roJ ~cfJGm~G3J~G~~: ()~O'J') ~I 0a5y: ~ro

~OJ'J'"~EiP~ o1~w'J5 81ro~u ~
W'J~C ..
~~ Gcgpcfloo'JgQbJ~~'J:rn~rol rn~:bJ G3JG<J'>~: @:::n2~ ~cfJo1
19tGro'JC~ c ~c .....C:
g~l:l'J~Cc GOO'Jc~m:::D~II
GO')~OCJ~:G) j _ ,,
~tc(3-:>:G6):~: e~ t ~ t
g ll.~Gcqj'J cfl~'Jl'J . 0 ~ Cf '( '{\&I ':)?0 C~ \ rooS
g ll

rn@~~:oo OJGCIJ'J @cooS9]cfl~'J:) rncfJeOGBC(bl,) "2 8'G6)1 020C~~:E)bG6)W~m

02t:ofo1 11 SSrn'J: @~G'J~CCSl ~cflqs'J:GIDbj~ 9]~o5:::Dt8CS~~ ooS~cfJGoW1r>j~
GC\jj'J cfJ C:O'J:~m GOJ'JC:~G:n'J GCijj'J cfJ~'J~ &OJt II
GCijj'Jcflc:o<J:~OJt O@~~ <r~&m olm~m~ ~Cco;[:axE~o5@
@~G'J~5C:~5 ~:CIJG{>g~~OJ~ ~to 5~G''J6)~@: @~G'J~8c~ ro'J
Gt>poS~Go:::Dtu o @~(; <r~&m t>pG-oo5~~:rnSloS o J o CJ2C md3m
t>paJcbmspgPi/@:~:Gm~~ 9Glc:oroGt3T@o1 rnroeOGBt~bG OtJ ( 0)
S<lbjl GCijj'JoSro'J:~GO'J: @~G'J~CcCJ6C G{>g~~c:o'J:oJ~ O@~~ '{~I
~G-::f.>'Jro tJ o 6)cbG<P.OOd) Ga:t6C'S~G<j'>~COJ@~msp:~~spo2t GCijj'JcfJ
ro'J:~mmsp:Q9Gl@&~~ SSC25rn&~G'Jt:o~QOJ~9Gl~t: o @~G
yi~l G'~'JO 1~ro J Cf GjroG<P.OO B~~OOCl'J:~bjtc:@~bjGCD:xltu ~o
G<j'>'JoSrnrooSG\3To1 rnoSeoGnrtbG "2 ( o ) rn91 02o5~~:5G6):o ~
m qt:nGl'J:@~<:n~tC'j ~d)qs'):GIDG)~ 9Gl8~~9JSlcfJ~GCDOJtll .
GCijj'JoSro'J:~m 88~9GlS::noS~ rn~1:~&~ GBTGGOJt @~G'J
~5:6)C::::D'J:~&OJErn@5 88Sl'J~G'J~tcC25 ~1:@5~@&o.J@~ @t
GOO'Jt~~G'J~tcGOJl:J~~Dt:~b9J[b4rnG@@ 80G8<fbG 00 { Q) S<l6)1
88:::Dt @~G'J~CcOJ'J:@~GOJ'JG8'J91 rnrooSGt3T[9o1 O@Cf "2 yi&i
toCj~S<lrbeOG8C(5G '( o1 B~')~g9jcfJ~p:OJt 88i~~gQGOJoS~t
o1u ~p'J~889Gl'J: ~G'J~CcSl 06o5qs<J:GID6)~CX(o5@~o:>ffirn8~o:Jt
msp:eoGsi9 oo~~ tGOJ'J 8d S~@~:::Dt ot GcqpoSc:o'J:Gro:::Dt u
.somoS q5:r~oS~OJt~~f: ~~rn~1:GsTGGOJt ~5:6)5:
::D'J:@&GOJ'JG6'J9 qt:OJtro~: ~CC:::D'J:@~~OJt SJ~GID~:GOJ?
@~G'J~CcOJ'J:@~~rnoSeoGs~bG o c; (m) ( o) y<J6)c;E:r_ ::H7 ( m) (?)
rn6)qc: @~G'J~5cOJ'J:rn@~l E;]b~~@:otSl cf.i~G)G t@~OJt n GajpcfJ
CD'J:~:::Dt o1m~m~~CcOJ'J:rn@0~ O@~~ 1~&1 ~ro o 9oSG~
1957] BURMA LAW REPORTS. 27

G~t~ ~~~oS@tgG~~-J:>~ooG'JtgJ oe~~ ~~SJ cg@ro o t>joSGf. oe~lS

GspJ3gJ.:>~GfooS o1o;;~oo~~5cf!d~gE;Jcey ~~ScOJ'J~aaG~@~ .~Ec ~O)').,;s~>PUi?
02gCDoSjlJJG)~~::DtroG'JCZ~G8'J9 n<l~O1yfiG 09 ( ffi) ( 0) ~~ D;J'J<Jt
(\)) Co1 @~')~g~oS~'JZ8CGj Gcgj'JoSccogJt?OJt [gtGOJ'Jt!lf@~G') @t!!'Jtll2
~5cOJ'J:oo@&;~ G)O~~@w~ Sld)~-)GeOJ')~S::Dtu g~(;l')~tc
d2oG6')9 Gcyj'JrtJOJ')gJ)?~GCijpJ3~')~ ooS~oSOJe311 GOJ~D'J~:'\1 '
~Sc'J:GI;):~:
aa@OJ~:aa
02f:o~ oJ o,1
28 BURMA LAW REPORTS [1957

SUPREMF. COURT.
tS.C.
1956
u HLA KYI AND ONE (APPLICANTS)

1lfar. 29. v.
COMMISSIONER, IRRAWADDY DIVISION AND
FOUR OTHERS (RESPONDENTS).*
.,
Certiorari-Writ of-Rule 8 (b) and Rule Z9 (2J nnd Rules 55 and 57,
MrmiciPal Elector<~ I Rules-Ca11didate's cligibilit y a11d qualificnl ious to
Municipal Committees -Qualificalio:r at tire time of nomiualion-Ss. 10
a11d 72 Co-operal ive Sociclrcs Ad (Act XV of 1956).
The two applicants are the Secretary and the Treasurer of a Co-operatin~
Society, which runs a ferry service under contrnct with the M>mici.pal
Committee.
They stood for election to the Municipal Committee, and they were
declared ineligible because of Rule 8 of the Municipal Eleclo ~al Rules.
On an application for directions in the n:~ture of Certiorari, it was
contended, that a Society created under the Co-operative Societi'C's Act (XV of
1956) docs not come within the terms, "person, firm, or incorporated or
registered Company ' of Hule 8 of the :vluuicipal Electoral Rules.
'H&ld: \Vhile a Co-operative So::iely may not fall within the terms" firin"
and" incorporated Company" it would be a '' regLtered Company" as one
registered under s. 10 of the Co-operative Societies Act.
Held jrtrtl1cr : The word "person " is defmed in the General Clauses Act
to include "any Company or association or body of !ndi vi duals whether
incorporated or not" and it is comprehensive enough to incl}l<\e a Co-v-peratiYe
Society.

San Myint for the applicants.

Hla Maung (Government Advocate) and N.c. Sen

for the respondents.

The judgment of the Court was delivered 'by

MR. JUSTICE- MYINT THEIN._The applicant

U Hla Kyi in Civil Misc61laneous No. 84 and the
applicant U Ah Shwe in No. 85 were declared
Civil i\lisc. Applic.tlions Nos. Sol and SS o[ 1956 .
t l'rc~crrt : MR. JUSTICE ilfYINT THEIN, illR. JUSTICE Bo Gn and MR.
jUSTICE CHAN l:ITOON.
1957] BURMA LAW REPORTS:

ineligible for ele'ction to the Bassein Municipal S.C.

1956
Committee by the C::ommis'Sioner, Irrawaddy Division,
U HLA l<YI
in view of Rule 8 of the Municipal Electoral Rtrles> A'\D ON;;;
the relevant portion of which reads : v.
COMMIS-
siONER,
"8. No person shall be qualified as a candidate for [liRA WADDY
DIVISION
election- AND F011R
OTHET~S.
(o) except with the written permission of the Commis-
s!oner, if he takes an active part in the business
of any person, firm or incorporated or regis-
tered company who or which is either directly
or indirectly interested in any contract made
with the Committee."

The applicants are the Secretary and Treasurer

respectively of a Co-operative Society which operates
a ferry :~rvice in Bassein under a contract with the
Committee. They had in fact obtained permission
from the Commissioner to seek election but such
permission was obtained subsequent to their nomina-
tion. Under Rule 29 (2) a candidate's eligibility is
to be adjudged on his qualifications <:ls they stood at
the time of the nomination.
U Hla K.yi's candidature was objected to at the
time of scrutiny of nominations and the Eleetoral
Authority sustained the objections. An appeal to
the Commissioner was unsuccessful. In regard to
U Ah Shwe, objection was taken only before the
Commissioner who set aside the order of the Electoral
Authority. accepting U Ah Sh:we as an eligible
candi'date. The Commissioner is empowered so to
do undt;r Rules 55 and 57.
The Commissioner' orders are sought to be
quashed by way of directions in the nature of
certiorari. f.t cannot be denied that the applicants
are office bearers and as such they take an active
part in the business of the Co-operative Society which
30 BURMA LAW REPORTS. [1957

S.C. runs a ferry service under contract with the ~assein

1956
Municipal Committee. Learned Counsel has concen-
U HLA KYI
AND ONE
trated on the words in Rule 8-" person, firm, or
'V. incorporated or registered company " and has urged
Comns-
slONE!l, that a Society created under the Co-operative
lRR,\WADDY
DIV!S!O~
Societies Act (XV of 1956 which supersedes Act VI
AND
OTHEI~S.
FOCR of 1927) does not come within these terms. He
contends that the words " incorporateq. and registered
company " refer to those contemplated under the
Companies Act, which is inapplicable to a co-opera-
tive society in view of section 72 of the Co-operative
Societies Act. He goes on to say that the society is
not a " firm " not being a partnership, and that the
word '' person, under the Rules must refer to an
individual and not to a group of persons.
It is an accepted rule of interpretation tb.'at words
in statutes must be given their ordinary meaning~ and
reading Rule 8 as a whole, it is clear that any indivi-
dual interested in a contract V(~th a Municipal
Committee, or if he is an active member of a group
similarly interested, would have to seek permission
from the Commissioner, who presumably wouldrhave
to consider whether such an applicant's inClusion in .a
Mur1icipal Committee would be against public interest.
While a co-operative society may not fall within the
terms " firm " and " incorporated company " in our
judgment, it would be a " registered company " as one
registered under section 10 .of the Co-operative
Societies Ad itself. Further, the word "-person " is
defined in the General Clauses Act to include " any
company or asso,eiation or body of individuals
whether incorporated or no~.", and thus it is com-
prehensive as to include a co-operative society.
For these reasons both the applicat:,ons must be
dismissed with costs, Advocates fees in each case to
{?e K 51. The order~ dated the 3rd December 1956
1957] BURMA LAW REPORTS. 31

staying fttrther actiori in the election proceedings are S.C.

1956
withdrawn. We note that inCivil Miscellaneous No.
U liLA KY!
85, the 4th respondent U Mya Bu, had already bcteri AXD OI'E
declared elected as the sole eligible candidate prior v.
COMMIS-
to the filing of the application before us. We accept SIONER,
IR!IA IV.\ ll DY
learned Counsel's statement that this fact was not DIVISION
AND Fotm
known to the applicant at the time the application Ol'IIF.l{~.

was filed.
 uscccpc'ile~ieg6g
gcC'lel:$tp:gg]lb~1 c:chcoj CO~?j~ g&scce:)\!b ~fpsR:o~cccg~eG$~~ :~~ 0
:chco g~:0ff;=~ :0~0}-JJco gl!e:~so:cbcoscoe?i8 ~-
, 3 c(')~:~sc=~
1! 0 ~ pc'ieccropc!Eo~~eG:cceeGso o.->ch ~~~e 3Gelc *
0
<'l50Geo2soeB .(~soclegc~ez~sc~3g::>) ~be:cggoj &3 ~~~e
0b~c 1c.oc.oecc~coe~g8ce303cm~3u 11 3 c.~~: s~: g
u3cc
sol33cree Loso~ (i)eJ(Cg~ :reJci-e~~bggeB ISCJfueB&bs::cmpclfu~
~~~sol
gcree Lopf? g~!toogg :reJ<}e~~~co~soro 1
pfueB&:cm:pclfue
" uscccg~soi6Jsoo scoe.~jgC(} :g&scoe.~e.
So3SwLOSeG gcc'p~SJ So:c~:~e.ecg~ro rol!lggp~e.eGg~~e. SeC'l~cb~e.
scccscfl :gooa;tg~03 cme.scB ~lligrosoro ccca:c.msowcw ,tseG (ro) 0c
-3 c C'lgoce.o2~e.eG(_lg]!egbg;CP~Scoe.?g~cflS03croe.S2 scccSSeG~
ub~ft:8:cer>:gepcuscoe.:~~ WSO~f> so~ ~b~t'itesseG
~:So:cecscJ{nff;tp:gS g!Eo~:c~:cmeG~ccoe.a;:gcJe.a; u:fcc~~~]
ccc~~C'l :cle:croecpcme.eG :gce.rosbp61eSo3SeG~ g3J~e.~ggccroceG
cccap6ie3ga; ~ ccscoe:~~ Leeoccce.:ccopc!Eoa g;roeGscoe~jgw :g&
sc.oe~e. 3bsollilsooff;:c!e~geoccce.p61e 1beotp (r)g~(c) arG C'IOce.ocpeG
(l!ipciS,e.gcer>e:~g::~so ):be.:cgg o~o&sc 13~e (, b eJ en u~lep:~
a(w) 0c C'lgo 3~ 3c C'lgoce.o2
~e.eo(_lgJihgemscCP~ jCD5?j~Cfl~0gcmescu lljCDe>~~CC] :goc
sc.oe~e 1ssem3ce.so~ l~eG(f) (w) G (')go 3~ (er>) (~ )( ro) (c)(w)
G egoGe.o2soeG (l!ig;cle.gcer>e:ss:=~SJ) =~e.:cggog,&sc ~~~e 06elc
II~C
* (.&b~~cmsoc!Eo~) 3og3ooec a:>C<fO~
4c5g~~O gb~c;psc sco~?38cA3 03ccxx~sc sf;elc -!-
3~
( &gcmsocrED~) Ei)~ g3 ogg
gl!h ~C.08 so g; g c1 c.o
l56t J sl~OdH~ M\ri V1\f~DH Z
 ~ 3 8 o ~-a:; eo., ,.(!) .!!) @~ (j (j) fa
0~:QS)~.~ _g 8o "-&') ~ L) &, (8] o8 ...2o c8 OS ...co ..f:5 &J (3 ::0
0 8~;;fJ0um g., &,1.,0) g., o8 0 ,..-..,_. u.
[g] o8 \a ,2 .3:> .o_ cg o. 8 (U) ~ (;f}, CU'D ~ o(Y) 0) ..8o 0 QT.1 ~ e~ m ~ 8 '->
0 -fn ~ 0 <e i'9J 6) ~co
8 rr~ 0 L.J
<Yl{]):) $ r-8 8 @) ~ 0 IC c 0
ec C.8 "--"
CG ~ (Y), -t?) 01 (j")
<...) T 8'1 rB ~ ~. ~ ~ ~ ~ .& ~ & ;::.t J (Y)
8 r.~-. ..(jo ...nlYl --" m ,..--.,_ 0 00
r.1 ~ ...., u C-~ r:--'il ffil LYl '""""" (:J t86) 6) . ::> 6)
-P.o
g, 8~ -s 8 ~~..ern
61 ,-\:X) ~) oo ~ '-- L~ J rn
c<Yl _() '-'-.V w
m 'G
DG 0'1 G ::') @ 0_ CP.n .!D ...!<l m '-1?/1 ..z, .. ....._,
t Cf) n m o::n 0 ! o ~ cvf 8 'Y'> ...e;>') .,8 ....-:;a =r I(; --eP)'u~ o(Y)
Ci:JB o ..IT.D
m ....LX) 8 Qdn -u u o) o ~ o 0 c -&') ~
o
{Y) r.). (/;} (Y) mJ o8 G:;.-:1 c&l
t) cg., Eh ~ liD ~()'") ~ c:B-lI
. 8 [~ ~~ 8
4 ?kc.B ~ ~3. 8 f) s lf'~ Q" mrs, e - a:: ~ "v.'-"'
~ a. ro t:rJ
3. sw'!!'X' ~ 0 &, ~.~ 0 ~~.~~ 00 ,........_

~ ~'0
', &, ..... , co 8,n 8e ~S, .., ~ -~ g., .J!) ~ ~ 8 e " (i)8 ,.QOl0'1 ......o_ o c:
8 ' 8. L,,.J i'QO
0 '-.../ on
8 u 0 . u en Gl ~ ..oo 3 e ~ s, (i) db -fft'1 B ..& LYl ruJ
8u &, 8 '-..-/ .B 0 Ul ....LX) -~ g.,~ t)") ~ 3;b8 ~ u i,(B, .J!)
8 ~ u m~ ~ .!D ~ ;:o
00 no LYl CCJ (i) (/;} (i) 8o A:; QJ c ~ 6) = -ct>>(P..n _, "' c Q -11 ,..-..,_ 2;:
& .J!) () ..,{'/'() 8(i) c.J"0,/)1)5(::;
~ .P..o 8 '"'-8o ~ ~ ~ g o80 0 8 a ~ ~ 8 ()l e ,:n .!?J '--" ;:t>
~ -eifl - {Y) rP.n 13 g: 2 u ~ r.1 l) ~) -eo QJ ""')() l) r00 -fft') _
c&l. ,) e ~ L) 1.,0)
~ .& ~ (j) l=l)
..,8 ~ g., :?-" ~ -fA r~ ,.C,() C 0 J3 8 8 l) {Y)
~1 '--$2 :g.) (U) s, m S,J:l m <Yl
o:; 8 0 ?rn ~J 3 r& Q)
8 o0 (B, 0'l IC cr> ..ao o-.11 0 l"'il 100 "' n (j
0 ffi) m ~ ~ r
!:)() (;tj
IC 8 ~ T . l0!:1 ,en ::P ~J 0 w .,g ;:t>
~ "<J-/ I Lg:) LYl .-So.!!) Li-.J 0 --(/)0 {Y)
[8 n:J 8 "'"'0'l o!'Jl
8 -fft'1 m . 15 ...,,
=n LCf) __ ref)..) 0 8 cY:l o oB <..([; ....'X) 0 ~) -(')>') oo IC (])) n Y.)
g-"l 8 F./1 0 ~ 8 -e;n 1 8 IC rn :f
en (B) .-go ~ ~ ~; 8 ..3 ~~ Cfo"J ~2 !Y' o> ~ ~ m o8 ~ ~ 8 ~ &1 r8 ~ ~ em <~
_(!)8 c ,,n CCJ r--.. 8 -.() (B, ~~ ~ ~ @'1 (8]~ &1~ &, ~ R' ~ 8 "' & If)"""'- u
..UCi:Jo'-L::G) """ 0 e u O'l~ ?:I
.-1!10 0 8 ~ (j) g., JS 8 0 (lg}')8 ~ t9 r-"5'1 ('&-, Qlj Lp; ~ c;; ~ 8 trJ
o (C) s o .o_ lCl0 - o(YJ - CYJ ~ "--"
(lo 0_ oo oo on
m o?...._ (.1 u 0 ~ (C') eJtn
u m 0 .,. U ~ "'0
rn.f'. .301 8u _2 '--" ctJD LYl
-fl 00 , ~
o8 ru- I'U) (.11 0 '-' ' ti) 8 reo 8 - oQy 0 0 (i) o8 0 c a:: (.') 8o -(i) /---..
:e;( Eb8 0 g, 8 -T E) :2/) _'1 ~ CC"'J ~j CSJ (Y) 8 --~ (8J 0 -en l\) r L_ 0
Cti ~.n "'-' en m m 0 8 e- qr ?:I
..B. CG\'J 8o & 6) 8 ~ LYl 8 0 -en - ru (B, ru_ ~ m r.1 ~ 8 B . .-Bo '--"
('-J ""' u G m 0 8 (CI ~ .-8 l;j - ~8" = -8o ~r l) 6) QJ .2' ~
L8 CY)(i) ~ "" ' c8 ~ to/1 "- m @ CY 8 8-"> !;'!q) ~ OJ 8 m, g) 3, .-..% r {f)
m ~~ g, ,.So ..3o m c1fi ~ . .. ,en 0 " .<>~ (i) Cti d!'Al GB> -en ..& 8 nm
:J _ ..DJ .,l .J!) 100 ;<AJ -eJ> QJ o
(Y)
Len . ~ Q:: IC ~ oo :J0
8 ,.H
8 [pf) co 0 ,p...@.
' C!Y "" jy!)/) - ct.JQ)
'-' ' ru- 8 8 >== ..<:X! cob ~ 0 ,en o8 (i) .-8o 100 co lYl
eCi:J -g,Lc.n o' 0 ~ o ,.& n ~ (.j
-""" 1.,0) (i) _()
,1!/0 oo Wl ~?i '--" 8 ~ c8 0 m 0'l -:1>') c 0'l u m -eo 0 .-<0
8_' m 8 ~~ ::, o
m en oo (i) -e;n~~(]j) @ ~r.f!>/) s.~ ...!<J s) ,.a)~ l) - IS) (Y)
c&l '41> 00
B ~ an jp :):) r ~ C'&> o8
8~8~:s~8 'D 8 <..([; ~ Jro8 . ..8o ~
u~ u m ..-' = e -g., ~ g., (&, !2 -eo 3. Qy of/1 ..8 u [11 ~g.,~ s, m ~
J1 ~ CCJ
fils a ~$1rp/) qp o
()( -fft') ~ tl) LPfl 0 I r.;J
WffidccJ~ 8 m sr 1<2>
_g)c{) (B. \i.> g., ~ G')
(,.>)
~ ~ 8- ..e w
34 BURMA LAW REPORTS. [ 1957

~e ~iS ~~o:S>G:x;'JS<l:;}11 s<l~u1@troG~~o ~~~')f 8<?~~-025o1~G:AJ'J

:o C:G!.\', ::n.G~9]:b~'JgJd~l ~5cGrol3:AJ(YJJ~'J ~~:>:x;'J8<3Gcb'Jff3DG!oo'J:
"~<:. ~~ c t-li'J~ ~~1 G10::bt~~G?2@Cb]OJt11
J9~GOO'JC<!( '11 J \._:) D
. ~~G'J~Cc 001~~')~~ ~cnq:n::n~9 o oSUj?GGf?Cg~fg~GOJ'J 8<l~oSl9
:enS gjtoo 08cqjg~ :noSG::n~p;g)~ji~oS:p ~wtgG()OJt 02'tl~"l!'J~~GOJ'J
GG'[:o~@:?JJ!p soSSJ 001 ~(~p:~GC'jl'tG~:l~O o5o;;>~~ GG(_)b:~'Jt~:D'JO1~~x)tll ~~~
m!J2E~o~u T ~ .1
. I:Jj'J:~GOJ'Jf'Jis> 0olg9j'J~~GC\jl?G~J~~9oJl G~t;gt~~el Gm6pg
::n@9 o oSPilG'{JC:Cl]t~GJt~~~~~ ~:o uS~G~S;~S: G@GCX(Ob]CJt
OJ'JgG:U'J 80GOOJ~OJQf_)<l~G~II ~:ot gG(90Jt ciJ~0d)~i~:~~t1C
@~~ 1 ~ro~0c~'J &Sd~:~ f oS~p:~'Jrot: G::D'J 5~~Yi; ~ :~~'J: :Jd'J :ro'J
oScgoSGflG:D'J Sdb]5~'J:@ar_:>l c;gc~~oobJ5:r 0o1:~'J:~,.,~:ot:Go
o oSOi?S::r'J G::D~~GcqjSG::n:> o oSO)?t:@::nt~o5 ~~t~~m:
GQJJ:x>tn
::nt~'J:C~G OJ(?&0J@9 o JiOj(G~C:~@t:~ G::D'J~~ sa ~rh!~0 0
cg:~rot: ~o 5:Gl9 ~ToGoTcgf: OJ oS Go.:x:goS ~~d3~::r'J G::D'J 5:
01~:::li?91'J :foSTocgt:@G::D'J cl:lt~~ ~C~'J~ b]5 Sl OJi~'J:~ ~:oS: G\9
0d)~ :x>oSOjl~GOgG~:xle:.J? 6'J!b]G6~::).)'J@i::ntu ~G(_)CJdC
Sd~~b]a.Jd3G::nm:l8)cgoS9joSsab]o5cg;S ~:oS:G\9:Xlt qcfcgb~
SdG~'JoS::rxf3~@1:~5:D25 OJ~C\(Oc~m~o1 ~5~50-ilm@g@~a.Jtu
::@~ Oil'l~~:~GCI.)')~Ji:r a.Je:p~~ @:ot:Gt9:>Jf1Dcf.>~ ;)JoSon
~GO',t:::Dt Gmspg::D~~ ::nJ3~~Gog@Cg::DtO(l~SCgJ ~OJ~~'Jg~
@:oC~Gt!l::Dt GO?&pgOJ~~oli~G<>pC&<ij:AJtOj?c;5& O)?QJb]~saG6'Jtg
&<lGCD'Jd38dro'J&O'J~OO~~GG~Il
(9tOilo@~o58f3ClgGb!:o1 d3~rbGt@~GOJ'J oo@sa'i{5i90ocqj~:~
qd3madCJ65&o ~~ O'ilsg~~GddoO>pSCJ6S l5&ro8g9(9T@<iJoS Go 1~
GOJ!3rotg1~01JG&~~G~o~cf.>~ o;>~olsa8&~9rooS~5 ~OO~GOJ':
o;>O>l G:xJ'JC~OiJ&~,flpg~~ciJd:>~o5b~ ~~G'J5IrotSj'Jgxtl
Go:>'JCgCJ.iigOil~':)g~9 rooS~oSS~ji~00:D~&~ ::Dd3G::nm~m:> Gsa'Jo<
olad~C&cgoS~::ntn
oil
'' 06J~Gm&'J::S~OJ':l] clJfoSoo~oS0cf.>~E<i]'Jg5l'J GOJ'JC
<J:jJ~&~~')g~ GOJCl cfJyG6&GO&b)::D t utd3b]o10Jt I t1C&c:ro~t
 '
Q; c e1 m ~ ...,pj>j r:l I-'
!:lO -4._)~ ill \0
_c_, uo w gw m 41
0
(.') 8 IV' 0 !::!D v
t) ~ .41 Y'JI ~ '-l
r'2-? v----" ,8 ...!Dc [&,
,..&, Q'1 (1_)1!) "" J)m ~ . , ()') ("1)~) CD 0. = (()') :,, 0 0.. (.') '---'
c m CG.:l .._, .._, .c, <lJ ..('}1 ...oo .... ;.tJ.J w c 0 CU1>
B ~ oo en g, 0 CUD P, J3 of~ GJJ '15 c8- 8 <..4:: ~3 ~ .--8 8 E J3 8 hl (QJ) --> [BJ ""
m 0 ~ _cj ~ _J} c
~ 8 u ~ o8 (}!/ )
8 f&l-& ~ ~ B oo _g.,
"' .3 ...:./ 1) Oo
ID-> 8 ~~o8 8 ~g . ~ 0 J COO DB C"t.;Q) C
_ ,, ;; $--> -r;n T 2n .-...1 o)
r~ lli1 rup ~ CP)') 611 _ T ,B C8l 8 ::.<. .0 co~ ~ = . :.) (~"' 8 [~ If)CC
ii1 = 8o c ?.T ~ 0 CcD o u 8-,~1 -..Eo o 1 l;3 CrcJ...D en ...,, &, -- c G
~ 8 g,~8 ~ -~ Jgi Jb ~ ~ J5 oB ,2 f:g ~l k3 g>..;r ~ ~ 8 ~ Z) 8 Oi
e 0 L) if':' l\) cp 0 3 CC ([;
rn'R X 09W lf)p,'- gCn ~- Len &, ~ ~ ~~ 0) cT l) 3-) Db 0 8 f"Pn cj
3-> g., 2 0 ..& ?fl c81 J> 8 ~:h g f.:l = ?n Pn ~ !:lO -!'/>")
~' 8o "S " -~ ~:n ~r 8 ~ ~ ~
a:: 'Q ?f 8 !JC <i; &, ~ [t}, ..& '1~ 8o ~ ~ 100 V"1 8 "8 -lyl') ..!D om ('ff1 ~ E<rl.l ~ m C1EZ! '7
~ '"" &, 8 8 ...& ,3 8 0 8 ~> 8 hl (i) [P/J . e c;_, hl - u o) !oXJ 8 ~ ... ~

..
.- .
. c.
"30
.__' _... _'__
& u (., . r'.n ) Q'l mrP.n
L~J _ }_ ~ (1\ u OQ , m . . ' g., q '!,;_ ~ e u S.
~9. 25 ,() = . ~ -~ -~ @: "~ ~ 8-, ~
8 }8 ~
~ r ~~ ('~_{', d)~~- o&~--:0-~-~ ~~- e~_- ,_ .,JR.~-". ~.- f_. ~. ~.~-.._.. .~. _
. lrt_~_ ct ~.- _. 8~- ~n -f~ ..~~. go. >~
. 8 1'8fY, 8 s,
_<') r~ ...!;., ro_ . t:) __
,.~~U)rtJ f'?..""l ~ . L) ~ 'p.,.j
U.....J
...8 '"V 0 Len <V '\J = '
n (Y) L) v' r'
..
" . .~ .&
; L)_ ~ ." ' . CYl v' ~~J
m :::>_ 8&,. c...S cB- ~~ C%J o8 cc 3,. rm hl ~ g_, ~ 8(:Y) . _~- .., _ ,, ~ __ o .c ........
:D . v . -)
en m o 0 '""' 0 o LDJ cv ~ c ;-;; ~J."r ~- v
...8o c 8 CG"J rrll IX'Y --f/1 m 0 Y o8- _, ...!!Y _ __;> 01 dD e m o8\ m ~ . ~ ._ 8 0
g" ~ GP)') 8 ~..o er' L 0 8 ~ c Pn GD g .-Bo ~ fi1 ~ ~ s, '-S .-3 m g,1 -r.CB- 1 ~
__;, g.., ~ ~ 8 m G&> ~ ~ S . ~ ..& 8 m ...2 8 8 ~ '' . ,2 ..S ~
:rt 2 ~ ~~ ~ 8 ~ ~ ~ 8 e<m ~cl"J o " ffil w
lf("l o ;=::5 o -fJY') Cf) _o En o
CBJ
l~Jb ..& '-4:: o
s. ~=~~~g..,~ s.
-~ 0') ~ 8 u n~ m 0 au m I!) o co c (&, 8 0
tcB m 8 oo_o
~ 8 I!) ~ m c ~ Oo
rr-> e 0 0 g'"l 8> m 6) ~ . r'?'l-J
8 ~ s, _, ~ 8
[&, ~ o m o e ~ 8 c; 0 v_ cc G LD t1'l :::>. 8 8 CB-
.-f
00 ru % 8 o8 ~ (t) 2n ~ o& U e ~ ~ ~ 8 MSo ~ c (&, ~ s l\3 =)
~ .s ~ (i) s, :3 ~ .!& o8 J.>.c ..8 e&, ~ G5 o =
e:r ..8 . ~ 80
en l;'l ~ ~ ~ If)
..& coDCY ~ ~ru
3 ~ ~ B~ c ...o ~ &....O ,..,
(ill Gfl u GD 8 8 r?n dJ ffiJ ~) ru --f/1 r"t.L .2 r8 '-J!Ji 05 Pn g-> ...!!J T ~ ~.
:::>_
o_ o_
80' m ru_ ru_ t0J 8 o o 'B' u len cv -c u --f/1 .Jl) reo c ~ . en
en 0'1 0'1 Of) ao \..Ul ~en U I CJtt ;::CJ t!:JJ oa ~ 0 -eJ'() (Y) ...J!) ~ (Y) --!) tJ ;i oC.,
""I!)G) CGJ
<iJ ~ 8 Q;)rt> ~ .
Otq 0 o.)")-bY"lLQl ' 0
m~, IC I!) '-1?11 o I (0:)
a m;:la;.J....:b 8 m !?"' I '-'
-~'..'0 ill (&, o; t) 2 CO)
- l.) 0 0 .kr C...>
-{lo> 0' (,/1
36 BURMA LAW REP'ORTS. [L957

oe~G ~e~ Ojt<(~~'J:~~CO'JGsp~o~~~@t~31~ @~ot~G<t~ ~~wS

:oS:GG "l]':>~8J3ro'J:t: 'j~~ffiG~~~rb~t~~<~ @wt:Gel::D@ Ojt({~"JP?.
,., . '~ _ CO'JGi>pcf3o~~oSd3~Gt:J? ffiootd3i~::Dtc.Jil~<;t:t ~d3~~@tg:JJt
l9~:~~')5~ Oittl~"ll'J~~~g,)~cbrn~di~~:x>'J @~xtc..Yii~Gs~ o,t~E;J~ $G8'Jtt
GO?S) @tro n<lGOO':>cf3$0J')gG~G4jll .
~:o~~:g');> oeq 7 ~~~~ (9t~o~Go58(9'J~G6): ( cB~:d3GiG0'J~~l'Jci3~) ~ci)
mCJ6C;o ~~~ 80G~~bG ~ (m) ( ~) ~ (J ) ~8aS[' ~5lcGX''Jno8~~'J:~ .o.J:iqjci)
61 G~GOJ>J~t~ 0~gj~Goo!3oa0',2cf3 Gcgpcf3m'J:G::D'J8dd-t ~~:Goo!)
::nt rn8~~5loSGX'J8d'JC!lJ'J~t~G~02C d2308~~~5loSE;]~:tlGfa'Jt~
n<JGOO'JrbadCO'J:"ll'J:~ G~~X'J ~@@f>xtn noG'Jt~~GOJ'Jd)
mro-:>:"l]'J~~03JE .sS:c~o$@tna-:>~~:~ rnS~~~oS d2o) G~ci3~
~~:Gro!3m 0~!>'::~:G~G~It OJ<(8~~~1'JCDt: n<l~O 18d8~~~5loS6)t
craG@'Jb3dGOJ'Jci3nam'J:~p: ~ G~~::D'JOj,t g)l~:Goo!3m~O)&i~xttt
~~0f>sp~'J d2no8~ac0',2d:82G'Jt: SilGOJ'Jci3saro~~ G~GS'Jt~
oaooci3CY6S GGT@~x~DO~t: Gc;?2@56)::ntu .
~rn8~::Dtcot: @tGm'Jt~@~G'J~cc~ ~O)t:~S~to~mG~
eoG8<(bG ~ G ~ qbG ~? ( ro) D06)100'Joi:..Sm'J:Gx'J C2c3coS~~~
@tGc:o'Jt~~tcDOOJt:l GtOJtGrSf?~G~ Gf~bGaGS~d)~f 8~ ,_~CO
n<l8~8dGS[:"Jp:~ o3~oScqoS~:ntu ,
, ~@~~ no~olra8~~ GS~GroS~t:0'J8J~Goo~~~ ooS~cB~nS
OJtu
1(_;57] BURMA LA\V REPORTS. 37

t ::>e~f3
~gG~'JcBm 0 l Cf ~g ( G0'JS(Y)~')~)
I:!'~"Jo 1~m
.E J (3,,
~tcGooS. 8~W~'J<)S ~02choo'Jo~~ QJ~Goo.S
~~~m'J@~ o l@ g ( <!(8oom(;[J'Jg) *
D<l5/G~TO'J8J~GooSGOj)'Ja5~'JI o ?::> o y9~1 8? OJg'J;; 8<ld3euGs~fig J ~ ( :J)
99 (J) <(CQ JJ (o) (m).r
b)~O{~~~ ~CCGO?S 8~tD9'Jf~ :J?OO y~~l G0'JOf?OCJI8<l~oS 9 d?
mSGco~b)~ 8f>t~~~ ? o~;:99 ~:~oSGo:&J~ d(80?m j ~:m ~ ? ol:
J ~:()~o1oE~<~oSgt:<~&;o'lq~ m~02oSb1 mi02oSJ~ nc>O'J~8<lcw5
!Jdoj'>rh
~GJG:xl'J ;;cspG~S J o!:5l~c;E:i~=02co1oc~::n'JcospGooSroo1:mo1 ooSd?o56
t:r ouS~:;))~G.p:f.i ~oospGooS ? o1::x>~ GO'Jo~'Jo CJI~ oorf.imoS'J:.p
{S:~E)t~Gro.Si6t:l ~qtci2:~oS~aS:x>tcot: m~02aS::l2r:cf? m~:Go:G:x>'J
~qt<~,oS@~E: I
~;~a)~: .I II 00~02d)~b~&) G:xl'J 006flGOJlJ j 0 1::x>t I O'J~CJ,:lOO<ljrftij'J:
o~o1or @E~~CSJE ~oo6f>Gro.S~'J::xlt m~02oS~aS"ii'J:5i9 0So:;'8:~ t:<r.jj~
GOJ'J 8-j>~~~~CXJ6jJG~s~p:6fl~ <i2:8o5~oScf? ;;'J~6&JG~Qt.l
oo-j>t:::l<l'J.~~~G:xJ-5 m~02aS~aS~'J:SI~QSI~rf? E:01JtG:xJ'J ~tcGrolJ
8-j>t:~~1 ocspG0?5o::J.J')C\jrt ~:[9o56qG~Qt.1
bXJJ~G:x>'J &tcGoo-58-?t:~~ 006pGOJS"ij'J:spm m~02oS~oS"ii'J: QSI~
G6'Jt: <i2:joS.~X'JC1jJC m~02o5f:~qG:x>'J ~tCGOJ-5 8f>a:~~ 006pGOJS"ij'J:
:x>t ~G0'JDf00CJI~ ;;oo5moS~ 6'J:~'J!5qt<i2:[9o5Gro5w~t6Qt.!
m~02rf.l@b~~~G:x>? rospGO?S J ol:::nt mt:Oij~G:x>'J ~CcGoo~8f>t:
~~rospGoo5'Jp:z-~ ::l<l~:aa~oS~QQDi?:n SS~rf?oS~E ~:oSGofil?~6c:
:x>t 1:) ?::>::> 1j!5r 8~&0JS-:>> aaoSeoGm(5Q J ~ r 'lti<::coS (J) ~9 aaooE
n<ll-:>:oo~OijC~ G0'JDf>'JO E51cf? ooo5moS Q'J:f-:> G,~:goS~E 1
- - - - - - - - - . --------- --
* 0@~~ y~~l o:>~:~OOG:x>:m~ GC\ji'Jd)S~paa~oS ) [S'u
t ~tcGOJ5Q'J~::u~ff:~[O ~:::SS:GG'JCI ~tc~oo.Soo~:o~g: ~:9::S~:I
~CCGO'J50?~:0 ~~: ~!~~C~1~ G~GSl'JaS~E ~CCG0?500p:O ~~:~JO O?S~
~oSo.:>~r
38 BURMA LAW REPORTS. [1957

:J~~G QObpGm.S? o1g~ ~9t<Uc6~uoS~J~~ ~bcCO!o:r.>58~,ssc.ng':J;;~ oo5~0':J:<P:J

~~G~')cB(;") 10~-~~~~:@oSq~ D'il5/~Bf~~:x>~c6~t.l GID')8ffi"lj'J:~oS~t md~oS:x>tn
01
:9~: ~~gs1GS)Gcp~g @g~~m ~80)m ~ijch 0 ~02d) ~OOc.ilG~'Jt
~tcGO?S) 8JoS::Dt11 ot8oomB'ds:o5 J _Cj ~ ~c8~oScPrt6G6po5g8Jtll
~ill~' -
~02o5oo':Jo~ ~; oSS;~~o~?Stt ~~~~G~ffi':E>jb@0'XDtt E>J0?~~~ 8~:~!;)'J.p~
~:=~ 0\)0\) <t~~~ G0'J81j'OOt~ooCjo5 Cf 02C ~~t~ctic o~~d)E>]~
o1 @ ~:11 ~~GQT0'J~~GooS~02d) G(,;~'J6}bQ0'J@~::Dtl1.
QG~ffi'J6jbQ0'J~$ 0Dcqj~ O<lG61;3'a~2~g@Gx'J @::b:Jcp'JCj'J
~~o1Gwa.p'Jot~~ ~:@oScp02c ~CcGmS 8.pt:~~006J?Gms~jp:
@~GmSwGOJ'J E>]OJ.p::S~o'JGa:jpC:oocpGmS gGG&m51$. 0cb'J)l
oosrGmS @:80J:J 9ac olo5GooSw~60J~aa02oS ~~9S~diLJJoSoS
~>]~ ::D~::Dtg::D~OOto;IGnJ') @o.:Dp@~OJtu
~So.:Dcp'Ji905~tGOJ'J aa@5aaqjoS rn9JoS80:c)("lJ'JW~ G)g~
~'J ~CcGooS8~m~p.pt OJ'JO~QOOGJ?GmS~ J?G0'J8pof~~5,;p
G<p,0cyo5mSgcy CX(oS~oS~ Gt9T@jG8JS c;5:~ij'J Goo'JoSo1m~5:
@~OJtil
'' o -o- ~ ~~~ uoo~mCJ6oS05Googsp~~g@ctsrCJ25rn<:oSrraQ
~ 8.ptg~~
\) ol:9~oE ~:@o)GmE;J~o1al0~ill
006pGmS~m m8~91CJoSGmSw6dltfu <

( ~) :Gm')~~u

J -J -~~~~ uGoo'Jt<;(t GE>)OO'Jltt Gm'JEm~s' - ~CcGmS

8.pt~~~;;;o6J?Gm58C')gl 30~~056)~.. o$0'J~ 85:J::U~
~~6')~G6j~O~~~Cj0000~ ~G0::Dt11 '

(~) ~Gem.~~~~

J- J -~~ 11 ~~~~VJc{aa~::Dt~ao'Jgl Toji~E&,S 0tGWgQ

Q~b1~m02oS1 O@-J -~~ Gip,~~g~::Dtu .

(~) ~:GOJ')~~
 0 0 G ()() 30 C6)..!!J086)~ ~
0 m &, 8 ~ \.) rl'ft o(Yl f1:'J 8 ' \.) 8 ~- 'C
\.) ..!!J 0 c8 8 \.) -fJ> -!p 0 LY1 .-co u'
......,
~ .c~) &, o- 8 -fJ>'"l
(}h m <.n-t>fl') & 0
L)'l. Q)o- () ~) ty)
Q)o d
S r-OO '---'
8~ ~
CGJ~~' &, 0u_ S,
0 -" Q)
~ ~ m13 C t~) ~ u - 8 co .o. Q) 0 - ~)
0 -\-, o8 c:J ,.tJ> ,3o o -:---.. 9 1 Qil3 l) o e .en 0
0' (qJ_, m (Oj rJ If!/) ..fl 8 \:Yl
e ' Yl <7 ., IX) rO l) ~
..
'--
kl m - ~ n.So m rn (i) ~ 8 t ~ ~ m O) 8 W u:/f!
I m 8 QJ_ :>([; ,Q 8 -~ -~ ~ c3
0 .-{X) v
~~8.& (3
eOJ (j) 0
.B0 ""'' 'lYl
8 ~
0c ~ 0 (Y1 ("f)
t:o
1;72 - " (;,() oCI> L'l ~ ~lo ~ \.)')8' ~ 8 ..& 80'1 ~ g., 8 e CXJ..!!)
0 """ ~ <l.Yl
g.. #. .,__u ru _
w -fl>
8e ru 0 '8' en -{'/)co 8 c:::
s~~~ ~ 0 f'>" 0 renLuJ "'1 m Lcn o <tJ e o ~
c u " _u_ .-co o u 0'1 r00 ~ ..!!) Cf)-{'/) =
8 -.!>' m 8 ~ Q) o - - " (;Jn rl'ft- P-L)Q 8 ..!D ~ 6) 6) \.) ?.:1
8 !lO ~ -e '---"' e L4:: o -ffl ..EJ 8 co -gn ..ro \.) 8 ~
~.e"l~ 8 CP./1 ..8. [SJ 0!/1 ~ 8 m...P.n 2o ~ ..
,. D8 ~ ~Cb 8~ng ~~ g' ~ 8 8 )il~j] 8 01)'' 8 ;p
""""
ct/'l ~ LY1 'Yl ;) "8-,
8
~&, ..3o 8 J~"~cun 8 - Ab ,.&
~ 8 ll'/1 ~ (~ l i .J rW
-0
t-<
8 e 8 ~ Jr- ~ 8 8 ~~.ay ~-; ~ 3, (Yl~ - 0~~ ~
rtr ~j ~ ;p
G;Jn u 0 ~ LUJ {0;) e 0 o 0 \.)
8 .-s g _go &,~ &, u 0
= m0 m ~ 0 oCI> a.. ..8 8 .& (3 ~~ ~
ruQ) "" L'JO L4:: s
0 Q) 0')..!!) (3 0 l/1 .;;; 6)
_g. ~8 ciD 8 \.) ...
a-. m@)
D0
8LY1 80 L~~ ~ oe -
m"-1!/J OD
8 oCI> 8 -ett1 r0 ~ re C1<D m 0') m ~ & ~
:17? _'!) 0 '- 0 80') ,.........
~ -fJ>'"l
&, CPJl 8 '""" ffi 8 &1 8 ..8 f!l -u ..!!) tTl
g m ffiJ . ' l_ .
c-'-" e\.) ;o4) '---"' -t:/>")
0 =
.-a o- o8 er ..!!) r-8 ~-1 rib 6) '"CJ
u t:) 00
8 {0;) &, - -ett1 <I) ~ cru C9
8 g ~ ..oW> .Be~ 0
~ 8 I e')rp0 8
8 :3"' "t ~ 8 ~ 8 ~ -~ ~s- Eh8no /j
.) l_ 0'--./
CE.11 re coo 8 &, ~ ;;vl
91' .-0 -0 ~ 6) 0 .o. \.) .-8 0
8 0 -{'J>') O>'C ~
S,cJ &,~ ~ <.n ..oo G o --<.10 m (j) - " 'ii""' 6) (/)
(q) m 8 -? -f>ft'l (B 8 8 . !D<D8 liD _8JQ) .......
..C
0 0 <Y1 0 ~
.& 8 ..e ...-. ~o
-2-=- ~") V \J0
0 8~.-e '-- _ C1)
"? 8 80
ctn l_ ___, CDJ 0- -"
..C 0 oCI> ~ 00 (Do 'Ll m
8 13 8 YC ~ - f7'tD <tJ 00 r00 l - , 0
0) c.:' 0 8
~ ~o888 -&1 0 .El 8 ~ -fft o> .5, ..!!> e ..!!> (3 8 6)
~ 88 ~ ..Go G;Jn~ 8 G &, rf_l (P,11 0 iTIJ o __)() 8 8<J
&, LYlt_ -c3
8ll:llo 0 0
13 lYl8 0'J () LY1 CCJ
8 &,~~ 8 8. o&>co:'i o.-0:)0- 0 0 ;' oCI>
!!<.% ;::::.._,
L) ~0 OQ
"" _, 8 v ..!!Jil
8 a oCJ> QJ -.t'fl
l_
e " cun ~ 888o8g,..
o8 _/00 ..!!) \.)') 8 ,.()() o8 0 o8 Q
S S8 ~ C0 &. ~ &, '-4;: ~ 8 \.) '---"'
m 8 g., S, 8 m ~ 2 m .-8 .m ~ ..
am

12> 8 oo
QJ _o -e-or'0 c ~-ll) ()
Cll'loou..,.m --"co[(<;)
__, 8 S,D-' g~ty.,..() 0
.-a 0
cu:>oll)s~s ttJ08a (;>) w
=;' 8 0 l) <.n ., 8 \0
~ CB Ln_g.., -eo
 BURMA LAW REPORTS. [1957

:)e~G '' :> 11 umcooSGl9T@o1 Glt>'JD~'JOt~::J2f D35f~0~trQ:J(~~'Jgf'J

@:G<!-'Jd3ro ~&@oS&J~rB~sc~< Ol~ro0gG~'J ~tcGooS ~?ti~~
o1 c; ~ Wt>pGOJS)~~~'Jg ( :>) (9r(:)t~tg SCGS)s~~~CYt~~
~~ ro~GooS~~ Q)ro'J'ri~~Gm53o1oc6~tot ~Boom
~EcGcn6
8?&oog'J-? r:r)'J~ d3~E;]o1~tn
ad06J30)'JO ~ J 11 u~8.pt~~~;;o;;pGooS2;: J o1g8)t1 G0')~m;tpd3m
~OOI>(?GO)S)
@:Gm'J~e3 ~uSGoo$)1 oSGa:lj'JCg ~gsc'JI!;CD'Jm~~t o~~O)
o1@ -@:11 8)'Jg4jS: @~qb C(~[cSsc'J~@~c;b roo 1g~~roo[:
GCD'JOO~'Jbj~ n2irxnd~oS~p: COCj'J: ~GO:'J
G~'J9c;t: 8~ m::u;cfeuG;JSCE;j a:l6p:~~:83;;;~@~
~GW8fJS?ri? ~~zt~'Jfi?~ gJ3~g(:)G0'J'Cg G0~
0tGro:Ej'J:p~~goSE;]~ Qg~~Eo1n
tJ u II ~G0'JS<j)'JO f~~ ~8~t:~~006pGOOS)fSg J o1: 0 lo 5
G'ro'J5'1 00G~') ~m 0bGro:'J:.p_ ~'~g@oS~G~S)
02Soom~p:JJoS1 ~p:~e~~.p~g~:(:)tO? ~t
0 18)tll

Cf II llnd~o18<j)t:~~ 006pGOOS5~:~p:~ CffCDCDo5~ C(ab

d302'J8)0'J8co? ~:~:006pGmS~'J:D3G;:>@$. ~Boom
"JP! X::Dc.DG~o:n ~G;::nS G0.Jn~ ~:e'Jcrm~uS
GmSI @:D3'JG:O'Jm ~uSGooScfl~~ ooS~oSG:::>J'J
d3~~~ mqJ:~s:;:~'J:SCG;>@~ (:)'J~p (:)~:@oS
~OOG'Jtm~'ff ~~:GmS5GSl02C G@it:Gcg'JoSro'J:
z~qo1m 8)00G~~t OO~G OlT0~GG:G@lt:6}~ Q')'JO~
~ ~Bmm"lp:n2~ Gro'JtlrhE;]~SGl.:n~~u!wtu
:@&Jo1G~'JG6'J9 ~G0'J8<j)'JO 5~ 6'J:~'J0~Gro:~ g@d)
GmS'i(b]~l ~~gGmS02tGt9T@u1 ~5cGmS 8;.t:~~
ro~GooS~: J o1~ o1o5Gro'JtloS@b;Qoibj~ ~G~
~'J GcqpoSco'JgG)~tu ''
ll

( t9tGt~5:D3G~ 8~:~ct,J~g ~GpGOJS~p b]OO;'>'Jd3W0GCY.jj~t,; OOGp

Goo$) ~gGGv3mo5@~~t) II
1957] BURMA LAW REPORTS. -U

~00~04rf.:0?J;l aoaJ~iJd~o)QE;jGX'J ~~Gm6 J o~~~ G3Cl'Jt O@ :J(S

:x>Gooe;pGooS:JJ'JO1o tG:x>j ~GmrJ'i''JO t~s;,02o) ~0t~oo'Jg~::D'J ~G;~~cf3m
~tcGooS8~ JJ~'J?OJ ~Gip,l'JOt est G:J<l?cho1 aaS~o:o~t3 J g~ 01 9 ~;
~~Q ..C ~
ow~i'mGCD::D~II
99
~5cccnS

'' ( :>) :>~:>~ 15i~r md~ro~oS :> J :jchGf, ~~cGmS ;!~~;:~

.. B?.s; <DI;l'J? J.JqoSGOO?Go:pt~~oSr 0mt~~CGCD'J5i ~ ro~ccn.S
' ~tG:))?Gf;~t 11(8~m ~~2'Jaf36o1 ?_ olg02t @~cCY.>'JW23
OJU.,)g::r,?(.)1820 Cl.l- ~ _0 ~ ,Q
C~~J.i{ egG~'JOJ{)) m G&, G(\)g E;]())'!'g'-ill
o~1 @ ~11
'

8C)~<1j[O 0tgGo:;;p: ~'J:G~Gj~J.J'JG-::1~ ~82JlcfJ

OJCDG.j~b:GO:Gj~ GC\jj'JchOJE~ ~G6'Jt:<:lQ~~
GOJ'JG6'J$ ubS9)~chJ.Jtll
() ) c;t;:J<l ~}:J65o5 m~oS:n23g ::r.?GS]8~:~at~g ~e;pGm
. ~? 000'J~~;;p~ns j o1:~ 0Jf''J5me3~CD'J:@~G::D'J
'<' G23'J~ 0G::D'J80:;6'Jt~g ~Odj(~ OJ~~G~Gjbbl~
m~o,?oS:Dt~ 8~ m~'J.P sooSeoG8C(fiC:J J ~ ~~
<J~ch~G,;:n'JGa'J~ ooS9j~chOJtrr

* * *
" J rr GJO?~s~~l G!Jo'JCJJG[g~~GOOS ~g:Jd~WOOJI!
J II OdGlg~~?:-rr~g 6j:D.p?:8~iJGo:ptg ~gGGJ3mrr
?II l!lOO'J~~6pGOJ5 ~g8JJ?E;j::JII"

~m~~-b0'J~ 8C):o:fJo13ClS~~ ooS@~:JJ~GpoS ~eo;;pGcoS

~ o1gxt Gl!l?s.p~o 5~:1 ~o5rooS~ 6-:l:f?@;Ojjt G'i''JoS ~ 9oS
~6':>1 :>~,~- y,1 Gl!lG.9To1~m J 9 E;Ji3G.P,o;;!tl ~E;Jt<1)ch 9)GmS
'ff~6GC00J~Ii
~3Clo;;!:})l ~~gGmS02S GQffi'JE>jb~~~o, oa~o 1 ooe;pGmS
J o1g o1o5@ ~6JE~~~o5~E::otr :>?:>:> ~~~~ 8~teg'Jcp saoS
eoGoC(fiC:J J ~ ~9oo~~tG'Jf:u ~~~mJE:o~8'il06oS ~fcGco55
8~ m~pf~ ~6Js~~go5<1JoScfJ 0oSL1JoS:D~o1G~')5: sa~~:otu
~::raoSeoG8C(b~ J ~ (:>)51~ (J) l'J G8C)'Jcho1n<l~tg @~8.:ltn
42 BURMA LAW REPORTS. [1957

'' J ~II II ( :J) Gt:JJ~8<j>f:~~~SpGo:iSI ~I::CJto) .e9o1a1.

~:G~?d.Sm 0~ox;oq:>GmSt:J~ qc~5 80~:nt @~G{>:JJ~
o1 9 ~: 8;;t:~~1 1 ~~U?oS 80~1 ~GatoS ~oS~S rr.::~: :.uc-b~S
~s e:lo 1o1v~().) ro;;pGcnl3 Gp:JJ~S<J~I ~GulaS 80~t:@Sg 1gOJ~
~cidcns 6'J:r?0~G;;x:n 8361c~:
8?~ro~pf _ @aSb ~~CJ?oSol G0')80J 1~0)0')~~ 9' E>)5~6)Cg~~ ~g 8'.302JGW:lOS
~02o5a:>'JO ~ 8lGo:t: (;IQ~D::D& @~G{>OJ~S05II ~GatoS qoS~tOJrG6J o1
~ CO~GO'JS ~~oSil
OCG~OJ~ sosr~8'J~'!';? (()~~gtgi~GcJ?oS
@:GO)?~~
oi ~ ~:11 0o 18Gogt:G~6)11 '
(J) GtOJ~Tosr:JJtG~I 8~0Jg'Jcp02C oloCX~ QJbp
GmSmo1w1:~p ~oS~c :::B-~:::Drb~CG6'Jt:l
~;;ataS To~t:@~g1:::D~G0'J8~1~.8mm~l9Jcg)C:
~g~g:J<l~G:mo 5@0G6'Jt:~~Cl6G~ ( :J) s;)i O?~~J)
~b.Jtu m5gOJ~m~~o5~oSq m~~o5@5:@):J.J~
;;o spGm>:im [S5~~5~GC\j)5 c;t:oo,7GooS~To0?~
GO@'J:~f~ 8<j>t:~~;;ospGro)o::o1m~
G3)gGOJ'J.d)
mt~E:s1Gtll ro~02o5S: ~J:D~ ;;o6f:JGmSm
f:~CSlc ~;ospGmS:J.:,t ~m~~oS~o59~ 00
cg:~ @bg:Y.ij~G:J.JJ 8.pt:~~QJ'{)GOJ5 ~')gspg~
~:goS~oS~ op?Q)Gtll'' .,
~@0 m~~o5[3f:@6)GJJ'J QJ4_JG005 j o1:~~ I m~~rb~cb
~'J:"'~~olot ~5:~C\jj5 ~;o~GmS'=lp::JJt m~o;;oS~oS~:~p:~~ 00
cg: @tw1i~GOJ') 8.p~g~~;;ospGmS<=lJ'J:sp~ ~:@aS~oS~.p')G>Eh
G~'=Jtll CD<j>t:aa'J:g~~G:nS m~~o)9jcfil:jj'J~~~G~~q mt:Gij~G::D')
~tcGmS 8.pt:~~;;ospGmS'=lJ'JgOJOJ'JC\j;C ~:@o?G6JG~Gt11 . (25:
o:t~,~GOJ'J ~tcGmS 8tt:~~;;ospGooS'=lpgspm m~fr6o5~<f.i'=lJ':l~ 'J~~
G')tg ~:@oS~OJ')Ojj5 m~C16oS@5gQ)G:JJ') ~CCG.:n) ,8.pt:%~Q06p
GOJS"l)'Jlxt ~G(()'JG~'Jotsr~ ;;ooSCDaS~ 0'J:!f>'J~)5 ~:@05Gml5
~~t0t11
,. .CO"'
0J18<l~~'J~ m~lJ2ffiC~@~S1 G:JJ'J <t;CCGO')r';, 8f~~'l~ QJE>()GOJ'C'J
g~. ~C:.xr

J o1~:nt m~CJ20S~J.ic,pg~ tg~@g ~m~C'J2rf>9Jo5~:jj')g~~ q;Ocg~::

ffit:CJ.ij~Go.:>'J ~CcGmS 8ft~~~;;oGpGmS~')g~ m~g~@oS~ G~
 ~-" ~ ::> 00 CUD l1 o:; CO 0 r:l 0_ V Q... 0 r:l 0 '\!; ~ C
'-8.;3888-8~8 =-" 8 cJ. ..) oo (\) [& C 8 (\) ,.()() ..) M.AJ ofd (\) >2<>j U oQY "F0 -c
g_, (j)
-fj;;[~~~ ~ ~ ~ Ul
'-R/1 CCJ ~ D\j
o(Y) 8
. u
0 8 8. 0
cnu
(j) O")
8
8 ,_8 0 J? l : l 6) (~ ~
0
lJ
.-' D
~ 2o8
~r ~ ~ ~~")
8 ~~ LYl
=r
l.t}>
'.'.?~ ~~.0

-u 51
f:b ~ ~ ~3 L~~o ~g
8(;1 i~ c() l 0'1
m] ~ ~)n IT"'
(8l 8t
.l~t
o8
(f~ ~
-'l
'---'
fH .fj 8(i) r:r.> c!l2 YJ ..:n u fr' '.) o) .f5 ~' 1 ,) Q) ,o
oo_:) '- \
8Vl c~ ...)t ~8 ci CY1 L~., - tJI C) "
c:l . 18 c 8 rt ("Y} o
8.,..J (O8 u~,J~
.~ (L)_8 G0 ~"JO
,8 (i) ~en S, & L ..Bo c t1-' 0 ,wn -!D ( n J.'il Cu .BJ \Yl (_' ; "" .fj ~n ~ I'!Cil (0-.
' 8 Lf) o8 ' .U oo r<.l 0 0 !>.S -- &1 8 2o
0 cy, _8 '0 Li::l<O \11 0 c.q D3 . ' 3:J (h"J c en c
___j
('g)./) !XS no LRfl OBi) fH 00 8 (;1 en
co CY> ~ ~ c CQJ Pn 3-J [~
...8o t.Yl -eo e.g ~ ~ 'i-i ~ ~ --~
8-) ()'' ~
00 L) '"U ty, 8
~ ~ (8-1 pg),,. 8-'l ~~ ~ oQY. ,8 ,pf e U0 m VV> CUD Cl'l l9 CYl ll.Y 0 -{')1 - r; )1 8 m CC""J -!>"/ ~ -8J Oj
u&1e~li] .r!D(i)_ ~ ell~ d:: ~ ~~ Qo (8] g~ (j) --3G 0 .()3~ ~ uSJ ~~ d:: Q)' cB ..& m
~ If) 8_ C ...___ = L) ....;;:r:J 0 () = ' """- L) v '..!D 0 8. C C c
8_ Q) ()') _.:.> ~ 0 CCJ 0 ~ ~ ~ oQY u Vl _, m
~ ~ 130 8 ~ 8 Vl O (c.;) 0 8_ L) oQ)' co :h O -f'/1 I:':JI (U_ 0 , rG
~u ~~ Jr 8 8'0'1 "'8L o(Y) :::0
8 8 e .c8 oo >;{'ft') 8 0 ;m C!p .o 0'1 m .-B ..:n Vl 8 0 8 ., o . u c8 L\JJ \'!en 7 t:(l tl-'0
0 0 _J1) ~ ~ k'l c8 o(Y) e
m o --u ,RJO 0 (ro> 8 _ (j) CCJ 01 ~~~~(j)~~~~~8~~~c~=~~~m
s;::
~ 0 (j) q) 0 "'~ ..;n c - B. ~b Q'1 ~ :.)_ 8 t:x:J l'.b {.Y) 0 o('J>') L) = (j) .{i Q) rP.o o8 '1:3 " Q),, >
&1 8 C"8J (B; ~ ~ 8 em 3-, r"rJ ~ . g' L)') 8 OV <-2 3 ~ W ~ (!<;""""] ..![) 8, no ,..C r?,o
(j) ,..e
G? oo L'lO
(),.g ;.a' Jr .-\.).') &, [80 1) "=;, C '-'" ;;1:1'1 d ...c .>CUD 8 f!f)8 u(Y) ~ - Cl
c8 80 0CY1 0)0 ..!D8 ..2o C{.Y)@] 0
--;-" q_, 8 ;.0 00 ,di.:; L) ~ ('3] ...co 8 0') ro rl'fO u ' 0 0 0 ,-y)
B) 8 j 55 tS Q)o ~ = ...8o ,.8 .~ lA 0 8 -0 -eo ,.8o Leu 8 ' ~ u 0 . ~ c!d &, 0
,.pro u g"" o~ c'--! ~ ..,ex 51 o (j) t) Q)
m 0 0~ c8 _J1) o(Y) 8 8 l.11 8
::> ,..\;() ~ \B S,CYl-;;W"J ~ ~*, 3 8 . ::%2 8 ~
0 ~ 8. ro -IY1 -fin e 6-J.
3 ~ ~ ~- 0 -5 ~ o8 lBn c c8 "-5 --1&) lf::J >;{'ft') J5 ;[' .& '"'; ~ ;;{1
(j) m Len o 8 ,.~ c -IY1
m = u ....,, en,J-'JO;;{\'Y"l L)
<..1 Vl 3 0 ..![) 6) S, &, C)_ no un J;. :1 '"U L) '-R/1 0 '- oQY
8 3 CCJ o m0(),;;m.8 g;
..:n ;;{\rY")
em 8 (B; CCJ ~ o o. og &, cS ,.&, -!>"/ ~ 8 tn (8] ~ ~ ~ {>/)') ~ 8, 8 ~ ~ 8 '-../ lBJ
00 cB (Yl .-v c 0 0 (j) ()') 2.Y o . !a c8 -eJJ ..?.o u .-GO 0 8 8 !a e t.Yl '::J t.Yl 'Rfl 0 hj
-{'fQ :") Oo "'
;oO ~ lli9rJ tJ Vl (j) 3) g 3_ g., n'l 3-J 8 ;;fJn 8 (j) L) ,. ~ ~ CO o(Y) 8 0
l'.b ()') ...,.__ (j) (Y)
8 '8 '*'"' Q.Y
lY CQT) k'J ~ u il ..:n 3-J 8 ,.p/D ..JD ,42 U q~ S, (j) 8 C1:h c8 o( )')c8 ~ ~ ,.8. q.{l -P/1 8 :::0
8 ma o..Bo-:;Cin 0 ~ (:l
~ [U (j)
3-, ~ (Y) (Y) 8 (.1 rgJ.n lth ~ rrl
Q.O Q3. ili-, 8 0 ~ :%2 o8 ...,co 0
~ g: 'Q; 8-,
c 0 -eo (j) 01 co b8 Q) ,..,.,...., _, lV (U_
8 l(J)
1-1
(/)
-- 80 c=CJ c -tA.J 8 d:: 8 Len ,..,..., r4Y..l m ::::
un..1 <!J ")')
0 ..!D -\'fl"l <..1 _r!l m 8 ~- (B; r o <J 8 0o u.~..~
ru_ o QY ...o r::-,1 ru_ -
-eo (i) o:; <U ru Oo CY1 Len . "'ed:> Len CYl = m CQD &::;> u ru L0J Len 8, 0 - t:l _( l
-0 u !:?.X) c8 "' (j)
(j) mJ (j) g., v' ~ L) 8 (j) (Y) Len L) oo L ..!D OJ ~) ;'r()
DO o Y ~ = CYl MDCI -f.
m u (j)
Lh 3-'l 8 8 Q) ..Jl:r., S o oock'l~~~-~ ~ '-../~80~~~~~
s 8 ~ ~ 8 L)')
i:G[3J 8 3-J ;tJO ='o8 8 rB ~ 8 ~ oS ..s ~ ~ 8 d) 8
lY n -/l') e . trJ 0 -eJJ ~ r..:>
o.> ow ..!D 0'1 o_
r8 Q) ca)
0 .-B 0'1 (),gh ...o 8 .-eo 0 ,_ ;;!'J'I 0"
m(j)
051~&-> 8 ~(B;(j)-{'/) ..JD .-8(j)~0
Q)
8 ..r..a -l'll0 0t"l'> 'U CBC .BJ --" 8 6) r:J Q) 8 o <Yl u
,n,i) (j)
~ 8 ~ ~ &, 8 o 8 8 c8 ~~ ~ u 8 8 u - ~ w o CP./) CGJ r~ ~ ~ ~ " "m 8
Q.~ ..:n m ..2o ,.& (B; ~ 0 ..:n :'("> -{'jl .-B g., !X) 00 L)')
g., ~ 00 ou ~ 00 ~ 8t 8 00 '('J'JI) L)')

coo I!) ~ 00 (UJ)

.S ~) ~ oS -ero'M c., ~ u
(<\) 8 ~8 s-,!!38 O).(Y) I ""
O~ _;; ~01~
00)8
~?3 8 <.) 8 CUll 8o (o)
- CB l.Y1 -en l.Y1
_g.1cs 8 ..j::>.
w
 c Coo
. v -f3 cc
0 -ero.-.0'0 c am
., ..P.
~
--" 6)8 8 00 fh rY > __, ~) 0
_J!) (U;)
GV
a."'"' ()-'Ri q I U'>
u 'v 8 8 IS) 0>-.o u
0
coo?"d g 0 ~ 8 &, CO) =
~ru o.,e;;cn s
LO \Yl-/Tl
oQY C 0-!D~-"08~
(])'] !!.() -~'-3 8 Jb 8 8 8 r9o_gnc~ ..H 8 o8 8 ~ C;h-0 8
(y)l!:: s Ci::J &, &. c
0 IV II) cal .-.:' :) [i3 ~ ~ (B, 8 o [P/) 0 ~ m 1) .-8 .-8 &, r-J -J
s r8. -~ ..-'!!".
.Jb~D ~ m o # \.f!II-!D cc 8 c , 8 '--- .-.J 8 _m _.B. a ~J en CQD _ (1,.. lliJ QJ !A~
en.& o_L 0 ~ oS -~ s, C8J c-, l:h! a ru o oo '-"" G m -!D 8v' '"''"'
0 m...oo e 1!{5 m (B, -D .$) 0'0"' '--- o) CG'J 8 3, v &, 8- '-4:: ~'"?., &>
8 II) c 8 08 m ffi-> m 0 0 &, --{'}> 0 _!!) ~ 8 _!!) ~yo, g, 00 8 0 II) ~ 8 oQY (1/.J ~
1.) II) II) -; {?~> ~ o8 r:n a_ o. o) ::-,_ '-''-!D en _tD -0> oC~> ~ c.
8 8 ../l/0 0 t:> 1j ,.8. o..S ~) m -0> ...oo <.Jl -.fJl .-8 LY1 c!!< --w1 c ru ~ ..JD o8 \:Y1
2 &- ~ .ff.;
[B, II) .-e1 a1 <>.J D "b m p, 1!:: ~ 0 0 II) 0) L)
cc 0 ---" II) 00 II) ::-,_ - 3 ~
=-;;{?Jio8 ()o _!!) L)Y1 LY1 @ e ~ ~h ~
~~~~s~Aoo~88Hm~~ eo
0 ,.& o8 0 o8 -0> Oj l.n 0 u 0 (!],, 00
'-S 8 --8. ~L) ffi(j)
s. 8 0
8 8 ~(]] ~~ 0 m 0 m rl!fl ~ m [B, c -!D ~ ~ ,,E;Jo 3 ('(;?'] 8 c c
C08 0'1-0> u e o 8 o e oo 0 o Ol oo JDct.)l) <:l - . _. "" ;;0n
mu D 1.) CC'J 0 _!!) ---" G 0 ~ o B en o t:J
8 r4:D ~ o t:J 8 1,1 O) _~ :;o
00 2o QJ -l'JY'l ~ (;) rWO t:J L) DV o8 ,..!!)_ Q) ~
-oo ~ o IV. ---" m m_
~en w_!!)') c w --{'}> -!'}> 8 D9 c:P2&>c8.r c--3
~ a:: 0 m :-1 . a) ~ M:::""J c!!< 8 (B CEl u 00 L)f) i-h
9
%"% 85 0 rB ~ k'l ~ ~ [B _. 8 oC~> 0 V'l 8 o u u lY'lu mo 8 J1) &, 8 (/"' '"""
>
QJ
.~ c m_ ::L (.:J ~ m "3 @] '
_!!)
c') 8 II) 08 ..8o <-Yl ~Wl rO.
~ g., -0 8 QY 8 L)f)len LY1 (')) 80 ~ c..o ~~ \Y)
wo
~ 00
.-!!~' J:g 8 o
~m II) c3 C'c%J l'
00
uctj 0'10~ o -::::l~ 0 (Q) g, (0- CU0 ~ CCQ:I (c;;J c _, '-R/1 0 ~ .-2o 8 &
-fJY) ..e M:X> ~ ~ oc Ci1 oo 0'1 Go (Y) --./ ~ U ~
-0> 8 3--, g,
L'X) oo c
0) ~ m ..3o 8lYl "2_
LY1 _m !1
8 (Jh 0e cc o_ ..(') g = 15 hl n~ lil 0 ~8 rg) ~ B 8 em d!J
!P 8 t:J m 8 0 ~u <V u r""n V'l ..v o 8 o u ~:></1 u 8 u. Lu. IV m_ ~
Q) 8 G5il 8 11)8 o8 (;) L;JJ rf)(O 4'ii (8. ':JD 0 o 0 8 ~ Len CPn ~ ~
1 -0> = <!)o 0
u men-'U o men--u m
rr) -0>~ rl'l()
rn -
~8 u 0 1.)')
:-1. -0> _!!) c ld
II) c!!< 0 . (.;:) L)f) LY1 1.) o k'l u o) e ..__... Ill u 0 0
8EYl .-o - - -
8 6',; oQX trl
-e:0 ~ - "" o e ~"] 8 t) CL ~""') 0 ~ _2 0 J!J -~11
~ ~ ..v&co
80...oo
8 ~ oQY 1.) m m R.o "' 8 0 co- en ...n L) (;) _<!) ru en = L) -g ~
1.)-8 ~ ~(8) 0~ ~ @'J k1 m .-3 en_]" o &, 1j g., '-g 6) 0 o S,
3->m 0 _!!) 8 [OJ
0
.3o ~ ~ '"'-~ (."1,;1 en g_ Q) oQY 0 8 8 s ~ "" 8
08"en ;;w m ..JD ~ 0 (~ t:J II) (',g) (Y.) 0 (_~
8II) (0.)0 --w"l (Q) 0 CY> LYl ~ = ~ ~ ld
..1!1 (n (~ ~ ..[') rB~ ~ ~ L)f) CU0 0ID ..(') r2 1--j
e 8rJ - - 8 <Xle3 <>.J _U) -eJ>")
rf3(B,
.- 8 rOO () ..80 -o ..(') ~ ten .3o ~) run G)
~..Bo (B, e -0>_ ~ ..& II) - (/}
om~ '-1!/1 C , ~~ Q)_ ..v ~~~
n.
oo f"")) , '
o~~~ 3, oCt>00 ~ G0 rL8_ (th oqy ~
8U cn8 ru:n...oJ~t. r~' \.f!ll
8 ~ CL ceo .-.':Jo ""''
c--" 8
[B.-8 "-' u,
_!!) ;oe DO
0G Len o -M ~
= .-<DO II) ~~- 8 L)') c ""-'' oQY en ~ LiJJ u G CAJ "" en 0 L)f);&
:8 ~) I)) IV ():) -3 _U'/1 8 &J. 0 CB ~ 8 - --en::> ~ Jl) 0 R CCD - Q '--- 8
8 8 o o -_o_ ~3 Q __S!J = o<(') '--- m_ en ' Q) 8 -i!/1 3-,
r . Qo (.1 o(Y) c B
<1~ u e~)_ lC/1 8 -:J10 () .$) ~
e0_ Cen
~ 0) -,~ X-1:) rQ trffl ' 0 ~~
C8
o_ (j) k3 r> k'l en 0 0 rr: .$) 0)q 8 CY1 ~) (i) L)f) e .-!(:: -- e ~ :Y' rS r-
8m--uL)f)
~8uocw8~8 (j) &1 L) 8 ~ II) ~ 8 ~ ' C' 8-n r--.. 8 0) c 8
o8 c - 'n m ;ern -"' _!!))) L)f) o' ~ -a
(Jl
~ tiD_j o 8 '--- ,,)_ 'J '
~"' ~ __ (U- ,)-,. 8 0 _ [B, ~ 8 '---" u 8 8, P.
'"' en u LY'l .-oo oo oo 0'1 .c ~Wl u u me .. '-f
 1957] BURMA LAW REPORTS. 4S

G)OOfJ~~0GmpE~ .;O.;pGoo~~9 ~OO'J~ C:OEpGOO~~:xlt o~c.J ::>0 ~ G

~0tgGX'J c:ospGm~ ~ o1~o 1oS:xl~ G<l~025 o1ot~8JtSl~G8JSrotg ~:v~'Jd3m
c~a?~xt Gl!l?~<j>'JOtSI~ ro~Soo~1t:jj 6'J~<j>'J0~Gcm ~b1s~;gos o1 9 ~:
~qG::ng::Dt0o"tcf.iG~il 0C0~G::nSm-:m 8CSIOJt~?:::nt OO'J o~~ .99
C:Of{JG:D~~~c006t ~~'JI G1l~'Jl m~o2cf~'J08J~c~ $~~:J3Cj/~ 8i~:;'J')<j>
mtGf[S.~rbl GID'J~~'JOSSI~ ~C:O<ipGJJ.\) ~ 0 ~g 6?g:p?1D~GC:O:~.s1 t ~o.2oScn':lo~
~~~oS~tGro-JqSGm:>t [9t~GOJ'J:ToG@~<>G~:f8 ~006pGm:S ~ o1: ~ ~6pGa:J5
olotG::D'J 8~m~m~ ~J)d3~:: C:OGpGm) tJ o'l~OJ? o1otG::D'J ~:G1m'JW.a
~ u ~ t!"l
8~ ro~:moo~~ ~0t~~b@~8Jtu
~GO::n~~0t:G::D'J 8~ro~:m::n?cq;t GrD-::spo5Sio? 6?:??
0~G;;o:@t ~~:::nrbGOSIXt"lJ')g OJC~tg~OJ'J:GOJ'J S9P' G9j~'JI
m~02. -~'J 0::nt~~80GoT025 33b)C~g~:f~s1Gruo:>tu
::nt~OJ?(:)O}GOJ:! ::> tJ ::>::> ~511 8~~0)~'Jr 83oSeoG~~bG
j j (m)' 83)1 ~tCGro~8~W~)'J<j>JJt OJoS~tOJ~ 8-jit~
( ::>)
~~006pGcnS~p~sp~ XGJ.l'J836) ~G)C9Jo)cn~mt:OJ'J ~Sld)b1gt@~
sp d:l6pGOJS ~ o1:o1otGOJ'J 8~m~:80~02E J ol~o:>t rt:~
0~:?j5~G0ffi?'ffl C:OGpGcnStJ o1:o1G::n'J 8~ill~~83~<J6C j ol:OJE
'=lJ?iff@~~ ~:~S0sr@~ro'J~COJ t~mt: ::Dd3&G)G910tu
~aqP2oS 839J[GO<l?:@~~GOJS G0'.)DpoE~~ ~CCGmS8t>t:
~~c:o&pGroS ? ol:m ~G)C~:@oS~cfsr ~;;ospGroS tJ oleo 06 5
~GSoSeoGs<(50 J ~ ToG)I <:;o1o5~oS G~:GaS~d:io1ot m~020S
OO'J~G::D'J C:06pGcnS J o1~ o1G<J'>~GruOJtu ~~S(:>Gcnl":l J o1~xt
mt~ m~02d)9!o5~?~< 00cqjg~ rliJ~~tcGcnS 8rt~~.c:o6pGmS
~p~e;pm sa~gsacfGGog8 ~GV'J8<j'>'JOCJr02[ o1o t~g@oS~tg9G~
~G~gG~u. ~~C~g@oS1laSOJtrutg m~02oSon.q~:~ m*gGogG::o'J
~E;)C~g@oS~oS @~G<j':o:>tu
~~ ~~~GcnSm so~o,1 O::GpGO)S,,? o1g~ ~s1ttiJcf~
~ C'~
o~qp;tlgCS!c
C ,.. n ~ "D
G0?8-fOO C)tc-Jt q,. 0t'f>l\5!1
gr. C 8'J~ ro~')~~ocC
_Q
1 ccGm'J
'J~'?')0~Googa3E:tb~~@cf61~ @~~OJ~oS::otu
~~~Gcnl3 06 5 ~::brb8C~::Dtt:JJ?~::D~ 8Gc~.cnsp~0~c~ SS~
~@b1Gtll
46 BURI'>'IA LAW REPORTS. l 19S7

oo tf g ~ oS GO')~ <1.lls
t :'; @~'2 QJ~~O') ( GC\jj'JctJOO'Jg8){)

~oSm E
~.
0 J EqoS ii
na~m~g80CJ2tgo ~ 1 ~5c[3'JgGtqz~gL tq~rri~~ o1 0
( GOjj'Jcboo'Jg~S[8)?~Pg) *
GlGoo5~S~ {)?SJ~Goo-5, ~tc~?~OJ?~oooSeuG~t5Q ? ( ~) ' oo;:~2'->;;'~((5Q
:J O ( 0 ) .I or.?: oS"ljcf.i il n;;q:oS<l)d) 0'J8j~G OJS) S'a~~:"ij::cac qJ(>'Od)
oo;;pgQ~~Goo5~1P:~ 05Gd)~::BOJ~~ OJcf.iGOJ"1]?~o:o9G~T@: ~OJ~g::D:J,j>?
"lJ?m~ oojg3<)BoSd)G;;ogGO:~E6J~ ~oo:OJe;u mc~c:OJt CT.lJS 1~~0')
~op:~~m8t1i1~ t~oStoo?:@~ ~~oSGOJ?~s~~') eu:~9~ OO~CY.ljSOJt
Q;;o~01JC OJt~OJ?0i&lil6JG0Qt.i -
d3~~oo~~~~CCGOJ!30JQOO u1 J II O @~)J t5:~1 op~ooSooGOJ::::t.l~GCSJXb
<;2'Joo~oS J ~ j ~?::::otu

GC'jj'JctJCO'J~::irtn-do;$0)' 9;?oSGm>JGlGf~g ~gJ:)~~g ~rf)O1G;;l:)')t

8\rEu ,,.
. GcspoSco'Jg~~~~'J~83~oS To~g]G~Gf>~~ ~gcyG;nt ~oSo1
G~')&]oS:utu

~~~ oSt~ u nGajpoS~ ~~~CD :ut!Q~G'J@toi~oScooS

Gfg9GGm~oSG::D'J ~tc(3'Jg OJ'Jgm~g~~OJ~ot ~CCGOJ>J
.. OJGOJ m
.,
Di(Q:J~ I ~tc')gOJ')g Too5e()G!J<lig ? ( Q) Ga]1 @~11'J@t_~ Crfg1
~1g&J~ rr.:;8~~51oSOJ~~ G<f'JQX@~t m~St~ @~bl~ e;S~o8g
~JlOGl'JCCO'J~@E~ ~]GOJ'JG6'J~t gJ]tgGro>.lo2t G~GOJS~tg ~:J~
GOO>_)~ GC\ij')rf)CO')g::Dtu
*0@~ '2 ~l1 !ipcr'O oSoo~OJ:OO~GCSJ?d3~'J8".?lO\ ? !I
t G~61 ~tcGooSco-r:o~~:~[S :~:B~:1 msp:o~~~ .9~~~q;: 9~
msp:ot~: 2:~@: ~~Gl~sJ?oS'Jilt
1957] BURMA LAW REPORTS. 47

Gt"\)j':XrS~-::5i9)l:~o 1~~:o~W0'J~Pg02f 06oS~~::Jil ss~Sd~1: I 0

@~ '2
( SGJ:Y.l~ Sdt) Sl-::1 @~~'J~tc ~t~EJC:::Jil ~.G:82~g:n~:@~G')tgu <u~o~oo 9 9 oo
~SGlCJ2rf, ffilGSQ2UG81fb~ 00 ( 0) ToE>)I GOjj'Jo5::Jii::D~l ~GCO;C~ @oo~: m.
O.)')gg~~ I c;E~ ffil'):g t~bab~G 0 g~ oSG@')tgG(9T :))~II ~'J~~~ti g7~~
~Epq;t ~5c@:nG6)g~'Jc)> ~o~w so~tgo~~ 011Sg~f~D'J02t' O?~ o1 o;J
Gc\prf.8)?~t~ tGcc')EO?:n'J~~or:o51 ~Ec'Jg:n-:n m~8C)(:fg@S
OJttrfGdJ u::Dtu
~@~ G~qpoS~:::o~1 SGJmoSoS DtGco'JCO(::D'J~ @~OJ~
(:)@~:n~o;(GJ.J'J @OXl~-::Go TGo 1o5~~~ ~8c@J:G6)~~'Jf> qd3ru~06tg
o ~~~~m~~0'J 1 'J Gcs'JoSo.;(~To~ 1::n~ 1lsgffi)--~ :OJ~~tt~~(:)otcf 07
SCGX:YcG'J ffil@~SGlCiff G~u3tg ~~GOJ'JG0'J~I GOjjJc8)?8<l'Jg
\StGco'Jt~X'J:g So.Jtot 1 ~~gGm>JmOj?d06)f Gc'3PoS~S2CQo5~oS
0 '1G;;()'JC~rbG:D'J ~cfGOJ~G~1Gf>~~ ~~:::J:l~~: ()')GOjpo5a:ogGCIJOJtll
~cf?:: G0,14Eo1m oSf~a:>~5i~ ~tcGm>JOJGOJo~ j sc5r~S
OJ~G:Xtjj'JWs;l. G@T0S~OJ~I ~Sd5{Q2CC1J~g OJoSGOJI:JP: OO~G@T
0~Gro~o16)~ GOj)~oScx:/)~~fOJtu o

~d3mToe16C:o ~~ o:t~:~~0'JSl'J GOjj'JoSO)(~ CY.JJ6:~f~'Jo;$S

G~Tg}co'J ~::oe2 rn ~ oS SGJmaS "Y)'JW~ OJ~ ~(9f@0G ~uGOJS m~: 1' 'ffil~Sl5
~0'J~'Jgi~::O :-fG:::DFgcFj~cFj"V'J:ffilbll GOjj'Jcf.iCO'J:~::otl @~GO:)'JtO(
~Ec::o'Jg~}Jj: oS' '010J.OJt 11 ~o?~ G~T@co'J:x~~~E: ::o :E~tb[J
Sd?~~ 0fG;'0:8e2~'i?l ~d3ru~o;$Cgo ~Gt:~Oi/ro~oS~p rnGc:o'J
80C:O'Jg(,lj'J~ G6'Jt~dtG92@C):::Dtu
0'JBJ~Gm>J::ro ~~~~P ~~5 sr~ o aS OJGp~~~~GmS ~')~s 00 Gro~::B
:)Jd;?~ ::ochGOJ9:'Jgro~G@T~~~ ~X~BOXlfOe:yJ'JU~ m~:::ro~o50~GQ:J:
Goz~t6)~ ~ o.;g:x~ll mt~5~xt Oi, G:~~0'Jqp:cfJOJ'J 6~~ 1
~;oS@t::ro'J~0~ ~9oSG:::D) 83S~~p euG89~ co~o;tOJ~ GCO~o~5
xt~::o'J ~~E>)GO<,Jtll
J3~~u)~~ 82ste16C OJrbG~"Yj'J~~ CX~G@r0~G~g~6)@t~1'J I
&t::GooS::TcJ~~~m d3~~0J~::ot1 @~G'J::roS' B~~')823025 G8~~1g
x~~ 0~n~z~1 ~Bc@'J~OJ'Jg::B@ ~oS~mt@tgcfJOJ'J rn'JgcfJ~~ 1

~ :JC~J y~S 1 E>pa-ooS03G:lJ:ac~cOjj~:f.i~'Jm~oS j~J J

48. BURMA LA~vv REPORTS. [1957
8
~~'( @~~bcS8<lS~~~ch~G23'Jc~H @~0'J8<lS 1 8~~'JB~~CG~~~ 1g~J.Jt
~~Oi/009'~ ~ ~~J.Jt ~~~J.Jt ~G@J~tG6:-t:~ o~~~@~J.Jt11 .
@c~~i ~5 OJ~GC\jj'Jrb~'JSJ? J3~~m~~ G0jpcb~'J~~ o,p@:>~xtu
~?:~:~:~b)~ @tGc:c'JCO(:JJ':lg ~~o1J.Jt ~GJ.J'J ~029Jrh~ ~tcGooS ~a:>GOJm
0{~~ o1 011 ccdJ<:l;;ll ~fc@?~a:>'J~X'J @::D~<J? ~Ojl~G@u~l GC\j]Jrh~m
n-amoS0t0~oc @tGOJ'JCO(::D'J:@~u1cg,ti8UG8f3ag~80G"j~$6'[ ~~-:;~:
~ rhS[S)~I 80'J:cj>t~~9 ~rbC\JrbG~'JC)rh"J~ci?m ~;,o'JC1rb6)~J.J'J
~GOJ?a:>tll
~oS@t8<l'J:~~ @t~bCS808~~ i::fo@~, ~Ec@'J:::n'J:m:~
ss~c:Qt~ ~~ 61~ GS:;;8:~t5G~'JCCO'Jg@c~~P 8 oG8 9 ~ ro~CY:bs
a:>tG:(G~~CI ~8006ch GC\jj'Jr)~p~ ocSci?rfJJ.J~II o ~~)'"2 ~5\~l
~~'JO 1~m : :> o S[rbG~2o1 ~f~oo'J~J.Jt8'aS~~G)5d3~K~rb J.Jtu
:1957] BURMA LAW REPORTS. 49

00 s
Eip g ~ oS G 00 .s <ij l

G<,ntGOifS)G8Gl~ o1 ?_ ( GCSJ'Jo)CX)')g~~')g)
~$
GOJ'Jt~~~So~gtgo'l J ( GojpoScx:og~bt~~')g) *
_~~.Soo8;9'J:G"l: d3~::>3S:G~')G)'J05G6ll oao5eoGg<(Sg ~ ( m )11 tt
~:o5~d.in u~bjgt~ GDC:C>JS:o:>'Jo:>'JC:G~~~ l9t~,So 88~?:GG):
(c~~:SS:GI!l')~G~')d.iJ~) oad.ieoG8~1 ::>@<;? :r51~m CC(oSB~~G)o:>tu
d2DCo580G!:l<(b~ ~ (m) :Jc~G)I Oj?O?~:o:>Go:>'J b.)tl t~A~st~
[9e}~o~So6S[9'):_~t~ d3~d.iGoa')5 ro;;t:;;t:~ ~wc:~ 8o5otoo'):
o8~~ c~oaS~~ot :;1~co ~gt:m Oil;;oC'3J5 ~Oil~ ~[OG~')CCO'J;6}~ oaS~
Go:~C~~~~ glo'i~Ujl;;oGp~ e>~to ~Gt:::Dt oaG'Jt:G'Jt:~ GO ::r.>~
~gtu ~Go:> aaGand.i~aco?:~ 0~G;;o:6)Gtu SSe>~coao.2b: mG@
aaG;;~rot: o:>cf3W6)Gt11 d2rr.lG6')t:G')c:~ GCO'Jo5oo'J:~ ~GooS
~a<J?o:)ttGo:>?rr.lS~~9J~o5q~aa,an')~o:>tn SSm ~o5~DCGco?o5
aaco'):{,jj-:::~ u?tro6fJ~@: mS~9JSicb~o103JS g)~:Go:JSm 0')81tGoo5
aasraaG;;~ ~~d.i~ rr.l<;OO~o5aaco<J:~ Qu?8td2d.i, rocf.ig~
~OO<J? G@?~Cg~G~V ~Go:>5 ~OOGo:> :Jc~Gco?cf.i !J'30J'):CI}:oG~~
QfiG.~
. (m) O'a6)l S<~Gb):UjlO1m ~~:Gro5m ~o5::r.>o5bj i>~t::Dtu
.
G::\j]'JoSo:YJ: Oil'=!Pg~02oS ~o5GooSG~Gcj)~: GS1oSo:n~~~Gg-=>5
~oSo 1Goo-=>E 81 m~tn

Gcq'Jo5co-:>: QEi')Ojl~'Jg~06j) ~~:bj~OOGroS G~G.cj)~:~:CS'GG'Jb

~oSo1Goo'JC8joS:l;>t 11

~: G$oS t H uGc\jp;oo-:>:~ GOJ'JC~~Gf' GrY.lp5::o'J:"ij'J:

GG'JCGCY.!ISG;,:J GG-:>Coo6@:1 GG'Jt9:B~&J c~'JCGC~GSC'JCI ~G'JC
G:lJ'Jt:G~I GG'JCCY.Jj~G~~I GG'JCm~@$~ 7 :~$ ~4J!b1~c~cf.);
"., O@ ~ 1 ~~bl GB~oo5s:d~::D:rr.:J~G031')d.igpaa51oS J 91 ?OU
t ~tcGo:JSo:>Gp:o~@:<i!lb :~o3~:1 cnsp:o~~: ~:~~~~: ~~ mor:
o ~@3; ~:~~: c~~~9')oSo.2ta

4
so BURMA LAvV REPORTS. [1957

0 e~n @~G::D'J GG'JC~g::{3~g~~ GG'JCGcr.;oc~~Y') w:pC~::D~'J~::DGRl'lJo5

GQ?CG~~ o3G:@tg~ <:lG01JfOOji~'J~ @~@6::>t8ClGOiJ~o51 GopCg::n'J: Gd1Cg
G~m o1 '}_ GCO'J~~'J:90G.p1~ Dd<J?cWC OJ'JO~tlji~00i/~'Jg @8::ntu BtOi/o
5i~ Qr aJcoSTa~oc~p~rot: @~0::Dt. 8ClGOiJ'Jo5 o ~ ~ G ~~ ~C?:o)'Jro ~
G:Y.l?C<j(<l'lJC Q _c
!=>~(;It~ 0 1 J ,1 eqo5G~Q2C O=!JCW<:ltJ~8G::D'J Tac8~s8Cl5IOJ~craq;so5 G0i:23'JID'J"ij'Jg
moGtOi C>~to~<:Jt:~ D<lG6'Jc~ 'J:6~ moz~ E;J~:x>~u
~G::n53 0 ~ ~ G ~I ~edl'J(\) 0 (;] o5Gt,q;sc m8?X'J '~CY.{J23'J[l') (,jj'Jg;
5l'J To~:&)~OC c8~o5Gro'JaSG:)J'J GCI.f23'J(!)'J~j'J:@~ ~8C5fcoGg~'Jgm
~G0~23'J(!)'J(:jj'J~~ ~O)lbl:(oS0~6::nt II
~o)~~C\(0~~ GGCI.jj.p06 GG'Jt~:o3:~~ GG'JCO C:@:~m
~~'J<j>~ ro'JGGpd3~5oo~:~GJ? mGo:l'JoSmco @~eq:)J::u ''d?Oi?coS
~~Gc.D':lo5~ ~~'J.pm ~~:9Jt0~::D~II ~~~Gc.D'Jd) @~<:JCD'J~
~oSo,p:~ GG'JCGC:G8d'JO~~ GG'JCG:x>'JC:G2j~~mt: 83CD'J:Of2
csQ:~: ~[OGOC~cb::Dtu o@~(; ~~ 3eo5'Jm oo <jcf.iG<?,~ G<:J'JC
~oS~:I G~"'JCGOijs:iGOdgl GG'JCG8d'Jt@9c~ l'lG:c;8: 9J[OG~'Jt@~
:x>tu o @~(; ~~ 8eo5'Jro JG 6JcbG.p,~ G<:J'JCO:t![G8Cg~ l'lS:: .
o 3~ '? ~~ Gl'lGl'lTo 1~m J eqo5G<?,~ GG':lttnf~~ro~: l'lG:~:9)[0
G~'Jt~ll
gj)o): go::J3~o3:o~l'lS::@:G.po5 ~E:~~mG'Jt~~~ ~D<l~ro
~IDG:ip mo5Gmtgo59)o5~'Jgm6JI C>~C~O~Gt~m ~:)jlcoS~'J::x>~r
Goi~gmj~~Ml"tl'J:~9 ~9oS~'J . cooS02oSD.J~Oi ~O~m'J. @t~c
~Go 88'J:G &1: c8: o3 S:G[l')~G)'Jo5G6J: nooSe oGnoa 6J 1 ~JIOG~ptco'Jg
o16]~ Ta~Ei)CQmt~ Q~to ~Gtgm rocf.)Q~: C(6G ~ ( ro) DOG] I ~n5
GpCco'J:G]~ D<!S~~SJ6mt n
~coS~')~~ SJJ~'):5l'J )?o6~02GGJ?oSm~ ~po:poS SS~~
OJ'Jg"tl:J:~ 9?oSo1eq~ ~GO1f:~: GC'jpoSco'Jg~ GG'J 5~:o3~:~~
G_G'JCGD<!::>t~~~0-::1.'J ~0~9J[b~~ d~Eo~Gt:m SRo5~~~5lo5~Gro
OJtll .
oo~cod3~5 D<l<1J[O~G<j)6JG~'J ~coS '2 @:w1 ~o?~ Q0~<1JoS
(:jj')~~ rooS~oSG~~ G9?oS::Doo':l~o1m2ot c;t:c~,Taq;soS ~oSo~l
9co'JC1cb~ 9?oS~ooSGSJG{>rng Gn1oSoo'J@:~GG'Jtm G:\]poSco:n
 BURMA LAW REPORTS. 51

::D~ll c1iE;J6'tQo ~9Jo55l')a~t~ Gt~~Gd~d)m~ ~tcGf)~:Tc~800~~ .?e ~ ~t

~~ o bGE{Jd) GQD':JC)oSGt G(](oSG6':>tg 0 ~@md3GO~b)Ge;@>~ G~ClbGCt:)]S
~a?~ m::E5l') mG@~eoG~m,o5 m5~E:co':>~G:)J') C2d:i(\)os9~'):o1 GGQW1 '2
8oSotbj?G()cf.i@ C\j/CoS~JJWJ coJ3~o) G~~~tG':>tgn <1tg~~ ~~ S<C
C C ;:q C ';: n hQ .C r GO'J'JCR'"1JC
G,-f.lpc~Si(v COSf?2J~I~ aaOJ't'g\9 ocsp~~pp~m c2'Jl?CW(:JJ':>g:)J~ 0 ~~E~ o1 J u
a,tGroJE~mGC:OgG(pg @f>6G6'JC: GOO':>oSQ~o5~cot: 3C~o202E
o14~':>t~ j!~~g~c:gc~Cijlt rB2oo~mt~m06oS mo;?a<l<9G:~f)G::D':>
Oji2Ji~'Jg~cotg ~o)~oSG':>t~ G(}~'JC~:::o':>: G~ 1tgGCD')t{tio~
{9Gg~; ro.i3rooS~t8G~':>COO')~~Cb)~o:J') GOJ'Jtm:o~ g~~')~~9 aarooS
m~di@::Dtot m:Jon':>~C~ip~ro GB'J~G':>t: o:>:)Jt~ GOjpoS
o:rJg:)Jtn
m<Yil3~:;;[h ~[OG~':>tco':>:q("l/':>g m~oS ~~@~o? ~oSuf>~
m@:J:~~p~d}rot~ ~oS::D~OJt~::DES~c:J ::D':>~~m':>~~~ G@':>ci2oS
G0f':>0ffi'JWC '@~@':>~GOJSmt: C>~to ~Gt::nt C)?O?~:OOGDJ':>J3~
<SG~~~~jOG~pt@E:Si ~oS~ulm @GoS8'JtG6)W~ c:8~oSGt Gd3
~oS<~t~ G:) :n~@:~ ~oS?J~OJtooEC\j)E ~oS~5G)~ S<J':>ClO'J~::Dtu
~~coS(,p~m.poS ::J)oSOiim 8oSQj~o:ltJ OJoSo;cm 8oSG9j6J:)Jt~
cot: 0~gD')g6jGOGtJI Q~toGt~m Oi,~ '( GlD':>o)~ ~d.)CIJo~e
GCO');~tG:.OW'~ ~~OJ') ~<cor 9j[5G~':>tCO':>:@c: @SGOGtu
@o~<jj{50Jd3~oS ~~oot~o:>t:rc:Jcotg Q~to~Gt:m xoSii;l;
;E;):SJoSsi~t~ ~g')~:uE:JO?oSu C)?rntSOJti]'J:ro 88~ o ~Q~oSl~
~G'JC~~::8g~~ GC;JCGa<l':>t~~~ ~~82Gcqpcf.i G~~:::D')~GX':> o~~
~[O~p~o1 m5~5~s~~~:::Dt~ 8Gl~J2065 G9,2@6~ootu
, ;:)~tO~(:Jt~m ~tCGOJ~ GmG<f~!O~~~~GOc') 0~'2 ~J @qcf.ieo
,(S 6jo5Gf.2ll10':>cfJC ~~Ji~p~:::Dt Gmc;pgGOJ':>cj}t:@~ a-J~ro
;,~QG~GOJ':> ~~@1"~~<:~~ ~9oS~p rooS~oSG':>tg~ coS~G<ST
:oett ~cEmt~ Go:otcgS:~ ~8Gl@?g ~tcG~:::DG'Jg~p~~9cotg
Go Jt;~~ ~)?CO~G)~ ~Gro.SG.p GG':>tOtg~g~~ G~':>Cmtcfr~

,s~8~Gco')s~~~ ~cn::>: 61~ 8GlGSGGIJoSGf491Jtg GGT[g:uttt

Gro':>tCB5g02t @~qoS:::Da)l'J ~m~~~G~tu GZa;?gGSg:)jlc:Om
1'~ ~~g~~o50J~rBOJoS 8ccorhG:::D'J ~co5tij':>~88 ~0Sm8\dj
 52 BURMA LAW REPORTS. [19.57

o@~'2 ~&S~rot: @~~b.:>~u ::6pOJS lSG~~~~jtSGl~tco:>;S~31:> eoGo

~(,d3G01JS sou:ut~oCGOJ:> oaS~~$ 9J[bG~:>t~xYJ~OJt '=lCO:>~OJt~OJ:> Go :n~6)~
G8'a; o1 7_ ~~~GooS~ OJ'Jo~@~OJttl
'jl9 ~ ~5:8~~ G3iH9)~~ ::DJ~:>atgQ~~ B~~o ~o88;9:>~G6)~
GO'J')tlj(<>~b ~ n
. o~<,~t; ~1 J u ( c8f>~o.%~ G0J~G1'Jchji) soo5e:JGS~l 0@ Cj ' <{~~CD <::qd)l9~
?b10JEn ~soJ.ieoGaqbG ~ (CD) 8d6JI C)IOO~~ooGm'JoS,OJt @~Qi?o
~~!Eli~ @t~oSo58@'Jg~~ cB~oSGso:>t ~>fS~.pt~~9 @~5~~
SaSocOJ'J~~~ ~80bOJ~CY.{ @~Co~GC:m O)?d'JCS)C J2~~ 9J[bG~'JC
co:>~ G)~ 80S~Gcn~SOJtu ~n?~O)?d'JGp~ @~Co ~GC~OJ~ oaG~f:
4~3'JE~~ GOX>~b['=ltll ::DrbG::DToGCO'J0080CO:>:~ 0~GOOgb[Qtll
S~d~CTo06Cg oaG@soG~~rot: :x>d3~b1G~II ~oaG'JC~G:>tg~
GCO'Jrf)OO'J:@ :x>Gcns:i:x>ttJt cof@tGOJ'J 80~~~9J5lcf.ib)~ SO'JC1D'J
~OJ~Il SSro OJo5G::D oaGm:>c DGJOJ'J:~p:~ ~t cooS~@:
~.~~915laS~o10j)5 ~~: GooSCD 0':l8J~Goos:iso~80G<f>fr.} ~::Dcf,G::D
80GCO:>ctJ80CO':l~~ G06t~rf)l corf)'=lQ~ci)~ GB':~Cg~ G~ll
~G::DS OJrbG::DO<lGCD:>o5Tom:>: ~:o~~:])~$ C(b~ ~ (OJ) 8'06)1
oaG~:O)?o1m ~~:GooSro ~o5X>o56)~@~~cb:>tu
QJt3(l~~lP:~c ~~coS:p:~'J GOJ'Jt~a:u~~Oii~P=~~ oocf.i~oS
::D~tJ;2G::D'J ::DJ3G::D~ SOGOJ':l0080CD':l:"lj:>:~ d~CO~GC:~ COctJQ~
9J[~G~'JCm'J:G0CJ;?GOJ:> m8~~ 9JSlo5(3c:OJt ~S8n: nab~c~co:>:
::D~ 80'JC1D'J8006C:D65 OiJGE>pctJ:x>tu 9JSlaS~GOJ'J 80S~y? ~p::x>t
CY.{G~~tl ::@~@ ~~ajpc9;1:>"1]'J:~ ooS~rEOJtn
ooSocooSIS:J:GOJScot: Gajpo5~"l!:>:OJ~ coS31oS:)jl G<Y.lJ'JC~
:x>?:~'J: @OJ~80G:\ij'JoS Gt:~~c:E~~ so'Jrn?~C"l]'J.:m :x>t
e2'J~'JQ):0'J~~ oo~~o 5 ~o ~9J[D~~GOJSqb 80~?g.pfg~$GOJS3t;c:
:x>oSOJ:>g~~ Go:~Sro Go;c8~GtBot ~~:GooSm u;too~ffi'JtgGlST
~oS::D~ .
195iJ BURMA LAW REPORTS. 53

OJ ~ g ~'c) ~OJ s; 11 l s
GQ')tQ~go~g ( GC\jpcfJm')~O){) t ::>@~?
~$ ~~co? ~oS11

tGm'3?ot~~.{;)')~tcGm.S ( GcgpoSm')g~618i?) *
o@~o <?;~' mE:~oSfl!S::::o-:Jz9~~ rot@Gq:rr.Jo5eo<>rJ<(5~ c;(J) OJGp~~~~~
~:::o~rnS~1 qc!rnS~CT.2t Ge;o:>e28<lG'Jt:'l]t~6'(J"!P:rn o.2oSmt;p:2~3
GO:::DtO{ o?:o(,)011 ~Go:>~ Odg~Ods~ O(J3GU:6Jt GC'Sj'JmCO'J::l)~
GOJ.?C~~0?Q,2C ~~y;oS:l)t&~G6?C:<lJC:6p rr.J~~coCGt'J TQco'J:G?c:J
ms~~Siro ~~:::o t GtO) ~rnG~ ?C :rl<l<lJrb"lJ'J :~~~~1:::o'JC'jjt mt;p:
ocGo:>? m 8 ~~s~ut o;c;;oq~~tt:'' ~~~=f9oS'lloSn ,,::J~::Jo y~~~
mE:~c~~S:o:>?z99 mt@G!.):rnoSeoG8<(5(,1 c; (J ) ooq1 rot;p:2~89
~:D~~gi0-:o.2S mt;p;2q ~riO~ rnSiGo:q:::oeiirl<lG?c:'l]c:t;p<iJ'J=Gt'JT@
co'J:@fm?~o G~G:::oSrot: mgi;:rJaS~Go:o 16)_~ GOO-:JC !~Xl~0?CJ,2C ::J:Jrb
~CEif';8qG'Jt:~f:6p~'J::JO~mrotGGT@co'J::@~9 cf?~z~83S~0?::Dt
mt;p:oCG::D'Jrl<lg~s;JS~@6:::o~n
@tGco?CI!{@~G?~CcGmS~~ ~:G01JS<j>l o @::l (3 y~~~ 6p<>'Oo5B'.3Go:>:DQ~
GCijJ?d_)~'J!:l<lyoS 00 0 ~rb<j>":l:::O~U

Gcg;-JoS(X)'J~@6)~mo,soS m~~GJGJG~ ~g ~iCS:G;J'JC ~oSo1G;,c'JC

lrbOJ~II
~~'il~~t : u H~1G cgpoS~'J m:roS :)@ 3i~ GcgpoS~'Jm'JoS
j o 1j j ~Q2CI GO-j!'JoScx:og:JrtGG'Jb~~o~~m c;5:mGoT~1 speOJoS
@:ctbG ~6)1 ~yOOCO'J~GOJ'J @&l~d)3i~ GOJ8a582S~~IJ'J~~
?0 j
::l@~(3 y~&l1 ~eoo5soo;r;;,~DO'Jo5 ~091 ~o Jl ~o? ~o,s5r oosp~
~oSGOJl3m8dOJt~oo'J~8.:lt S6]8~oS~:>g~oo5qJo5Go~o 1~ Gcgpro

* 0@~'2 ~~$1 6pB-OJ.irldG::J:JgOO~Gcqj'Jd)~'Jp;:J51d) 0@ I J 01 J J II

t~ScGroSoot;p:o~@~~[S ~~~d3t~' ~oSGOJS~[Om6p:o~~ ~:~qsf:
~~ ~oSGooSCJ![CooGpio ~g: ~:~~: ~~GffiGOJSCT.2t 'J:~'J~ ~o5GO'JS'1][0
oospw t0: .~:'ll~ qs~ ;:JOS~CJJ~oSo:>tn
54 BURMA LAW REPORTS. [1957

:J@~'( ro'Jg@fg@~:))til o~gm'J~:::o'Jg:))t]G'.3~dl~? 1 S?~u 1Toji"j]'J~~E qtg

Gl,l')E_;:~:o; scGu'T~ OJpg2~~Cfj~:J()cj11 :J@ ~o @~~1 mbc8ch~G~8J'J~~~~

~s 07fS@Gb1r3'CJcf.lt:uG~C(b0 Cf (J) 806]1 ~tcGJJS::Dgco mcxtoSGmG:xo
@t~;,')s~ oospg2~3~~:))~80S~::Dtl ooq:noCG::D'J S?~~S?S~GC.Jtch'J1u~G:))'J
g~l,l')2fc
GooSu
S?9JoS@~:))tn To~o l OJp~~~s9l9.:))~ ~3~S?St, 02 5, '02JJ~
To G'JCg9JCg5p~'JgS?fJ6dl OJ spg2 ~ 6]~ ~8 ~To 3t, GU g:)) to;?G:)) ')

80C1JoSipd~~WGGTi9@t~G~~GCljll ~!?02b O~ffiflel~b~1 o~m ~bCGooS

OJ00J (Qe;roG6JW ~~g~'J~) ~ Tog~Tos~CX(~GOW1~~~ 8 @~ ~ ~ 9~ 1
~o::h'Jro o o qcf.lG~~B~ GmRGa]pcf.lm'J~::D~ GOJ'Jbgg,~'J~ ~~g
GOJS~ To~g6]GIG;p@3gm mt@8Jtll ~GO]j'Jd)~'Jo.2t G03poScn'J~~
GG'Jb~w~~ml ( 8) ~<::g'JgG~JSI d1GClGCDgl ~g~:'~9 ~~~go~d)
(GrogGm'Jd:i8d'Jg CO'J~~9<(oS8JchG::D'J ( G~X:J'J~~~'J<f'J u~0~C~d)
To'jch j ? I Cf@) 80?1 (J ) ~G;T.d3Gl99i~~~ID'Jgj~ c:B9i~Gw'JoSm'Jg
8.)chG:))'J ( G~'J~~j')<f>l O~C:l~CC1jdJTo'joS J ~I c; @)' Toji~~ (?)
~[mtS?'Jgo:JoSG::D'J ( G;;o'J~G'Jfl OZi(:)~59loS8a'jch" J 9 I c; @) 80?
c:mo.2oS' qJ~OJoS~gCfb(:) ? o J 806)1 OJqJg2~61$ 8d~S?S~o:toSGug
o10~S?G-:)fg @~qrbOJ~ToG6'Jtg9lfgqJ To~G<Jrot~ GGTQco'Jg
G6'JCg G9,2~6)::Dtu d?oG6'J~ ~CCGOJSo:J000 ffiCX(chGm~i& Tog~
80S~0'J~9 80~u1Tog980S~CX(chGmq$ GOjj'JoSco<Jgo:;t] Gm'JtgQ0'J
~~ ~gc2:J.Jch)i)<O:))'JU3el11 mbp~Otmg~GGS~@SG'Jtg G?l~6J::Dtu
nagG<JS~ ooy~:))t Gt:))~~G6'Jtg8'a~ch~'Jg~9@t~cs,5 m~~
ot'G::D'J 80g~~s~ot OrtOO~t45')tg~G::D'J BOJ.J<f'J~~ ~iScgg
g~gGooSm [gtGco'Jt<l2 @~(:)'J~CcGooS5i~ ~G:Ji]S.y ( 8~~ (3 y51~1
~~ooS 80GOJga<J~ GO]'Jd)~'J8'a'jch o o o ) (Y,$C C1]5JchCO'JgGCC'J ~qf
~aS~ G~'JoSu1aa~5: Gl9T@m'JgGro::Dtu
'' 8doctk~ch0'J~510J')g~G6]: 80rh20G~C(UI.l (3 -Ga~@~GIDJ
G<l'Jg8'dm'JW~ OJS[_)g8oG~ OJ~ya<l6j~~G0 ~ooCqtli(G)(:)t
@&l:ni] 809rnS~:))t ~:GmS~ ooE~~E:~qG:))') @ID~
80Q2oS rnG@Q@IDo:Jeii 8<1G'Jt:9l5:sr~'J:GGJ<?JoS oosr:~~]~
CX(aSGOgG:))'J 8'dg~808~ @~:))to;/Go:J'Jm~c~ OJ.qJ:~~~
oor_:n~m1 ::DoS~Esr~:GmS GJ.fJ<fOGm'JrhGm'JS. ~6)0;;
 1957] BURMA LAW R.EPORT$. 55
@cOJ~II ~~@~6]f,aa02oS~'J~~g~~g~g~~C8J~u a<l9aa8~ 0@~'2

Gog6.)t0'J~C oo.-;p~2~6J~ ms~aa8~GO~E;JJ:>t aaG'Jtg G~~'Js;;)~:Q~g

~bE>LJ'=lPgcfl GGT@co')gcg)tl ~S?~83S~GGg8J~0'Jcfl ~~Gd.J~ 99
~mt@@tg@9 J3~~~G~')oS~tJ:>tu ~o)~"'otoScs;E, aas9 [9~Gro'Jt<l2
B~"'J~Sc
aaS~GOW16]~ GO'J'Jbg@JJ~ 0'J~@~.G01 ~0'JC2b 0 1~0JJ! GO?Sn
8Jro~tspaaG6'Jtg~tgsp~:jpt~900CDJgG8J'J CX(d)~c9JoS'=lp~
~@~G~ oot@@t~@~c;t~r m~~~GmSCJ2S~~co'JgJJ~ @Sst~
aaG@gS~JJ').. n;;G'JCg9jtgsp~opgaa02oS aa~ol aaS~OJtl
~~6]~ cxtaSGog~cGOJ'J aaS~@SJJ~ o;(GOJ'J aa41oS~
mr~g~tgaa')g@~ GoTq:;ScoSl:nGaa')S OJroGOJ@mctg
@~qs~ ooGIJg2~:J)(mspg~m Gro'JS~oS~SOJtu''
~a~6'J~I aas~aa8~CX(cGoW16]~ GOJ'Jt:@8J~0'J~t OJcfJ~c
p~G')cg9JCg~C:U')g::>c~30ootGl9 T@co'J:~@S, OJoS~tspaag~so8~
OJt m~go2l?OJ'JS?g~9dS~@~OJtC:Yt g)j~gGmSm Oi(roOJtu
~.G6'J~I g)j~gGOJ53m Gt~(j]OCGE>pcfJ~d)l9d)6]~80G'Jt: OJ~
. OJ6fG@cOJ@9r glGcgpcfJ~~p~~mn;:?' GC\jpcfJs;?'Jaa:roS J o 'J J c~
uoS~oSOJtu "
~a@Sr ~~gGmS<fCX?oSo:J'J.:G:::lJ'J e'J~.~cw~ ~S:6J~aaS~typ:
cflco~g ~od3~;~oS.J:>tn
...
56 BURMA LAW REPORTS. [ 1957"

SUPREME COURT. ,,
ts.c. ~HE BANK OF CHETTINAO LTD. (APPELLANT)
1956
v.
Dec. 3.
u TAW (RESPONDENT).*

Uniotz Judiciary Act, 1948, s. S-Mo1tl1tl; !.eases (Tenuination) Act, 1946-

Suit for Dcclr~mlioll-Proviso, s. 42 Specific Relief Act, failure lo co:1-1ply
wit/1-Court has uo jut"isdictiorz to dismiss tire Sttit-4.metidment of
Plai11t tv oouform wit it the Proviso-Reliefs .,f/tough '110! specifically
prayed for sl1ould be granted if the proved f,tcls ia the plaint warra1zt
it-Tile ob;ecl of Court Fees Act.
The appellant instituted a suit under s. 42 Specific Relief Act against the
Respondent who was appellant's monthly tenant [or a bare de:laration that
the appellant is the owl)er of a Cinema Hall and its site and {or damages,
etc., witho~t a prayer for possession. '
In fact, the Respondent was found to be a mere trespasser in possession
by virtue of the Monthly Leases (Termination) Act, 1946.
The suit was decreed, bnt on appeal, the High Court dismissed the suit:
holding tha~under the Proviso to s. 42 of the Specific Relief Aci, the suit was
not maintainable. '
On appeal to the Supreme Court, by special leave held:
Proviso to s. 4 2 Specific Relief Act c!Jes not warrant the assertion that
the suit is not maintainable; for the Proviso merely enacts that the Court
shall not m.tkc a declaration where the plaint:ff being able to se.e k further
relief failed to do so. The Court has no jurisdiclion to dismiss the Stlit, it can
only refuse to make a declar;ttionunless the plaint is so amended ash satisf)
the reqnirements of s. 42 of the Specific Heliei Act.
S. T. K. Cl1etty Firm v. Balasmzdram. 10, L.B.R. 199; B. ~ l>foltamcd'
Eus;of v. Bakl'idi and atJOlltcr, 11952) B.L.R. 248, followed.
field also: That if a plaintiff is entitled to certain reliefs upon proof of
necessary fact alleged in the pl aint, it is for the Court to grant such reliefs
although the relief~ specifically asked for may be inartistically framed.
Babtt Lal Ray v. Bi11dhyacl:al Rai, I.L R. 22 Pat. lSi, referred to.
Held furtllcr: The Cotu t Fees Act was passed not to ann a litigant wit
a weapon of tccilnicllity against his opponent but to secure re-.enue for the
benefit of the State.
R . Subrao v. Vc:ukatnJ, A I.I~ (1918 . (P.C.) !88, referred t_o.

K. R. Venkatram for the appellant.

Ba Shun for the respondent.
Chil Appeal No. 1 of 1956 against the decree of the High Court
Rangoon in Chi! 1st Aprea! No. 56 of 1952. ,,
t Present : U MY!NT THE!!\, Actin g Chief Justice, U Bo GYI, J. an
U AUNG THA GYAW, J.
1957] BURMA LAW REPORTS. 57

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

1956

MR. Jus neE Bo '(ryr._J''his appeal is by spe~iql Tf!E BANK

OF
leave granted under section 5 of the Union Judiciary CHETTINAD
LTD
Act, 1948 and arises in the following circumstances. v.
U J'AW.
Prior to the events which have led to the present
litigation, the respondent U Taw was in occupation
of a parcel of land in Mandalay town together with a
residential building and a godown standing thereon
as a monthly tenant of the appellants, the Bank of
Chettinad Ltd. In the month of April 1942 during
the Japanese invasion, the respondent ceased to
occupy, the premises but some time later entered
upon the land again and put up a cinema hall in
place of the house and godown without the Bank's
consent. ..Under the Monthly Leases (Termination)
l}ct, 1946, "'the tenancy was determined with effect
from the end of April 1946 and the respondent in
entering upon the property again did so as a tres-
passer. If in draf~ing the plaint the Bank's learned
advocate had kept these legal consequences steadily
in mind, much confusion of thought would have
been avoided. '
The Banic' claimed that the respondent dismant-
led the house and godown on their land and with
part of the materials thus obtained put up the cinema
hall in suit, removing the rest to another place where
he constructed a house. They therefore prayed to
-be declared owners of the cinema hall standing on
the sita in ;question and to be awarded the sum of
K I O,OOO,as damages in respect of building materials
removed to another place or, in the alternative, for
the sum of K 25;000 as da:mages for dismantling the
house and godown and conversion of the materials.
They also prayed that, in case the Court did not
find them- to be owners of the cinema hall the .
58 BURMA LAW REPORTS. [1957
S.C. respondent be ejected by den1qlition of the hall.
1956
They further prayed for mesne orofits and 1ents, but
THE BANK
OF the. claim for rents was later abandoned. The respon-
CHETTI~AD
LTD, dent while admitting the tenancy disputed the Bank's
v. ownership of the land. He denied having dismant-
UTAW.
led the house and godown and averred that the
buildings were dismantled by hooligans dt1r1ng the
enemy occupation of Mandalay.
The learned trial Judge held that the land and
the buildings originally standing thereon belotlged to
the Bank and that the respondent dismantled the
buildings and used some of the materials in the
construction of the cinema hall and the rem a irtder ii1
building a house on another site. He directed an
inquiry as to the mesne profits claimed and the value
of the building materials removed.
The learned Judges of the High Court were of
the opinion that the original buildings standing on
the land were dismantled by the respondent who
constructed the cinema hall with some of the mate-
rials, removing the remainder for the construction of
another building. The learned Judges held, how-
ever, that in view of the proviso to se9t\on 42 of the
SI?ecific Relief Act the suit was not maintainable and
accordingly dismissed the suit without going into the
claim as to damages and mesne profits. The lan-
guage of the proviso to section 42 of the Specific
Relief Act does not warrant the assertion that the
suit is not maintainable; for the proviso merely
enacts that the Court shall not make a declaration
where the plaintiff being able to seek further relief
fails to do so. The Court has no jurisdiction to
dismiss the suit; ~t can on:Iy refuse to make a decla-
ration unless the plaint is so amended as to. satisfy
the requirements of the proviso to section 4~ of the
Specific Relief Act. The view was held in S; T. K
1957] BURMA LA\<V REPORTS. 59

Chetty Finn v. Balasundrcm 0) which has been s.c.

1956
approved by this Court in B. S. j'vfohamed Eusoof v.
THE BAXK
Bakridi and anothe/ (2). OF
CHETT!NAD
Normally, where necessary facts are stated LTn.
jn the plaint which, if proved, would entitle the u
v.
TAW.
plaintiti to obtain certain reliefs it is for the Court to
grant such reliefs although the reliefs specifica1Iy
asked for.. may be inartistically framed. See Babu
La! Ray v~ Bildhyachal Rai (3). This however is
subject to the proviso to section 42 of the Specific
Relief Act. 'vVe hold therefore that the Bank should
have been given an opportunity by the High Court
to amend their plaint adding the necessary reliefs
and paying the deficit court fees, if any.
\V e are not impressed with the argument that
the respo,pdent raised this issue before the trial
Court. R'Cading the written statement as a whole
we find that he did not raise the plea that the suit
was not maintainable for want of a prayer for pos-
session of the cinema hall and its site. As a matter
of fact, r no issue was asked for on the point and
none was framed.
Tin learned advocate for the respondent has
contended that no court fee has been paid on the
relief for possession of the premises. The Bank
have paid Court fees on K 31,080 and it is clear that
they did not try to evade payment of court fees by a
mere declaratory suit. Furthermore, it has been
held by the Privy Council in R. Subrao v. Venkatro
(4) that. the :Court Fees Act was passed not to arm a
litigant W,ith a weapon of technicality against his
opponent but to secure revenue for N1e benefit of the
State.

(I) 10 L.B.R. 199. (3) I.L.R. 22 Pat. 187.

(f) (l952)B.L.R.248 (4) A.1.R. {1918)(P.C.) 1.:!8.
60 BURMA LAW REPORTS. [1957
S.C. We accordingly set aside the;jpdgment and decree
1956
under appeal and remand the q.se to the H~gh Court
THE B,.Vm
OF to . re-admit it under 'its original number in the
CHETT!NAD
L'm. register of Civil Appeals and to detenni_ne it in
'V, accordance with law, after giving the Bank an oppor-
UTAW.
tunity to amend the plaint by adding the necessary
reliefs in conformity with the proviso to section 42
of the Specific Relief Act and paying .the deficit
court fees, if any.
The respondent shall bear the costs of the present
appeal. Advocate's fee in this Court Kyats one
hundred and seventy. A certificate will issue under
section 13 of the Court Fees Act for refung. of the
Court fees paid on the memorandum of appeal in
this Court.
1957] BURMA LAW REPORTS. 61

SUPkEl\1E COURT.
THE BURMA OIL COMPANY LABOURERS t S.C.
1957
UNION (APPELLANTS)
Attg, 26.
v.
THE BURMA OIL COMPANY (REFINERIES)
LTD. (RESPONDENTS).*

Trade Disputes Act, s. 9-Tize Co11rt of ltzdaslrial Arbitration, w/;et/ler a

"Court" within !11c meaui11gojs. 6of the [uion Judiciary Act.
Held: That the Court of Industrial Arbitration formed undet the Trade
Disputes Act is not a Courl within the meaning of s. 6 of the 'Cnion Judiciary
_1\.ct, but it is a Tribunal cli~charging quasi-judicial functions.
D. D. Gro!er v. K C. Komzda, C.:\f.A. No. 36 of 1955; CooPer v. Wilson
41ld others, (1937) 2 K. B. 309 at 340 ; Blwrat Bauk v. Employees of Bhaml,
A.I.R (37) (lCJSO) (S.C.) 188 at 209 (para. 61); f . K. 1Jo1z aud Steel Co. Ltd. v.
Tile Iro11 and Slml llatdoor U11io11, IJ956) A.I.R. (S.C .) 231 ; The Waterside
Workers Federal ion of Australin v. J . W. Alexander Ltd., (!9l8) 25 C.L.R. 434 ~
.Aitomey-General for Australia v. Tile Queen, (1957) W L.R. 607 at 614.

'y an A ung for the applicants .

.Horrocks for the respondents.

Judgment of the Court was delivered by

MR. JusTICE CHAN HTOON._ The President
referred to the Court of Industrial Arbitration, under
section 9 of the Trade .Qisputes Act, for its determina-
tion a dispute between the Burma Oil Company
(Refineries) Ltd. (hereinafter to be referred to as
~the Company") ~nd its former employees repre-
s.e nted by their Lal.Jour Union known as the Burma
Oil Company Labourers Union (hereinafter to be
referred to as " the Union ") . After hearing the
parties and their witnesses the Court of Industria1
Civil Misc. Appli')ation No. 73 of 1955. Application for Special Lc,lle
to Appeal aga'nst the Aw.trd of the Court of Industrial Arbitration.
T Prerwt; U MYINT THF.!N, Chief Justic'!,l U CHAN HTOON, J. and t: Eo
GYi, J.
62 BURMA LAW REPORTS. [1957
.. .
S.C. Arbitration made an award under section 10 of the
1957
Act. The Union applied to this Court for special
THE HUR~!A
OIL leave to appeal against the award under section 6 of
CoMPANY
LABOURERS
the Union Judiciary Act, and the Company also
U t-:ION applied for special leave to appeal against the said
v.
THE BURMA award in Civil Miscellaneous Application No. 82 of
OIL
CO~!PANY 1956.
(REFINERIES)
LTD.
The Court heard the counsel for the Union and
the Company on a preliminary question as to whether
the Court of Industrial Arbitration is a " Court ~
within the meaning of section 6 of the Union
Judiciary Act. The Attorney-General, rep:cesented
by the learned Government Advocate, was also heard
as amicus curiae.
In D. D. Grover v. K . C. Kounda and two others
(1) this Court has observed: "
"It may at once be said that the words ' Court
occurring in section 6 of the Union Judiciary Act denotes only
courts in the strict sense of the term, a.<> the section relates only
to appeals to this Court by special leave. "

It is therefore necessary to see whether the Court

of Industrial Arbitration is a " Court ". in the strict
se.r;.se of the term, in other words whether its functions-
are purely of judicial nature or merely quasi-judicial.
In the above-mentioned case this Court adopted as
the basis of its determination of the meaning of the
terms "judicial " and " quasi-judicial " the following
passage reproduced from the report of the Committee
on Minister's Powers by Scott, LJ.: iri Cdoper v.
rVilson. and others (2).
"A true j~dicial decision presupposes an existing
dispute between two or more parties and then involves four
requisites-
.
(1) the presentation (not necessarily orally) of their
case by the parties to the dispute; .
(1) C.M .<\. N'o. 36 of 1955. (2) (l93i) 2 K.B. 309, 340.
1957] BURMA LA\.Y REPORTS. 63

(2) J,f
the dispute between them is a question of fact, S.C.
1957
the ascer~'ainment "of the fact by means of
e-vidence adduced by the parties to the dispute THE BuRMA

and often with the assistance of argument OIL

COllPANY
by or on behalf of the parties on the evidence ; LA130UIWRS
UX!ON
(3) if the dispute between them is a question of law, v.
the submission of legal argument by the parties; THE Bt;RMA
OIL
and CoMPANY
(4) a d~cision which disposes of the whole matter by a ( RBFI X~RIES)
finding upon the facts in dispute and an LTD.

application of the law of the land to the facts

so found, including where required a ruling
upon any disputed question of law.
A quasi-judicial decision equally presupposes an existing
dispute betweep two or in ore parties and involves ( l) and (2),
but does not necessarily involve (3), and never involves (4).
The place of (4) is in fact taken by administrative action, the
character of .:;.vhich is determined by the Minister's free
chQ,ice."

We must therefore consider whether the Court

of Industrial Arbitration has all the attributes of a
truly judicial body as indicated above. It is common
ground, nor is there any d_oubt whatsoever, that the
Court qf Industrial Arbitration full111s first three
requisites. If , has indeed all the trappings of
law. Under the Act and the Rules made thereunder,
each party to an industrial dispute " when referred
to the Court for its determination by the President
of the Union" is required to present his own case in
writing and to -adduce evidence if he wishes to do
so', as in ..the <;ase of proceedings in an ordinary Court
of law. At the end of the hearing of the parties and
their witnesses, legal arguments an: made by the
parties or their lawyers. Then the Court makes its
award based upon a finding of the facts as brought
out by the evide~ce on record. Is the Court bound
to decide by " an application of the law of the land
to the facts so found " or is it at liberty to come to
64 BURMA LAW REPORTS. [1957
S C. its decision on considerations' other than what is
1957
strictly legal? This se(;;ms to be the question which
"THE ~~~R)[A will determine the character and nature of the Court
co~IPANY of Industrial Arbitration. For this purpose we may
LABOUI('f:RS
UNroN refer to the Trade Disputes Act to see if there are
THE B~RMA any provisions which lay down any substantive law or
co~~~NY which require it to apply the ordinary law of the
.JREFtNERrr..si land. There is no such provision \O be found in the
LTo. Act. The Act contains no provisions relating to the
rights and obligations between employers and
employees, as in the case of the law of master and
servant. It only seeks to regulate the conduct and
relations between the Court and the parties in respect
of the dispute. It does not purport lay downto
what facts and circumstances will give ri_se to what
kinds of rights or obligations between the parties.
It merely provides procedure for settling the
disputes. Section 10 of the Act empowers the
Court "to make such a war.d as it thinks tit'
and proper after due enquiry and consideration".
It is quite apparent that the Court qf Industrial
Arbitration is not bound to apply the law of
Contract or the law of Master a11d Servant or
any other substantive law. On the contrary, it is to
decide on principles of industrial policy and for
peaceful relations between capital and labour or what
appears to be just and proper in the circumstances of
the particular case. In Bharat Bank v. Employees
of Bharat Bank (l), Mukherjea, J. o,bseryed with
reference to the question as to whether the Industrial
Tribunal constituted under the Industrial Di-sputes Act
of India is a Court in the strict sense of the term or
a Tribunal of quasi-judicial nature :
"We would now examine the precess by which an
Industrial Tribunal comes to its decisions and I have no
(1) A.l.R. (37) (1950) ( S.C.) 18!i at 209 (para. 61).
1957] BURMA LAW REPORTS. 65
hesitatiof\) in holding that the process employed is not judicial S.C.
1957
Process at all. In settiing the disputes between the employers
, '
and the workmen, the function of the Tribunal is not confined THE BURMA
OIL
to administration of justice in accordance with law. It can Co~rPANY
confer rights and privileges on either party which it considers LABOUREl?S
UNION
reasonable and proper, though they may not be within the ~.
terms of any existing agreement. It has not merely to THE BURUA
interpret o~ give effect to the contractual rights and obliga- OIL
COMPANY
tions of the ;~arties. It can create new rights and obligations (REF!NEIIIES)
LTD.
between them which it considers essential for keeping industrial
peace. An industrial dispute as has been said on many occa-
sions is nothing but a trial of strength between the employers
on the onehand and the workmen's organization on the other
and the Industrial Tribunal has got to arrive at some equitable
arrangement.for averting strikes and lock outs which impede
production of goods and the industrial development of the
country. The Tribunal is not bound by the rigid rules of law.
The proces8 jt employs is rather an extended form of the
nrocess of collective bargaining and is more akin to administra-
tive than to judicial function. In describing the true position
of an Industrial Tribunal in dealing with labour disputes, this
Court in Western Indin Automobile Association v. Industrial
Tribunal, Bombay, (1949) F.C.R. 321 at p. 345: [A.I.R. (36)
(1949) F.C. 111] quoted with approva l. a passage from Ludwig
Teller's well known work on the subject, where the learned
author "observes that 'industrial arbitration may involve the
extension of an existing agreement or the making of new ;::me
or in general the creation of new obligation or modification
of old ones, while commercial arbitration generally concerns
itself with interpretation of existing obligations and disputes
relating to existing agreements.' The views expressed in these
observations we!"e adopted in its entirety by this Court. Our
LOnclusion therefore is that an Industrial Tribunal formed
under th~ Industrial Disputes Act is not a judicial tribunal
and its determination is not a judicial determination in the
proper sense of these expressions. "

The learned Judge further remarks (para. 67, p.

211):
" . the (Industrial) tribunal is not bound to
decide the disputes by application of the ordinary law of the

5
66 BURMA LAW REPORTS. [1957
s.c. land. A good deal depends upon questions of policy
l"
and
1957 public convenience."
TaE BuR~IA
O!L In our opinion these observations correctly set
CO:\!PANY
LABOURERS
out the functions of a Court of Industrial Arbitration
UNION
11,
formed under the Trade Disputes Act of Burma. In
THE BURMA the above mentioned case the Supreme Court of India
OIL
COMPANY held by a majority that the Industrial Tribunals are
(REFINERIES)
LTD.
not courts in the strict sense of the term but are
merely tribunals discharging quasi-judicial functions.
In J. K. Iron and Steel Co. Ltd. v. The Iron and
Steel Mazdoor Union (1) it was held that ''these
tribunals are not Courts in the strict sense of the
term" but "they have to discharge quasi-judicial
functions ".
The observations of Issacs and Rich, JJ. in
The Waterside Workers Federation of' Australia
v. J. W. Alexander Limited (2) bring out clearly
the distinction between the functions of an Industrial
Tribunal and a Court of law._
" But the essential difference is that the judicial power is
concerned with the ascertainment, declaration and enforcement
or the rights and liabilities of the parties as they exist, . or are
deemed to exist, at the moment the proceedingsare instituted ;
whe-feas the function of the arbitral power in relation to
industrial disputes is to ascertain and declare, but not enforce,
what in the opinion of the arbitrator ought to be the respective
rights and liabilities of the parties in relation to each other. "
It is contended by the learned counsel for the
Union that the name of the court as "The Court ot
Industrial Arbitration " as provided in the Act,
together with it~ judicial trappings should be the
determining factor in considering this question. We
must at once say that neither the name nor mere
trappings will turn what is merely '} quasi-judicial
body into a court in the strict sense of the term.
(1) (1956) A.l.R (S.C.) 231. (2) (191!3) 25 C.L.R: 4:!.
195~] BURMA LAW REPORTS. 67
.
The following remarks of Barton,
. J. in The Waterside
Workers Federation of Australia v. J. W. AlexandeJ;
S.C.
~957

Ltd. (1) are quite apposite in this respect: THE ~~RMA

"Whether persons were Judges, whether tribunals were LABOURERS
CoMPANY

courts and whether they exercised what is now called judicial UNro:x

power, depends on substance and not on mere names." TH/BuR~rA

OIL
In AttoPney-General for Australia v. The Queen C~~!PANY
(REFINERIES)
(2), Viscount,Simohds in delivering the judgment of LTD.
the Privy Council observes-
" . that in the matter under consideration the
primary and essential object of the Act was the settlement of
industrial ~isputes, that this object can be fulfilled only by the
jntermediacy of. a body of persons established for that purpose,
that the functions of a body so established are not judicial,
that to call it a court or a superior court of record does not
convert its non:-4udicia1 functions into judicial functions, and
that. to add judicial functions or powers to them means only
that a body created to exercise non-judicial functions has now
nsted .in it judicial functions also."
For all the reason's set out above, we are of the
opinion that the Court of Industrial Arbitration
formed under the.-Trade Disputes Act is not a Court
within the meaning of section 6 of the Union
Judiciary Act, but it is a tribunal discharging quasi..:
judicial functions.
Special leave to appeal is therefore refused and
the application is dismissed ; each party to bear its
ovvn costs. Ad.vocate's fees are fixed at Kyats three
hm1dred and forty.

(1) (1918) 25 C .L.R. 434. , 12 1 (195i) W.L.R. 607 at 614.

6R BURMA LAW REPORTS. [1957

'
OJ .Gf g ~ cs G'OJ~ 9] (8

~gGm'Jb::n ( GcgpoScx:og~)
l~
?oS~5m6p~~m6pg~~go 1G_( Gcg-)oSoo'Jg
~Eq~"ij')g) *

o?oG yl~l 8~,W5')i" (@5ooE4Jo5) rnd3eoG8'lO~ ?OU 8~.@,rn~~0t:E:

l;;uSs~ 8rn 5 'Jfdi\S'OS~o7~GCXJJt8::D@$ ~~ss~ 8rn~P'i"~ G0')8(J.)0Cf>P
ooS G0'J8m~~ 0(80Jm~::Dt ~~@:::DG::O'J02 o~e:p'l!l'J'1j[04J[O~~
roqJGrol3~rn'): ~:o5<1Jo5Go:o1G'[~~rn8:n@~ c;b~~m 'cx?@oS<1JoSGog
.;;ro:ntn ~~:@oS<1JoS~ otjj~i::n .poS~cro~:Cl~:Gro)~ 8~&rn~~l!lt=
Go:6)~GOjj'Jcf.ioo?:t;p ~~0t:Go:6i~ ~~moe ~:c~4!cf.i<1J9o5Gro:nt.l
~:@oS<1Jcf.iu nroS~croqJ:r.>~:GroS~I :::>?:>~ y~b1 8~&rn~p;;(l9trof
~d)) rncf.i80G8'lnG ? 0 8'd6) I 8?8 rn~~0a:~t::Dt 8'd'JOO':W~G~l!
:~:~9~ ~:8ro~::D o1 o O@ ~~ y;b1 rosp:<)SaSGroS3'1J[S roqJ~G
8'dG::D:rn~Gvjpcf.i<_::g'J8'd5Jch 9 9 ~o~cf.i f>'J::D~.I

GCSJ'JrhC:O'Jg02gaOd ch ~cGooS3G~G<j'i0g ~g:)):))~g (-::> ) ~rf.io 1

? oCOC)rf.i::D tu ~

GO.jprf.iro'J!~j02!:ro1QS (~) OO<?arh~~p)GOJS)GS)Gf'~~ ~!:Y.llJ:tb

~rho1Goo'JC8)rh::Dtn

e:~~gn 11~8ast0d5 GO.jprhro'J:~b):)j( 8a1o? (G) ~~pmm

::Dfl Gcgprhoo'J::)j( ~gGra'JC:Y.lra'J: I GgS)ro~g~:~yJ31 8~o.J
~'Jf>~ G'JS:~toS ~:d3~o5Go:u'Jt: 8o1s1a;oSm~cf~sr~9 uoS::DoS
m~g~ ~[:> I ~~:GmSm ~~J3:02o5GCY.Jj'Jt:~@:.pmmga'Jg I O~:Y.labl
rootO?CSI ra'J~SG@'l9mr'2 <(gd3rp~t@~G0 ~~:@o56::DtCl25t

* :) @~ fS <{~s I rot;p: Cl8'dG::D:8'd~GCgj')cf.i~'J ~ljch 0 :J II

t ~tcGroSOJ~0~~: ~~:.B~: I ooe;pm((]: :'1!~02~~9~ roqJw~~;

~'~((]: cGl.G5J 'Jd3CJ6CII
 rb6 pfia;c~pclfue~eo:cceec~zchco gl~scoesoro:chc.o ~~r~e ::JGilc a
~
u~roe~:~~so:~g&" 0 L
cccrow 3~:be~g sco~:~~ l:gc~~~coocro~ccg~~ '~3~
:oe~:30~~m1Fgg ~~soccso~socls~go c.oscoe~~~e~c1scogg<p4 1ge'An!
~EBCCCe>:f:heg OC.0GW0 5c4c8co 1r~gg~e J:f~4e~~~0fe3@e8,a
4cgco ~88T4~ lgro:!>8so ccce~sc(oem I scce~g~ce8~(]3(j)
Rg;ccme~frggce~cc
3ccpfile soleso:~C.O~So ~:oe:30~~. ~gfe:;sccc:ccosoc!fu~
~:gm :~roc.oscoe:~e:clsco 38T4 u:gcl~co3cc:ccosoc!fue
~bLmoe>~SC(j)~~ co ~~8 EFscoe~~e~clscog8sn~]fgcBe ~~(!)e~ o~e
:ro~e:; ?f3cc:~meso'hso:~ c.o:c~scoe~ch~ 'sccgedQS~bLmoe
:fleso:~ I :ce8fPSCOechre<f>d)co 'W8gg~e d6~&cc.cecc:g~~fp
ccgcroe:gg~@@3ccc.omd:g'ce:cl!?sole~ccce:c:oog&>~e:;~
u3 ccroe~:ccopclfueecLoBe
:ggro:oe~ :cesc.omdgg ?f~c~:38o :gb0esscccpfi!e:c~scoe~cJ;re
<kc5ro1fggg~e lglfu:~:oe so~e:;gd.ee:;:~:~w 3ccCJ>:g~3b
1~gcpce~s@ :c ~c.omc<i>:g & 4e:S'c:gco&e ~:gc!!:.o~LolGJesocom
'3cctcgcwe>:@ &:ccosoclfue>em ce3cc:ccoso~fu~~gco emf]
<ke>ie> ~c@o~c.ocod:~ u3ccb~SC :gc)e~e:gg5o4-e~uchecrog=:
:gcl!:.oe~So ceE;o:Lo c :smbccce>:crosccesc u:gce~sorug~<i>~
emgro:gc'l:oeLolEile>jOCOEB 3ccc.omd:g 1ce3ccb~SC bec;p/!:~
soclfue~ ~:c~:~<i>~~e~~c@o ccce~socc~\:g~ '3ro~::Jscoe:~~
u3ccroeso~:;oeieso!eso:~ ec36b:;o[gg(,ree>d::p~~:Sc
gSo<ke:c~:~mb&g~ggg~ec;c.o ~ cceo 0:gm ,bec;:c:"l'lsote:5c.o~sc(j)
ccce:;o~:;occbb@@ Jglfu:~gro~ 3}g,~ec;co~ccCoCJ> rgg:Lo 6 :~cob
=~~~Jhc.o g owLoeG::Omcc;hg 'fffp gbgbec;~38oLo~eG ~scrow:cihscoe~ch~
5:cbcog8so~ u<fccroe>~g~J.,Grugc.osore ~~c~~saao ~ggeec; gcec:clflscoeJchce
3~ . ~gro '~Segllegllewc(?go .&ccceccg~g~ 3cc~c.ocog0 g~w
ccg_:~~~ GC0e> lbecp/egoeGL oleg~ ~~gcJescoe~re~koco 'ifg23~ebo I c:p 0
6Ge)c chgowGc~e S:c}e:gm'irgg 3~e:~gce ,gccg41W~"' wccgq.GeJgg
69 s~"HOdtHf M V'I VW"HQS: fL~6 I
70 BURMA LAvV REPORTS. [1957

oe~? ~5!JJ'JI:l()')GJ:l~l ~~~025 ~~58?A';D~p.pm G~')!Jm519112m8m

@:G.G<l'JC:::r.> c: ~~~:~~:::rxfJJJG::D'JO'j(~~'Jt. 00C:~'Jop<Xl6pGro.S~'J~~d'J~ Sd~C:@
~~ 0gt~~'J:O~ GOg800C);t81~~gG,j'>'Jo51 OOS[)GOJ.S"iJ''J80')1 ~O~~g(:lj'Jg~
f':~~@~ 00':2JJ~mo~~ma@~@9 ~~@oS<j]o5 ~~oS~o5GroJJ~ll mt~~@~
o1 (5,~ .pUS~5ro6p:l:l~:GmS~ o \) o[3 <jl~tl 8? 00~'Jop (@to;o5~cfj) !30cf
80G8<(Sc,> \)0 !J'abjl 8?oo~~0tg~C::D~Sd'J(l]')'JI:l~G~II
rnooOOGC9 T[9u1 Sd~'Jt~9)'JgG6'J~ o @~ [3 <f511 'i(~5ro
:J o qcfjG?,~o1.poS~coosp:G~~~ooS~ 8~ c.n ~ ~0 ~~JJ ~ rnS~~c;5: 1
mt:S3S~S3bj~0~~G::n'J 8~oo~~~~0SG::n'J o @~G :r511 0rh
oo::h'JCD e 6100G?,~O1 rnS~~c;t: ooS~rh~rh::D~II
~Sd~025t GOjpOOOO.'J:~bl~ @g.prom::D~t ~gCJ3cgo5GCY.)J'JC2
~ ;3m5:~:GopJJ~@b.)@9 gpmm~~GC\]'JOOOO'J:~ ~<dSd'JC:::D~
~'J Oij~~GJJ'JO~~:bjO~'J:~~ ooS::nd)~ ~~:JJ<l:JJ;O'j( <J~t8? tD
~'J.P rospGooS~')g ~:@oS~~oSJJtSd~C: G<XJ'JCl~:J6'J:G~~cq5t
w:rrnSmEi)cS:~'J ~G-o oS~0::Dt ~~t:"{p:CJGoTGo~(6:, G~:m~s.~2'J
~:~o5~5cB~G~tJt Qj~:GroSmoo5@5::ntn ffiC:~ro5~5::D~!J'C~t:
CD~: ~~~5!t::Dci3::DG::D'JOO'J:~:2'J@9 <l~t8? tD~'Jf<XlGpGO?.S~p.;
rg~ !J'CS~~~oSop'JGro'Jtla5c8GtO?Qi~iGroSmG@Sro:xJfn w5:~
G~5ro9::D~rn~tgro~g ~!JO~~'J Sd~::Dt~')g:xJt SS~0~oS~ SS
c:CPJ~6G0 tJt80 S~~<joS~ctj::nt II
1957] BURMA LAW REPORTS. 71

.
00 !ip ~ ~ cB 00 J; ~ [S

~gqg ( GC\jj'JaSco'Jg~) t 0 @~'2

~$ ~~Ero
~?8CXnCD 01 0 ( GC\jj'JoSa:ngQEi1~8J'JZ) * 0
E>io5
11

o?oG ~~$1 8~&w~"~ (@E~c<l!d3) !J'd:f.ieoGnq&~;,> ?~i ?1 ?'21 ?OJ '1'2'

O?OO ~~~~ 8~,Wpop~oSe(]G:J ~5~;,> 0~1 o(~J 001 O@l ?~J ~!feb

8~.LD~p~~~S~rf? CJ"O':llto:D@~ ~~E8~&w~'J;>~ G<D:JnpoEG,s~

G<D'JD!j'>'JO CJiG@g@oSG:JJ~~oc .;;Ji~EO')~W oo~:~~ga)G~'JoS~ 8~&o:J
~~pt:Gu:!i!~ GC\jpoSa:rJ:r;p oo:op:=)?@3:m o ?ot3 ~~S' 8?&w5'J.P
(Qt~5~) !J'dJ380GD<(bg ?O ~~~ 8&0J:?~G<D~:I ~lj'>Ji8?&w~l'Jf
~~ ~s~~ oJilWoSt~oSGro:Dell .l~~@oS~rbll .l&!foS8~,0J5'J;>OJ
aaS~~pcf-i@:Gj>'JoS ~~E8?&wg'J.p~ G<D?nmoCGr;poS~06E .poS~Eoo
t,p~CJ ~~GO')SmotGr;pd3~d)~oS~ 3?~oo~ ~{)t:Go:@c~~~t:Di& !J'd?m?
G~G@::u

GC\ji'Jo5oo'Jg::J)?OGlC2d3 ~oSGoos:iGmGr~~ ~J.)O.J$g ( :J) ~rt)o1

GOO'Jt~roOJtll

Gcp15oo?:~~~ ~loS (l3) "j ( o) sac8~02oS 9:So5GooS

G~Gr~g ~~()')0:Jjt ~rf)01GCO'Jtlri30Jtn

eg~~&ll 11g)jSCl~D,2t GC\jj'Jo5CO'Jg~ ~g~;m Gojprbcc-:>g~

Gl::li(llil:;d:i (G) ~GOJG'OJJJ 9'a:fa5 (?.) g~s'J0ffi~9 9'a'JaS ( o)
GG'JtOJCffi~~~'J:J o1:~oSG~J ox:d)otGO:pC~:f 01o5l'J:Ccfgrl
~~'J:G~!;j~:Y.l;o,2cf.i1 o 1:~u5G~<j)oS 8~o::l'Jf~OJ~~~~b[JC6b G3~t6)
~~o.:>t~ ~~GO:)(~,o~ o1 11(8oom \) @gcftm GGOijiJSOJ@~rG~'JC~@~~f
8~&w~p~~ G[l'J3;p'Jot6mji5 J?G0'J3f10t~ G~oSGOJg~of
~~t8~0J~'Jt 8tt?3~i~Q0Gf_)GOJ:5~'J~33'J: go?6tut~O'J'J GOjpoS
:;~ 0 ~ :')(; ~~~~ D:l!ip:Yn"aG:l:J:~~GCijj'Jrfi<)S') ~~cf.j
9 ct-l9.1
~:s ~CcGO'J5 OJ~:o~ffi:~[S :@~cSf~r gso~Go:.S~t0006p:o~~: 1~@~
*gso5 -;OJ10'Jop:o ~~: ~~Gro?t~C~G~GSJCloS~n
72 BURMA LAW REPORTS. [1957

CX)')~QG]~ 82'jcf) ( Cj) G@'Jt~@~l<j>oS~tOJ~~~ OJ6p~~~WJG3l'Jd)~

@:~~
8(.).)~ ~<D t:GmO16]~ 2~Gt\:)poSro 'J~6G :xl :::ot II
~d)~ tOJ6p~g
19 OJ6p~~ga) ooE:~GcgprEoo'J:~qj'Jf~9 ~~~:@~02'J: oo9GQT@:
~~8co-:>~ C\]JCI ~d~:@~m m~02oS'J~G:::o~cotg O?oG ~~[)1 8~W~'J<j'>
o1 ou
([gfoot~rb) 82oS2oG~<(Eg ?O 826]1 8~.oo~ ~<Dt~G<D:I 82~~
~OdD~Gco:::otu oo5:8~ <.D~8Jt ~025[~ ro~GOjj'Jrnro'J~~
@d~:@gcu'JG6pcf.l::bG<j):::09 qt:~~rt)02Ji.~5 ~g:::oOGO O?~~:OjjCI
o 1:~oSg~~oS 8~ oo~'J~~~:@oS~d)~ ooS~GS~oS'*-~:::otu
GOj)'JrbCX)'Jg~ ~d~:@~ O~'J~GS)G<j'>~:m 82?mGC'jj'JrbOO'J:
:::ot'j'J oo~O<J~:::ot o i:Qb5G~<j)oS 8~ m~'J~m ~:@o5~:@~ :::o@9
~oS~50J5p:gOJ6p:Jj?~:~:m'J:G:::O'J O?O(; ~5<1 8~&mg'J~ (5
oo5;;uoS) 02oSeoGm(Eg ? o ~5 Gtm~~t:<9'3l- 82~[:Got~E
G'Jb G~mfcf.l~'JG<Xjj'Jcf.loo'J~GCDOJtn rut:D2rb80GDC(EG ? 0 <9
:::ooS~tGpC(tlG ?~l ?(;I ?I ~~ Go1t:<DO{.~ ~::::o~n:x>~GpooS
~~d38~,gs ro~p<j'>cn a?:@oS~:@~~ Q~58~& ru~'J<j'>~ ~Gpd3~Gf>G::D-'J
G<D'J ~<j'>'JO E~qJ'J:<9<D8C~:JJ:~ ~oS~Eoo~:G ro~:~[!3::::ot 1 C(OG ? o
8'236]1 820<C:co):G:::O'J 82'JC1D'J~'J:~ 82~:g@~5G'Jt: G92~GJ:::otu
<Dt<D~82'J~@~~G:::o$) o?oo :r~St 8~ro~'J<)>82oSeoG~C(Ed o~ 026
82"-lJ[:oE:::ot 8'i"t:g~m028m~of.i:sr~ 'J:~'J<DSGoo:~:@o~G]~82c
91 G<D'J~mi~O(Boom~~t SS~:::oGO':l'JCJ2~<DtgG:::o'J 8~ ru~~
~o;8~5:::of& 823~82G6):~ O? oG ~~s, 8~U)~'J<j'> (5roE9JoS)
82rbeoG~C(E ? ~ 82]1G0~82D~~C O? 0 o ~\ 18 <.D~'J~rr.?rbBUGD
C(OG o G ~:::o'J~~:~8239D2GG]~~:Go:ro'J:Gax:otu q5~C(5G o G 'j'J
~o)~G:::o'J82sr~:q ~<t>oS8~i2,ro~'J<j'>'}'J 6'Je<j'>'J<D~Goo:~ ~Eilt~:@oS
6)~ ~CD~G]C~Cs$ 82'JC1D'J~'J!~G6'Jtg @~'J~:co').GCO:::otu . ~fo$
8~(.))~j'J<j'>~ ~~@oS9JoSq ~5~0J~t8?<.D~'J<j'>Q6C G0'J~()')OCgC
G0:820CX::'J:CU~ C(OG o o ~G::oSqb 01~58 OJ~')<f~ q~@o<.i~c~
~5cGooS 8~ 26 m~'Jt~5 Gt'Jrbcx?:~<D'J8m o E 3 $Gog8200J'J~:::of&
C(OG O@ ~G:::oSqE: oot:C?O~ ?~ ~ GJt~~~qjoSG~G~u
82moS~1 'lb@g3\~::nrb:::oGO?'JCJ2~0jjCI G~cut8~& m~'J<j'>OJC
G~ G~g@oS~G<j'>G:::O'J ~8mijjof.i:Y?OJ9:rq G<D'Jl300<j!~~80Jm~QJG~')
 usaccso~so~le3gw g'
~gbct;Sfle ~bSO~~gc:ee30~ro~oe w4cBm'{i3gg~e~gce f?I-S
&:fl~cosec ctJ~e:Hg 5Cccgrog0 g~ggcltuego9ccco ~~flTe~L o~
Jgfug~~JbgJO WC03~so~0 ~nc.fl?3~es~E? (b) I (C) I ( 1) I (C).
so~w&b~&CCX)(;ocfue cesngc/!ngceec Lol!ile~coeG
usaccroegclsgoo g3sJegcm~fl ~bg3~gec
cmcecscccg~sec~ ~ooec~bgc:ee30~gco g~0e~~m {F38 ~:f!ilSO~
~Cbego c.og~ocgchco ('lgchcoggp~ Soi-Secccce3 g~sog~
ro Lo
gcf!?scoecboe 4c!3m'&2gsn4~ c~sccecec~scoec;o8J ~fl~Lo g&l
CCCa:>8:g ch~gecgo eg~g~ecgbeecg~ eG w~c~cocog0g~c.oGc0ef;C~mgm
g~ usccc
;ff:!~
megccog~c5 co 0 6 flO (Solegceg) . 4cBcn~gg.,,3~e 3c cc
0Gelc ggceg~gec~ ~~ee~iesog?;ef,ol-)eG&o Sc~cn?ff~g scf}gS2.0~~
ft sLHOc:Itrn fAVJ. VWWlff fLS6 I
74 BURMA LAW REPORTS. [1957

SUPREME CdURi
tS.C.
1957 UL u SHEIN (APPELLANT)
Sept. 9. v.
RENT CONTROLLER, RANGOON AND FIVE
OTHERS (RESPONDENTS).*

Directious i11 tire 11alurc of Certiorari-Rent Cout1aller, whether comPetent

to set aside ex-parte otder-Rettf Controller, a11 admitzisfn1ti011 offi:er
a11d 11ot a Court-Freedom of aclio11 i11 proccduml matters.
Held: The Controller under the Urban Rent Control Act is an
administrative Officer and not a Court. Subject to sta tutory directions or
principles of natural justice, he has freedom of action in matters of
procedure. He can set aside his own ex-parte order.

San lvlyint for the applicant.

Cassim for Aung lvlin (2) for the Respondent No: 2.

Tha Tun Khine for the Respondents Nos. 3 to 6.

The judgment of the Court was delivered by

MR. JusTICE CHAN HTOON._ This is an application

t0 quash the order of the Urban Rent Controller of
Rangoon dated lOth January 1957 setting aside the
ex-parte order dated 27th May 1956 passed by him
under section 16-AA of the Urban Rent Control Act.
The learned counsel for the appli,cant has con-
tended that in the absence of any provision in tne
Urban Rent Control Act empowering tue Controller
to set aside an ex-parte order passed by himself, he
has acted without jurisdiction. He further pointed
out that the only provision in the Act which enables
Criminal :VIis~.
Application No. tl of 1957.
t Prese11t: U l\fYJNT THEIN, Chief Justice of the Union, U CHA.l<
HTOON, J . and U BoGYI, J.
1957] BURMA
,. LAW REPORTS. 75

tHe Rent Controller: to deal with an order previously S.C.

1957
passed liy him is section 21-A which allows a review
of any order made by him under the Act. . . ll Lu 'ZJ~HE!N
It is quite clear that the Controller under the CONTROLLER,
RENT

Urban Rent Control Act is an administrative officer l~ANGOON.

AND FIVE
discharging functions of a quasi-judicial nature and oTHERs.
is not a Court in the strict sense of the term.
Except where he is governed by statutory directions
he has freedom~ of action to pursue any course he
thinks necessary to meet the ends of justice or the
exigencies of the case, subject only to the require-
ments of the rules of natural justice. In matters of
procedure, therefore, he may adopt any measures he
deems' proper, provided they do not offend any
statutory directions or the principles of natural justice.
There is nothing in the Urban Rent Control Act to
prevent th~ Coi1troller from setting aside the ex-parte
order passed by him in order to give the respondent-
tenants opportunity to be heard where he thought
that sufficient caus~ had been shown for their failure
to appear on the date of hearing. It may even
be argued that to act otherwise may amount to con-
demni-ng a part'y unheard.
We therefore see no reason to interfere with the
order of the Rent Controller. The application is
dismissed~ Advocate's fees are fixed at Kyats
fifty-one.
76 BURMA LAW REPORTS. [1957

SUPREME COURT.
ts.c. E. M. SEYED MOHAMED (APPELLANT)
1957
v.
Dec. 11.
M. E. ARIFF AND ONE (RESPONDENTS).*
Pe11al Corle -S. 193 a11rl s.l9.i- Cl'imiual P1'ocedure Code-S. 190 a11d. s. ,t76.
Held,' The question of delay is quite irrelevant where U1e Magistrate is to
take cognizance of an offence under s. 190 of the Criminal Procedure Code.
No Magistrate can refuse to take cognizance of an offence on ground of any
delay. This is however, a 111atter for consideration in proceedings under s.
476 of the Criminal Procedure Code, where a Co:;rt is to determine whether
it would be expedient in the interest of jus:ice to make an enq1iry and
thereafter lay a complaint for offence under s. 195 [I} (b) or {c) of the Penal
Code. The question of delay is relevant only in considering whd!1er "it is
expedient in the interest of justice ". While acting under s, 190 of the
C"riminal Procedure Code, the Magistrate has no choice but to take c.ognizance
or any offence brought before him, except where it is specifi.::ally provided
reql,jring cun:plaint by or on the order of a particular persoJ or authority,
such as is provided in ss. 195, 196, 196-A, 197, 198 and 199. Then!fore, the
ruling in H1ve Eve Hain v. Tlze Kiag. (194!:!) B.L.R. f' 40 is applicable only :o
proceedings under s. 476 of tlle Criminal Procedure Code.

J. R. Chowdhury for the appellant.

J. K. Munshi and Kyaw Myintforthe respondent 1 and

Hla JV!aung (Government Advocate? for the

respondent 2.

Judgment delivered by

U CHAN HTOON, J._ln this appeal by special

leave correctness of an order of the High Court

which quashed a pending crimincl x:;rosecu-
tion is questioned. Some time in 1947 the.appellant
E. M. Seyed Mohamed filed an application under
section 12 of the Urban Rent Control Act for
* Criminal Appeal .:-!o. 4 of 19.:6.
t Prcse1zt: U lliYINT THElN, Chid Justice, U Ct!AN HTOON. J. and
U Bo Gvr, f ..
1~57] .
BURMA LAW REPORTS. 77
.
permissiun to continue in occuration as a statutory s.c.
8
1957
tenant of room No. 4 which is on the first floor ot a

buildinab known as No. 234/236 ' Mogul Street ' E.i\IOHA~lEO

M. SEYEn
Rangoon, belonging to one Khatiza Bibi. An agree- v.
ment was soon reached between him and the Ist i\~.N~~;,~~ F
respondent M. E. Arlff and his brother who represen-
ted their mother Khatiza Bibi, and the appellant was
accepted as a tenant at a monthly rent of K 50. In
March 1948 Khatiza Bibi through ber son M. E.
Ariff (1st respondent) filed an application under
section 11 (1) (j) of the Urban Rent Control Act
againsJ the appellant for pennission to file an
ejectment suit on the ground that the said room
No. 4 was required for her own occupation; this
application was, however dismissed. On 3rd May
! 949 the 1st respondent and his brother filed an
application under section 13 (c} of the Urban Rent
Control Act against the appellant, claiming in
paragraph 2 of their application ,, that the Respon-
dent entered the room under section 12 (2) of the
Urban Rent Control Act, 1948, at a standard rent of
Rs. 5~ per .rponth ". On the appellant's objection
that he was not a statutory tenant but a contractual
tenant, the respondent and his brother filed an
amended application wherein paragraph 2 was
amended as follows :
"That the respondent entered the room under section
12 (2) of the u'rban Rent Control Act, 1948. and later in the
Rent ControJJer's Office he was taken as a tenant at a standard
rent of Rs. ~0 per month."

This application was dismissed on- 12th July, 1949.
A reference was made to the Chief Judge of the City
Civil Court. No fin al order was however passed
confirming th~ order of the Rent Controller till 26th
August)952. On 25th September 1952 the appellant
applied to the Rent Controller under section 476 of
78 BURMA LA\VREPORTS. [1957

S.C. the Criminal Procedure Code to lay a complaint
1957
ag11inst the lst respondent for an offence of perjury
E:M~a~~~~o in respect of his statement in paragraph 2 of the
v
).1. E. ARIFF
application to the Rent Controller in the previous
JI.ND oNE. Rent Control proceedings. On the contention by
the counsel for the 1st respondent that the Rent
Controller was not a Court within the meaning of
section 476, Criminal Procedure Code, the application
was withdrawn on 11th April 1953. The appellant
then filed a direct complaint against the 1st respon-
dent for an offence under section 193 of the Penal
Code. After examining the complainant/appellant,
the Court of the 7th Additional Magistrate, Rangoon,
issued summons to the 1st respondent. The 1st
respondent then applied to the High Conrt under
section 439 of the Criminal Procedure Code to
quash the proceedings pending in the Court of the 7th'
Additional Magistrate. An order was passed !:>y the
Hjgh Court quashing the proce-dings ; hence this
appeal.
The learned counsel for the appellant contends
that the High Court was wrong in extending the
ruling in Hwe Eve Hain v. The King (1) to private com-
plaints under section 190 of the Criminal Procedure
Code. In the said case it was held that where
there has been an inordinate delay in making applica-
tion for action under section 476 of the Criminal
Procedure Code, the Court should not entertain such
an application ; complaint should not t be, filed
unless there is a reasonable probability of. co~1Viction.
The learned J udg.e of the High Court who dealt with
the case held that there was an inordinate delay on
the part of the appellant in filing the direct complaint
and purporting to follow the above-mentioned ruling
remarked: "l am of opinion that whether it is a case
\1) ( 1948) B.L.I~. p. 40.
1957] BURMA LAW.REPORTS. 79

where the .M agistrate took cognizance of the oifence i9~7

under section 190 of t11e Crii'ninal Procedure Code~ ~-
or wh eth er It. IS. a case wh ere an app I"1cat"IOn was. E.MoHAMED
M. SEYED

made under section 476 of the Code, the principle M. E.vA.~~IFF

laid down in the ruling in Hwe Eve Hain's case AN oNE.
would be just the same and equally applicable to
both the cases."
We do not, hoyrever, agree with this view. We
are clearly of the opinion that the question of delay
is quite irrelevant where the Magistrate is to take
cognizance of an offence under section 190 of the
Criminal Procedure Code. No Magistrate can refuse
to take 'cogn,jzance of an offence on ground of any
delay. This is, however, a matter for consideration
in proceedin_$S under section 476 of the Criminal
Procedure C-ode, where a Court is to detennine
whether it would be expedient in the interest of justice
to make an enquiry and thereafter Jay a complaint
for offences under section 195 0) (b) or (c) of the
Penal Code. The question of delay is relevant only
in considering whether ''it is expedient in the interest
of justic~e". While acting under section 190 of the
Criminal Prod;tlure Code, the Magistrate has no
choice but to. take cognizance of any offence brought
before him, except where it is specifically provided
requiring complaint by or on the order of a particular
person or authority, such as is provided in sections
195, 196, 196"A, 197, 198 and 199. Therefore we
hold that .the ~uling in Hwe Eve Hain v. The I{ing,
(1948. B. L.)t. p. 40) is applicable only to proceedings
under section 476 of the Criminal Procedure Code.
We do not, however, propose to set aside the
order of the High Court, having regard to the facts
and circumst ance~ of the case and the relationship
between the parties. No doubt, the Ist respondent
acted fooU'Shly and rashly, perhaps, in his anxiety
"'
80 BURMA LAV-1 REPORTS. [ 1957

s~
197 for the comfort and happiness of his aged mother,
- - who appeared to have set her heart on regaining
lvLi\IoH;;MEn
E. SEYED possessiOn

of th e premises
c1rom th e appe 11 an t for h er

M. E.vARrFF own residence, as it would be much more convenient

ANo oNE. for her than the 3rd or 4th floors which she was
occupying at the time. If the prosecution were to
continue, the 1st respondent may, in all probability,
be found to be technically guilty . of an offence of
perjury. But in view of his action in correcting the
alleged false statement by filing an amended applica-
tion, no Court would take a very serious view of the
offence if proved. We do not, therefore, consider it
worthwhile to continue with the prose~ution which
would only worsen the relations between the parties,
who are, after all, members of the .same.. community
and living in the same building. For allthesereasons
we do not wish to disturb the order of the High
Court. The appeal is dismissed.
 9
'
/
rg;ccso~Je~sm ~0Sc;~ :0~o~chco ~~d:c ff>gl!:oxccgceceJ:g
:~~o~chco ~:0~l~ g!)3o:chco r~3sc3l~ s>l!b0o.:chcoscoeJ:r:s~ +
neG scc!iecf)~ec:cceecfl~chc.o tg~e 0Gelc =~'<
~lo~e~g~e ~ c.je-w-oG soLo~gs:g r~e)G sou+;ofDeB rgl9
~ccc~~sJe ~~~ooe~~~ 'JgceBgss@ (c) sofieB &Gl~pcfue:;prgifu~~so&
gccee~ g~eB&ei:f@ dsg0:t w~~fle1oe pwedSfJ.~'igb. s@ccg
~pchee~ec rpcceegbgb &:ccopclfue~ eCDII rr~~~~g
ugce5gcee~ ccopLBeJ rp&eG (c) r;cfiro &b~~c(X)pdroe
11 ( pmeGpccgcee~cee~~) ~s/eeccd~e !g.;&ro~bco:: pcfue~
nsccc~3eb~:(;eg0g ;gcJ~go
:]wee g&g8ecsccc30 coscoe:~;chco rslfullilesc:sm u:t'lo~l51oe ~cto
~ec~cc?f~ 1bec:c~ pmec pie ec Log8 ec3ccgl fl ccc e~Lo g& ( c) c c 0gn
Geo2suec :begJ~~e:~b:L5 cbs&eE~ g2ccgg rs.fu~~Kbco ~gco3l~ ch
s&esocc col.~socrtue em r:@13:croecsocooeec ~geecccce3b ~ ~socoe.s
niee~0geg~s&sole i~g:gl43cc3[7
:cecscoen~ 3ccSe~:cbco r3ccso'eso:?;e ~~o:begJ!rgf;o r5Ccc3]
~0bwegg~jchco g1Eog4itoe rpde:~:~(J)~ cccs.v~~ ~~cJee:; g
CCC esoc C\J eJ{u g StfeG~ cc :ccoll))el g& (c) (C/j) 6 c f, go I sowee
3b~~:chco 3cc~c,ccosuc.fus ;:3cowsmbeg~ !~co r~e
Sefl ea3flb~l ~e> ~:c!bStJfeeGc.CC~~l03&~c~5}':JS8e.G ~(C) CC .;;go
Ge.o2soe88:> r g&clslccosuc~fu3 geg.3ge~dsco lsw!'lgG:3o 'slf\)~:8
[p(w)bc <'>go Ge>rcsoec ~lqegl~e:$JsgL5 cbg~B~!! r;p~eso:~
rl(o)~(w)( c) cc 0g~ r(co) oc flOGe>o2pe.G z:O,egl~e:gls ;L5 cbgfff~
* (gcR:?&b~gcrosoc!fu~) ( Logcgs
usub Gf
3~
coc<poS ( ocgcro
0Gelc .j. pc!fu~) ( SOWeGt?~gbgb tcsntso:J) g~t?t?lG~
gllh 5co~ ~8,; &d9 co
l
(
"
I8 s..L1!0d3:1! M.Y1 YW1Iil8: [LS6 T
82 BURMA LAW REPORTS. [ 1957

~G:f ogoSz1~-:J:GID)(~ 009_)~;~~~~8?02~1 G~Gco:\1 ~~~CE>p

91g6)G:Q~:bG6)! o~c:002t1 ~~~tsp 9~~E>)G:8@'J:8G~: 80oS8oGn
<(gG C> Cf ( m) 8<lbjl GC\jj'Jd)ro'):GmC>.Jtll ~g60GE>)W~O) ~IDG~~g
C\.~C GCSj'::ld)CO'J: C>j?C>.:lt C>.JGOJ'J~: :j!~GC\jj'JcCO'J~ C>.Jt at OjlCO@:Ojjt I
oot:8<loSt;oGs~bG :Jc; ( m) 8<lb]t msp:R~z~Gow~oSGroC>.Jtu ~
mqJ:~~~Go:~~ moS~o5CJ2Cl oot:8<loSeoGs q60 oq :Co) (ro)
~~ (C) ~~ G<9 T@~roGmOJtll
d?~msp~~~g~moSSJoS cxtoSGo:C>.Jt~ GGotopbC>.J~~ 1S~stm 1
(;)~Gro: .pJ3~5msp:G OJGp:C>ifagc:O~ GID'::lsmo5P 02 oo~ Gcs;-:-oS s,
ro-:J~~C>.JfSI S8(5~.9l~E>!sg@ ~:8Gb]:o~:: GcspoScc-:JgGC>.J'J GcgpoS
~'J~I ~[9~CE>p s:1g6'[$:@~:6DGE>jg 9dcf.ieoGSC(5G :J :J ( :J J ( ro)
(c) ~b]l d3o:u~PG<-'T(9gt:G@OJ@l (?J:OGE>j:O~XtBJ ~Gpg~~tg~
mcs>o5cxto5Go~OJt'f'J I 5l'J~<-C:G6-:Jt:@ m~~cf.iGmOJtu .pJS~f
00 EpgGmspge>j?~: (])I OJ'( Gcgj'JcCD'J!C>j?g~ GC\jj-:JoSc::g;JJt I GCSj'::l d)

ro-:J:Q[~ S~stm~~oSOJt&S?~t:J ~<-C:C>.JtmG-:Jt: 1 ~:66Gq:

o~mrot:1 m5:::~~5:~oS~ 88~o5Go:GOJ'J mGp:~~~Eg
moS~oSG,2tl ~(9~59? s:'l:b]G:@0:@8G~~ 8<loS8oGs qbG o:J ( o )'.
(?X>) (c)~~ G0JT@1 OJGp~~89Go~t:SJ'::lmt:t ~pg<-CtOJ~
roG6'JtgcG'J1 G~ta?@SC>.:lttJt O)(;v~gCijjCI ~:00GE>j:o~
m8~~ obStSJoS~d3GmOJtu
~@~Esp 91g6]G:@~:@bG6):80J)8oGs C(fi~ :JCf ( m) ~ ~ID5cqtr
c;t:<(bGs26) msp:~~~Es9Gcgj-:Jchco-:J:sp02E' ~:::rcoSeoGs ct5~ :J:)
( :J) g-) S?~bcoS~lP:025o1~GOJ'::l S?9JoS9amoS~'J~~ GciT~b)Gt0:(
G~G~II oo<9 C3gOG6JW~m~~l GOjpcf.io.::'J~OjlC>.Jt mspg~~E>j~
mCJ6oSI C(bG o c; ( m) ( \=l) 02E G<9 T@co:nOJ~da~S~, a?Gm'Jc:S
GOJ'J ooGg'JCg ~ g~~OJ'J ~IDGg@gG.pe 1. GO':Ji'f'OOjjf _roq)g~z~G0:6)
0t@~OJ~II ~8~60GE>)W~~ ~~@CJ59jcf;;OJtl OJGpg~~OJ~~gGOJ~
m'::l: 0tX~<!it~l~'jj C11!dJQjoS~tg~<J~G<=lJII
oomoS~, 6)~GOJ'Jm2~~ ooGco-:Jd39doco~&@:t oo~ GO]'::lrbe>j?
m :::ooS~Ssp~:Goo~~ O?Gp:~~D]tl 880J; ~@~t[) r; 1:6]~~@
~gOGG)1cr?d380G8 ybG :JC> ( ;:-,) 02f o~~G:J2-'J gtOJ~cr?~bo1
19~7 J
.
BURMA LAW ;REPORTS. 83

so~oS~rot"ii')gso6)1 ~~:::Dt~ b~~')~ Gt9T@GJGoGtu m..E~~ ~oe~'?

Gl9T@C\j}tr ootp~~;GcnSm GtOJt~~fi06t8dO':jj[wtG''Jtg . 1B~S GBT{;l~:>~:

~g@oSGJ0t@SOJt11 ( coSloSOjl

~mo5Gl9 T@o1acG')E:~p~G0'J9JGcspoSm')g~6J~D<l5JOS (J ) 6)Cb)tG~:> ~

~ro)
Gc?CD~<jioS~t me;p~Gootp~~~g~,acS~~ ooS~d)~d)OJtu GCijj'Jd) 5i~
CD')~~6)~ 805Jcfj ( :J) OJtl ~~~GooS~ GCijpd3m')~~~CJt~O':jj0~00~ S~BC o1; 11
3
O':llQG0'JGtu G~G<j>@5J-:)I 0 @5G06JGtu
82 BURMA LAW REPORTS. [ 1957

::8GSJ Crbg1~-J:GGJ~~ mt;p~:~~6j~ga06~1 ~~Gm:~l ~~~CqJ

s;1:61G:@0:8G6J~ o~co 02 c1 ~b~tt;p 9 :~ 61 S:@~:8G~~ 86rh2oGa
C(tl~ '' ::> Cf ( (Y)) s;36jl GC\jpcfco'):GCD~~II @g(Q30G6jW~ffi ~d)Qgg
0.ic GC1jp0Sco'):~;p.)~ ~G:))'J~~~~GCijj'JrbCO'J~::D~O? art;;;o:9itl
OJbulo'SeoGa<fbG ::x; ( ro) go~' m~:~~g~Gog~rbGm:ntn ~
me;p~~~g~Go:::Df2 cooS~oS065' OJC:gaoSeoGa C(b~ ::>::>:( 8) ( ro)
~~ (c)~~ GGT@~oSGm:ntu
~q~mspg~~8~cooSSJo5 CX?OOGo:~~~ ~Grq.po:n@~~ S~atro1
G~Gm: .yJ3~foosp:G OJE>pgJ.i?0gm~ G0'J8000CS[?02CI ro~ GOji':'rh
OJ'Jg~:ntl 8S~s;1~61Gg@ ~gOG6j:O~~ Gcqj'Jd3cc'JgG:n'J GcgpoS
~'J~ 1 ~g~CqJ 91g6j~: Q~:OG6jg garh2oGmtbG ::J ::> ( ~ J ( ro)
(c) 926]1 d3oij~pG~T~[gt:G~::D@91 ~~60G6jgO~::DtBI OJ.sp:~~tg9
mrf:rooCX?OOGO~::D~~'J I :;J':l~OdC:G'Jt:@~ ffi~o;:lrhGCD::D~II <j>d)~c
mspgGOXp~:J.;?~:ml OJ~ GcgpoScx:n:J){~~GC'Sj'Jd)~?.).)~l GCSJX
oo'J:~GJJ.i? Sfiacm~o::loS:nt2aa~5~1 ~Odfg~to:G'Jb ~:5G4:
0~0') rot: I m5:~~Od f:cgoS~ ~ sSctoS G O~GOJ'J mse:~ ~~58~
rod310002Ci ~~~fsp s:'l:6jS:;;Jrn:(Q3oG6]~ aod3eoG8 <fbG :::>::> ( ::> )'
( ro) (c) c~ Gt9T@~I OJ~~~g~Go:t:y':lro~:l 5''J:Odb~t
m4~3')b~G6')91 G~t~@:n~ot Oi(w~:a3Jt1 ~:0bG6JW~
gas~~ obS~rb~cfGC.'O::DtSII ,
~@~fsp 91g6jG:;;J@3:0G6j:aocf3eoGa C(bY Xj ( ro) ~ ~0b(\.];CI
CjCg\(bG::>a6j msp:2~~t9GC1jpcho:O:qJo;sCI ~::r2oS2oG8 <(b~ ::>~
ao~5coS~pw~5oJ~G::D'J D09JcfJaorooS~')~~ G~T~6)G~~
( ::>) (5)
G~G9JII OJt:l~ ;~gOGG):O~OOCDt~l GC\jprbc:C'JgJ.i?:ne oospg2~6J~
ao~rb1 y_bG ::J 9 ( m) (?) 025 G<9 T@oo'Jg:n~da~b d(Gm'JcS
GJJ'J 86G8'J5~ ~ G~~::D-::> ~0S:@gG~'Orhl GOl<fOcgjf mqJ:~~9Go:6)
Gt@5:ntu ~0~60G6jW~~ ~:aS9Jr::Dtl OJGpg~~:nt~:GOJ~
~')~ ~ext9>t:~9'~ ~joSQjoS~t~G~G9JII
aomoS~I 6)~G~'J8Cg~~ 80GCXl'Jd)8'CJCX)'J~&~:J OJ~ GC'gj'JrhJ.i?
m OJrb~tqJ~gGm~~ O?I>[J:~~cg:fl SSOJ2?- ~Q~Esp s:1:6)S:@
~:60G~~ocd3eoG8 <(tiG 0:::> ( ::-,) CJ2C o1~G~') Ge;JJtoc~bo1
 .
19~7 J BURMA LAW .fEPORTS. 83
.
80~M30C\J~"i/')g30Eijl ~~o.:>tq ~~9:P~ Gt9'fE;JGUGtll CDC~~ .:::J@~'2

GL9 TC\jjc! oo,;p~~~GooSm Gt&::D~S'<l~6~8~01Jr~ocG')E~ s~s GOTGG@:

~~@oSE;JGt@So.:>tu (coSloS:::Ji?
m
gaoorf3GG T(c3u1 30G6'Jt:~pgG6')~lGC\jpoSm')g~6)~88SlOS (J)
6)t6)CGG
06nS)
G~ ~cu~.poS~E oospggoo,;pg~~g~8GJS~~ uoSqjr-h~o5:ntu Gcq'JoS
5\9
00')~~6)~ 8Gl~oS ( :::J) o.:>f1 ~~~ GCDS~ GcgpoSm'Jg~~~~CY.j]{)~oS~ S~oS o1 ;u
O':JI~G0"JG~II GS)GcpQ~-JJ 0 3 @~G06JGtn
84 BURMA I,,AW REPORTS. [ 1Y57
<

0') Eif g ~ cs G'O? ~ 911 s

g 0o~g ( GOj]:>o)cxy)g~)

~~
8'aC2CW~IOJ~JgG<qW~~g~:>cp( GOj]'JoSco:>g~S[~) *
~~G<lT ~-:;8Jo50')8JGoo5u uo1d5<~~G l!Gm')o5g~t:eoG8 o'"2 (~) (? ) u~ @ Cio
~9~1 o1d3<~~G8J:Gm')o5goanSeoGG C(b<~ ~9 1 <(b~ ~~~~ ~1Dt:~&q[8q
~G@~8GG8 ((bG '[9(~) (ro)1 <(bG j ~I !J?;'~: j I <(~<I ~~ I <(bG :)'
(s )1 ctE<~ '"2G 1 <tfiG ~~o 1 <(DG o'"2 o3;')~o.:)()S:u'J89oanSecGo erg<~
<; J il GC\j)'Jcf.icm~::li(::Dt l GS J o8 ~~ m8GOJ~G<l1t~~q~Gs @ ~~
G8):Gm'.JoSfiot~~ ID~d3Gh ID"::<:,c:D,;lC co~::-gE :GGTQ5;G~SoJtoa02o5 1
~eso t<~l o1c6<~~GBJiGm-::oS~moSeoG:J <(5<~ ~<; ~~ ~0t:~b~[bc?
oaG<'ieoGs '16<~ '"2<1 ( ~ )( ~:.)m~1 c1~;1;5m-:::com02E: o1c8<~~GoS
G1:"JjoS~@t1 1 i;)ro~Go:~t[3b IS\~G~~- 01dS~>~G):Gm')cflg;pt:eoG8
0'"2 m~ s;~tm"ljttq;d3~810if@al:x>t~ ~CCGo:.S:x><~~m Go:re::p>p1
~GO':J!2':l~<~GO:U?o@ ~0t~~oCJ!t8c?saG[gf.eo:;;o <(bG J :J ?'Jbll ~IFC>T
l!l')gj~GooS:;;cqpho::':l:Gco::Dtl' ~02?W~bQ,J [C~m:;;~80G8 <roe>~: J ~
o1~G::D':l WCOO<~mG~l"J]JlO~ gc~cf.i:x>[:3~ 1 <;C1~G@~80GS<(5G J :J
m")l :;;cspoSro<J:~tB~G~~ om')<~m~o;pSqoSg~ Ec:;;ooSG~Gy:s~[Sm
G~'Jd.>o1~qt~:~ 1 ~~:rom'J:~@oc5:x>t.l ~tc:;;coS ~02E:o~9~
Gcf~ (.;1) ~t~:.l G~ I 8"~C I ~'J (~) 1 O@<f0 1 (.)~gGo?':JC~ 00~ 1
~:~oS9;cflu 1101c6<~~G1:Gm'JoSQ~oSeoGo c.;5Q ~~ ~ GG TQro'J:GOJ')
oo;:,tooG~7
.561
s ... ~s')~sSs')
-1 :r
9 0 I I
::n~
L
~:B":P~
)'~
J\ :.. D w 1 25cGroS
o32j)::DSE ~ xQrof0l1
_s:

~:;9oS;;:pl3:x>t ~ID~W~b<f[O~D<lGG@80GD C(b~ 0[) (9 )~Ei'l l GO:ro'J:

G::D'J ~C\J::W~OOGE>):~Jj'J:01 c8~cf.iGco::Dt11 '\ <:,
~CcGooSx~,~mxJi my0~ ~8;;;:[S~:JG~eo~o C(E<~ oo~ ~0: 1 co~:
~b1CGq:~ 80')CUJ':~'):~~:~o1~1 <;t:ct6g '"2(3 O?S)I o1c8'<)~oa~oS:::c@b O?Ga,:
@21 {};;o~Go:~Es$~~ cB~cfG.p::D@~ ~ g}~;Goos:iw ~oaS~~ ro~G~ T
 ~

6) 6)
,.....
8 (~ (i)
l2 8 s CCJ c8 ~ 0) rBl~ (;Jp,0)[!3,., ~JID0)28cg -.c.
,Q 0 DQJ Cla .-8 8 &3 (n m ..a CB 0 0) 1: 4, fJ1
(Y) 0 8 <.) ~ 3D [8--J (Y)
I) (') o(Y) (}7) l)
o8 coo
t85 t 6) "B ~ 8 ,.B. g, ~ ='' ~ f.:J ~ -fin
.-o~.83
'-'<!
g_., 8 't, ',_- tB ::8 c &, ,.{;() ..) <~ ~ 0; .0.) (.1 u ---'
0 ., a, o .. , ..oN mJ o<: <V o
rn ru 15) ,} -PJl"l o c s, 8 .-o '' '.. 8 ~ll() ..)fil coen b8 08
0 8
lO 8 l g ' B ...._% ~ b8 8 ,..& ->R s~s r?D ~!") ..8 ~ -;;;" ~8 iW (B., "' ou c..~ (&, .-8 <.Y"1
If> 41'
.8:;;:' Lv - ,, ,oo 8 ~ ...o - IL m fil
.2~ 8-J
0) CG""J
ex::.. '7) <.) ()') 00
8--l <.) r-n 0 G 6) L)
Q) DU 0) 00 rRJC ,u ~.0 U m ~ 8' CUD -6-J 0 () CUD ~"f> - O'l Q"J_ 8 m
L_g l~<J 8 Jr ~ ~) ,'i) ~ 0 Q)o m m I)) ~~ 0 [D. '" If) r"ii -
oM (Y)
~(Y) .,o:"'\
(J ::8 '' m 0 '-Ril .-co ,112<.Y"1 c c
_0
- 8 - 8 c oJ ,C(.lo) IlL en '2D ..!D 8J ,.(!O o81fl 0) ..{;() f:'
(.1 0 oo
8 "' 80 \.\
G [tj f'n
<il .-(X) ~ l LYl :)
0 g,~ [t>,.., c) ~ S '8 ~) C~.r [il J1 ffi, &, -~ ,.8 C~ ~ c; S,
o(i)
.f'..o :~(i)':nc0 ~::8 to
FO ()() ,8 eX) 8 CO _ , o8 - &.,[;1 ~ o..S - ~ '~ <) Ehc~.~ 3 0~ ~ m 8 f:b0r& ~ Q) "' 8 .,0
0 (Yo - c:J C1J 6) 8 ~:I 8 :J c:S::' -
J B <.Y"l.}. ~ CP.n f~ QJ o~ .!!>' ~B " 3> c:::
( 0 cP 8 .) o) ~; o8 .-QJ
8c8 8 0 '-' 0"l t:1
~ c) f8 8 = 0 . -3 .-om c c:c:GJ Cc"J ...0 ,P/0 Al
-
o/' 8 ., 8 OOJ .en
0 ,J!>0) . QJ u ru m ';?
~ -g., (~l 2n &., -('~ 15) 0) ~ ~) -W> 0 en - .l <3 c 1~ oo 0) [;j m - ~en c on ,._,..,
f0CB rPJ ~!, ....---.. u ..!!) G) ' DO) 0 '~'" ~ f!!!l 8 f3 0) e
o:; ~. _0 ~ IX'/ ~J ~ - 8--l ~ ili -!!) dh ~= () _'!) --8 o(Y) ..0 m [il -8 s, l) 8 on ;:p
Q)o .-.:x1 ' L) ~& ,..8 15) ~ 0 ..RIO
cg o8~
0 (J - ~.4'10(0.)
~) -rA 2 C") ' - 0'1~) ?1 ~ 8
rn 6) ,, v () m ( " ~ ru c 0 CC"J 1ik 0 D ,() = ~ 0
~ c8 (Y) -1>'1
8 s, t.~ ' (Jo t n (r.1 f"<V a; r.'J!
0
en ... o lo. ., o. cn i'CO 0 t'1 o r
6) ~-
8 . o 0"l cn - cn u ~ " OJ ro
Cft~ ~ 0'' r-8 .B ~n 3-) u 8 , ;p
'-' L B m._s g, u 6)
8' -u 1 ~ ~ 03 Gi"J -"1J
~.7,ti 8 IY 8 ~ 8 U '"' ~ <.q:; L~
8 (&, 4 (n <RJI o <[!) _!!) _!7) o ~
QJ .JD(J - ()(I) t:1
"' ~~ cc:n {)CI LYl m ..IV - --f" rv
80) _,
o rv [8-, u;;-. '-' en
8CYJ c8 w6) 0 <.
--/>') ~ r~ S, 9:0 Cfl Y) J:l 0) w 'R. t'l en - '"'' en m '" _.)
U LIB "> 0 CYl - -I'! 8 <.!;> ~ r.1 lil - 0 om ~ <.1!/l .-0 <:'jJ? ~ ..m
&, cv "' -u oo-
S0
v 8 315) (i) DO -I> c:J CUD 0) _.) en - oD ~1!: (];) <<V o:: u m O::'J en ~ o-1rv fJl "'' eM . '" ;;:o
[2-J ~ e ,2 If) -en ..3::, 0) -{!/') 'kJI ~ mn fil - -
~ m ~~ e [&, w 8 eo -en 00
,&;! !>'.'>' E}, 3 8v ~ a:: -g S, ~ iJ a:: ~ m 'OJ 8 0 C.~ D t:rJ
o8~15) 0 ru~uo 6) ..& J u ro o ,, c) c8 t'l 0 m-, -Po c~ cf!(J
0 r?, LY1 8 -~ c no m rfliO ~u --'>) LC<V 0 Q ,RJO _ I)}
..) <.RIJ . cc >u
oo oo
I)() ... ,.. ()C/ U 0) Q)o 0
-en m
8<l 8 e0 CCJ
' ..3 ~?). (&, ~ P. 0 w fr. 7.1 ... - m (8] ~.-> 0
'-Rfl (!)' (;3 :) . 0 (:J oQ,t 0,.., u 6) !::!"
(!/) () tl (YJ.-00 ~ ._,, v (;.) s,
_0 Cy _0 CO d;< "" 'n. n:J _, B l;l ~ ~ "%) ~ ~ ~ ~ ~ - .-! ~ cg ~ ru-, ~ ;::cl

0 n:J. 'o t:J n U 6) Ot:J LC/'l 8 [f:>n ~3 'u '-!!!>
8 m Gp ' g> ~ ~ u & o 0) )?. 8 -j
CJ LCII ~ 6) ri':O e{n -PJl <.) 8-, - v .... m <Y~ rfl. it' c .-o::> ....~ -o COJ ~~ ~ cJ rcy-J CP/1 ~ fJr;
.-00 8 8 r8 k3 }J L) S, ctb -3 ~ 0 k3 " '1 8 ~) (OJ ._() ..& 3, ~ . c,;',}, = '1
..!CYl) 6) \.OX) rCO 0
C'/l CYJ ~
8L) 6) ~ ,() &. _fg '- (c;J '-<15 cu ";') f3 .-o::> -
coo '"J 0 ~. U (O:nCO n ~. ..IV ~. 8 0<!l
~ C8J 0 -8. 8 o ~ sr ~ !B >.. .. c uo c Gi52J D'J <RJo ~ ex
"en 0;
-fin(?})~ . '"" 0 ('X!) .-.PKl 8 C0' 0i '"" 8
.-o
~ g, ~ ,n.B:, ~th U.;J C'<V IV GO) 8 0) If) LiJJCG""J
o _UJ C! 0 - If>
o.n
en r>:/ ~ o8
cc 8 t81 >f~Yl~~ m T m ~ , - 0)
n l:l a;J - f'fl')
-~~ 8->g .3::!3...(} fj.-QJ 8 g, o.n o ~~ o ffiJ ..8. - 0 con 1--:J ..-, v u S, (J
-ern c:> oc ru .,0 o. (Ol) m -en -fl'> m o m .-.PJo -"
(:J (YJ
-~ 0 c:JJfl '-RJ> <v (D _) -1l'>'1 .,.-JJ ) ..{;() "'"" <C <C Q0 u 90 m
L) .-Q)
c80 w 8 )-l 'O:n <to ()") "' r::il 8 ~ c & 5. u u 8 cYJ 8 {)QJ
.J!X) (i)
CJ .Eo
8 L.l?/1 -I>~ c80'"1 ,.&, ,.&, .. rn ~ E8 tDJ n:J <:.9 en <.<C (Y1 C:C""J U::-:J 0'1 !?0 <Tl m
ds
S, (&, J:l ~ -ern ~ ~LIB m 3-J 2n ..& --.m ~ ~~ ':?. ~~ ~ .-o ce, (B., B s, .:&,) .-So = ~

.o
l"n (0.)
_g_,8 o8a CUD.. I
l.0ll
Dn
B m..en '
~r) 0 I09 ct(Y') (..!}
~ ~ _g,.,
-0'1 Gllil
r:' ,..,)
..,...
co
VI
86 BURl\fA LAW REPORTS [ 195
'
O@::J Gfi0'JSjCg~~ nd Oi? ~~<:2mf ::lJS~x.~ Cri)G~cqJ~<}{'J ~~ G0'JC8e>Cf2oS CXJG~
-)

~:0o8: G.,;o'JCGOYJ 80g~GroS mOG;;J18d~gGS ~~GO1fg & r?rc;Sg

i9 G!ST~fg~QxtmG6':)fg~G6')~ r ~ ~Sg9Jrh"lJ'Jg~ G6'Jb~~ o1o3
~026w~1 4 GlgGm'Jrh~:ptgeoGn o '7 ( J) 806)1 ~tcGmS::Dc,Jmm Q~m'J~
o:Jbp:G'j:
o~~:g'J~II GJJ'J g)~Goo:>t~@~l:l'J~CcGmS80~g6) mo2c:o~oo:r . m~q880'J
mS~tg~Groxtu ~'ScGro!Sxgmxtr ~:ptgeoG8 o ~ (?) 80(;)1
GlgGm'Jrh~ OJ'JO~Q806p~~ nd~6)C~0'J~ 02g0'J~~gG."j'>'JJll OJ~
GOj):JrhCO'J'O)(J.Jti G~~Gm'Jrh~o;!~OJJ0~oSG~0'J6)C~~ 80~~~ OJt
~tg~GxSro~gr mrorh~Gt9 T@~GJJ'J GS~~S)b~l ~0'J6jtgc;r.sf GoT@
t~ 0~~J.Jt&ind02d)1 ::) @Cf 0 y~~~ o1c\5G~GIgGm'Jcf.i~ndcf'2oG8C(6G
~c; 5l$ ~Q)tg~O~[O~ndG@@eoG8 <(bG ~S ( J) ( ~) ::rc~r J@~G
y9~r ~~ro J c; 6)JJG.p,~0 c1g~~m'Jro8002Sg1 o1c8~:J~9;?ttGmS
mq5'1b~80~o5nd@~@$ Glg~oSE~~q~c;Sgl GlgGm'J0S~02,t ~Gogq~
c;f: D<l6)t80~CgqJl~tgo.;(@~xto;> GO=t~'J~Groxtrr .

OJtg~GCY.Jj~'JJ.Jt~ GGOi;ojlO::D@~ I GC'3j'Jo5ro'J!Oj?Xtr ~0tg

~0~[0~ mG@Q8GG8C,JDG J ~ ~ xm@1 ~tcGm'f3x0mg-) mmJJ
GoT@o1 ~g@Q5~o599 GDiJeP9loS<:~ 1 80~GQT0'J8]~GmS@9 uoS
qjoSo16)~ r g)i~:GmS~ GOj;'JoSco'J~Groxtu ~tcGmSGsY~?~lOml
otm'J'=loo'Jg@~ m~02oSxt:r'Jr ~q:;tg810~[0~me,;~euG8 ma~g J
~ 0 1G:x>'J 'itCD8dg$80G6)g"lJ')g~ Gcfl~Jlx@r CDy GOjj'JdJCXJ'J:Oji
::Dtr ~vtg~09J[O~ ooG@Q20G8<(b0 J ~ 8<!6)1 GcgpJ:iro~~~fg~g~
Of ('f.l~~d)GroJ.Jtll ::6p06t u1o3G~Gl~Gffi'Jd)~ 8d0080G89bG ~~
~ Gl~Gm')Jlg~9::Do5~CGJ.J'J OJt;p:9@"-lJ~~G6'J~I C1g~~G80'Jfb
0GOiJ?Go:J')aJ'JCD8206C~I GlgGm'JCJS5indg980GE>jW~ 8d~gQ6)~ oos:t
s.a~JC: qjoS06SgG::D'JOj{J.Jt mfg:: qoS~5~G::D'JG.P,5>~~ c1g~m:>ro
nd02E: 1 m6pg~'Jf>t>()W~ 02 s ma~Q~5 8 ~r ~ootgGotoS Goo'JtloS
G<f89~~o:J~83j9tl ~C(50 ~~ ~~ G\9TBoo'JgGJ.J'J m[3'J:<fp~g~g
Si'P~~rot: QE>jGoGtu me~::@~~~ ~tcGm6J.JGOJ~ ~;;@oS~JJ
xt1 m~ GCijj'JOOCXJ'JgOji:YcJ'J: ~0tg~O~[O~ ~GBQBOG8 C,JDG J '2
(c;) 8<!6)1 GOgooOcu'JgGx'J WCD83~8<lGE;jg~'J:~ cB~oSxt,o;> ~OO&)
GOGEII ,.
1957] BURMA LAW REPORTS. 87
"
' (:J~~Ot~~GJ GOjj:)C~CXl'J~Oj{~, Y(CDD<lg~D<lGb]~~ (:)o8~oSO/U(
GmomoooS~tcg;tCD~g' QiDtW<fO~[O~mG@~ eoGo C(6G rr_G ~~~ eg.noE:
GOjj'Jo'.iCXJJg~D<J'J~ GOgSdQCD'JWJ~ o1~'cl~33GoSm@~@9 D<JG~g@~t ~9
g~l ol~g~m02oS G8J~GOJ'Jo'.i~02t GOOjGUg~tz9cne~o;?Go:J'J D<lg~ D<lC2t:Otl
OJS[= :G6J:
8<1Gb]g~'Jg~ c8~oS:n~@~:n@~1 ~tCGD:l~OJGOJOJtl OJyo)~ ~g og:~'Jfll
@oS;;p~ ~~~g~O~[O~ mG@i)eoGo C(bG ~~ o SGbJ' OJ6pg~b]CG6Jg
~tGp D<lCl(OooScnGpg(:j)'Jg519 D<l'JCID'J~'JW~ ~g~GOO':'CjoS:ntot
Pi(ciJ~COjjtl g)i~~Goo~m ~m8~~ mj(GQT0J8)~GcnSm8~@~ ooS
~dJ~tGC\J0J~II 31 31 O~g(91g~9 GGOI~I rJ6~3tw1? ~ 6~0111
0

Sd:J"Jtbo)~GOJ'J33Cl(OOd3cnGp~~~ 8d'JCID'J9j'Jg~ ~l~GCl::)'JtloS

:n.pfgo;?o:J~ @21cp'J~ ~~OJOE>p~l GcOi(G~ ~t~~Qt:n'J~'U')g~
8dg~33G6)g~$0o,cq;g~J ~~@oS~Eg~~ eoGOD<lEiJ nao~t~@tg@EiJ~g
mtg~ ~g@oSsp~CDtgl eoGoD<J~t~GOO'JCloSEiJ~ OOJO~~Oj]Ci ~Oil
~ GOO'JCluS~oS:nc ~O~[OG6)g0JoS:noS'3d02oS G;;c'Jt)rf.~t
GG~u cnspl~EiJbGEiJg~tGp oo~oooSoo6pg~')g9~ ~'JC1D'JC:jj'Jgr~ ~gB
GOO'Jtarf.>GpGGpoS OJ~CJ(l gJJ~gGOJ~OJ ~~~o)ooJgGC\JOJtell ~gG~g
'(G~T)GnaJ ~gJ. 0olg~~~"@g~g~ Jl ~oo::S~gG~~~ @tGco')bOj)
@~(:)'J~tc? ~~6tu1u
~D<l}-(025 0 1~(:)~GaJgGJJ'Jd)~q;tg20G3 0 ?_ (?) 3<36)1 G)gGOJ'JO)
g OJ'JO~~D05p~~~~6)bQ0'J~ 0g0')g@~Gf'Jo)l GC\jpoSc:oJgQ6)~
cn5 ~SgG:n'J G1gGmJoS2 ot~CY.JJ0~00Gfi0Jb]C~mtr i
l2tg :ntot
~:@oSsp02tr ~tcGOJ~OJGOJmt olc~l:l~G)?GOJ'JoSg oooSeoGo~~
ftgeoGo"V-Jg~ 0JoS~oSg~')~~~oS41')g~~ ~oSt:ut ~~mt07 ~0
~~~<f,b]gt@~mtu d?::'3S~ r cn~g~6JCGEiJ~Jl:P n<lC\(OooSoo6Fg99
DOjCID'J~j'Jg~ ~g2GciJ'Jtlcf.l6]Gf~SOJtu
OJt%~cnspl~b]CG&J:~tsp DOC\(OoOOmsp~~9 To'JCID'J"lj'JW~ ~g2
GOO'JC)ch6p~ $_wmtOJ~g~~To'.)g G~Og~GGmo'J -t>cp'JGIDGOJ'JD<J8~~
~u5JoSOjjtl ~~5JoSGm'Jm8~mt m8J'Jomsp~.pEgcd)z~$ ~~J)~
--~----- ------------
0
OJ5p:~oSGOJ~9i[bl OJ&flWGOJ:~D<JS/oS ?(3 h~l
1
:;e9o '?95 1 3tQ;~~~6Jc~: ~9 :J.I
? e
:Je 9 ~~s~ g~~n@t~qco:?: :Jo oJl
i'
88 BURM A L A \V R E PORTS. [1957

:::u@~1 Gmt@~Sq ~god)9~ : \Jo{~~G~23)'J G@oo'J~OO'J~G~~G~S~o'S

~~0o~ : ~~ 8<lgqoSt91~~~ @wOiS~~ J :x'?g~~~ ~;GmSm ~g~oS91oS q~oS~
519 t;ffixtn
82CJ6tW~ I ~~g9J[b8<J')g89' ~tcGmSG~G<)>~[O:n ~EC:GmS m02Sw~~~
OOSJ?:G6)1
o~@:g'Jf'H Gcfal ( ~) mSo~g? ~ t>jt~~~~gl ~~qtcx?gG;;>1C~0~S ol~G::O'J
Ga;ooS:;1 eoGs8<39]d3:JOcooS'=tJ'JW~ :::ro~g:::rom'J~~:::Dtn
"The exclusion of the jurisdiction of the Civil Courts
is not to be readily inferred but. such exclusion must
either be explicity expressed or clearly implied. Even if
jurisdiction is so excluded. the Civil Courts have
jurisdiction to examine into cases where the provisions
of the Act have not been complied with, or
'the statutory
tribunal has not ac ted in conformity with the .ft: ndamen tal
principles of judicial procedure."

~~6)td(g32~t~:::D'J ~oS.p6)~t~Oj]CI oa~G;;> ~0'J~Gm~6)~6)~

8Cl02 rE o~f0'J~:::Df2Gcgp cf~ 'JSl~ :UG.%Jcf?1 ~~gGO) ScJ 0 mog; Gcq 'JdS
m'Jg~~'Jg8Cl'J~ ::O'JG~oospg~tGmS~p;~ OJrbG5pcf3oosp~2~6)~ t~
e}:n6)~::D'J~GOO?::Otn D38JoSG6'J~G::OS I ~~G~ Tw8J~GmS
mS~ G0jpd3m'J~p~rot~ 1 ~o~@GoY)t~ s1Ecx?w.;s5 G<S T~:::ut&
. ?~g1tICOCI G~'Jct)~~lol]'J~:::D~I SS~::uJ'Jg eoGS8<36)Gm::r2bm:n::ot&
~'JCID'Jl~8Cl~ ~;@d3::otl G~~oS::o~J ~oot~GeytoS mC~~G:::D'J
~~@d39lcf3~'J~:::D~I ~~gGmS<ip~~ D2'JCTO'J0cf02E~~ 01JGqJoS
G:::DScofgJ c;E~~di\G~'Jt~rb~nS<il'Jg::ot! OOP~~Ei)CGE;jg5p :JOSm
il)t~ms~(oJJ')gl cf?nSt::otJ Gtmt~ Go8J~~g@cbEiJGt@~o.:,t n
~JgEm;:g 1 m@'J~G::O'J::od3::o'Jg9~~~5~~@9.t :JO~GQT0'Jl~
GmS 8<38~cf? ~wo~'Jg~tg9G~Gt 8d3otm'J~@dlc:o'Jg@t~ G~G~II
:YcJo;(c8o5ot0'J99 ooSOji@~~G6)g~~6'J~Gr;:go~ 9 ~t~1111
mtg~@d;~ , :JOOJrb~ G~ T@~G:::D'J o~@Gco.'JC~ ~~t~D1
sa<<_5'Jt~~pg~ 1 qaGCD'Jo5:JOco'Jg 8<l~WcOJ'Jg[2[g~CI ::r.:l~G;;>T0'Jj~
~ O@CfO y~f>l ~~<n@t~6)t~: '2~@ 1
J oe~o 11~1 @~~,;~')jgt~ccq; J :)0 ,,
? GClQ L ~E1 80')(~) 1 O@CfO! o~gGm'JCB oo~:/u
9
Gaa l ~6 1 ~J<n(~)r oe~? 1~~ ~ O)'JC\JOJ91'J: ~c;ou
 1957] BURMA LAVl REPORTS. 89
~

GmS ooS~o~rot: GOjj'JdJOJ'J:~C::AJE.2n ::AJ'JG~~~"lj'J~~rot~ crn;p~~~ oe~'2

~C:xlt@t:xl@~l cp~fO~CD~~CDGOYJ0S::AJe31 SS~~:xloSbpbp ::AJdiiO.I'J ~~.Vote
8~~ GCD'JCg~~C:xl~CJ? Uj(OOjGOGe311 ~~
::D'JG~oo'J~@~ GC\jpoSw:):~::D~I o3~'Jgo.:::oS::D'J8 moSeoGn rr.JC2t:Of1
OJGp:Gb)_:
SJG CJ j S<l]1 OJ6p~2~~bz~~G~GCJ?c)G~Il 8CO'Jc.G6'J~~G::AJSI o~~:g-:>.pa
o1c-SG~G8JgGm'JoS~ naoSeoGn tt5(,) ~ ~ 00]1 oospg~~8~~ 8oSo5
CO'J:o.J~oo@tl ~~,,f~oj'O~~~~G::D'J SdgToGbjg"lj'J~::Dtl ~oo~g
ooGOJ'JoS ~E~Eoo~g~~cG::D'Jo~t~gGvroSG~n mt9~ GCS)'JoSoo'J&
Oj(~ ~ooeGm~Cg~~~ o1c-SG~ooGoS8C@~ <-9@.tmG8)g~~t~~
o3~oSf9'J~G6JScot~l o:;Cg~ ~OOGm~tz91 o1c-SG~ oogcoo@~
05 n?G8Jg@~5g~~~ ~tcGooSo.:>Gmm @~G0I oo'J~~ m@g
OOGCD'JoSm@~G0 ~Cg~tw@~G4] 11
ooaxtJ~Gt9 T@~G::D'J no'Jg~oo@~m5~tg~::D~~G::D'J G~ J aS
~~ cD~DG~~GQllt~~~G~ fS c~1 G8)~Gm'JoSgo?~Oii 0~oSG~
0~E;JCW2 5 co~~CgGt9 T@t:G@SOJ~ OC'J2 oS 1 GC\3)-:>oSco'Jg~ooGo T~ 1
coO 1c-SG~GZ)gGm'Jd.i~ ?age OGO 0 7 n<l]1 n<l6ftS<l9Jb~oS~t~::De;0?

~g~oSo.J I(:)OJ 9~:).) ~ OXl <jl'J OJ!;jOO':Jj~~GCDo.J t I! ~G~5i S~S~p I

o1c-SG~G8J~Gm'JoSg nooSeoGnl .ptgeoGoc~oo'JGOJSoo r;p G8Jg
GCD'Jch~'??~O':JI0~o5~:jpg@S:xltCJ? ~~E::f3~gl ~G~"lj'J~:r') BOGO ~~
G'JgOJ~~~fgr t'if:S.poS'Jgoo8?~@o.J~G~"'J'Jg@~::D@I G8JgGm'JoS
~ ot~C1:JI0~oSG~0'J~Cw~f co~~fgGt9T(9t~G@S::D~oo06oS! UJy
GC\]'JoSco'J~~:xltl G~g::D-:;gG::D'JOJG::rJ'J@ c8~~~~::Dtot Go;(OO~C
GUll UJCg~ GGt9T(9::D~8'306oS of~0:J)0~oSG~0'J~CgOJtl OOGjg~g
G::D'JOO~cfQ6C ~otoS GSJ~@~GcpOJ~ot ~oo~~ ooG@'JC~G~CG~II
~@S1 GOjj'Jo5co'Jgo;(::Dtl o1c:{5G~G8)gGm'JoS~ oooSeuG8 O~G
C'UJ'Jgloc~b :J'J 00;)1 0Jbpg~~D:JJ~Si"'J'Jg <Ji)l[g~~::DtCJ? G~~tGOII
oocxxb~\9T@o1ooG0'Jtg"lj'J:G'JJ o? o q yl .poSGmSrooog
j ~oS ( :J @~G: ~I 8edJ'JCD Cf ~oS)G<f.~Ol OObp:G~g O~~g~'Jcp
(eoGs~~'Jt>@) oo8~GS)@'J0'J n<JloS Go~ ~ ooS~oS~oS::ut;n
"'
90 BURMA LA\V REPORTS. r19s7

0) ~ g ~ ~G'O)~~as
~g0~cy')g ( GOjpoSc:o'Jg~)
~~
91g~Ggd~g6bGS[gO ~ 01 ? ( GOjpoSm'JgQ~
8){'=1Pg) *
s:1:G)5:~~:&Gq: oaoSeoGDC(DG o~(ro)rnG)l o~~~ "{1 ~o::b':lro J J G)oSG~
GCSJ?oSS'<S?o:>tO)tt oe::J'2 :tt ~1'Jo'i~co ?o stmG~rncE 8<llff~~Gp
c;t:8droeoGDC(D<l J e O<l6)1 Sd5?8o5~c:l rn~~?~qE1~::] GC\]?oS
o:n:~oa(9~a?:o~>~o1n g]rnS~CJ6CGOjj'Jrbro'J:~m O<lGC\:;i'Jrb~E>J~ D<l'jd>
J O)tt oo~=~ ad'Jo5? gc')zooro9s:1:stS:O)tut ~:5Gq:oooSeoGo
qb<> otS(ro)ooqt rosp:2~&~~~ :::@:'):') <t l ~o::b:Jcc JJ qroG~m
GOjj'Jrbro':l:spr o ~::n 't l e~'Jo 1~co ?O G)rbG~dlcS ~t.Gro:co?
qt:G~CJ6C C(bG J@ 006)1 8<lY(8c8~cf.>O)t11 cx?:@d3~rbR IIC(bG J@
oaqt ;:BS;;1~:~ ooS~oo~oosp>l&) :X>~~ ooro~s:1~6J.G!O)~Gifl94l e co '
rn02E: msp:2~90)? rosp:~:Goo\3m "' rn~~ rooStJ~Ez~ ~O)tr
G Oj]?rb~?ocb~oSO)tu

..-;"-

O~GGOjj'J 00ro'J:~E>'1 ::l.j(8Gl0200 sa~:6JGSJG~@g @:CijGG')Cu

~d3ooGO.jpOOro')gQ6J::l.j(::Ta<J6oS @:m~n
OJ~OJGOjj'J OOro'J:Q 6J~no02d3 @:OJ En
~ ~ G::S~:H ~~~~~515 :Q)~fDWJl 88~5~6 GoTso5ro~;r
fX3(jo5 ? J 1 ::ra~~:.f>o1oS j ~ s:1:6jS:G~~CCjl GC\?i'Jd)cxo:Q6)02
S<J'jcfj J I ~GroSo 1~0Je?r s:1:6)S:<l~:5G6j:o~~ ::raf:S~oo~OJ6fJG6'\
*0~~'2 ~~t.r o:>sp:<~ DdGO)iffil~ GOjJ?rf.ic:'<S?Ddyd) Cf J II
t ~CcGooScnsp:o@3:~[8 ~g~:JS~:I cnsp:o~: ~:~~eg~~99 roop:
o ~~: :~~:~6'J:pt ~EcGooSrospw f~=~J!5 :~::S~: 8aS~~51o50)tBJ
 n3ccso~soo~eso~< Socrosacfu~
;,3ccso~lGJ~ ggc~cc~EPcc 3b~~ge
:;Zo!fgcsbsod~ u3ccoeJggochco~g=~~~ 0 ce~gb~:Zo~
u3cc~Lo Co"l_og8~e ec:ccLom~ gec~C:Cpclfu~ 1~b~
~re~g0 cccSogc/h~ecccc~cccgcl9~e~e ~~e:!cc~g~:reeg(Jiesoec
:~ec :g~esrocco3~ec So~ec,, 3~3sec ~gg~-3ml9~gg0
usocoe:!flcco~g~~socu~eG
coscoe~~gchco 'SO cU::D~ecscccMg38socuEP~es wscoeg~~ch co
lccce~~;chco ggooescu eJ ~~c.ofirbscc-;:::~bgL 5~reco g~~bBcls<;o
~C03tJeG Sog3e~bG IbeG fJ f ego I ~CCOCP~:o~gogg~~:chco IbeG
'( ~) ~c flgo co3o:begJg ~:cJ3fCSb(o~ jgscroscce~:cesy~
eo3ccp~:c)3~ coscoe:~~ r3bLmo~sogc~e g~pcupre
co3ogbegJ:0 ~~g3ccb~dg4ec ~soeoe3ec~&pclfue
u3cc:cco
~c!Eo~3b0ew~gg~ ~:chco 1~:re~g~3cu3?f~ec :~w~j~kccp cc
gcecss pcftDeecsccc~gcco~:M~meoc eob0~c4g4effl&3e gc~
gec~:~ u:gcJ~gccc~ec~3mbeg:~ I~Loflo:~gec~@@
lcfi;gb~c~)~ec sc0~ JcoC:Cg:>cfu~ so~ecscoe3jgc0
- ' u3ccroeso~S08So~es
g~fu6'le ecproe3(")~g~es COL o&J:b~m~propreplm3fCSo f) r
IIC LO flOGeocpecgb~g):@ e!to~efp 1~g~:reeg0e gcecep;~So~ec
so:b~g
~m~~sob oc ro~L oc~.Q 1e 0Gf.Jc Jcogge3mbeg~0 u3cc~
:~e:~b:L5
if gcs:opcfu~ co~~sob r cuc~o~ Je GGf.Jc I ~so:gfl3o:beg90
r
:dsm~ 1bLo:oeggge~:chco 1bec ( w) ~c egqGeo2pec:b~gl:0e:~b:L5
0Gelc ~:9b:L5greco :cen~g!e3so~,~, c pf>ec &b<::cropcEJe ~~.~~
16 s.rtrOd3:1l '}A V'1 VWtlflH [LS6l
 ~~~~&ecf?3sec~:0Cc:chc.opc..,ch pccch G ~~~C.O'!b LO~~~;:Job c r m@
rg~e .GGel c ccc~so file g&> Gc p~ec~~ ec: :c~ecso o~ch rg ife 6 GeJ c -~
116 o( soli ec ~~l!oec:;o ct-o:Jcb rg~e GG eJ c *
------------..
&~~:cbco 3t'o Gc pew ~~emccl:'ec :;oo~cb r~!fe 6 G~<
~~~~&~::hco soo~ch ~CCclsf.~() r~32:o~l9u HSSS'-eG~:g
rr~dcc 13e.G r~ cco~e-~&ec~:chco~&->e~:
" ( c) :3 e 3 c.rol:'lg-so&ec~d9co~~en
. HJcdoccc~cc r l gij'~>d spod<>(I MU'J uuuna Js6I
rgbc~:;,e3ifcc~cc:~ HS2e3cc~socc ltoecsoec ifqc~l!ogcosooo bec:~c.o~{o
g.osnwco sccc:cfi tf>ple~ce:~S w&g~e:~S glfDLo~gec~C.OI!oegcopco
bemgc.o:Sr>socccccc&eo :cP,ne:~g w8::g~:c.l~fCC03 ~ck>~~S0~01~c0::.coe
"
HSCtcsoc~
co:ggcosoco 3 ~rocccesc ,~rcbgro ~cece~scB=scc.o~~cof?g:,:s~soco
r:gge:gcjeJeo ~socfislge~:go uscccb~~~w g~.ol.9~g:,~g r ccssoc-ce:1s
g~igT scene~ r:gco:c~ccoego~ff~x&:pcbe!;n~eo f?:cf!:p~
~:flC\J ple~&lcccecc~Jf;e:gceeo ~roeo3eo soccco3~so:cco c~pleec
c-:ce:~beeo ~cbgcceecoo9e :elf.:~~,) gocccccc~on ~- usoJeso=~
IJ:g
pcecoeo :b~goosocc:~~~g:> ~c./A:~&:, gocccccc~o 'oo6 :~sR:o:;o o..,ch
r copbJ .
* ( ~gchco~meG) geGae 'I
GGlc.j.
3~
sco::J
soro:chco (f}:nchco~roeG) ~mce~8eG
~(g,g~gcece:~ :~ osco~p8J:cbcc
<;& ensoo.a:>cb
SL1IOdH1I 1& V1' .VW1fi}H
 ~gccoBgro .?fgrocd~Beo g~geGBfl ~3row ( c-8:>) g:>g38JSo
u3cc~C.Og8cflflboSCccgco:pCD gg~ eGCfglp32cc3fl tcMBSCCC
:!fl g&ds~,, ~t3ccg:;ggc$~:cmagroSD~rocfl~Beo g~geBefl IW
( c-8:>) ~mccgg CC0SOCCSgggb u:!cc~30eB C.O~cc~~b~lt.Ogro~~
c.ogCDcro~gre e1oe~g;ggb ng~Bfl3CD S&}~~Wgeo0fl 1~gl~c0 ce
C<]~C.O Ccc0gl~CDgco:pro nsccc~ecc0alflc~ ggcjeJeo:ces
1oese3cc~{')~ (cgcrocc~~c~cmeJ3em w (~ro~}lB) ug~ceJ{')
ggc)B~Lo3eoc3{') ce (ff:CDSJflel) c.o0goo:pro n:ccSeoc3cc~
g..>tgcre0goLo grogcreBCCDCjfl g~~ess;ocmwso~ le0(s='grfc:l)
&:ncroeo I( CCBeB3~~3Lee) S:>w3 w/Xi~C!.cccc~G3C~e g..>roes
~ggb n:!ccg~soe:;oro socmecoocgces g~gcods~Bes grogl~w
~gb u3cc)~gb0 ecogl~w (leB) CflC~~'J.} I(J)gc<::eecCD)lf>
u:!ccSeeo~ccg>ClieJcro;uccoB G 1b 3cc5f~ goesLoeBgcoch~8es
13ccgoo:;oro gro~osol3caw tggbg~grocfl~8eo ,bv::;p~~g(J)eo~
:gb u3ccSeC.03cc~eJS~gcogocccccc~o c.oleeo(J)~ g3roceggb
ug_gce~3cc:~~IWgcoo::.l~tf> g~:~cog~fugocccccc~o :ceo
3cc:gb 1gebt>g~groct>Mv::; ce~eo~:esflfl u3ccggo:;o~es
c~~socheJcheBL og'6Bes3roes ceSDg3~fl 1g3&igoo:;oro 1gg~ec
~g;p 3 occccccg;o&0~ 3b soroeo~b3~bsoB(J)gwgccot> 3!fuLo~g5':cf!:l
g~eo3occcccc~o 13cc:cr!:J&s~~chco tS:>~chco ~~g~~eG~
. n3cc~ec:!cc:coo~:;orogro~~ g~eG8eeJS09
~~f) e:3g~oc ~~~~a:ggoopro ec.oLees0socc :cec&Se:er;ea.
lWjCDce&Ber; ~:chco~&iv::; u:!ccSeto3ccgggbSe~:dsco 1cc~
pccoet>p\:!0 gceG:gb 1pc~B~:c&p& gccsoro3~e~ff.:ceG~3b
w:groc11~8es1g:bpb 0.roc'f~g 13~e cG elc n3cc~eo3cc)~e
rg~gc.eo~:~
~eggcesc be SO~ ot~g; Jg~roc~b5(i)tsod0:~~Bgroso~cflwSD:gb
uscccgcogJro 3ooso~ceC.O lbeG'f~SnjOCCCCCC~O 3~sroce~8eG r~eo~f'l
IWSOcB~olb scccggb lbeople~~(J)eG ~:eG0B ~:chco ~&ies 3~
~roc.el:iSen
ll sccc~~:gg O~OOeG
GG~c
em '~S~WB!'l c.o~roce&8ffi I[p:gsoe~3SeG C.O:!ebgo:eB:00 ~{..0:?>
c.o~roca/:;BeB ecg~:chc.o ~
8 0 c g!C\)(\)C0 SO\:!CDKC'Of> JgceGgffiBf} soco:chco
LS6l J 'S..L~Odt1 M.':I'J VW1Il8: z
1957.) BURMA LAVv'- REPORTS. 3
'
G&t~ d3xt~~n0Q~e%n ~62':16,.5 rooSooo080~1mI Gt~
G~~ rooSoooG')s~ c;fd30J~I:l0f?ll G~ T2~ ( ~8-s) m GGGC3~<~,.
G6ro"J GCO~tspo.2f I qt~Gspc :::D~II ot C\J')~ o:'2g0rn ~tg rooSooo :::D~II
~GGS]~t1~p GOJ')O~')g Cf I~ GOJ')d)l Gcp:lroG(9g~C~SJ'J S~gG Cf I~
GO:'J:bGro'JoS:x'J G~x~:r{~::Dtu ~;po.2'E c;E~rn'J~S~CI)~GG~~~g
CX(cDS(J~I G6C\J'JGOO'Jt0 GsproG::DS~"l)'J~rn~oSI ~t~Gto 1~~
<f'Jdtop'JGOJO~GG@;~tll, ocScospSJ'JCD~: CJcS~G~o 1@~G6'J:~G::S
~.~mtu
lj(CDOO~ . ( ~@-~) OJI GG83~19838'JG'JC\J~~ rooSooS'ID~qtg
Gspd3:ntu .~od5::n'J:n"Jrnb) rooSooomi trt~::otu qfw ~~~rf.)
Sdb)l c;t:~::, ~G@rnG.po~~~:D'J(j]G~8)l m@:@~G'Jc: ::3J::ot 11
cooSooo0~:nt~GmSrot~ Gt~Gto 1~G'Jc~GG@'J~tu ro:noS
:~~m ( G~15:~5rnG:n) ( tlJ5gcS) C\(S::ot~ ~03)~:ntu
8ff0G~ (~@-G) mr GGrngl~ 82tJ1jG'Jro5cOJtr rotGOJ'J:Oi
~G~.Srot~r. GGrn~~r 83\:)11G'JCD~m rorooo802xt1 Gtlil::Dt~
g'JSc.q~O?tu /
..
GGrn:xtr od5:n'J:n"Jotsa]r sag11G'JCD~~ oo,;pwfS~~g@>
G'Jt: ::ooSG::o~rn~fsaa?<J~u C:>Grng~sa0~Q~oSsas1 r rooSooo0
rn~im GqpE~~J)~~~~O') ( GQ1E~~CToGJ)) ( t)rfgc{)) oro:ntc.q
.~xtu qc~G9pb~~'Jr J3slt:n'Jx'JotC)!~g@~xtu ~@~~ c;cg~
rn0)Q~oS~'J ot~G~II o:i5:D'JOJ'JOCC)!~~m~E~~5: rod3m5spou51
J3~,, :J.)'JOJ'JOCa;(~:ro~gm I.tGsp oSm'J G~ C\J'JGC:O'JCS1 Q s~ S<l<f:l g~ I
0

rnGEi)W1rnsp~spoSx~G.pspm o tGspoSm'J GC:CDC8Jo5xt~cgl'J

0@S~cu .:fvm;tGC:O-:iC.C9:Jg:n~ :n05G:JJ~C\JOJ~m ( GQ lb~tSOG:D)
C\(O~~'JI G~jj'JCn~Gc_qoSr ro::noS~xtc.q m~m<>ID~@:n~u
od5 :JJ'J :J.J? oCo;(~ :C:lj'): GOCO'J GCO?C sp~ 1 83G6)g~~Go.:>'J no~oS
p r oo:noS~9m::noS rn[g~rncg~ rnG"Jt:Q~~I OJG:D'J<J,?~~nS
:DnS Q~ o5<:jpg ~ rn8]oSGspJ.l8j?:n oSG0.} o:f5 X'J OJ?o tG U::'J o~p:OJ~ r
:d~a) J ~g\9 s~~~~d)GOJ j ~gcaGSlo.2C md3&bJ:ntu CJC:~
~tGSJG:i')c~r rnG'Jt:sft@cgr C\JroQtg~~~ OO~Gmt: @tf~
:;sa'JCC\(OJ~t 1 ~1j:::D'JC\jj5 rod3ooo@E~sacoG-: d3 :nt11 ~@fl W
4 BURMA LAW REPORTS. !,19~

OOli(J:<;2oS (;JG82:~aa00~:~j0)8Cl6)1 C)C~3<?'J! G(,OJ')GOO':lC~~Ci uag)ll:il':lOJ~:::D

GJ.>S~ lj c;t:ao':l:GOOJ'JG~:d:b]~ GOJ')tgc:mt:~~~ qf:mro~~ ao~
~e ::1~ G':lOJ~g;'J: rotao@~ GO1t:::DC:Gt ~::D~To~'Jt: cuo5~bb
O<l8!~'Jro 5 G2,3':lt~ ex>Cl'):OJ~u cucf)ro5Go:::D~ ( GdSrod3) .p')gt~oc Gt~
l:lGO<l: 1 G~Olot aad38Cl\!:Jj{;)GB')~C II roo5mb0ao ~1moo ~:1 ID':l~[ 00')00 (
~ - - ~Qc Gbl:ro'):::Dtot~::Dtu qt;0':l~[ OID':looS:~p qc:dil~GoTmoo5:cu':l0
t;':G::r.l'JCorCII ~I
m I qt:?~8Cl~O 1GCU')~ Co5~::Dtu g]~m':l~lj') G.f~~G::D')IOOY
GotoSu 8CJG::D:m~@~G::D') G1oSB:~cuo55JoSJ ~s~~~~CQd)SJoS<:jp:c
Oj(OJ':l~COjjCI 8ClG6):ao~:d(:GOJ') g(,cu'JGOO':ltiDm ~~o~o)c
0')~ [0 ~ Oj( cu'J~C6)Godtu
80fl)lG':lCU~ml GGTo:~ qt:~S~~G@f::Dt~ ~cc(3'J:::D':l:SJcf
ootrooSSJoS~ G<9T@cx)'):S:aoGG':lt:~'2~'3l9l~' GGm~'Xlil c;S:~
S~:Gao@~GG~o5~~5u qc:curESJoSOJE S~:G~ GlSToo'J~@S:::D~
::DG~m')l~m') Gl'lT@CXY:l~S:oc@~oo~on>::Dtu
::@~~ ~8Clli02CI GGm:mt dafl)IG'JroJ~ m~:oCGtD':l:
G'Jt: GGoTqst~n gGna:?~ mg~g')m.))~~~Go 1E:'l':l:~'J m~oor.
G<j'C'O'JCDt<j') lj~CDtll CDtGtD'):@~::Dtot 30{:jj'J!~~CYX.lj(OOGOO')~
Oj(OOGQcB~Gtll ~~a# ~o?~8CJO;j>GOlt~::oC:CU')~~!?~ O~:::D'JCD
oE~~~~oo~wtTo65cutGo)':l:G@~~Sn oooScoo~m' o~::n
::D'J occa?:oo~:ao b]ICUd)gooO~ cqt1 006p!OCCDCGO)')gao@~~ GG~cf
~g;~OJCI GGao:ro 8Clfl1{G')OJ~~~mo5moiDm~:oo~~806)1 rod)oo.
::Dt~ md3aoroC:soG'Jt:G~~ qt:::Dt D<lt)1lG')CU~OOljl gOJ'::
0~c6G6)~80? 06j~D~:@c6::Dt'li @~ ooG-~ j~ lol G-~"HI. ( 1) ~~ m~
02t1 QtD'J!0'J!0~c~~Gp~l GO)')()~'):@~JU_m8~~1::1To':nJ O~:::D'3CD'
o E a?~ooG~0?6] CDchOOOGOj(:JtGB')~~o10jjCI 8~1GC~t0:::t;?m qt:G@
~~o)~ ~'J:::Dti OJmoSoca?:ooG~ao6) ruo5moq,~EJ')cm~ 80C
8Cl0:jJ ::Dd5G::DBbjGt<Jt~mtu
~@~~~ ~m~028 Gaa'Jo)~glj ~~oS~o5G::D':l mS~J? o<:Sqjo
m':ll 8Cl0i/Q oot;p:~ GGTog ~G01'Jd3~')~ oro6~tt::Dtu
..,..~-~---------------~

(I) t95!, Burma L:lw Reports, p.ll3.

1957] BtJRMA LAW REPORTS .

APPELLATE CIVIL.
Before U Sa11 Marmg, 1.

DA w DAw SHIN AND TWO OTHERS (APPELLANTS) H.C.

1956
. v. Aug. 23 .
u AUNG PE AND TWO OTHERS (RESPONDENTS).*

Burmese B11ddlrist Law-Suit for parliliou-11/aiulainabili/ y.

Held; A suit for P.!Ttition and possc;sion among Burmc~c Iluddhist
heirs is not _ruaintainatlc in Law.
The only way .in which one heir can ohlain his share of inhcliLncc
rom lhe other heirs is hy an :tdminislralion S"J it.
Jllauuf! lJa Tu v. Ma Tlzel Szt, 5 R.tn. p. 785 ; Ma rwa Sflm v. (T l"o
Sin a11d allolitcr, ,<\.I. I~. ( 19 .' 7) Ran . 324, appro1ed.
'

Tin Hla for the appellants .

.
Yan. Aung for the respondents.

U Si\N MA.l}NG, J.-In Civil Regular Suit No. 2

of 1952 of the Subdivisional Court of Pakokku, the
plaintiffs U Aung Pe and Daw Sein Po who are the
first and second respondents in the present appeal
sued the defendant-appellants U Soe Maung, Ma
Kyin Myaing and Daw Daw Shin for possession of
a 'piece of Ian'd measuring 2693 acres situated in
Pakokku town. Their case was that the suit land
was purchased by them from Daw Hnin Nwe, widow
of U Po Hlaing who became the solt owner thereof

" Cil il 2nd Appe;tl No.4 of 1954 , against the decree of the District Judge's
Court of Pakukku, in ctvil Appeal J:lio. 2 of 1952, elated 17Lb October 1953,
arising out of the Subclilisional Court of Pakokku in Civil r~cgular No. 2 0
1952, dated the lcth July 1952.
6 BURMA LAvV REPORTS.
~

I-T. C. on U Po Hlaing's death that the defendants U So

1956
Maung and Ma Kyin Myaing had trespassed upo
~~\~~~~ ~~:)'' lhe land erected a house and put up bamboo fencin
T\\'o oTHERs thereon and that when they were told to vacate the

u A;~G PE said that they were there with the permission of th

A:TuH;~:~ 3rd defendant Daw Daw Shin. On a notice bein.
U SAN
issued to Daw Daw Shin the latter claimed that th
MAuNa, .J. suit land belonged to her and that the 1st and 2n<
defendants were occupying the land with her permis
swn.
The defendants by their written statement claim
ed that the suit land belonged exclusively to Dav
Daw Shin as the only wife of the deceased U P<
Hlaing. Daw Hnin Nwe who was subsequent!;
joined as a pro forma defendant under the orders o:
the Court did not file any written statement and th~
case proceeded ex-parte against her, the issue~
framed being_
(a) whether Daw Hnin Nwe or Daw Shin 01
both were the legal wives of the
deceased U Po Hlaing ?
(b) whether the registered deed of sale Exhibit
B executed between Daw Hnin Nwe'~
agen t U Thu and the plaintiff U Aun.g
Pe is valid and enforceable, an.d
(c) to what relief, if any are the plaintilfs
entitled ?
The Subdivisional Judge by his judgment dated
the lOth of July 1952 held that both Daw Bnin Nwe
and Daw Daw Shin were the legal wives of the
deceased U Po Hlaing, that the suit land originally
belonged to U Po Hlaing so that on his death both
the wives will have certain rights an~ interest in . the
properties left behind by him and that until and
unless the rights and in terest of each wife :n respect
1957j I3URMA LAW REPORTS.
of the suit land has been ascertained in a suit H.C.
1956
between them it 1111JSt remain indeterminate. He
accordingly dismissed the plaintiffs' suit for posses" ~~~~ ~~:
sion with costs. Two oTHEr<s
v.
On appeal by the plaintiffs to the District Court u AUl\GPn
AND TWO
of Pakokku, the learned District Judge by his order oTHERs.
dated the 4th of April 1953 in his Civil Appeal No. USA:><
2 of 1952 remanded the case to the trial Court under IIJAJNG, J.
Order XLI, Rule 25 of the Civil Procedure Code for
the trial of the following additional issues :-
If Daw Shin and Daw Hnin Nwe are the legal
wives of U Po Hlaing, what is the status
of each, and what would be her respec-
tive share in the house.
The Subdivisional Judge accordingly submitted a
fi~!ding to me effect that the respective share of each
wife would be half of the suit land or house site as
.the wives were of equal status. When the case
came up again befor-e the successor of the learned
District Judge who had previously remanded it under
Order XLI, Rule 25, the learned Judge passed an
order declari.p~ "that the plaintiffs were entitled to
half the disputed land. He however, refused to give
a direction for the removal from the land of the
house built by the defendants U Soe Maung and Ma
Kyin Myaing.
In the present appeal by Daw Daw Shin, U Soe
1\.faung and Ma Kyin Myaing, it was urged that the
learned Judges of the lower Courts had erred in law
in not holding that the suit as framed was not
maintainable in law. On the authodty of the ruling
in the case of Maung Ba Tu v. Ma Thet Su (1) it
was pointed out that until and unless a suit for
adminis.tration l'lad been decided, Daw Hnin Nwe's
(II S Ran. p. 785.
8 :BURMA LAW REPORTS.
H.C. share in the particuh11 piece of property now in
195{!
dispute nmains indeter-minate and that therefore no
DAW DA\V
::;N ANn ~uit for possession such as that filed by the plaintiffs
Two 9~~mms can be maintained. In my opinion, there is . ample
uA~U
AuN-G PF.
T\\"0
force in the arbo-ument put forward bv J
the learned
orHERS. Advocate for the defendant-appellants. In the case
u SA~ of Ma Pwa Shin v. U Po Sin and another ( 1) it was
MAt:Nn. J. observed by Dunkley, 1 ., that strictly speaking there
is no such thing as a suit for partition among
Burmese Buddhist heirs because they are tenants-in-
common and not joint tenants of the inheritance that
the only way in which one heir can obtain his share
of inheritance from another heir or heirs in,- posses-
sion thereof is by an administration suit in which the
whole of the property belonging to the estate must
be brought to account and that consequ~ntly if an
heir is to get a share of inheritance a sui'i: for a share
of one property out of the inheritance will not lie.
Although no doubt the plaintiffs U Aung Pe and
Daw Sein Po had purchased ~he right title and
interest of Daw Hnin Nwe one of the widows of the
deceased U Po Hlaing, what int~rest they have
acquired in this particular piece of lanP. must remain
indeterminate until the whole of the property
belonging to the estate of the deceased U Po Hlaing
has been brought to account. If for instance, it is
proved that Daw Hnin Nwe had taken more out of
the estate than what she was entitled to obtain her
share in the remaining property including the suit
land will be nil. If, on the other hand, Daw Daw
Shin has taken more out of the estate than what she
is entitled to her share in the remaining property
including the sult land will be nil and Daw Hnin
Nwe will be entitled to receive the whole of the suit
land. ,-
(II A.I. R. (19371 Ran. p. 32~.
l957l BtJRMA LAW REPORTS.
For these reasons I consider that the suit for H. C.
1956
possession' of the land in dispute is not maintainable
DA'V Dt.W
in law. In the result the appeal succeeds, the judg su1N ,\NI)
ment and decree of the District Court of Pakokku T\\o aTIIEIIs
v.
appealed against are set aside and the plaintiffs' suit u AcNG
A~DTWO
PE

dismissed with costs throughout. Advocate's fee in omERs.

this Court, 3 gold mohurs. lJ SAN
1\1 A l'NG, J.
 :BtJRMA LAW REPORts [1957

APPELLATE CIVIL.
Bforc U :Ba Tf1ou11g, J.

B.C.
1956 KAMIN! KUMAR MALICK AND ONE (APPELLANfS)
Aug.15. v.
ZERMAINI RANJAN CHOWDHURY (RESPON-
DENT).*

l.a11dlord aud Tcuant-Suil for cjccimelll-No/icc nuder s. 11 [a), Urban Rent

Control Act aud s. 106, Tnmsfer of ProPerly Act-lulcr:Prclatiou of
ambiguous IIDlice.
Notice, dated the lJtl! October, 1952 set out i11fcr alia as follows' :
"This notice is hereby given to you to pay the said arr~ars of K 133 to
my client Zarnami Han jan Chowdhury CJr to leave I h:: premises within 21 days
from the re ceipt of this notice f.iling which Jcgnl action \'lill be taken in
Court for recove-y of the arrears and for cjldment from the '"lremiscs."
The notice was received on the 11th October, 1952.
Contended by the Appellants that:
{1) 21 days after the receipt of notice falls on the 1st of November 1952
anrl hence a fresh period has begun from the ls~ No vember, and
(2) Tl1erefore, a fresh notice to ;tppellants gi,i ng fifken days ending
with that month would he r f'q uired relying on Malrumall Sa/uarain aud others
v. MI. Ram', A.!.!{. (32) (1915) p. 46 ~ , was relied on.
(3) In a suit fvr cjcctnJent, the provision of bot!! .s. 106, 1-r;msfer of
Property and the Urban Rent Control Act must be complied witl] rdyinf( on
T. H. Khan v. D.7wood Yusoof Abowallt a11d ollrcrs, (1947) RL.R p. 354.
Held: The wordings in the notice arc a!llbiguous as b whether the
appellants are to stay on till the Jst of Nove:nber or qllit by the end of
Oc.tober.
In interpreting amb'guous words in notices, the test is to sec what the
words would mean to tenants well conversant witl' all the facts and
circumstances Of the tenancy.
Dr. U Chit and 011e v. Daw Oh't Yin, (1952) B. L.l~. p. li6, followed.
Ilcld fnrl!Jcr: The 21 clays time given in the no:ic! is only for the purpose
of paying up the arn:ars of rent and Since more than 15 days enchng with the
month of October has 6cen given to quit, it means that they are to quit by the
end 0f October.

* Ci vii 2nd Appeal :--l' o. 125 of 1953, againsl th e decree of the Additional
Didrict Court of ,\l:yab IU BA GYM<) in Civil ,\ppca1 No.3 of !953, dated the
4th September 1953, arising out of the Township Court of i\ kyab in Ci vii
Regnlar Suit "No. 59 of 1952, elated the 19th May 1953.
1957] BURMA LAY/ REPORTS. il
Dutt and .,Tun Sein; Advocates, for the appellants. H.C.
1956
~~-Hill'!
Sein Tun (2), Ad vocate, for the respondent. KIJM,\11
i\1,\LICK A~IJ
oNE
U BA THOUNG ' J ._The plainti!f-respondent sued z v _...EI~MAINJ

the defendants-appellants in the Township Court of l~ANJAN

. CHOWDHUR~
Akyab for recovery off( 140 as rent and for eJectment
and for delivery of the suit premises. His case is that
he took the Ieas'e of a room in the suit building
belonging to one Shaik Busher Ali and two others
through their agent Nazir Ahmed at a rental of K 35
per month, and after partitioning the room into two
portion!?, he sublet one portion of it to the defendants-
appellants as his sub-tenant at a rent of K 7 per
month. The defendants-appellants did not pay the
rents due to, him from March 1951 to October 1952,
and refused to deliver possession of the suit room,
and hence he filed the suit after giving clue notice
'Exhibit E. The c+.efendants-appellants contended
that they are not the sub-tenants of the plaintiff-
respondent, but that they are the tenants of N azir
Ahmeq. himself to whom they have paid all the rents
due4 ~,

The trial Court h:;ld that the plaintiff-respondent

is not the tenant of N azir Ahmed ; that the defendants-
appellants are the te1iants of Nazir Ahmed and not
the sub-tenants of the plaintiff-respondent and hence
the question ef ejectment by the plaintiff-respondent
a'gainst the defendants-appellants does not arise, and
with these findings the plaintiff-respondents' suit was
dismissed. On appeal to the Distxict Court, the
learned District Judge reversed the findings of the
trial Court and held that the plaintifi-respondent is
the sole tenant of Nazir Ahmej and that the
defendants-appellants are the sub-tenants of the
plaintiff-Tespondent; and a decree ;fn favour of the
 BtJRMA LAW REPORT$. [1957
I-J.C. plaintiff-respondent was given with costs. Hence
1950
this appeal. r '
KAMJNc
KaMAn The question whether the defendants-appellants
IIIAJ.~~~ ANo are the sub-tenants of the plaintiff-respondent or
v.
ZEHM.u:q
whether

they are the tenants of N azir Ahmed is a
HANJAN questiOn of fact, and the lower Appellate Court after
cno~uRv. carefully considering the evidence of both sides came
TH~u~~~.J. to a finding that they are the sub-tenants of the
plaintiff-respondent, and as I do not think that this
finding of fact arrived at by the lower Appellate
Court is either perverse or not according to law,
1 am not prepared to interfere with it in this second
appeal.
The only question to be considered in this appeal
is whether the notice Exhibit E given by the plaintiff-
respondent to the defendants-appellants ,.is valid in
law. It is contended by the learned counsel for the
appellants that this notice is not valid in law as it has
not complied with the provisions of section 106 of the
Transfer of Property Act.
In the last paragraph of the notice Exhibit E
which is dated the 1Oth October 1952, it sets out as
follows:
* * * *
This notice is hereby given to you to pay the said
arrears of Rs. 133 to my client Zarmani Ranjan Chowdhury
or to leave the premises within 21 days from receipt of this
notice ; failing which legal action will be taken in Court for
recovery of the arrears and for ejectment from the premises.
,,

* * * *
The notice is dated the lOth October 1952 and it
is not disputed that it was received on the 11th
October. It is contended by the learned counsel for
the appellants that since the defendants-appellants
were given 21 days from the date of receipt of the
195?] BURMA LAW REPORTS. 13

notice to ..J.eave the 'premises and as 21 days after the H.C.

1956
receipt of notice fall~on the''rst of November, a fres)l
KA~HNI
period has begun from the 1st November, and hence ]{uUAR

a fresh notice to the defendants~appellants giving MALICK AND

ONE
fifteen days ending with that month would be v.
ZERMt.IN!
required under section 106 of the Transfer of Property RANJAN
CHoWDHURY
Act. It is also contended that if a landlord wants to
eject a tenant, h.e must comply with the provisions U BA
THOU~G, J.
of section 106 of the Transfer of Property Act as
well as with s~ction 11 (a) of the Urban Rent Control
Act. In support of his contention that the notice
Exhibit E is not in compliance with section 106 of
the Tr~nsfr,r of Property Act, the learned counsel has
cited the case of J\1atrumall Satnarain and others v.
Nit. Rami .(l) where it has held that:

"When the tenancy is a periodic tenancy, the landlord
cannot permit a tenant to remain on in possession after a fresh
. period has begun and then call on him to vacate the premises.
If he permits him t0 remain on after a fresh term has
commenced, he must permit him to remain on till that term
expires."

And !n support of his contention that both the

provisions of section 106 of the Transfer of Property
Act and section 11 (aJ of the Urban Rent Control
Act must be complied with if a landlord wants to
eject a tenant, he has clted the case of T. H. Khan v.
Dawood Yusoof Abowath and others (2) where it has
held that:
"Urban Rent Control Act does not make any provision
for the creation and determination of the relationship of
landlord and tenant and ifa landlord wants to eject a tenant
he must comply with the provisions of section 106 of the
Transfer of Prop ~rty Act and also comply with section 11 (a)
of the Urban Rent Control Act, and section 11 (a) of the

jl) A.LH. (3ZJ !1945} Pa'. p. 46J .

14 BURI't'IA LA\V REPORTS. [1957

H.C. latter Act does not repeal section 1U6 of the Transfer of
1956 Property Act."
1
~~~ 1 ,~1~
1
It is, however, to be considered first, in this case,
i\IALrcK AND whether by his notice Exhibit E the 'plaintiff-
a~& '
v. respondent meant to allow the defendants-appellants
i~~~N1 A~
ZV1H1A1Xl
to stay on t1'Il t he 1st o f 1N ov ~m b er or w h ether t h ey
CHo~unv. are to quit by the end of October. The wordings in
u BA it are not clear. The 21 days time given in the notice
.TflouxG, J. to the defendants-appellants may be only for the
purpose of paying up the arrears of rent and not for
the purpose of quitting the premises. I think what the
plaintlti-re~pondent meant was that the defendants-
appellants are to quit the premises by. the end of
October as he has given them more than fifteen days
ending with the month of October to de so. I do
not think the plaintiff-respondent has meant to aHo~
the defendants-appellants to stay one day more till
.the 1st Novemher. In any case, the wordings in the
notice Exhibit E are ambiguo:ts as to when the
defendants-appellants should quit and give up
possession of the suit premises. In such cases the
principle laid down in the case of D/. U Chit and one
v. Daw 0/m Yin (1) should be followed. It is held
in that case that :
"In interpreting ambiguous words in notices to quit the
principle which should guide the Court is to test what the words
would mean to tenants conversant with al~ the facts and
circumstances of the tenancy."

In the present case the defendants-appellants must be

presumed to know what was the real intention of the
plaintiff-respondent. The plaintiff-respo ndent has
given them more than 15 days to quit, for the notice
was given on the lOth October and received by them
on the 11th October. Surely it mu st mean to them
---------- -----"-----~
(l) (1952) B,L.I~. p. 176.
1957] B U.RM.i\ LAY~. 1R-E-PORTS. 15
'

that they. are to quit by the end of the month of H.C.

1956
October. In these 'tircumstances ' I hold that the.,~~
KA.~liNI
notice Exhibit E is a valid notice both under KUMAR
section 106 of the Transfer of Property Act and MALICK
ONE
AXIJ

under section 11 (a) of the Urban Rent Control Act. v.

ZF..R)!AII't
In the. result the appeal fails and it is accordingly I?A:\J,\N
CHOWDirtr~Y.
dismissed with costs.
U BA
THou:w, ].
16 BURMA LAW REPORTS. _[195/'

APPELLATE CIVIL~

Before U Sa11 Matwg, f.

H.C. MAUNG THA SAING (APPELLANT)

1956

July zv. v.
MA AIN THA (RESPONDENT).*

E.rectt/iou of Darcc-Order sl ,tyi11g or rcjusi11g to slay c,,ccut ion of a ticCJ u,

w/Jetfu:r aPftalable-S, 2(2) aud s. 47, Cidl P1occdurc Code,
Hdd: No hard and !.1st rule can be laid down ;~s to when an order sta) iq!
a n ex.:cdion \dll be apptalablc as a decree under s. 2 (2) .ead with s. 47 of
the Chil Pro:cdure Code.
Each c:tsc must be cledclcd on the facts and cjrcumslan.: ~~ arisin~ the:ein.
U S.:w Ira aud others v. U Clrii Sau aud ,wolftcr, 9 Han. r. 354; Kyauhsema
\', Aparua C/larall, 10 L.ll. l~ . p, 326; Janardau Triwuba~ Gtulrc v. /Jiartuul
Triun.l>ak Gadrc, JS Bom, p. 2~1; Husain Bhai and mJo/llc, v, Belli.: Shaft
Gilar~i, 46 Ali., p. 733; !tftwam;al Durga Devi ,._ Hans Raj and at hers. 11
L-111, p . 4J2; Audh Bd~ari Siugh v. Sa ilcndra Na't!J IJI.at/aciJ, rjcc, A.l R.
1
(1 g54) C'al., p. 339, rderred to.

R. Basu for the appellant.

Kyaw Khin for the respondent.

U SAN MAUNG, J.- In Civil Reguiar Suit No. 16

of 1952 of the Township Court of Sandoway, the
plaintiff Maung Tha Saing who is the appellant in
the present appeal sued the defendant Ma Ain Tha
for her ejectment from the land in suit on the ground
that the land belonged to him and that she was in
unauthorised occupation thereof. Maung Tha Saing's
case was that the land which originally belonged to
Civil 2nd Appeal N0. 112 of 1953. a ~ ainst the ~rd~:r of the Addilion;~l
District Court of Sancloway in Ci\'il App eal Xo. S of 19)3, dated 29 th August
1953, arising -out of the order, da!ed the 7th July 195 ', p~ssed in Chill
El>ecu ~ion Ca~e No.1 of 1953 hy the Township Jud~c, SalJ~luway.
1957] lJ URM l\ LA\:V REPORTS. 17
his parer:'?ts was acquired by Government many years HC.
1956
ago and was re-tra1:lsferred to him by Governn1ent
l\fA.UNG TBA
in March 1951 on his refunding to Government tne SAJ:-::G

compensation awarded to his parents and that one 11.

MA AIN TIIA.
of the conditions of the re-transfer of the land to
U SAN
him was that it should be surrendered to Govern- MAUNG, J,
ment if ~md when reg uired. The defendant's case
was that she ha.d been in occupation of the land
since the pre-independence period and that she Irad
the permission of the then Minister for Welfare and
Rehabilitation to continue to occupy the same.
The le~rned Township Judge, after a full hearing
into the merits of the case, rejected the defendant's
story as u~true. He accordingly decreed the suit
with costs.. The plaintiff Maung Tha Saing then
sought to (.execute the decree against Ma Ain Tha
a'nd his application for execution was dealt with in
Civil Execution Case No. 1 of 1953. While the
execution case, naroely, Civil Execution Case No. I
of 1953, was proceeding the Deputy Commissioner,
Sandmvay, by his letter dated the 6th of 1uly 1953
requested the Township Judge to stay proceedings
on the ground that he was taking necessary steps to
re-acquire the land for the Government. The
Township Judge by his order dated the 7th of July
1953 held in these circumstances that execution
should not proceed against the defendant Ma Ain
Tha. He accordingly closed the execution proceed-
ings with no order as to costs. The plaintiff U Tha
Salng appealed to the Additional District Court of
Sandoway and the Additional Distr.i.ct Judge by his
order dated the 29th of August 1953 in Civil Appeal
No. 5 of 1953 dismissed the appeal upon two
grounds.-(1) that the Township Judge had in the
circumstances acted very properly in exercise of his
inherent' power by staying the execution and (2) that
 BURMA LAW REPORTS. [1957
.H.C. the order of the Township Judge was not a,n appeal-
196
able order.
!\IAUNG . \'HA , . .
'3AING In commg to the conclusiOn that the order
~fA A~THA. relating to the stay of execution of the decree was
U SAN
not appealable, the learned Additional District Judbo-e
MAUNG, J. relied upon the ruling in the case of U San Wa and
others v. U Chit San and another (1). In this
second appeal before this Court it is contended that
the observation in U San Wa arut'others v. U Chit
San and another ( 1) goes too far and that the same
should be reconsidered. In K.yauksema v. Aparna
Charan (2) where an application for execution of a
decree for possession was stayed on the ground that
the judgment-debtor's husband had filed' a suit in
respect of the same land as against the decree-holder,
Maung Kin, J. after a review of the (~authorities
available to him held that orders staying or refusin'g
to stay execution of a decree are orders determining
questions relating to the execution of the decree
within the meaning of section '47 of the Code of
Civil Procedure and are therefore appealable.
The opposite view was, however, taken. by a
Bench of the Bombay High Court' 'in Ja11.wdan
Triumbak Gadre v. l}_1artand Triumbak Gadre (3)
where it was held that such an order is not adecree
as defined in section 2 of the Civil Procedure Code
read with section 47. Fawcett, J. who was a
member of the Bench while admitting that the words
"questions relating to the execution of a dec~ee" ar~
very wide and prima facie cover a question regarding
stay of executiop of a decree held that in construing
the words of section 47, Civil Procedure Code, the
Court is entitled to have regard to the fact that the
- - - ._.... -----~--. 4 + _____.(~---

(1) 9 Ran . p. 354. {2) 10 L. B.R. p. 326.

fJ) 45 13om. p. 2-11.
957] BURMA LAW REPORTS.
,. 19

:orresponding section Df the old Code contains an H.c.

xpress reference to a s~ay of execution, which has
1956

Jeen omitted in the present section. In Husain 'M"uNG SAING
TflA.

?hai and another v. Be/tie Shah Gil ani (l) it was held fl.
lVIA AIN THA.
hat an order staying execution of a decree from the
:3rd of July 1923 to the 6th of September 1923 M~u~~~ J.
,n payment of Rs. 5,000 by the judgment-debtor was
tot a decree within the meaning of sections 2 and 47
,f the Code of Civil Procedure.
U San Wa and others v. U Chit San and
nother (2) relied upon by the learned Additional
)istrict Judge followed the decision in Janardan
'riumbak {;adre v. Martand Triumbak Gadre (3).
'ractically all the authorities bearing upon the
uestion were however exhaustively reviewed by a
lench of the t..,ahore High Court in M ussammat
)urga Devi v. Hans Raj and others (4) where it
1as held that the order for the stay of execution of
decree pending disposal of the appeal to the High
~ourt falls .under sectio~n 2 read with section 47 of
1e Civil Procedure Code and is appealable as a
ecree. .
Between the two extreme . views, namely that
eld by the Bombay High Court in Janardan
'riumbak Gadre 's case and that held by the Lahore
iigh Court in Mussammat Durga Devi's case is that
1ken by Mookerjee, J. in Audh Behari Singh v.
ailendra Nath Bhattacherjee (5) that an order stay-
lg executiop if it conclusively determines the rights
nd liabilities of the parties with reference to the
;lief granted by the decree will be " th~ determina-
on of a question under section 47" within the
teaning of section 2 (2) and will thus be a decree
.
(1) 46 All. p. 733. . (3) 45 Bom. p. 241.
(2) 9 Ran. p. 354. (4) 11 Lab. p. 402
' (5) A.I.R. (1954) Cal. p. 339,
'20 BURMA LAW REPORTS. [195

H.C. under the Code and app<:;alable as such und{

l956
section 96.
!'.IA~:~...}l:l" In my opinion no hard and fast rule can be lai
MA ..\f~ TnA. down as to when an order staying an execution wi
, .. . . :.__- be appealable as a decree under section 2 (2) rea
iYi~u~!~ J. with section 47 of the Civil Procedure Code. Eac
case must be decided on the facts and circumstanc~
arising therein.
In the case now under consideration it woul
appear that the learned Township Judge considere
that so long as the executive authorities are takin
steps to acquire a piece of land on behalf of th
Government execution proceedings relating to th
decree for possession of that land should be staye<
.He had accordingly not only stayed the executio
sine die but also closed the proceedings. His ord<:
in the circumstances must be regarded as a denial c
the right on the part of the decree-holder to execut
his decree for possession and is therefore
determination of the question under section 47 withi
.the meaning of section 2 (2) of the Civi~. Procedur
Code.
It is now more than three yea1~ since the Deput
Commissioner, Sandoway, had written to th
Township Judge that he was taking steps to acquir
the land in question and the learned Advocat
appearing for the respondent cannot say that th
proposed acquisition is even now effective.
The decree for possession was passed on the 7t
of October 1952 and the order of the Townshi
Judge staying the execution sine die has resulted i
the decree-holder not being able to execute his deere
even though more than three years had elapse
since the date of the decree.
In the result the appeal is aiJowed. The orde
of the Township Judge dated the 7th of July 195
~57] BURMA LAWREPORTS. 2r
:aying the eX:necution sine die is set aside and the H.C.
1956
:arned 1udge is directed to proceed with the
1\!AU!'(G TllA
)(ecution proceedings in accordance with law in the SAIKG
v.
ght of the remarks made above. There will be no i\IA AI N Til A.
rder as to costs of this appeal. U SAX
l\JAU!'(G 1 J.
 .i3lJ idviA LAW REPORTS.

APPELLATE CIVIL.
Before U Clran Tun Arwg, Clriej Just icc and U Sa11 Nt1111tg, J.

H.C . P. S. K. ASEEZAL BEEVI (APPELLANT)

. 1956
v.
Oct. 22.
v. s. SYED AMMAL AND OTHERS: (REsPONDENTS
APPointment of Receiver, Order XL, Rule 1, Civil Proccdttrc Cotlc-0.
rcjccliug, w/let!Jer appcalab/c-Ortler XLlll, Rule 1, Civil Procct
Code-S. 20, Union Judiciary Act, 19-1-8.
Held : An Order made by a Judge on the OriRinal Side. of the High C
coming under Order X L Ill, Rule 1, Civil Procedure Cod e. is. appealablc .
P.Abdtll Gafforv. ThcOfficialAssignce,3 Ran. p.6G5; L O!m [{ltinv. l
Seiu Yin, (1949) B.L.I~. p . 201 ; Rc Devabltai Jiwalldas a ntl otltcr
A.M. JllurugaPPa Cltettiar, 13 Ran. p. 457, followed; T. C. Lco11g aud 011
U Po Th ciu, (1953) B.L.R p. 1, explained and cli st ingl;~shed.

P. N. Ghosh for the appellant.

N. Bose for the respondents. 1 and 2. .

/11. Ahmed for the respondent No. 4.

Aung Min (I) for the respondent No. 5.

Jaganathan for the respondent No. 6.

Judgment delivered by

U SAN MAUNG, J.-In Civil Regular Suit 1'\o. '

of 1951 on the Original Side of this Court, tl
plaintiff P. S. K. Aseezal Beevi filed a suit for declar;
tion and re.:covery of Rs. 20,000 being the tentatb
value of plaintiff's share of inheritance and f<
accounts. The plaintiff's case was that she was tl
Civil Misc. Appeal No. ~9 of 1955, ;~gain 5 t the Order of the Judge on l
Original Side of this Court i11 Civil Rgular i:\o. S9 of 1051, dated the &
June 1955.
19571 BURMA LAW REPORTS.

daughter. of the 'late P. S. Kader Sultan Rowther H.C.

1956
while the defendants were the three surviving widows
'P. S. K.
and the sons and daughters of the deceased. ' ASEEZAL
BEEVI
On the 14th June 1938 the deceased who had 7!.
hitherto been carrying on big business as publishers, V.S.SYED
A~J~!A[. ANO
printers and booksellers under the name and style of OTHERS.

K.O.M.Z. Kader Sultan and Company executed a U SAN

deed of partnersqip between himself and hjs three sons l'vJAUNGi J.

by the first wife, namely, P. S. K. Abdul Rahman,
P. S. K. Mohamed Dastaghir and P. S. K. Mohamed
Rashid Khan, the 4th, 5th and 6th defendants in the
case. The business was then run under the name and
style of P .. S. Kader Sultan and Sons. In accordance
with the provisions of this partnership deed, the 4th,
5th and pth defendants carried on the partnership
business u.p till the time of the general evacuation of
Rangoon in February 1942, consequent on the war
with Japan.
On the 17th of December 1943, the 4th, 5th and
6th defendants in collusion with one another executed
a document purporting to be an agreement for the
dissoJ.ution of the partnership. This document, the
plaintiff alfeged, was not genuine because on that
date the state of mind of her father P. S. Kader Sultan
Rowther was such as would make him incompetent
to enter into any agreement or contract. After the
British reoccupation of Burma, the 5th defendant
P. S. Mohamed Dastaghir came to Burma in May 1946
withmJt the knowledge of the other heirs and legal
representatives of P. S. Kader Sultan and took charge
of the stock-in-trade and the accOJ,Jnt books of the
firm which had been left in charge of the employees
of the firm. Thereafter, without consulting the
other heirs and legal representatives of P. S. Kader
Sultan the 5th defendant dealt with the assets of the
firm as he pleased and subsequently entered into a
24 BURMA LAW REPORTS.I
[19S7

H.C. collusive sale with the 6th defendant transferring the

1956
entire assets to the latter for a- sum of Rs. 32 000
P. S. K. w;len such assets were worth well over Rs. 400,000. '
AiEEZAL

...
ifiEEVl Those of the other heirs and legal representatives
V. S. SYE:n who were majors at that time, made a protest through
AMMAL\ND
OTHEI~S.
the 4th defendant against the 5th defendant'$ conduct
U :SAN
in making the unauthorised sale and a long correspon-
.i\IAUI>:G, T
0
dence followed as a result .
Subsequently, on the 27th of March 1947 the 4th
defendant, for himself and purporting to act as the
agent of defendants 1 to 3, 7 to 12 and of the
plaintiff, executed a deed of release in favour of the
6th defendant fill their claims to the properties,
assets, copyrights, trade-marks, goodwill to the
business of their father for a further sum of Rs. 85,000.
In spite of these sales neither the first sum ofRs. 32,000
nor the second sum of Rs. 85,000 had yet been
distributed to the heirs and legal representatives of
P. S. Kader Sultan. The plaintiff.claimed that as she
was a minor at tl).e time of the execution of the sale
deed and the release deed in question, the defendant
No.4 had no authority to act as her ag~nt nor had her
own mother, defendant No. 2, authority to appoint
the 4th defendant as her agent. Consequently, she
asked for a declaration that the transactions aforesaid
were not binding upon her and that she was entitled
to one-sixteenth share in the sum of Rs. 45,000 being
the capital contribution of P. S. Kader Sultan Rqwther,
in the firm of P. S. Kader Sultan and Sons, one-
sixteenth share of trade profits accrued to P. S. Kader
Sultan Rowther )JP to the 17th of December 1943,
one-sixteenth share in the profits due to P. S. Kader
Sultan subsequent to the 17th of December 1943 and
one-sixteenth share in the profits earned by the
defendant Nos. 5 and 6 by making use of the assets
of P. S. Kader Sultan Rowther.
1957J BURMA LAW" REPORTS. 25
The su~t was maihly contested by the 5th and 6th H.C.
195'6
defendants. They emphatically denied that the sale
P. S. K
of the assets of the firm to the 5th defendant by the 1\SEEZAL
6th defendant was collusive or that the assets were BEEV!
v.
worth anything like Rs. 400,000. They contended V.S.S!ED
A~niALAND
that the deed of release executed by the 4th defendant OTHEFIS.
as agent of the other heirs of P. S. Kader Sultan was U SAN
binding upon the Qlaintiff. Accordingly they con- 1\:fAU(\G, J.
tended that the plaintiff had no claim either for a
declaration that the sale deed and the release deed
were not binding upon her or for a declaration that
she was entitled to one-sixteenth share of the assets
and profit's o(the business up to the date of the suit.
The suit was filed on the lOth of July 1951. On
the 18th of, January 1955 the plaintiJf filed an
application under Order XL, Rule 1 of the Code of
Civil Procedure for the appointment of the Official
R,ec~iver as Receiver of the properties in suit. In the
affidavit of Zakkariy~, agent of the plaintiff, which
was annexed to the application it is alleged firstly
that the 5th and 6th defendants carried on business
in the name of P. S. K. Mohamed Rashid Khan at
stalls Nos. 74 ' 75, 90 and 91 in Sooratee "D'' Bazaar,
Rangoon, originally forming part of the assets of
P. S. Kader Sultan and Sons and that they had
recently transferred stall No. 75 with its stock worth
K 25,000 to their servant P. S. N. Syed Ebrahim and
;taU No. 91 with its stock worth K 25,000 to their
;ervant P .. S. N. Kamaradin. It is also alleged that
:he 5th and 6th defendants were selling goods without
ssuing vouchers and that they had been prosecuted
rom time to time in respect of such sales under the
)ales Tax Act.
Roth these allegations have been denied by the 5th
Lnd 6th defendants in their counter-affidavits. These
lefendants' alleged that these scandalous allegations
:26 BURMA tAW REPORts. [195

r9~ had been made with a view to damaging thei

-- .. reputation and the good naine of their business a
~~:~z~~ the instigation of the 4th defendant who was runnini
llEEvi
v. a rival concern under the name of "Three Stan
v. s. SYEn Stationery Supply Co." in which the plaintiff's agen
AMMAL MID
oTHEr~s. was also a partner.
u SAN The learned trial Judge by a brief order dismissec
MAuNG, J. the application for the appointment of a receive1
mainly on the ground that the plaintiff had not giver
sufficient reasons for the appointment of a receiveJ
at the present stage of the proceeding and that tht
plaintiff's interest would be amply prqtected b)
directing the 5th and 6th defendants to deposit a surr
of K 10,000 undertaking not to do anything to th
detriment of the plaintiff's interest during: the pendenC)
of the case. Security was accordinglyordered and a
deposit of K 10,000 was duly made in Court.
The plaintiff being dissatisfied with the order
rejecting her application for .the appointment of a
receiver has preferred the present appe~-1.1.
A preliminary objection was raised on behalf of
the 5th and 6th defendants that no" appeal h~s against
the order of the Judge on the Original Side refusing
to appoint a receiver under Order XL, Rule 1 of the
Civil Procedure Code. In support of this, certain
observations of a Bench of this Court in T. C. Leong
and one v. U Po Thein (1) have been relied upon for
the proposition that an order refusing the application
for the appointment of a receiver is not a judgment
within the meaning of section 20 of the Union
Judiciary Ac~, 1948 and section 13 of the Letters
Patent of the late High Court of Judicature at
Rangoon and hence not subject to appeal to a Bench
of this Court. However, the learned Advocate for
the appellant has apparently overlooked the decision
(1) (1953} ll.L.R. p,l.
957j BURMA LAW REPORts. i7
>f a Bench of the late High Court of Judicature in H.C.
19.)6
:J. Abdul Ga!Jor v: The Official Assignee (1). Tb.ere
P. S. K.
t was held that for an order made in exercise of the ASEE.ZAL
BEEV!
)rdinary Original Civil Jurisdiction to be appealable, t.
t must come either under Order XLIII, Rule 1 of V.S.SYE!J
AM.r.'!A[,ANH
:he Civil Procedure Code, or be a judgment within OTfiEHS.

:he meaning of clause 13 of the Rangoon High Court U SAN

:.,etters Patent,. It is thus clear that if an order ~IAUNG, f.
11ade by the Judge on the Original Side of this Court
~ames under Order XLIII, Rule 1 of the Civil
Procedure Code it is appealable.
The above decision of the late High Court in
P. Abdul Gafjor v. The Official Assignee (1) was
~eferred to with approval by a Bench of this Court in
U Ohn Khin v. Daw Sein Yin (2). In Re Devabhai
Tiwanda!. and others v. A. M. /vi. i'viurugappa Chettiar
(3) when a Full Bench of seven Judges of the late
High Court of Judicature had to consider the meaning
of the word "judgment" in clause 13 of the Letters
Patent, Page, C.J. with whom all the Judges concurred
observed at page 479 :
"But: ~f only 'decrees' are appealable under clause 13
of the Letters Patent what 'orders' are appealablf":, and in what
circumstances does an appeal from a11 ' order' lie ?
Now. an appeal is the creature of statute, for
'an appeal does not exist in the nature. of things.
A right of appeal from any decision of any
tribunal must be given by express enactment.'
In many statutes in India, of course, a right of appeal
from an order passed pursuant to the statute is expressly
provided, and in such cases an appeal will lie on the terms and
conditions therein prescribed. I will not pause to enumerate
or discuss these enactments, although many such statutes were
cited at the Bar. But. except where otherwise a right of
- -- -- ----- - - - - - - --"'-"-'--- - - - -
(1) 3 Ran. p. 605. (2) (1949) B.L. R p. 201.
(3 13 Han. p. 457
28 BURMA LAW REPORTS. (1957
H.G. appeal ad hoc is given under some statute or enactmen.! having
1956
the force of a statute, the right of a ppe<t~ from orders that do
P. S. K. not imiount to 'judgment' is regulated by the provisions of
Asi!:FZAL
BKEV! the Code of Civil Procedure ; {see section l 04 and Order 43,
v. Rule 1)."
V. S.Sn;o
A)JMALAND
OTHIWS. This is clear authority for the proposition that
U SA:-:
besides judgments coming with~n the ambit of clause
!If AUNG, J. 13 of the Letters Patent, orders falli~g under Order
XLIII, Rule 1 of the Civil Procedure Code made by
a Judge on the Original Side of the late High Court
of Judicature were appealable to a Bench. There is
nothing in the language of section 20 of the Union
Judiciary Act to support the view, that only judgril.ents
falling within the ambit of that section and not orders
falling under Order .
XLIII , Rule 1 of the . Civil
Procedure Code are subject to appeal to a J3ench of
this Court.
In the case ofT. C. Leong and one v. U Po Thein
(1) which has been strongly reli~d upon by the
learned Advocate for the appellant what the Court
had to consider was whether the order of U Aung
Khine, J. in second appeal remanding the case to. the
trial Court for disposal on merits was &~judgment
within the ambit of section 20 of the Union Judiciary
Act as that particular order would only be appealable
if it could be a judgment within the ambit of that
section. Only then could the Judge who had passed
that order declare that the case was fit for further
appeal. The Bench did not, at that time, have
occasion to consider whether or not orders falling
u11der Order XLIII, Rule 1 made by a Judge on the
Orginal Side of this Court were subject to appeal.
The next point for consideration is whether on
the facts as disclosed in the pleadings and in the
affidavits and counter-affidavits of the plaintiff's agent
- - -- -- -- -- - -
{11 (19531 B.L.I~ . P 1,
1957] BURMA LAW REPORTS. 29

and the 5th and 6th defendants, the learned trial H.C.
1Y56
Judge was right in having dismissed the plaj~till"s
application for the appointment of a receiver. Firstly P. S. IC
ASEF.Z.AL
there has been an inordinate delay in the making of BE F.\' I
v.
the application inasmuch as the plaintiff' had filed v. s. SYED
A~B!Af. AI'IO
the suit as early as the 1Oth of 1 ul y 195 I. If she had O'flfEHS.
been so minded she could, on the allegations u S.\N
contained in lJer plaint, have asked for the appoint- Il.f.AUNC., J.
ment of a receiver. The allegations contained in
the affidavit of her agent, all of which have been
denied by the 5th and 6th defendants, are not such
as would materially add to what the plaintiff had said
in her plaint. Besides, the plaintiff has a difficult
hurdle to jump before she can be successful in her
suit, thq_t is, she must prove that the deed of release
execu ted, by the 4th defendant was not binding upon
her. Furthermore, in our opinion also the plaintiff's
right would be fully safeguarded if the 5th and 6th
defendants are placed on terms as to security, though
the sum of K 10,000 fixed by the learned Judge
on the Original Side may be perhaps somewhat
inadequate. 'We would therefore, while dismissing
the appear in so far as it relates to the appointment of
a receiver, direct that the security required of the 5th
and 6th defendants be increased to a sum of K 20,000.
We would direct that each party should bear its own
costs of this appeal.

U CHAN TuN AUNG, C.J.-I agree.

30 BURMA LAW~ REPORTS. [1957

ORIGINAL CIVIL.
Bejo1't U S/m Mauug, J.

H.C. RANCHHODDAS JETHABHAI & CoMPANY

1956
(PLAINTIFF)
nec.-19.
v.
THE STATE AGRICULTURAL MARKETING
BOARD AND ANOTHER (RESPONDENTS).*
Ss. 230, 233, Coutract Act.
Burmese Agencies Ltd., is the purchasing Agent of the S.A.M.B. for
purchase of rice, de!i\ery ex-hopper. A s pecirll term of the contmct between
them was that all procurements must be paid for by the Agent o'ut of his own
money at first and su!Jsequentl)' claim for reimbursement {rom the S.A.M.B.
Burmese Agencies contracted with the plaintiff fur the purchare cf rice in
their personal capacity, no mention whatwever being made U;at they werc
buying or acting on behalf of the S.A.M.B. exce;Jt at the beginning of the
contract rorm that they were the a.~ents of the S.A.M.B.
The pl.tintiffs sued both the S.A.M.B. and the Burmese Agencies for
payment of rice, contending that both the principal :~nd the agent are liable on
the contracfs.
The S.A.M B. replied that the Burmtse <\g;encies were primarily liable to
the plaintiff and they i.e. the Bnrm~se A_ge11cies are liable to be reimbursed by
them subsequc.,tly for sm:h payment.
The Bunn.!~ Agencies conteaded that they were c);;arly acting ;;s Agents
and that the plaintiff should look for paym<:nt to the' S.A.l\LB. the princir;~l.
The question is which of the two ddend;:mls are liable?
Ifcld: That hath E1e agent and the principal are jointly liable. The Bmmese
Agencies by executin~ these contracts in their o.vn name made themsehes
liable ami the S.A.Iv!. B. being the principals. entitled to the benefit of the
contracts are also liable.
Tl1c Indian ComPanies Act, IS82, 18 Cal. p. 31; Firw of [(/mshi Rmp Bclwri
La! v. Malhra Dns and auolher, A.I.R. ( 1917) Lab. p. 404; lfambro v, Bunumd
aud others, (190~) K.B.D. Jl. 10; Higgi11s and others v. lo./11; ScJI.ior, 58
Revised Rep::.rts, (1841-43}-.1. 884; Parkcrv. Wiulow, 119 English Report, K.B.
1497; Unirersal Steam Navigatiorr Compauy Ltd. v. James Mnkclz,ic and
Compauy, ( 1923) A. C. p 492; Ariadne StcamsfziP Co. Ltd. \', James lllchclvie
& Co., (1922) ILB.D. p. 518 ; T. Mullammad Shamsuddiu Rawtlwu & Bros.
v. Messrs. S!taw Wallace ond ComPany, I.L.R. (1939) Mad. '2S2; Babula! v.
Jagat Nmaiu, A.I.R. (1952) Vindhya Pradesh 51, refened to.

Civil Regular Sqit No. 29 of t9S2, High Court.

195i] BURMA .LAW REPORTS. 31

P. K. Basu, for the viaintiff. H.C

1956
RANCH HOD
Sein Tun for the defendant No. 1. DAS
jt.:THABHAl
& CmrPAN'Y
Than Sein for the defendant No. 2. v.
THE STATE
AGRICUL-
TURAL
U SHU MAUNG, 1 .-The plaintiffs in the present
.
MARKETING
suit are a Firm of Gyobingauk dealing in rice . and BoARD AND
ANOTHEI~.

the defendants are No. 1, The State Agncultural

Marketing Board and No. 2, The Burmese Agencies
Ltd.
According to the plaint, the plaintiffs entered into
contracts with the 2nd defendants for the supply of
rice from their two mills situated at Gyobingauk,
Tharrawaddy district and the names of the mills are
the New RiGe Mill and Yadanabala Rice Mill and
the numbers are Nos. 10 and 11 respectively of 1949,
in that particular zone known as Zone No. 15.
Altogether it was all~ged that 28 contracts were
entered into between the plaintiffs and the 2nd
defendants who were said to be agents of the lst
defendan_rs and oat of those 28 contracts in respect
of Mill No. 10, 11 contracts had been completed and
they had received payment leaving a balance of 3
contracts to be still accounted for by the 2nd
defendants and in respect of Mill No. 11; 10 contracts
were completed and also _paid leaving 4 contracts
still to be paid out of which only 3 contracts are now
the~.subject matter of the present suit.
The contracts were for the supply of rice from
rheir mills -and the delivery was to ,be ex-hopper.
1\ccording to the plaintiffs, these contracts were duly
~ompleted by them and the rice was ready !or
1e1ivery and the details are given in paragraph 7 of
heir plaint. After that the 2nd defendants issued
)ay orders in respect of the rice milled and delivered
32 BURMA LAW REPORTS. [1957
ir.c. by the plaintiffs and the details of the pay orders are
1956 4
mentioned in paragraph 8 0f the plaint and the
RANCBHvD
DAS amount to be recovered from the 2nd defendants
JF.:THABHAI
&- Co>IPAN\'
amounted to Rs. 1,63,400-1-0. _
'11'. After the rice had been mined and delivered to
'J.lHE STATE
AGRICUL- the 2nd defendants who accepted these rice on behalf
TtH1AL
MARKETING
of the 1st defendants in their capacity as agents of
BOARD AND the lst defendants, insurgents OGcupied Gyobingauk
ANOTHER.
about the beginning of April 1949 and the rice which
u SHU
llfAUNG 1 J. was kept in the godown of the plaintiffs were looted
by the insurgents and that therefore the plaintiffs now
claimed this sum of money from the 2nd defendants
as well as the 1st defendants on the grqund that both
of them were liable for the goods sold and delivered.
Out of this sum of Rs. 1,63,400-1-0, tl~e only amount
they had received as part payment W8.S Rs. 5,336-0
leaving a balance of Rs. 1,58,064-1-0. They have
also claimed from 6th November 1951 up to 14th
March 1952 interest at the C0urt rate 9 per cent per
annum which comes up toRs. 5,137-15-0 and they
therefore now claimed a total of Rs. 1,63,202-0 against
both the defendants.
The 1st defendants admitted that the 2nd
defendants were employed as their agent in
accordance with the terrris of the agency contract
entered into between the 1st defendants and the
2nd defendants but contended tha,t the 2nd defendants
who purchased this rice from the plaintiffs were
bound to make the payment out of their own funds
in accordance with the terms of the agreement of the
agency and that therefore they denied the liability to
pay the amount claimed. They further denied the
allegations whether this rice was looted by the
insurgents or not and they put the plaintifl's to strict
proof of this. Other pleas were also raised such as
the jurisdiction of this Court to try the ca.se and also
1957] BURMAJLAW REPORTS. 33

as to the maintainability of the suit regarding H.C.

J956
misjoinder of parties. However, when the suit ca:nP:
up for trial the point of jurisdiction and the [{ANCHI!OD
OAS
maintainability of the suit was not pressed for and }ETHAiliiAf
& COMPAI\'Y
therefore their main defence merely came up to this, v.
Tfil'
STATE
that as the agents had entered into the contracts with AGfUCUL-
the plaintiffs on their own responsibility the agent, TURAL
MARKETING
namely the 2nd defendants were liable in the Ilrst BOAIW AND
ANOTI-IER.
instance and that therefore they were not liable to be
U SHU
sued in the present suit. The 2nd defendants i'lfAUNG, J.
admitted the existence of the contracts and their due
delivery, and that they received the reports from the
plaintiffs th~t the rice were looted. They, however,
pleaded that as agents they were not liable for the
claim, as th~y were only purchasing the rice on behalf
of their prin.::ipal the 1st defendants. On the above
pleadings the following issues were framed by
consent of the parties. The issues are as follows :
1. Did the plaintiffs and 2nd defendants
execute the six contracts as alleged in
paragraph 4 of the plaint?
2: Did ~lie plaintiffs deliver the rice and broken
rice as alleged in paragraphs 6 and 7 of
the plaint?
3. Was the rice and broken rice in suit and
other stock looted by the insurgents ?
4. Are the plaintiffs entitled to Rs. 1,58,064-1-0
as the price of rice or broken rice from
the defendants or either of them ?
5. Are the plaintiffs entitled tp interest Rs.
5, 137-15-0 as claimed in the suit ?
6. To what relief, if any, are the plaintiffs
entitled ?
In respect of issue No. 1, we have the evidence
of Motichan Vardhman Sanghavi (PW2) that the
34 BURMA LAW -REPORTS. [1.057
H.C. plaintiffs' Firm entered into ~ix contract;; with the
1956
2nd defendants for the supply of rice and broken
l~ANGHfl(>ll-
nAs
nee. I-r
:J.e was t I1e M'll
1 Manager o f t I1e p ]amtn . . fl's ,
JEnwlH.-\ 1 Firm at the material time of this dis;Jute. The 1
& CO>IPANY
t'. contracts were signed on behalf of the plaintiffs'
TciE STATE
AGmctrL- Firm by the1r representatives and on the other part
M~~K~;~.1;Nl: they were signed on behalf of the 2nd defendants.
BoARn "".m These contracts are Exhibits N, N-1, N-2, N-3, N-4,
ANOTJ;ER.
N-5. This witness is supported by another witness
M~~.:~~~.u J. Maung Tin Aye (PWG). He was the Manager at the
Paungde Rice Mill belonging to the 2nd defendants
and he also stated that these contracts. Exhibits
N to N-5 were those contracts entered. into by the
2nd defendants with the plaintiffs in which they
purchased rice and rice products and a perusal of
these exhibits will show that it is headed"'" Agreement
For Sale & Purchase of Rice " and the name of the
sellers is that of the plaintiffs and the buyers, The
Burmese Agencies Ltd. signed by the Assistant
Branch Manager. There is no rebutting evidence as
far as this piece of evidenc~ is , concerned and in
view of this , the answer to this issue . must b..:: in the
a ITirmative.
As to the next issue No. 2 there is evidence of
Shuji Gangjec {PW 1) who was the agent of the
plaintiffs' Firm in the year under dispute and
according to him the rice was milled at these two
mills of the plaintiffs, Nos. 10 and 11 at Gyobinga~1k
and they were duly delivered in accordance: with the
terms of the contracts e ntered into between the
plaintiffs and the 2n d defendants. He has prepared
an abstract of the amount of paddy milled givin g the
details when the milling started and the date of
deliveries, etc. in respect of Rice Mill No. 10 and
that statement is filed as Exhibit A. Similarly he has
prepared another statement for Mill No. 11 and
1957] BURi\1IA L.AW REPORTS. 35
'
that is Exh~bit B. And then we have the evidence" H.c.
!956
of Motichan Vardhman Sanghavi (PW2) the Mill .
Manager of the plaintiffs' Firm and he also deposed 1 ~,\~c_,:~wo
that
'
after the contracts h ad been entered into between \:Jr.TH ..\JIHA!
CoMPA :-:Y
the plaintiffs a1td the 2nd defendants the paddy was v.
. d and the nee
nulle . supp l"1ed a n d b agge d m
. accor d ance THE S'I'A1'E
AGnrcut-
with the terms of the contract and these were duly 11A~~:~~~NG
delivered and he h.as produced the relevant books BoAim ANn
ANOTHER.
regarding the paddy which landed and the buok
. b U SHU
known as the pad d y lan d mg ook filed as Exhibit :vJAvNo, J.
0. And he has i.\lso produced the daily milling
book ang that is produced as Exhibit Q and he
stated that th,e . practice was that for every hundred
tons of paddy milled he gave a heading " A ''
and for the next hundred tons "B " and for the
next " C " 'as the case may be. And according
to h1m the milling of the paddy started on the 19th
of March and they were con1pleted for all the contracts
on the 27th of March 1-949. And after that, these rice
were bagged and stored up and delivered to the 2nd
defendants on behalf of the 1st defendants. Then we
have Maung Tin A.ye (PW 6) who was the Manager at
the Paungde Mill of the 2nd defendants in the year
1949 and according to him the rice which was purch-
ased by them on behalf of the lst defendants was duly
milled and delivered as stated by the plaintiffs' two
witnesses. And he stated that while the rice was
being milled the milling was supervised by the
Inspector .of the S.A.M.B. and by one person on
behalf of the 2nd defendants and after they had been
mil!ed and delivered bills were submitted by the
plaintiffs to the 2nd defendants and after these bills
were scrutinized and checked up with registers
maintained for the office they passed the bills and
pay orders were duly issued. And he also identified
the pay orders issued by them namely Exhibit t-C
56 BURMA LAW REPORTS. [ l957

H.c.
1956
altogether 4 of them. The first is dated Paungde
, the 23rd of March 1949 to Messrs. Burmese
RA~~~~wn- Agencies Ltd., Rangoon, Pay Order No. 440 for a
JEnlr.tlHAr
&.Cm!PANY
sum of Rs. 47,774. The next is dated the 25th of
THE ~TAT!; March 1949, Pay Order No. 454 for a sum of Rs.
A(:1ucu1.- 46,281 and the third dated th~ 29th March 1949, Pay
MA~~~~!;_G Order No. 468 for Rs. 46)81 and the 4th dated the
l'oRn ANtJ the 4th August 1949 for
ANOTIJEII.
a sun~ of Rs. 23,063-1-0.
This witness also stated that on the first bill dated
U ~HU
:tiL\01\G, J. the 23rd of March 1949 a sum of Rs. 5,336 was paid
by the 2nd defendants and there is an endorsement
to that effect on that Pay Order.
We have also the evidence of U Ba .Maw (PW 3)
former Executive Olficer of the S.A.M.B. and
according to him, he Wd.S deputed to ha.ld an enquiry
into these alleged lootings of rice by tbe rebels, and
in the course of the enquiries he examined witnesses
and documents produced by the parties, the plaintH~s
and the 2nd defendants, and, amongst others, he
admitted the millers registers, Exhibits Q and R,
milling daily reports Exhibits U and V, milling
registers Exhibits 0 and P and log Books Exhibit X
and Exhibit W, duly signed by the Sircar, Inspector
and agent of the rice mill. From these facts, he was
satisfied that the contracted rice had been duly milled
and delivered before the lootings took place. This
witness is entirely an impartial witness, and .there is
no eason to doubt this evidence.
In view of the above evidence which was in no
way rebutted by the defendants, this issue must also
be answered in the affirmative.
Coming to issue No. 3 whether the rice and
broken rice in suit and other stock were looted by
the insurgents, we have the evidence of Shuji Gangjee
(PW 1) who has stated that the rice in dispute were
looted and he has filed a statement giving the abstract
1957] UUfUIA LA\V REPORTS 37

of the ric~ lo_ote_d . f.ron: these' two mills an? tho~e i~-~.
abstracts are Exh1b1t C 111 respect of New R1ce Mill --
No. 10 and Exhibit D in respect of MiH No. lL,. f?Al':~~~on
Ancl over and above that he has also !Jroduced t
JEl'HAHHIII
& Com.>ANY
statements sent by the 2nd defendants to the Jst v;
THE !:>TATE
defendants in respect of rice and broken rice looted AGmcn~
by the insurgents and the abstract of those statements M;~!:;,\~NG
showed the letter No., date, number of bags taken BoAHirAl\ll
,,NOTH!Cl(.
away, insurgent's receipt, etc. and Exhibit E relates
to rice Mill No. 10 and Exhibit F relates to MiH No. M~r.:~~rr.
11. The next witness Motichan Vardhman Sanghavi
(PW 2) also stated that after the rice had been mill~d
in that th~ insurgents came to Gyobingauk about the
4th of April 1949 and then they asked for particulars
regarding the stock of S .A.M. B. paddy and rice and
after
. ,.
that coriunencing from thc.; 9th of May .the
Instirgents begc.~n to remove the stocks, every tlme
they t'Jok away the stocks of rice they give receipts
ahd the receipts are produced as Exhibit Yin respect
of Mill No . 10 and Exhibit Z in respect of Mill No..
11. These series of receipts were produced from the
possession of the 2nd defendants. It was stated that
they also bad .in their possession counterparts of
these receipts and these receipts were seized by the
Police department known as P.4 and he has produced
the receipts granted to them by the police authorities
when those receipts were seized from them and the
receipts given by the police P.4 the Inspector of
Poiice concerned are produced, Exhibits 1-A and 1-B.
The nexfwitness is Mr. N. P. Thakore (PvV 4) who
was an engineer in the mill of the plaintitTs and he
also stated about this looting during' this material
period. Vle have another witness Mr. N. P. Thakur
tPW 5) w[!o is a rice miller of Gyobingauk. He has
a rice mill known as the Ganesh rice mill the number
of which i~ known as No. 9 Mill and according to
 BURMA LAW REPORTS.
I
[1957
H.C. him his mill was opposite to the New Rice Mill of
1956
the plaintiffs and he also statfd that the rice from
RA:\CIHIOD
D:~ts "lus mill as well as from the other m1lls wer.; ali
)ETII,\BIIAT
& co~rPM~Y
1oo te d b y th e .msurgen t s c1unng
. . d . Th e
tl1at peno
v
THE STATE
next witness Maung Tin Aye (PW 6) who was the
AGrlrcur. Manager of the 2nd defendants Rice Mill at Paungde
TURAL
MARKETING corroborated the fact that all these paddy which had

~~~~~~~~() been milled and kept in the plaintiffs' possession

Tl SHU
which were the property of the 1st defendants were
~LwNG, J. looted by the insurgents and he was personally aware
of this looting. The next witness U Aye (PW 7)
was a milling clerk at Mill No. 7 and he also
supported this fact of insurgents' looting the rice
from the various mills. In view of this evidence
which has not been in any way rebutted by the
defendants' side this issue must also be 'answered in
the affirmative.
The real diHiculty in this case is in respect of
this 4th issue as to what amount are the plaintif1s
entitled to as the price of rice or broken rice sold by
them and from which of the defendan.t;;; are they
liable to get this amount if any.
According to the 1st defendants it was 'admitted
that the 2nd defendants were the purchasing agent on
their behalf. But exception was taken to this fact
that when the 2nd defendants were appointed their
agent, a special contract was entered into between
the 1st defendants a nd the 2nd defendants relating
to the terms of the agency and a copy of that is the
agreement dated the 9th September 1949, Exhibit 1,
entered into between the State Agricultural Marketing
Board and the Burmese Agencies Ltd. and the atten-
tion of this Court was invited to clause ( 11} of this
contract where it was stated "the company shall in
the first place bear the whole costs of procuring a nd
delivering products in accordance with the terms of
 1957] BURMA LAW REPORTS. 39

this Agreement. " Then clause (12l stated payment H.C.

l9~6
shall be 1~1ade by tJic Board to the Company for all
K-l.~,cHHOD
products purchased Dy the Company in the follow.i~_g DA~

manner: JEHIABHAI
& COMPANY
v.
"(a) In the cas\! or ric~
and rice products upon presen- Tu Jc 0TA1.E
tation to th~ Bo:1rd of any invoice accompanied by a Ccrlilicate AGUICVL
TURAL
to the effect th,tt the Company holds the seller's invoice and a l\lARKfcTING
cldivcry order relating to the quantity invoiced, a sum equal BOAJW AND
to 95 per cent of the ex-hopper price of the rice or rice ANOTIJlifl.
products {Jlus custon;ary charge3 for bugging, sewing, weighing U.SHU
i\L1UNG 1 J
and shipping."

In view of these provisions, it was contended by

the learned Advocate for the 1st defendants that the
terms of thjs contract appointing the 2nd defendants
as their agent were quite clear that the li ability for
paym~nt of the rice and rice products purchased by
th ~ 2nd d(;f end ants wa.s to be made by the 2nd
defendants out of their own funds and that therefore
. the lbbility for payment rested with the 2nd
defendants and not. with the 1st defendants. The
le~rned Advo8ate has a lso invited the attention of
the Court to the form of contract entered into by the
2nd c.J.efendants with th~ plaintiffs, namely the
agreement for s<.o.le and purchase of rice, Exhibit N
s:~ri';;s . There it was pointed out, the buyers in that
contract were the 2nd defendants and it was signed
by them in their personal capacity and there was no
nl';ntion whatsoever that they were buying or acting
on behalf of the 1st defendants. And the only place
where they mentioned the 1st defendants was in the
beginning of the contract, where they have mentioned
the fact that they were agents of the. 1st defendants.
And it vvas therefore argued that the liability on the
contract rested upon the 2nd defendants and not on
the lst defrndants in the first instance. And their
liability would only accrue if and when the 2nd
40 BURMA LAW REPORTS. [1957

H.C. defendants had paid up the respective dues to the

19,56
sellers of the rice and in that eyent they can recover
HAN~E~~on- tl). e~amount m1der the terms of their contract entered
JETHABH,u
& CoMl'A~\'
into with the lst defendants to be reimbursed for the
v. payment made by them~
Tllh STATE
A(al 1cuL- On the other hand, the learned Advocate for the
M:~~~~~ING 2nd defendants submitted, that it was quite apparent
BoA~m A'~D that when the contracts were entered into between
ANOTHiW.
the plaintiffs <lnd the 2nd defendants it was to the
M~u~~~ T. knowledge of all the parties concerned that the 2nd
defendants were merely acting as the agent of the 1st
defendants and that it was in evidence that these
contracts were ex-hopper contracts and w~en the
paddy had been milled and converted int(l) rice there
was evidence to show that when the rice was bagged
they were bagged with gunnies supplied -by the 1st
defendants and the gunnies were clearly marked
S.A.M.B. that is the short form of the 1st defendants
Board. And it was therefore argued that as the
2nd defendants were only acting as the agent of the
1st defendants and it was the 1st defendants who had
actnally received these rice, the moment they were
bagged they became the pror:erty of theJ st defendants
and that therefore the agent namely the 2nd defend-
ants were not in any way liable to make good the
amount and it was immaterial whether this rice had
been looted in this instance and the 1st defendants
did not get any benefit out of this transaction and as
he was merely an agent he had done all that was
necessary under the circumstances and he should no
more be held responsible_
In answer to these two contentions raised by the
defendants, the learned Advocate for the plaintiffs
submitted that no doubt normally an agent would
not be liable to make any payment in respect of the
contracts entered into by the agent on behalf of the
1957] BURMA LAW REPORTS. 41
~

'
principal. That W?.S the nonnal course of the iaw H.C..
1956
of agency.'' But the qistinction which he sought to
HANCHl-IOj) ..
draw in this particular <.:ase was from the peculia! D<lS
terms of the contract of agency entered into between }F.TH.4.BHJ\I
& CoMP,\'IY
the 1st defendants and the 2nd defendants, and it v.
TI-rr' STATE
was urged that in this particuiar case the very terms i\GTIICFL-
'l'VIIAI
of the contracts entered into between the plaintiils .i\L\IIKE1JNG
and the 2nd defendants which admittedly '.Vere signed flO\fW AXD
A:\0Tf!ER.
by the 2nd defenditnts in their own name, there was
nothing to indicate that they were signing for or on u SllU
~f.WNG, ].
b~half of the lst defendants and that therefore in
this particular case the agent himself was personally
liable tomake good in respect of the rice delivered
and where the agent is personally liable as in this
insta:1c~, fr0m the pe.:: u :Lu cir .:unnt 1nc~s of the
contracts, he submitted that the provisbns of section
233 of the Contract Act applied and that therefore it
was within the purview of this section that he could
sue both the principal and the agent and make both
of them liable and h~ therefore contended that the
defence put forward by the two defendants was not
sustainable in law and that his claim, if proved, the
Court sbould .g.ive a decree in his favour against hath
defendants.
The learned Advocate for the 2nd defendants in
support of his arguments has invited my attention to
section 230 of the Contract Act where it was stated
that in a contract entered into by an agent, the
ptincipals would be liable and he also drew my
attention to the fact that all along in the pleadings,
it was the -plaintitfs' case, that the 2nd defendants
were acting as the agent of the 1st def~mdants. And
that therefore he submitted that the provisions of
this section should apply and his client should not be
made personally liabte. He has invited my atlention
to these decisions. The nrst case is in the matter of
42 BURMA LAW REPORTS. [19
H.C. The Indian Companies Act, 1&82 (1) where it was
1156
held that a persCn contracting, with nn c:igcnt may
HANcm:o:J-
UAS lJc;k directiy to th~ principal unless by the terms of
JETHA.IHlAI
& CoMPA'-Y the contract he ha.s agreed not tO do so, wh.::ther he
v.
THESTHE
was or was not aware when he made the contract
AlRICUL- that the person with whom he was de:ding was an agent
'fw!UL
MAtmEl'l~ G only. The next case is in the cas~ of Finn of
BOAI~D AN;t
A~O'fHEI~.
Khushi Ram Beh{ui Led v. iHathra Das and another
(2). That \vas a decision under section 230 of the
U Srru
M>VNG, J. Contract Act where it was held that the agent was
not personally Hab:e and the letter written by him did
not convey an uaconditional undertaking to pay.
That was a case in which the plaintiffs s.ued the
agent in r0spect of certain sums of money rciying on
a letter which the agent wrote to the plainWTs stating
that th~y would pay for the goods. However, when
we look at the decision as a whole it wr:-s quite clear
that from the correspondence that i)assed betw~en
the p:lrties that this particular letter in which the
agent purported ta make term'3 of payment though
not specifically mentioned that he was acting as an
agent, the other correspondenc~ cl~arly showed that
the plaintiffs Nere looking to the. principals for
payment and therefore their Lordships hold that the
agent was not responsible in respect of this particular
matter in dispute.
The next case quoted is that of Hambro
v. Burnand and others <3) where it was held that
where an agent, in contracting on behalf of his
principal, has acted within the terms of u written
authority given to him by the principal, the principal
cannot repudiate liability on the contract by stating
that the agent had acted in his own interests, and not
in those of his principaL
(1) L;:> C.tl . p. 31. (l) ,\ LH. (l'JL71 L:1h p. ~fit
(3) (1904) K.B.D. p. 10.
1957] BURMA LAW REPORTS, -1-3
~

No doubt the decisions quoted by the learned Ad- H., c.

,. J<)5'J
vocate for the 2nd d1!fendants lays down the principles
f{A~ C1H101J
that are generally accept~d in regard to the cont1~aCts lJ.IS
TETHAJ>HAI
entered into by an agent for and on behalf of the ~x CuMI'A~Y
principal. The diffkuity in the present cnse is as I v.
TilE ST-I"fE
have mentioi.1ed above in the s~:ries of contracts ,\c.i<lccl-
'1Ti<AL
referred to ii1 vvhich the Burm.ese Agencies, the ;,-_4.1/f(ETJNG
B<HI<J> ANIJ
2nd defendants no doubt at the top of the contract ANO'fHEil.
form have nwntioued the fact that they v.rerc agents
U SHU
of the 1st defendants. After th~1t when the con- ~io~nw, J.
tract was actually signed they did not sign acting for
or on behalf of the 1st defendants bot merely signed
their 0Wn names us the buyers of the rice. And this
fact alone"would show that th ~y purported to enter
into these contracts -.vith the plaintitl's admitting their
personal ttabihty by virtue of their contract form.
Again if we look at Exhibit ! the contract entered
]nto by them with the Ist defendants there also it
was quite dear under the clause (11) that in regard
to these contracts athe 2nd defendants were to pay
out froin their own fund and cnly later on they were
to be reimbur:;:e.d by the 1st defendants. F urthermore,
it is not in -~ispllte . that ali the pay or ders which
have been mentioned in th.~ earlier part of my judg-
ment (namely those four pay orders Exhibit 1-C),
in all those pay orders these were Jddressed to the
Rangoon Office of the 2nd defendants and not to
the lst defendants and Maung Tin Aye {PV/6)
l1imself stated that in regard to all pre vious bills it
was the 2nd defendants who actually paid out the
money and in respect of these f(m}' bills which are
now in dispute they did make out the payment orders
to be paid by the Rangoon Olfice but unfortunately
they did not get the necessary payment from the 1st
defendants in respt.ct of paymenL; made by them for
other c0ntracts and with the result they were short
44 BURMA LAW REPORTS. [1957
'
H.C. of funds and they could r1ot honour those pcly orders
1956
which normally they would have paid OLlt to the
I~llNCIII!OD
DAS pl'd.ihti!Ts. That admission on the part of U T.in
]ETHAllHAl
& CO~IPANY
Aye coupled with th~ Exhibit 1 agency agreement
..
~
TilE ::i'L\Tl~
between the 2nd defendants and the 1st defendants
AGillCt'L to my mind supports the contention that the 2nd
TUHAL
J'vfARKETl~G
defendants though an agent had by their own conduct
[ OAilD A"D admitted this personal liability on these contracts
ANOTHI-:J~.

with the plaintiffs and that therefore it is not open

U SHU
i\JAUNG, J. to the 2nd defendants now to say that their
liabilities ceased and the plaintitfs should look for
payment to the 1st defendants their principal.
Several decisions were cited by the learned Advocate
for the plaintiffs in support of his contentioh that both
the principal and the agent should be liab!e on these
contracts. He has also drawn the attention of this
Court that the law on this point is slightly differenc
between the English law and the Indian law and that
the law governing this case is the Indian law of
Contract and I need not cite all the decisions but it
would be useful to cite some of the English Reports
to see what are the principles that gov.ern such cases.
In the case of Higgins and orl1ers v. Joiz.n Senior (1)
where it was held, that in an action on a written
agreement purporting on the face of it to be made by
the defendant and subscribed by him for the sale and
delivery by him of goods above the value of J; 10, it is
not competent for the defendant to discharge himself
on an issue by. proving that the agreement was really'"
made by him by the authority of, and as agent' of the
3rd person. The relevant portion of the judgment at
page 889 gives the indication as to whaf is the
extent of the liability of an agent if he signs an
agreement without purporting to be acting on behalf
of another person. This is the relevant quotation.
(1) 58 Rc\isecl l~eports (lti~l-43) p. S84.
1957] BURMA LAW REPORTS. 45
" Y,.ha t if the agent con tracu;
such a form <1 s to make
111
.
Ji.C.
himself personally resp\msible. he c:~nnot aftervnrds. whether 1956
his principal were or were not known at the time o~f ~he HA'-CilllOIJ
contract, relieve himself from that responsibility." VA~
jETHAilHAI
& C:OllPANY
The next case is that of Parker v. Winlow (1). v.
In that case a n:.emorandum of charter-party was THE STATE
,\Gurcur.-
expressed to be made between P. of the good ship "C" TCRAL
and vrafent fo~.E.W. & Sons to whom the ship to be
!\lAJIKETING
BoAIWA:o;n
ANOTHER.
addressed. It was signed by 'N. without any restric-
tion. Held that W. was personally liable as charterer. U SllU
1\:IIU/iG, J.
At page 1499 there is this remark:
"..I can have no doubt myself that the defendant is
personally liable. He makes the contract, using apt words to
show that he contracts; and the only ground s uggested for
rebutting his personal liability IS that he says he is agent for
another; but he may well contract and pledge his personal
\iability, th'Ougl! he is agent for another. If he had signed
the contract as by procuration for E. Winlow & Son, he
might have exempted himself from liability; but on principle.
and on the authorities,,cited, an agent is liable personally if he
is the contracting party; and he may be so though be names
his principal."

T-he next case is Universal Steam Navigation

Company LtCl. v. Jam es .M.akelvie & Company (2).
There in tlMt case, the agent had signed acting on
beha.l:f of the principals. It was held that the
defendants having signed as agents were not liable as
principals to pay demurrage notwithstanding that
,they were described as charterers in the body of the
charter.-party.
Another case arising out of a charter contract is
that of Ariadne Steamship Compan')' Ltd. v. Jam es
l'vickelvie and Company {3) where this issue whether
the agent is personally liable was considered. It
was held that the agent had signed as charterer in the.
[I) ll9,English R.:port, ILl-. 1497. (2) (1923) A.C. p. 492.
(3) (! 922) ILB.D. p. SlS.
 -Blli(I\Ii\ LAW REPORTS. [1957

H.C.
I'J56
body of the charter-party. But it' was held- that the
dt:.f~ndants having signed as ageri\s were not liable as
RAKC(;HOD-
OAS principals to pay demurrage, notwithstanding that
}ET~I.\BHAI
& CoMPANY
they were described as charterers in the body of the
1".
TllF..TA'ff.
charter-party.
AGIIlClJL- I think the lav; has been very clearly enunciated
TURAL
MAl~KETING
by his Lordship Bankers, L.J ., at page 525 and this
13oARD AND
ANOTH!;R.
paragraph is most illuminating. It js as follows :
U SHe " In some of the decided cases no special attention
MAUNG. J. appears to have been paid to the question whether the words
of qu3.lificati9n were annexed to the signature or
appear in the
body of the document. My own view is that it is a sound rule
of construction, applicaJ le to cases like the present, th'at where
the signature is unqualified the presumption is that the agent
is personally liable, but that where sufficient words of
qualification are annexed to the signature to indit.<J.te that the
person signing signs as agent the presumption is tlte other way
* * * *
This view is, I think,
quite in accordance with the decided cases some of which are
decisions in reference to ch:uter-parties and sorne in reference
to contracts in writing other than charter-parties."
The view expressed by his Lordship clarifies the
liability of th e agent and I cannot do 'better the:l.""efore
than to quote the passage. The above principle
coupled with the Indian law need further considern-
tion. First is in the case of T. i'Yluhammad
Shanzsuddin Ra vuthan & Brothers v. lv!essrs. Shaw
Wallace & Company (1).. T h2,t was a case in which
section 233 of the Indian Contract Act was in issue
and their Lordship:-; decided that the consideration of
this section meant that the plaintiff must sue .both the
principal and agent and get judgment against both
the principal and the agent in a case where the agent
is personally liable. T he relevant portiDn of this
judgment is at page 2'<37. This is a portion of the
judgment of his Lordship Leach, C.J.
\1) I.L.l~. (t'J3')J Mad. 281
1957] BURMA'LAW REPORTS. 47
'
"Wo are here governed by th;;! pro'>isions of the Indian H.C.
1956
Contract Ac ~. and ::ect:o1t 23 3 of th:lt en::ct:ncnt state-s tha~ in
CJses where the agent is pcrso:1ally lialfi'f. a person dealing with RANCBIIOD-
UAS
him may ho1d either him or his principal, or both of them. JE1'H.HlliM
liable. An iliustration is given to th~ section and it is in & COMPANY
'4/.
thes= words. TI-lE STATE
AG:W:t:L
'A enters into cDntract with f3 to sell him 100 bales ;runAL
of eotton and afterwar~i:> discovers tlnt B was 1\IARI~ETI"C;
I30MW /\NO
ar~tin3 us agent for C. A may sue either B or ANOTHER
C. or both. for the price of the cotton.
Therefore, there is in lrdii.l a statutory
u s~~u
!iJA t:;->:G, J.
provision allowing a plaintiff to sue both the
princip:1l and the agent in a case where the
agenl is personally li:1ble. * *
*
There is no ambiguity in the language used in the section
and I am un~tblc to s~c anything unreasonable in the rule
w]1ich it embo'dies."

There is a r~cent decision in the case of Bab.ulal

"v. Jagat Narain (1). There also this section 233
of the Contract Act was in issue and it was held
that the words " hold them both liable " mean
that the party dealing with a gent can join both the
agent ~and Ure prinsipai in one suit. There is no
suggestion that if he does so, he is only entitled to a
decree against one 01~ the other and not against both.
Whatever the legislature may have intended the words
"may hold both of them liable'' mea l1 that both maybe
suej to judgment and thi" Madras decision which
is quoted above was also citad with approval. Taking
aH these decisions into consideration and as we are
governed by the statutory iaw of COlltract it must be
clearly heU, tha: as far as this claim is concerned, the
answer to this issu-:; woald be that both the
defendants arc b.eld to be liable in view of the
fact that the 2nd defendants by executing these
-- -- ---- (L)- A.I.R.
------- ----- -- - - - -
(Li)5.2) Vin,lltya Pr;tcksh SL
48 BURMA 'LA\V REPORTS. f1957

H.C. contracts in their own name made themse~ves liable

1956
and it is not disputed that the' plaintiffs in the first
RANCHHOD-
DAS
instance look to them for payment as evidenced by
JETHAUHAl the documents before the Court, but the 1st
& CO~IP.~NY
'II. defendants also being the principals who were entitled
TUE ':)TATE
AGRICUL- to .t..h.e benefit of-this contract and as the contracts
'l'URAL
MAHKETING
were ex- hopper contracts and as delivery of rice had
llOAlW ANI> also been made to the 1st defenclants they are also
A:O.:OTHER.
liable in this instance. I would therefore answer this
u SHU
issue that both the defendants are liable to pay the
1\f.\UNG, J..
sum of Rs. 1,58,064-1-0 as the price of rice due from
both the defendants. .
No.5 issue, as far as this issue is conserned , I do
not think it would be fair to give any interest as the
delay in payment by the defendants we.re not so:ely
due to their own default but to circumstcrnces beyond
their control, namely because of the insurrection in
the year 1949. This issue is therefore apswered in~
the negative. Lastly there is this question as to who
should bear the costs. As I have mentioned abpve
under the terms of the contracts between the 1st and
2nd defendants, it was the 2nd defend_ants who were
liable in the first instance to make these payments
and as far as the contracts bet~veen them and the
plaintiffs were concerned, there was no question of
their withholding payment as they now try to get out,
because .they did not get the necessary p.ay1i1ent from
the 1st defendants and that therefore in regard to
costs I would hold that the 2nd defendants would be
liable for the costs of the suit. Consequently there
will be a decree for Rs. 1,58,064-1-0 against both
the defendants, with costs to be paid by the 2nd
defendants and without costs against the I st
defendants the State Agricultural Marketing Board.
The rest of the claim is dismissed without costs.
 t
tdusoc ~~ccct):s&:gco
gb~of}p!bsno ~:3~:ccogcopfe~g& oc so~ed~:socWJch ~~~e c(;elc
ti:H f) :0&~.:bco;roec(c;Bo2peu <kcB:be:oe~~~~~0~~roro) ~3w~b -~
t(e) c~c g~ (e) ooc f, (e) o0c sof.ro~3oe3soo.olch 1gfe GGvc *
urbW:;:,bg~ro gw:;:,gco:~ t:f&e;&\9~pcfue3b3ce3
p8Jro ( 6)
ugclhegg {pforo (c)
n:d!i~61cco~e :f&>ro ( 1)
ugsrue:g pfuro (c) 'SO&e;~c~&;~cropc/Eoe3bg:xl3
r3ccdp~ v~G c~pfbc~ t( ~)ceG
t(~)~u;l (s) cect~~e CbeJc p;g~gbec 3~~W~~~oog~cco:~,CD>l3e
ng3c~~~:cfb;~co~oo&=! ccceprh~pccg3~eG
SOLosro ~ c r ~sosocc~ch 3ccfp:s:.:::.ec;:~col!iec~jCOcbeB ~~~ec:b~3CO':~
g&~cc :gceb~:;&? SCDB?g~co3 'bscroB:Bt tp!eso:~
reb egoGeoc
~ero qg]hgec ::!0~ scoe?3~Cfi~s lDgcoo~scr r~~('l~~:cfb:~CO
sao&~ 3cc??:~coKw:goxhro ~~ec:bBgcoeb8ibgK~ ~gcebe
:grosc~ s-co~?3~ce~~gcoo~3 1c f (')gosocc~chr ng;!h~bec (e)
0f C (')909J~cb ;3!i(f) ( U ){c) 0 (')J30Geo2pro Sb~~~:r,.co/)~C~'f~tpOeG
u&
(&13q
oogL o.!..6J~Iil~ 32Dgcco83
gcco~cro3 ~b 3 re 3 B) scoe?g8u,_
0~
sG&q 3 .
SCDB
soro:choo
( gc!k=,&gccogJC,Iffi~313greg) bL o gjlft:Dt~l ( ~) g.;eG
s~) g~gcece:~ ~03 oscoesoro~chco
c; & ea SP o ..v <1.
6-1:> s.L ~Od31I A\V'I VW1TI1a,, [LS6I
Ge~3~og8~3:gS msoco u3eb~g38og8~3 sccc:p8o
ccc~g OLogfu~es cemson n3eb~:gcogsoo3 0 o~sc 3cc:3S c@:g
e~o 3bg8gcog.'!f:~g&l o::>eswggo cow:ggm~tt~COOg.'Cifu~
npesoelh~geoem
~:cccgb~ccc~3coecosolegb~ ccoggLo~g() ff>g~0egm!;J coopc!fu~
~ff?:gb ng3cc)gco:g:::g::eocoopcfro~ 3bLo:o~':fi61SDo ffKf!?
gg:.coogcorpie~ gful O!;JeG~:gb cow~g(\)!;}<:gWco~Jto oesfig OeJCv
I (~) gg:; I (~) g>ec ccd~e p~ecgc[f,~gchcog~g.'CeGel fisod!;J:~gco
ple~Sb(D~ n3cc~gcosole~ bes:cf!?e~il olG)e~ooes ff>g~epg~:L:)
~:chco epc~e~~~e~0 ff>pccoe 30 ccepccfig.'ccfp:chco
. n3cc~:ggs~:chco
:cesgnsb pfuec~.ccp8:>:gche :ces~~es :chcofl~o 3~ gGc
8e cc.oleclfu!;Jfnff~CO~g3c.o~mgb pd!;Jg~3bgece!3o g:gce
~co!;Jgcce 3b~~eG~greg lcc~!;}ggfuSog~solbce oc c pfies
~scoSogg~es :be~gcreegl:opcc :gcJeb!;J~g&>3 ~CO$?g8ce~
cw30~ :gLoe:()&es ISCccEP:ggL8:chco Lo16)!;}gfu~es~
n3cc~ccc:~cosccc3w
3eccc cfi~Se3~-~~:chcoe~o ~~ggroge chg~pcc:gltoqpe~cc
38~es:gb GeW!;Jro I (~) g~ I ( ~) soes cc;o8e :chcoffieo0 n3cc
~plgcre!;Jgro~ep~gb ~esclb~e3echg?rpccgmes ce~g leG~
1 () :JeG c~8e ~:chcocosoco n3cc~~~~g.'gcre~ ~esclb~e3e
8Je8Jees gfu~ecggo cfi:Jiro I~ ! (~) :feG cco8e ~gchcomsoG npcc
g:gro ~~p~gcree ~es5E52 gfu~esgbegcreegl:osncc :gce
be:glli3~ scoeyg8ce3 dig<i>:ccc 1:~ cco8e :chcoe!3o IIQSjCeJJ~:g
< ~
npccb:g~~:chco GCOSeCoSCCC3ro:llfto~g 1bes (e) 0 r C I'SsCO~
egosocc.Q)W /_ ( r) ( 0) (C) 0 egoG~OCg.'eG :beg:c,co~:GCllg.'fp 93~co~
so OeG :cec~::L:)~~3~es (G) g~wem I (~) g~ 1 ( ~) soes 3~.@3cco~~ b LO .llll:D
cco8e ( 6) 1~g leG!;> I () g.>eG cco8e (C) 1:11100 I~ I (g) g.>eG g (g):feJJ
1 1
cco8e ( r) 1g~:ccc 1g~ cco8fl_ (c) ~g:g:L:)~:chco goo oc ~~c
pees ~g~soo~ch l,g~e cGvc I&~( r) &~~gchcog/X>eo (ceo2' ~co~
pw <k~ g[9'~gre~~(j)g~(j)~
:&:>es) ~3w3bn ng 3C.eJJ~ ~ g
s soro:cbro .
LS61] .'S.TJ ~Odtnl A\v1: VW1Hl8: os
 1957] BURMA LA'N REPORTS. 51

qt~~ooo;sf ~~d)!J'd8~c:oo?~G::J.}'JOS?~:6GJ~~O{ !J'ddS:83gGG?~O <nGp:~cS

~tu ~0@5 c;S:~~t m::voo~ooS:rotg~otoS GqJC~~oS~.D.:q :;;5jrs
~mb~'JOJt~ tq~5o~t:~O{O)J c;Sw~tgSl?cotg CJbcftmCJ.2C -
o?~oS3aOIt~@5~@co?:~t ~otd3ot~OJtu DaoS(10)J ~~
Cqjl!: () 9 ~9
ooe;pgQ~?gnoOJM Gcgprro9r~p: Go~q:>Cl65 gE:~tCl6c:Gq @~Goo?54i
G?Cg ~d)Oi?~GW?tG6j:3d~cf1 oesG ~~,, @~02CgG61G6?tg ~'=l?~tc
OJoSDi?Gw?CGGjg:J.3~ rta8~na6j ~co~0~g~J.J~II ~~ ~na~~()')t GOJ "

GcO?CbpotC ~OOei:bpO~ l9cl?d3co'Jot~cS d5Smch~tG:::D? OJGdJ? ~~G~?&~6.1

Goo?5:~?:~ @[OGf'bfl~B~Gl9T02m?(9fwc so~:GJCDGfS~oSc::qoSro?
@f~::)(CX(6o~?:~GlOJ'J OJcfiOJ?G9J?C~G6)~30o;2dj ~0?0GOJ'J30~@b
OJtn rge>pdd3l9cl?d3ro?ot~~~8ror~E o~t:'=jp:cf1 Qe~y5Qot5
&J~ naoSeoG~a2'cfJg GroS<:>ICOO<t~IDfg~:J.Jtu qt~Gm>JGj)C~0t::
Gf>?d) qc:ot~~~CoS?~:~?z O'J~~~o'10JIE;j8JtH qtgG.p?a5c;c:o;>8~
yf~~t:~p~ndf>cfi <:>t~to~t:~OJ? ::S~:oo~wt<Jt 1(-0-~o ~
G~P.<=>~cSm ~g@oo@Em~GOJ:J ~~ c;S:o~t:~?:~? BtO-i?yE
~~tg~?g@~:xl tat, G ~~tG6?tg@$GOjpoSro8Jt11 ~d3~j!~Od30Jcf3:
1 ~ro.~tGOJ>J065GOJSqf:l ~~:065oo5~5~G:JJ'J GcgpoS~'J'=l!?:oo
Q6CG:nS3CJtg ~mG6?t:9)b;p~?~~ ~COffi33DiJg<JGl9T@~u m~
@cgpoSro9Ji&m~~CY.JJ'J00?0jlf g]naG?t~rnO!lo~~')~~ Gl9T@EJ:
@&JOJtll ~sp 065' g)iGOj)?cc;99)cfJl'J 33Goo~s~~GOJ'J GOjpcf3ro
~ oSro~@a; G?t~~ t ~~to ~t~m?06o5Gii): n-acf3eoG8aGl6)CXJ t)?g
OJtu q6w~ro6:9') ~rom rg~od5 l9~d3co?~I:J~c3So1oSy5 o~tg
@,G~s:irot:l ~23~5~GGjGG'Jb: OJc.Ui?~GQX)')CGlg m~n-a06oS d35:
;;ot:G::U'Jog?t goo~@~~~ 1 q5:oilt:~? [gt ~~5o i?t:@~G@? 5:ro5
)?~:ntu .
~o?mE:~cn~~~~ G~ ~~8 o:>?OJ~:xltO? ~g?OJ? mo5 (8) 1
Gndi8cgm ~:@oS~t~~::utu ~~~o5~f z~D"a?ClD?c;5w65~:xJt
~~;).)t~ G::U~J?2?GOjpoS~9)M~?:gGOg~ l ~ ~ Jo '?~~m Gfgqmf:
~ro~~:Gg~? o,@~c; Go15oo~:ntot ~OJ~II ~9od3<S~J..lro?
CJ?cS~Sood)~ c;f:cqmb:nacY2cbGO'J ?C:GCO? GoiJSGEJ:Gg~? ~, ~ ~@:
GO15@~t~ ~6pcY2C ~~(,}'J~CCGO?s:i tC25~G6)G6?5: :J.JdS~
 11~vG c~so!Bc@ 1(~)cec 1( s:')soec 1(~)c-w ~~~e c S~c (c)
d~es go~~l til0 ~gdflch~gte~gc::>es~es tsoochggceg~G~<h
f?S2cc ~fl ~cc~~c!flp!ees~gc~esg&Jes n~cc~roeJptilg.>al:f0003 o
cosc.o0soro~cJ.s~ g'fuccc~~C~~ffiCCC0~scccgccm03gcccpcc
gces~clhc;~chco gecogcl0:fb:.opl3 1cd0g8vJ,M ~gcJ0~M~
~dscof) d~l!ies ~lft:}:!]p~l!ies sceofl~scco: 1&3b~0~~~chco
cco~~C23cc~clsc.ofl scccgcf!:l~~chco ~scrocfi:cc~ggc0eGgroes
nsccc~OJ0:5'1bTo gfuccc~ruLees cCCeJC(\)c:fLOBJ,00 gcf!:l~gcBes
g&JeG ll~flOJBCjJ~TO ff!@es~g~CjJCeG0 ggces~flCCC wsco0pro
~ffico fp~~CCU:fC!fu0 CCC0~'=:(o~ uscccgcro~J,Glel~~ggcmgl
gfmSnpl!ies -~~ (c) pgg~gbC.C ~ ~chcl~rog~c:m~ccoQ~e
~~soccsoo~ggcaec scccg;ccsotilso1ilfl scccccsotilso1il:f~030
coscoep8Jgffico gxch-so:!i!e;cifJ~@eBSogc) cog~l_1cgfficog~SOCeBB
bt::(o~ usccc~~sf!:lcrosoc!fu0scccgcrofjlcffu0 ~b~oB:;ci&lg->Ofp~g@
&crogcosole~ .cog~tt&chw>~s.uce>0 c~egroecrosuclfue~
ll~feg3ch0f)CC03CO~(\)el g~ro6t::(o~ IISCCC
gccleggcJ.s5ccc~gco~me gfu fbgcls0 1~ci>~~~: 8o ccc0~eg~suh'l
gcesepcroeg~~f)g~ro cfig3$o~ ~~COffi ll~ccb~g; eo:cc
~C0~ga::>3 g~ .goo' 00 8::> 1~gceg~co~~e8 fp&gW~..o~gS eco
usccc~ggffieg~ gGc 8::> gcro3~ro~~chco e!~o g&-~be ~o-oc-~c
epc~~sccm~~gb~e> ~(o~ usccc~~gbgro ro3cc~cc~mgcl90
p8Je8sccc'.9f) ~g i~gscmg8Jbe bf)ggwplbce~ 3w~ggb fig;c4e
g~goe sofe~socXlebC(o~ usccc~mesofe~;pcooe ~lsg.:~&>so.o M0e8
g~8og8~ro ccoSeCo~f)g~g'tce&~ec g~roscce~&S'cgceg cfiggc.cip ~sc.ec~:g
113
&gb pde~~~scgcc~~0 coff?goero I(~) gtp I(SJ) SOesJ CCC8fl rsco~
~)C:Dg 1roe 1 (g) pro cco8fl 1g:>:fch3 ccc8fl ~ngwipg~S 93~ce3
u::.ccSef)C.032cc~ggg~so3gSe eo3ccscoccc gG c 8e co .0scro~sc~
~tp? 1eceJ 1() SDe> c~8fl ~,eco~sc~o ccc0Se3cc3cogLoe o ~ ~~~ <:S~~0 t
w~ro~g!J u:Jcc~pcroeie goc c 8eslto~~?3~cft3 cfigLo0 o~
~G;elc
:gb usccc~gSe ccceo~cc~cogLo0 o ~ ffg3w~;gb wgcf!:lgo~e>
sec~
glBswe CCC3&co::nS,20~ ffWe3bgro~gg&;S2 so~em!s0gcceeg so8j :cb\.:0
!..SJ)1] ~l110d31I .M.~'1 VW1IDH zs
195/) 13 tJ R \i.l\ LA\\' .RE l'UkTS. 53
<,>CXJ6pg6p0ijG&pdJG~G8'Jti GOTe]C~::D'JOjJC ~6p~~oSGooSm o t roGpg~~)
GGf:lcD~{'f)Cld)SCg~GOOal1 m~msr 5o CDJ3GJJGo1t~ qG GOJ'Jd3~<:it~ GOJ~
~/DGCD ~~Gf''JoS qc~:xmSG::D ~q)~~d) '-{'Jgndbj I ~ ~ mm5~SGro:>oS '0@ ~ G
G:))'J !JaG'Jc:~E~sr~'J~~~:))')OjJtl Grn'Jm~~m~~oSmcGE;'J5~~') Oda5(~)' ~~
o:.=.o:OJ""'~II Oi!fl: 0 1 9 !~
JJ t::j Qt~>cr:E~
O&I~CDb'r_:n~aa~~jlOOOI rY.Ji~GC\j)'J05co?~o;(~p~~::Dt @t~oo ~ g~t~.,~tc
coSgooGp~~'J; @OJ,:,>~::Dt~::D~ :JaGG 'Jb~l~oo5xoS~ 0~q)'J: GO)$),!

spo oS @tGcn'Jto;>@~G'J~CcGoo~ ~0tgnrt09Jt0~ ~GQec:c~~5o ~GG<r:~En

<t ::> rnbj! ~o'J~Cc~mS @:02tgGGjG(S'Jt~ xoS<Ji~Gro'JCG(;)~rn~~
~Q)~:~;)J~ O<J88'\oSGuT-.;olcf.ico'JGOGe~' grn~~ ~t"Gco'JC!l2
@~~nttcGmS~ ~g~1gG(;)g~C.~ ~0d5~q'J~:Ja6j ~q)t~~CDE,u ::>@~j
~l1 @~~'J~CcGWS @t06tgGt:)G6'Jt~ .:DJ)Olf~GW'JtGGjgrn~ ~d)
eoG8Clhg ? J 32(;)1 sS;oa~~ oasrco~~82lqx:oS~rn?3~~c::Dt' Gp~
~d:i<(h::J j ::> ~ ~SgloS~Q2Cg OJcfG:pmGCD'J @t~.o~roS:(:p;;
@~G:>b ~oSon~ot~GGT@m'Jg0Jt11 ~mme';G~~'J oe~J ~
1~.oil~~oSG::D'JG<-oSeoG8@~~ qf~<(EC,} ? J o;;5 GGT@co'Jg4!J)"Jp:
::x>tr OJ.Y8<lJ?~t<}~tot GD,80JOOcfJGt~m oor~C0S(J8"aGE;'Jb
~n:>tu ~sp~f w~tm szd3:JG~OJC~GCl'f[9~rE~m'J GCG'J~G::DS
rot~~ qt~!Jd~~0t~6)t~n:>t ~tGc:o?fo;> ~'=~'J~tcGw~ ~0tm~8
~tO~rnG8Q'' 2'JG8~J6]~0t~f~ @~::D4iJJG?t~l 8<!~~0tg~sa(;)
aor2 oG8~d)~fmof 't Q~Goo:>t~ g~(;)'J!tcGw~ @t~t~G~
G'Jb ::D~~~G~::ntG6]~:Ja~ '' :JtG )TG::> Too'J~::Dtroe3~ ~G@'Jtg
~@ <t~ ~~~I @tOJt~GGJG'Jt~ OJoS~~G01J'JCG6]~8d~z\\ 0< S~a&l6]1

aa~:G!@g~~O?CJ G~80G'JrEsa'J~ ~rba;>oS~ OJtGo:ot~::Dtrot~

CDG{?tgl 30~gqm O@CjO ~9~1 g-~ro ::> Gjd)G~~0~1 m;;,t 6p0~
G~cf5ro'Jot8clS~SwJ)qf o~t~~'Jg~~ GtO~~~GCD'JtCD?~CJg~ o5g
~oS~:@gGpoSr ~of-~0~ aG)~gl;Jm@~~~m'J ~;o'?t~cbG~::D~
c;5~83~CJ2S otS~tGQO'JC8\ch Gt>6~'-1l'J~cOJtr ~~~GJ~")~~
S?ot5cqOGf>6~"1pg B~::Dtrotw:;G?fgr ;jaaG6'Jt39j:l~G6'J~
sf:m~o.2f C\20qtG;;o'JtlrhGopG::D'J aa~OJG ~GO)!COS~"l)CJW~O) ~I
gt8)1.0 ~CC ~~~VJ< (g~8::DtDt~\ OC'Q"IGUC:/~1!
54 BURMA LaW REPORTS. [1957

roq;:g;oS ~OJcfJGClT@o1 mG8'Jt:rr,c;p~p:51~m021 OOS{Cl2qGv TO,SCG~'J

~G~~ ~cfjG~~~dJ~pggobjl Gg;:J'JdJ~g0:6p~~8~cftm GC\jj'JdJCXJ'J~~~'Jg
~ 8'3GoT ~~oSrotoo'J1@8:0J~ ~'J:o,st:~~0:2~~0J'J1 ~Jgt mSI
00
~~f) 8 ooG'Jt:~b6p~j'J:~ ~JJdJJJ0S~6~~~: 80GD5!~0)>~cQ<D'J oot6E:
1 1

~sco;s~' ~~~o@:G.J:ooS G:JO'JcfJ~:06E Gcqpcfm'J:~"lJ'J:~GoT ~~o)ro5m'J~

!9~(.1-:>~tc @E:~~m~~tO? 02J~OOi(oo~tn ~@ g};GcqprE<:~p~p:~oC\?6
Gro5u ~dJ:x:~n
~:Goa'Jt~C.I
1957] .BURMA LAW REPORTS . . ss
APPELLATE CRIMINAL.
Before UIAzmgl_Tlla Gymu, J.

S. SHAM (APPELLANT} H. C.

THE UNION OF BURMA

v.
(RESPONDENT).*
-
1956

Dec. 13"

Pe11al Code-S.I-197, Marriage iuc.rcdic11t in lltc offcucc-Ncccssii:J) of strict

proof.
Held: In criminal cases where marriage is an inl!rcclient in the offence, tle
fact of the marriage must be strictly pro1ed in the regular way, i.e. as an
event which hlDk place and not merely as a slate iu which the parties were
living. Azia Klrau.v. Ekram Hussain, 38 C.L.J. 213, referred to.
Th e parties might h ave lived as husb;tncl and wife but their conduct alone
is not sufficient to 9rove m arriage under s . 50 of the Eviden:::e Act.
Bllagtt Dlzondi v,; EmPeror, 16 C. L.J. (19!5) p. 21.3 ; T ile E111Press v. Pilam
burSing!t, I.L.R. 5 Cal. 566; Gopal v. King -Emperor, {!92 5) A.I.R. I~an. 328.

r.. N. Ghosh, Advocate, for the appellant.

Nil for the respondent.

U ~UNG T?A GYAW, 1.-The appellant in this

case was convicted of the offence of adultery punish~
able under section 497 of the Penal Code and
sentenced to undergo six months' rigorous imprison-
ment.
The parties involved in the prosecution are said
to be low Caste Telegu Hindus. Chitty, the
complainant, claims that Sattapa (a) Latchmi, the
woman concerned, has been his wife since 1951. On
6th March 1956, the appellant is al1eged to have
removed her from the complainant's protection and
had gone and lived in Kyaikto with her as man and
Criminal Appeal No . 438 Of 1956, appeal from the Order of the 3rd
.-\dclilional Spe'cial Power Magistr;tte of Hangoon, d:~tccl the 26th day of
October 1955 p;~ssed in his Criminal Regular Trial No. 785 of 1956.
56 BURMA LAW REPORTS .. [1 S57

H.C. wife. Regarding his own marrjage with Sattapa,

1956
the complainant Maung Chitty states that although
s. ~~I.;.M h,is. first association with her \vas the result of an
~~rn~~!~;~ elopement, they had subsequently legalized the
-
U AU:-:G TI'A
relationship by calling a Panchayat and paying a
GYAw, J. compensatiOn of K 75, half for the use of the
members of the Panchayat .and half for the satisfac-
tion of the girl's mother.
The learned trying Magistrate accepted this fact
and the. subsequent co-habitation of Chitty and
Sattapa as proof of a valid marriage between them.
It is now contended in this appeal that the
assumption made by the learned trying Magi:;trate is
unwarranted. The marriage of the complainant and
his alleged wife Sattapa, according to settled
authority, must be a matter of strict ,proof in a
prosecution for adultery. Although the paymeEt
of K 75 for the use of the assembled leaders and the
girl's mother is proved, there is nothing in the .,
evidence of the witnesses to shuw .that a marriage
among low Caste Telegu Hindus is, by custom, effec-
ted in this manner. In criminal cases such adultery
where marriage is in an ingredient in the: offence, the
fact of the marriage must be strictly proved in the
regular way, i.e. as an event which took place and
not merely as a state in which the parties were living.
[See Aziz Khan v. Ekram Hussain (l)] .
The complainant Chitty and Sattapa might have
lived as husband and wife but their conduct alone is
not sufficient to prove marriage under section 50 of
the Evidence Act. [See Bhagu Dhondi v. Emperor
(2) ]. A Full Bench of the Calcutta High Court in
The Empress v. Pitambur Singh (3) also adopted the
view that where marriage is an ingredient in an
{1) 3SC.L.J. 213. (2! 16 C.L.J. (1915). p. 213.
(3) I.L.R. 5 Ca I. 566
1957] BURMA LAW R:E:PORTS. 57
offence, a~ in bigamy, adultery and the enticing of H.C.
1956
married women, the.-. fact of the marriage must be
strictly proved in the regular way. [See also Gopal \;. s. SlUM
v.
King-Emperor (1) ]. THE UNION
O.F BUIIMA.
The evidence adduced for the prosecution in this
U AuNG THA
case does not satisfy this. requirement of law. G\"A\V, J.
Accordingly, the conviction and sentence passed upon
the appellant S. Sham are set aside and he shall be
acquitted so far as this case is concerned. The bail
bond executed by him will be cancelled.

(I) (1925) .\,! 1~ Rm. J.!:>.

58 BURMA LAW REPORTS. [1957

APPELLATE CRII\1INAL.
Bdorc U Au11g Khiue, J.

H.C,
1956 THE UNION OF BURMA (APPELLANT)
Nov. 30. V.
u NYO (RESPONDENT).*

Suppressiou of CorruPiiou Ad, s . .f ( 1) (d)/.f. (21-Gross ucglif!,cnce amouulccl to

misconduct-Wlrclhcr tlw clement of mens rea is a ucccssary iugrcdiettl
in alt offcucc under s . .f (1) (cl)/.f !2), Srtpprcssion of Cormptiolt Act.
Held: Gross negligence amounted lo misconduct under ~. 4 (1} (d)/4 (2)
Suppression of Corruption Act.
The question of mens rea is irrelevant for the purposes of cR:tcrmining the
criminal liability of the accused sent up under this section. Dr. Gordo11
Seagrave v, Tile Union of Burma, [1952) B,L,R. 44 {S.C.} ; Criminal Hefcrence
No . l6 of 1956; U Seiu Ban v. The Uuion of Burma, Criminal Appeal No.107
of 1955 of the High Court, Rangoon, referred to.

Tin Maung (Government Advocate) for the appel~

lant. ,.

Mon San Hlaing for the respondent.

U AuNG KHINE, J .-In Criminal R-egular Trial

No. 10 of 1955 of the Court of the 2nd Additional
Magistrate, Toungoo, the accused U Nyo was found
guilty under section 4 (]) (d)/4 (2) of the Suppression
of Corruption Act and he was sentenced to suffer
four months' rigorous imprisonment.
U N yo is the Senior Inspector of the State
Agricultural Marketing Board, Pyu, and he was
responsible for the paying out of the price of all
paddy purchased in the locality. There was a Paddy
Buying Centre at a place called Laikpaw and on 3rd
February 1954 one Ko Tun Kyaing came to. that
Criminal Appeal No. 12 of 1956, appeal fro m the order of the Sessions
JUdge Of Toungoo, elated the 12th day or ~cptember 1955 passed in Crimin:tl
lppeal No. 31 of 1955.
1957] 'BURMA LAV! REPORTS. 59

buying cetJtre in three carts and sold 75 baskets of H.G;,

1956
paddy. After weigh1ng the paddy it was found that
THE UNION
Ko Tun Kyaing was to get the price of 74 baskets. OF BUI!MA
The Weighing Clerk Maung Ba Saw (PW 4} made out U NYO. v.
a voucher in quadruplicate and the original was issued
u AUI\G
to the seller Ko Tun Kyaing. By mistake Ba Saw KIJINP:, J.
mentioned in the voucher that the purchase price
came up to K 49590, whereas the actual price was
really K 21090. "What actually happened was that
he had credited to Tun Kyaing's account the price
of 100 baskets more than he had sold to the SAMB.
According to Head Inspector U Tin Lay (PW 3) and
Maung J3a Saw (PW 4), the mistake was detected in
time and when Ba Saw prepared the daily paddy
purchase statement a correction was made. How-
ever, it is dqubtful whether the corrected statement
reached the office of the accused U Nyo. On 12th
,February 1954, i.e., 9 days after the sale of the paddy,
Ko Tun Kyaing pre~ented his voucher to U Nyo for
payment The voucher in question is Exhibit 0-0.
The amoui1t of money to be paid, both in words and
figures~ still remained unaltered and without doubt
U Nyo must h'a\;e paid out the sum without scrutinising
the voucher carefully. Had he inspected the voucher
carefully he would have seen that there was an over-
writing of the figure '' 73 " by figure " 7 " in .ink in the
~

column shown as " Carts " and also an addition of

figure " I " in ink in front of the original figure " 75 "
in the cQlumn shown as "Baskets " and thirdly, also
an addition of figure ' I " in front of the figure "74 "
in the column shown as " Nett Baskets. " In the
column shown as" Bags "is an entry in pencil showing
the figure " 26. " Then in the same line in another
column there had been an overwriting to make it
appear that the numb.~r of bags was 56. The
figure 2; had been overwritten with the figure " 5 "
60 BURMA LAW REPORTS. [1957

H.C. in ink. Had he scrutinised this voucher carefully

1956
he would have seen these suspicious overwritings
THE UNrON
OF BURMA ar;d additions in figures, and it is doubtful whether
v.
G l\Yo.
he would have paid out the amount shown in the
voucher before verifying or cross~checlcing. The
U Au:-;G
KHINE, J. mistake was discovered when the audit of the
accounts took place and on the report made by
U Maung Maung, Senior Investigation Officer,
Bureau of Special Investigation, U Nyo was sent
up to stand his trial und~r the sections mentioned
,above. At the time it was probably thought that he
had by corrupt or illegal means appropriated the
whole or part of the money which he had overpaid
to Ko Tun Kyaing. It is clear that th_e trial Court
did not attribute to him the offence of misappropriat-
ing the money by corrupt practices. This view was
also upheld by the Sessions Judge before whom the'
appeal of U Nyo was heard subsequently. The
trial Magistrate thought that the accused had been
grossly negligent, so much so that his action amounted
to misconduct as defined in Act No. XVI of 1951.
When U N yo appealed against his conviction and
sentence the learned Sessions Judge gave' a consider-
able thought over the question as to whether an
offence under section 4 U) (d) read with section 4 (2)
of the Suppressiqn of Corruption Act can be deemed
to have b~en committed in law in the absence of the
element of mens rea. Finally, relying on the decision
in the case of Dr. Gordon Seagrave v. The Union of
Burma (1) he held that U Nyo did not commit the
offence with which he had been charged, in the
absence of mens rea and he directed that U Nyo be
acquitted. vIt is as against this order of acquittal
that the Government has come up on appeal. I
understand from the learned Government Advocate
Ill (1952} !{.L.R. 44 (S.C.).
 1957] BURMA LAW REPORTS. 61

that the ,yery idea of filing this appeal was to have R.C.
1956
a binding decision a[l to whether the element of mens
rea is a necessary ingredient in an offence Uiider Tf!F.. UN!O,\"
OF UURMA
section 4 (]) (d)/4 (2) of the Suppression of Corrup- v.
p NYO.
tion Act. This very question was referred by U Po
U AUI\G
On, J. to a Bench of this Court and in Criminal KWl\'E, f.
Reference No. 16 of 1956 it was held that" so far as
statutory offences are concerned, words of statutes
are given effect toas they stand without bringing in
the extraneous mens rea doctrine for purposes of
determining the guilt of the offender and that if the
definition does not include the requirement of a
particu1ar mental condition, we must give effect to it
as it stands holding the omission to be deliberate."
In other words, the question of mens rea is irrelevant
for purpos'~s of determining the criminal liability of
the man sent up under section 4 ( l) (d)/4 (2) of the
Suppression of Corruption Act. Exactly the same
' view was taken by me in the case of U Sein Ban v.
The Union of Bw,;ia (1).
Now, reverting back to the facts of the case I
would. say that U Nyo had been negligent to the
extent that lw did not scrutinise properly the voucher,
Exhibit tD-:-o pres~nted by Tun Kyaing before he paid
out the sum. It is true that he paid out the very
amount written, both in words and figures , on the
voucher, but he had overlooked the fact that there
had been overwritings or material alterations in
respect of the quantity of paddy sold. In any such
case a prudent man would have carefully scrutinised
the voucher in question and if then; be any grounds
for suspicion that material alterations had been made
in the entries, a cross-check would have been made
before paying out the amount. Therefore I would
hold that U Nyo was guilty and that the trial Court
--
(1} C;in:inal .\ppcal No. I Oi of 1955 of the High Cou~t, Rangoon .
62 BURMA LAW REPORTS. [1957
H. C. was correct in entering a convict.:on undeJ;. section 4
1956
(1) (d)/4 (2) of the Suppressio1n of Corruption Act
THE UNION
OF BURMA against him. The order of acquittal of U Nyo in
v.
U NYo.
Criminal Appeal No. 31 of 1955 in the Court of the
Sessions Judge, Toungoo, is hereby set aside and the
U AUNG
KHINE, J. original conviction is now directed to be restored.
Regarding the sentence, it would be improper at
this stage to re-commit the respondent U Nyo to
prison. He was sentenced to suffer four months'
rigorous inwrisonment on 15th July 1955 and he was
released by the order of the Sessions Judge on 12th
September 1955. Thus he had served nearly two
months' imprisonment before he was released. Prior
to his conviction he was in custody for quite a few
months. Taking all these facts into consideration
and also the fact that no sharp or corrupt practices
were attributed to him by the lower Courts I wou~d
reduce the sentence to the term of imprisonment he
had already undergone.
1957] URMA LAW REPORTS. 63

'
APP~LLATE CIVIL
Before (1 1'/rauug Sci II and U I'o On, JJ.

THE OFFICIAL RECEIVER HIGH COURT H.C.

(APPELLANT) '
1956

Aug. 6.
v.
TAN GWAN L}'E AND ANOTHER (RESPONDENTS).';:

Urban Rent Control Act, s. 2 (d) and s. 16-0eftuifio1t of t/lc word

" Premises "-Electric gcucraling Plant.
Held: An electric generating plant means and includes machines,
bnilclings outhouses, etc., as well as the l:lncls on wllkh they st~nd and
hence nuist come within the definition of " Premises" in s. 2 (rlJ of
the Urban Rent'Control Act.
L. Hoke Scitl v. Tile Controller of Rc11ts for the City of Rangoon aud
one, (1949i B . L,R, {S.C.) 160, followed.
Held al5o: I:n a suit for arrears of rent due on a lease of an clectrk
generating plant, a certificate by the Controller certifying the standard reut
of tile premises under::. 16 of the Urban Rent Control Act is necessary.

Auli,g Min (2), Adv.ocate, for the appellant.

Daw Khin Kyi, Advocate, for the respondent

No.2.
.'
Judgment delivered by

U THAUNG SEIN, J._The estate of one Tan Shu

Yon a wealthy Chinaman of Pyap6n who died some
years ago is the subject matter of Civil Regular Suit
No. 19~ of 1947 of the High Court, Rangoon. By
an order dated the 1st April 1948 and recorded in
that suit the Official Receiver was appointed to take
charge of the estate and among the numerous assets
comprised in that estate is an electric generating
Civil Ist Appeal No. 62 of 1953, against the decree of t11c Additional
District Court of Pyapon in Civil T<egular Suit No. lJ of 1952, dalecl tbe
26th December l952.
64 BURMA LAW REPORTS. [ 195i

~.c. plant which supplied the town of Pyapon with

1956
electrical energy. On the 1st May 1948 the Official
THE
0Fl'ICIAL
:R'eceiver (appellant) leased out to the first respondent
RECEIVE II,
HIGH CoURT
Tan Gwan Lye the electric generating plant in ques~
v. tion at a rental of Rs. 900 per month while the second
TAN GwAN
LYE AND respondent Tan Shu Swan stood as surety for the
ANOTHEil.
payment of the rents as they fell due. The rents
u TI!AUNG soon fell into arrears however and the first respondent
SEIN, J.
approached the Official Receiver to either reduce the
rent or else to terminate the lease as he was suffering
losses. The lease was then terminated and on the
failure of the two respondents to pay up the arrears
of rent a suit was filed in the Additional District
Court of Pyapon for recovery of the same.
Unfortunately for the Official Receiver that suit was
dismissed and he has come up on appeal to the High
Court to have the decision of the lower Court s~t
aside. The main reason advanced by the lower Court
for the dismissal of the suit was that an electric
generating plant fall s within the definition of
''pTemises" in section 2 (d) of the Urban Rent Control
Act and that the Official Receiver had failed to
comply with the provisions of section 1'6 of that Act.
The learned counsel for the Official Receiver has
urged that the lower Court is wrong in that it failed
to realise that the property leased to the first respon-
dent was not the electric generating plant alone but
also the right to collect the dues from consumers of
eletrical energy in Pyapon town. It appears that
the deceased Tan Shu Yon held a lice~1ce Ut)der the
Electricity Act for the supply of electrical
energy to Pyapon and the Official Receiver asserts
that the first respondent was able to supply electricity
in accordance with that licence. Now, it is indis-
putable that an electric generating plant means . and
includes, machines, buildings, outhouses, etc., as well as
1957] r/tJ RMA LAVv, REPORTS. 65
the land o.u which they stand and hence must come H.G.
1956
within the definition 0f "premises'' in section 2 (r/)
TH.E
of the Urban Rent Control Act. In this connection OFFICIAL
HECEIVER 1
it may be noted that the Supreme Court has in HlGfl CtoURT
L. Hoke Sein v. The Controller of Rents for the City v.
TAN GWAN
of Rangoon and one ( 1) held "that the definition of the LYE AIW
ANOTIIEH.
word 'premises ' in section 2 (d) of the Act includes
industrial concern like Rice Mill." An electric U TBAliNG
SElN, J.
generating plant is also an industrial concern like a
rice mill and hence the same consideration will
apply.
With regard to the argument that the first
respondent took over the lease of the electric generat-
ing plant as.'well as the right to collect dues from
consumers o,f electrical energy in Pyapon town, it
should be nqted that under the proviso to section 9
of the Electricity Act the OB.icial Receiver was not
competent to transfer the licence for the supply of
electrical energy withsmt the sanction of the President.
There is no hint or suggestion that the sanction of the
President was ever sought for or obtained for the
transfer, of the lic-ence to the first respondent. Be
that as it may; the first respondent did in fact collect
certain dues from the consumers of electrical energy
in Pyapon town in respect of energy supplied by
him. We need not look very far however to
discover the exact nature of the property which was
leased to the first respondent. The cause title of the
plaint re~ds " Suit for recovery of Rs. 8,400 due as
rent" and in paragraph 3 of the plaint it is alleged
that "the 2nd defendant agreed, in cqnsideration of
the letting on h.ire of the said Electric Plant to the
f1rst defendant, to guarantee the punctual payment of
the said rent jointly and severally with the 1st
defendant". It is significant that there is no mention
(I} (l\H9) ll.L.I~. (S.C.) l{JQ,
66 BURMA LAW REPORTS. [1957

:-I.e. whatsoever in the plaint as regards the licftnce under

19S6
t~e Electricity Act.
TllE
OFFICIAL
On the whole, it is clear that the suit under
-RECEIVE!?, consideration was for arrears of rent in respect of an
lllGI-1 COURT
v. electric generating plant which was leased out to the
TAN GWAN
Ly~: AND first respondent. We have pointed out already that
ANOTIIl'H.
the plant in question comes within the definition of
(; TllAUNG ''premises " in section 2 (d) of the Urban Rent
SI'IN, J.
Control Act. That being so we fail to see how the
plaint could have been accepted in the lower Court
without " a certificate by the Controller certifying
the standard rent of the premises '' in view of the
clear provisions of section 16 of the Urban Rent
Control Act. There was in fact no such certificate
attached to the plaint filed by the Official Receiver.
Accordingly this appeal fails and _is dismissed
with costs.
 Hcropclto:} CCC~
:icgc.c~b:ne~~scSU!b So b f g~ cf so0ed~:0soo~cht~~e. GG elc esc.oe>i~
(c) :01bchco:fueo ( ceo2pec~c5:be>:cee~0:$<~:fueo) ~ 3ws~ -!-
u{e) o ~c g~ (e) eJGc sooeo~gcegsoo~ch ~~~e GGlc *
- Hsccc:ccog:=~:chc.o bee ( f) b
j ( c:p) ( o) (c) 6 e~iJGe>o2pec ~be>~:cco~:c(J)so~sooec ~~~e
ob~c rgwloe>ecg~cg~es So~g~8J:g g~~~cc:gccce>gc~/X; :coo
pdfue> 13t:GSb b rg~ c r sofles ~:f:Bsoo~ch,~e GG~c :~ (c)
:0/X;gchc.o:&ec ( G~o2pecck5:be>:cee>~o~gG~:&ec) ~~C.O~b
upepelbcccgbe> ccc?f:p~eco plegbg
~~soccsoo~gwe> r cropdEDe>liigcegB~~~ ~~ 3 ~ 3 c:ec~ ~g
n( 4>d~e>b:@ec) gcfle>gco~~ lg.>~~b~~ccog.>cf&~e>~bgreg~
ugcfle>ge.Ge>;gccosoLGel I soroe;~c~/X;~coog; dfu33bgceg
,,
ll:cc}B:clB:jCO~ 0 &sc scccs o:}!Weo smsotogeo ~ c'r Ago Cf'CC
~cb scccho:~cochec cheogo~ec:be:oe>:cecsote~@g!fult uscleso:~ ..
11 c b Agooe>o~~~e eo {lgl!egec
:sc0~3coeJ?38cA~ C,gcroescB t~A ~:ciP.~cheo:~rof~"&S:: ce:cif.l
~che.Gccce:cro3ebe.Gceocpec ~eo:be>:oe:cecsoLe~<g~ 1c f Agosocc~ch
IG co *(&b~
gLo.L6le>SJeJ gcmgxJme>~bgceg) scoe>9g~cf?~~0gcc:oe>3
0~
~r;a c -~
3
sc.oe>
soro:chco (gc~&gcmsocm3~bgceg) r LO ~~ccg~
~~(') sssc ece:g:~s as coeso8:J:chc.o
~ Po ec so_ 0 .,;) J,
!.9 "S.l(:{OdH~ M Y'l VJr\f~flH [l56l
eoscfl~~:gce0) c.o~ec ~ncfb9mec Mc5g~em~ncecsoL0~0g!OJ
~lngec 5 ( 0) 0( ego !Oleo nsccc~C.Osccc:dgco~gcJesomfl
~dsecb~8E'.G rsccc ~clhec:ccosocffue~~~ usceeL OCo~~:cec~dsec
sccc~~ '' ccce:;omfl~checbg8ro '' gro c ggec ccce:cco;oesocc
)DWeG~b~:ccogccoe~co f?8el?~ccocDg0jO 1bt>.G ( ce) 0 c ego
~EilCO:fldtl IISCCC~WGC00SOCofl:cfh~cheGb~2eG sccc~~~ccchec
~chemgS r39ccccoe~eem cMc8~be~o~~ceGSOV:Jg0g!fu ~~~
usccc~C.Oscf)b/.Upe c.osacc~3ce~ 8=geG~clh:~t=a~eG ~~00
dsec cl.')g~~ec 'scccgndf>:~oo~ec g~:cfb~checccceJ~solm:9oo
~ec r5<i>c}):btJ:oe:c.e?SOLeg0g!fu gro~escccgSCcoeGGeo2:feG~
rgoo Gc f)go ~ usccc~eoscflo5bgroe:groeGsoeG ICOLosc
gee:~ f?Geo2::pec ,:be:oe:cecso L0~0gffu rf?:gcesomfl:clh~
cbec =~oo~co~~B~~cc?sO:c!h~checccceJ4eso~ 3 ccee 3 f?gro gw
~e.G :be:oe:cer;soL0~0glfu Idisccc~ cefisoc.cwec:cro::pcfue
uscccJ:ccopcfue 3bLo
:oeplbcro smclh~ecc.oz~pcece LOlEil0S-JCOeG rgcc4esleesojg
:gfu:r:.fibecseocr sccc:g:cco~~:cbco bzs ( r) !:J1 (()) (c) s flg~
3~ (f) bI (ro) ( 0) (c) b egoGeo2soec ~beg~:ccol!i:c0:ffp
sooec ~~~e ob~c g:~:;oC-Ge,Loee.c~:gS gw:clhcro,pc!Eve~
ll~cc:gtcgcowgwe ( cro::pdroe~ !CW~CoSOCnfl
:cfhgg3tBog81:c:frtscroce~~~o ccceg=sccc~3soLOleQjsoLOlew:gS
goSo usom!'l:c!!=J~cheG:~oo3ooecS2 cccepdsepcc :gooeGg"JLRgeG
~ c flgosocc~chS2cc?f:gb rco:gg~:~chec:gS g'3:scotJ:~~
r 1 3S3cec;~:g
uS2cc~~g8toS2ccgoo~~BsoLEile 0)soLr,)e f?:c~ne8e3~ecsc S2cc li~CO~
:coo :3 ~gecsoesm ce.c~:gSgo~ uscce0e~bg:S24cccegclee:~f) 93~Cfl~
?5.nc!hso~es:!ce.c :e3e::pooemLocoec ~~~:cmS'c~w g;:bee.c (}gcw~scB
3~
gge.c ~:c!h::soo~oo&S2 13ooloees:~~~l~~che.c~gb usccc~ r to 32CC:~
:clhec)4e::p[g:jco~e.c :gbgges glie~dser;gccee~ec 1:gSg
sGeJc
~ec gl/ecco~gfbge.c rgoo~ecggS ceC;o:~oo~g CcK?JC)OCfu0 1~g sw::J
3ffi~ gw~ec~l~e:oe:cecso~ e~0g!fu lce38tc:gec:coosucfue sooo:chc.q
LS61] sl "HOci:;:I~ MV'l V~~tl n ll 89
1957] BVRMA LAW !ffiPORTS. 69

~8~~8n ~~~~ oo~5i~oo~:61ca8.)~ ~8~<:1!8.)oS~cc:g~G6'Jc: oo~:~GS

COCJ'J:8.)tu oo~mc;cw~~ot@c~:oo~oSG@cqao~~~ GJ.:]poSGoo'JC~ . Goo~
G8.)'JOO~11 GS::S Q:ooroe oGs@~'J~: 91c~'J :006) 1~CCGOJ~::UGOJCD G@~
e~
0

bSS:O)i6)~ GOC'Jt1oS~c:JJ8ot~::u8u ~@0~g]D2Sro8~' oo~;iQ :O?~!c; o1 J

8<)~:6)G~tG'Jc:SI'J roS jp:oJtot~8.)8n cgjOID~G 1oSoo'J:Go:oo~ e:~')5~
J?ro8~1 ctbG tJG :3d6) G~G91~CI~~Cg~OO'JC11)'J~'J~GO~OO'J~::U8n G8~ ~~<:l'J~Cc
G~G91~~~G8~0J8J?ro8: C(D;;l ?'2 02c::uo5yoSco'J:::u8n ~@~~ GmSu
cg]0~0G 10080'J~GmG6)~86~ oodieoGD92Gj~C\3)CI GC\jpca:m~~0~: ~:Goo'JC~t.l
~8.)8 m~:~i$G8~<:JJO-Jro~tt:(:)~GOJ?::U@~I qt:~::ut E~o
0 ~(X) ~i: O<)t>p (;p:GJ? oSG6'Jt: y') COC;'J:o:>ttJt~ ::ut II ~~: GOJ ~

8~ ~J ~i~l,. t>p~odJG~'JSmJin2YoS 8 c; o;$CI @~g-:;~CcGoo~ Gro

GG'JC~OJtbt1(~GQ\l'JCG6)~00~SJ ~~fl'J:G::U'JO<}t>p~oo@:O-Jt 1 t>p~ooS
<;b0 J 8 ~oo8g1<.bJa6) ~~~oo~ooS:oo~~@S::u~{J.(~CO'J:G::uSco8u
ot54:91C:ro8:<:J~ 1 oo~~~8=~t:rot:do;?(J.(~O:}') 'J:~G'J~
~'J:;)Jtn BO<:J'J ~~9'J~CcGOJSGroG6'Jt:::uoSOil~GOC'JCG6):82~o.Jt
~c.cGooSsc~:Glo~~:~~:~ ~'Jm'Jm'J~@Urt6l::u~~~ c;c~m~y')
~oS~oSoo~:6)~9 oooS~oSd>t@~~ qbJa~~ cq5~cGoc'JC8joS
G::u'J mt>p~~p::nt BG~oo~ooS:r=le=ot ~Gm'JC:~~cGoGEu
~GF02 5 cg]O 10 So1o5oo~ :Go~G6)~00~ m;EeoGsoo~ <;>~co'J:G::u'Jm Gp~
~ot~008f~80c8~:8091!o5829]u5(:)~o.J@~I qc:c:~@t;?o
<--iP:Y'JI
o$coS:oosp~~'J:@to.Jtot G~::Q'JII ;5~5 moSeoGs~<j)'JGt~
G~T~CGIDGp~ ''@$G'J~CcGooScg]OID0G 1oSm'J:GmG6):oo~oooSem~s''
tJtG~II '' OjjDID0G1oS~'JgGo~G6)~8a~OOcf>eoGs '' CJ?::U'JGaTG'Jtg@~
dt9'J~::utu
~Gp~t I ~J3SJl~Ocho:>oS cg]Oq,JlG1aSm'JgGogG')~OO~ me
20GS~::uaS~~~~ISJbGOJt~OJ~~G8j~c:qrooD ~J ~oS~saSg1Jlo~
~m'JOJo5lcqt zjaSG91Sy:mldcg~c::utu 8g~ 1gG6)~~~J3~g~')g~~ oaS
::UrhOJtG}tl<f)~o)~')g~l 'ffOJ~CD'JID&q,J'Jg6)~Jtu tG:O'JC~~~I:J'J
~tcGooS ~m8g~6~t5~ mG@~euGs<(DI:l c;:) 826)1 ~ccGmS~ G9'
oot S<J'J: ~goooSG~6)~1 t~~c:q~oSl tg2~P sc:CS<J') ~ Gm'JC:OJ tmcf
Gm:;tgGID~~ ~iiloS~, @8Goo?CQ(@~G'J~CcGoo>l~ 3)g21gG6lg~C6p
70 BURMA LAW REPORTS.

CQGp:~oS 8S~rf3~g~'J~~ ~Qjl~:Gco'JCEi)gtSU? Gt9 T3r:c'J:8:tn ~o?~Gt9Tg~.

Goo~ ~ac~5:t t~C\j/cq~:~1~G,;p 'Be;Ga''J6ot@~~'J~tc~mS ::t ~:~1:G
8)

::>~ c ~~:G0Eij~l ~:~1&GEi):~~~)JCf~tt;p8'a~~<Jo3:::f~~ ~0t:68Jtll ~o?:

1
~ ;])8t o1 J ac~aco3:o3:~0t:~~CDt: ~Ec'J:m'J:~Eo~~:~p:~ @t~~
19~~~'JCG2 o~t~~p:~G06J~ GmSg"(5~p:~0t:m'J ~G:;;ct:~mtn d3S:oo2
IS~n~Ec @:G.yoaSSJ ~!J<l~~'J:J?~0t:~m~u eoG'JI @~G'J~CCGmS@i ~
GOJSII GEiJG6'Jt~mo5o~~GOO'JtGEijElZ~ O'J~GOO'JC~OJtu @~g'J~tcGa:
@:G5'<l'JC~C.I GCDG'Jt:mo5~~G:;o'JCGEij:To~mt_Gco'Jt~mtu 0: ~tm 8'a'J (~.
~:1 J3t CJi~of5 ~:i3S:oot:t 6J~CJt~~~ Ojjb0~G 1o5ac'J:Go;GEij~!J<l~<
mtGco'Jt~m'~u q1@~~ 1 C\jj80~G 1o5ac'J:Go:~Eij:ac~~ ~0t~~
::DtG.pcf)t ac~~sot;p~~p:xt @tGoo'JtO( @~G'J~CCGO'JS<
~:g1:G6):a<l~ r otb ~CGOO'JtlaS G.P0 ~~'J:~ 8J tB<J? ~OCGJGOG ~
~o?~OJOOcg]CI c;f:~~~f otS~tGOO'Jt)aSGcj\6G8J'J ac~coi
ao~coS:~p:~8Jt 1 @tJiloo~m S:"lj'J:@~G'Jt:Sl'J c OOC)'J:GcpOJ~
<
C\jjb <D~G1oSTo'J :GmGEij:D<l~2~!;l'J ~tcGm So.:>Go: m01~oo'J:Go:
emot@~o:>~u c;t:To~~f aJ~'JGGjm ~~:~'J.PSl ~oS<D'J:OjoSoo)
8'a(9t1 ~tCGOJ 58JGOJCDOI.To8o.:>t ~~ld3c 1:~:carut: olo to.:>~
c;5:m~o5~p:~JGo: 1 ~oSo&f:~~CijjCl ~cGooS:uGmm OCJ~
GEJ>3')0'Jcxto5f9~GO':IJ-~'J~oSooS6)Gtu qfe~~m<Dt:~S~ecGD~r
~ot6Gt~o1mt ~tC:GooSo.:>Gm~ ~:6~5~[65:~ ~d)f
6J:x>fSu ~~~oS.p'J@~Slm'JUj]Ct <Dt:mS:eoGD~p:~ ~otb~to:>ti
Ojjb0~ G1o'3ac'J:Go~Gb)gcrcJ~~t aoJ320G80 1d3~6JO~'Jgo1 GOO'JCjo56j
rn::J6rl ~acOOJ~G~Gg~'Jg~6)~6J~I n.a~mG~'=JrnG~:~~fm~
~5p<J,2C ~tcG:::JJSo.:>:,;m~ mg~so8~~ moot6)0i(CD'J!~@:@t6JG~
~o?~acS~GGJ~O1mJ G~'=jp:~G~~o;?@t:91G0')00~G:~tu atJ~~EijcO<J,2
rut~ G~GGg~'):G~:O)?~tg9~:utu ~!{)<J,2tG~~'J~8CJo2ch 0~:m~
~o5'=1/'JDJ'J:~6JGt&u c;t:<Dt:mGg~d)'=l!'J~~'JCD~gl ~tCGmS::DGOJr.
OJGO')'JO'j{~GOJ'J <Dt:mS:~r"lp:@&;Eijgtu ~o?~G~gOj(GX'J G~'=lJ":
~ @~rotGog;;ob~E9~1 ~QGgo3:x~~OO'JtEij(;)tu ~~o3:::D~m-::
G::D'J~QG~~F~I @~g'J~tcGm55G~<D'JG]C:0b~IOm ~&l<D<D~GOI:
bJo.:>tu
 co~ecd~~3ccee~g&-> ;occ:3ce~meJ sco~:;?g~cc=~3 3~~ec~be~g;o
:gdse ~=~Q:fCCO~~co~~3~ ccc~:crogccoe~co 3osc0~ecd~eJ:oeJ
:cec;oL~g0g!fu~ tgllif;o. be :;o0ed~coGGCP5:fO.D:lOO ~~~(!: fGeJc
3~ rf c :;o~eG~eG~~lnec:;oo.zich tg~e rGelc ~zscoeJ:~~

usccc~c~gm
cB~gc;e~~~ec ccce~gcrogcmeJsccocob:8er; cceJ:;:>g~ 1SL'fuec:!oe8
s
b::J&Jecsc:clhec :scro~cc53co3B c0sccc:c<;agccoescco :~
CCCeJCC :3ogcm!se~L8:g 'So~eG:be~oegcec:;oLeg<DsiED ~~~sc
usccc:cm
~l~e:gmecsoec tog!ds~scco gcceccscoe?3~ scccf;o~sc8o
gbgberi ~SD:~\nced3eecggec J:~:ce.GCCJJ.)Cef~~ffi ICOL o~9:>
=sscg~sc0~ usccc:cceg~:~scg~ COLn~sc~:g;cg& f?:~!hcooceu
CCCeJ:cm:g~.geGfp~eG I ~:oeJ~~eGCm~ gncocoe ccscoe:;?g~ i gfu~g~
p~gcceeJc=~f?:clhgb$su ccce:croso~scb~b:f~3cree gceG:3:fce-:~
W~eG l::flC'b~~geG~ef?:clh~Jogo~ecbeoGeoC COcoeccscoe:;?g~
ICOecccifl~ 113~:ftggccec=~iflfpSCflCO~eG:g!J lw:cJhsbfff> S?cc
pch~cha;Lmbeeu l~:f8J:gcoglb :8ec~coe?g8 1:ccdt9~~:gco
<
uscccbme~:;ooo cob18eG
sco~S?38 lbo:G.fh:e8e scccgeG8o 3bgccceoo.
bo~ec~g!J uscccb~bo~gg1ieg~g:fB ~~COf.CC
scoe?g8 tgm:clhatpcccesocc:;oo ~;be:>~be8e (c)
IISCCC3~:3c5 f?:.:i!?Ger.c:g!J ljlfuccc&~c4p8o
11
35gcec~~~ Su=g~gllegffigJ~0 ~coecc;coe?g~ :~&gro
nsco~ :cfeGeo2:sco:sc0JGeo2:gls\> cccesocc:;oo3i~gliegffi ( r)
93~Ct'l~ uscccb~cccgc'bSJ)go
i}gcro~StJfil ~ L n_r-" b
gf '- ccce:cco,:se ~eG:fi~~l:occceJCC ~coeccscoe:;:>g 0
r L(') ~scc~g tS2cc:de:~&Jgo~eo ccceJ:cm~e3bgl!egec[p~ec:gb (c)
sGelc
90~
-c0mle
~
c coleex;
~-
pK;;chco ccceg{:e&~eu&beeG 1<:pfuer;~~:beweJ:cecsoL e~cog!Eo~ 1~~sc,.
ll s~1!0d'tnr MV'1 vw~na [LS61
72 BURMA LAW REPORTS. [1957

006p~~c n<lbp~U<lt;pro0:co)~lt;pe>:Da':i~5;, J o ~ <Ja8g1uSQ,2tn<ltY.lJimE~~

Ga:>S)
:J@~l3
B~:)jl~0 ~COG~"lj'J:@~O)~ ~ ::x?~oS ~cF "lj'J~~G(\)0)~ II
' na.:ncfJGt9 T[9o1 mG6')cg9Jtgsrr:u')w1' qcgm5i~~goS~oS'=lp:m
~m~~o1 J GCO'JcfJ.;,ro'J~~ @~0) t32G cqp cfJ I GC\jpc CO')~ :)j/"lj'J~@~ 6G::D'J
~tGco-Jf,l!(
@~~?~cc @:::n8~~9 ~:cg~:~~~ G~gpoSco'J~GOJ'JC:~9]cf"lj'J~~~ ~oSGo:p
GO?S),I
~t6)~ToG6'Jt~g@tli ~@~~~ qfgc.;~GCI~-:;rf)~'J~~G!D'Jt~ 021~8
oru6~d3::Dtu
1957] BURMA LAW REPORTS. 73

APPELLATE CIVIl,.
Before U C!ran Ttm Aung, Clticj Jus lice aud U Sau Mnuug, J.

u HTAN HMAT (APPELLANT) H.C.

1956
v.
Aug. 9.
DAW GON (RESPONDENT).*
Coutract of Sale-Ti'llc lite essence of Coulract-Exccutiou of ComProwisc
decree-S. 7-1, Contract Act, aPPlication of cqurtablc PrillcipJcs-lssuc
dcpcndrug 011 crcdibilityofudttJesses-.'Jj>j>clla/c Court aud lite fiudiugs
of facts by the trial Court-SlipulatiOit tltat if Seller could uot gitc
po~scssio/1. to tlte fJIIycr on or before a sPe~ified dale, the purcftasc price
would b" reduced from K 3-1,000 to K 20,000 wlietlter a pcually.
The Appdl:u.t -oucd the Respondent for specific performance of contract of
s.tk and lhe s dl w.1s compromised on the following amongst other tern~s :-
(il That th: plaintilf would ptuchas~ the suit properly for a smn of
K 34,0u0 if the ddr;:ndant w;ts in a !'OSition to give \',.cant possession on or
.
before the lllh /ll.!rch 1952 .
(5) That if the defendant was unable to ghc vacant possession of the
property c1n or bdore'the 11th l\Jarcll 1952 the price p:~y..Lblc by lhe plaintiff to
~he dcfLndant should be K 20,000.
On ddt>ndant's failure t<J g;.vc po~scssion on 11th i\Iarch 195'2 the appellant
applied for the CXL"cntioa 01 the compromise <kcrcl!.
T!1c t~ial Court h<:ld-
f!) That lilne was o.f tl1c essenc e of t11e contract.
12) Tl'tal default was due loa third party and not to anv act of ncgliJ,\encc
or lack of'good faith on tile part of th<.: Hespondent.
(3J Tlnt the jndgment-deb~or was cnlitkcl to indulgence and cqui!able
prindples laid down in s. 74, Contract Act and therefore the
appellant \Vould be entitled to a conveyan::e upon payment of
K 34,000 in terws of the first clause of the consent Decree, relying
on Audit Hchari Lal aud otltcrs v. Faquir Rai aud mzothcr, A.I.H.
(1951} All. 236; Sll:yam S1l11dar J>(Jd/ti and others\'. hulra1liOIIi Das
aud arwlltcr, A. I. H. (1951) Orissa 46.
On appcaJ by the ;tppelbnt,
Held: \Vhere there is a conflict of oral eddence, and the issue in the case
depends upon the credibility ~f lhc witnesses a Court uf appeal ougllt to bear
in Jllind th:tl it che> not see or rehear the wilnessts an~! should not interfere
with ;t decision arrived al by !he trial Jnclgc unless it con.es lo the conclu~ion
tit at lh!' tria! Court was plainly wrong.

Ci\"il ~lis.;. Appeal ::-\o. 78 of 1954, against the decree of lite Original Sitle
of this Court in Civil Ex~culion Case No. 19 of 1952, arising out of Ci\il
r~,gular Suit ~To. i4 Of 1951, dated the 9th November 1954.
74 JJURI'viA LAW REPORTS. [1957
H.C. CTtimzaya v. u l(ll,T I 14 n~n. u; approved.
1956
Held also: Under tile circumstances of the ~ase, lime was of the essence
U HTAN of contract, though in contract~ for the sale a land Equity Jool1s not at Ulc
HMAT IE.tltr but at the substance of the agreement in order to ascertain whether the
'V.
p:trlies, notwithstanding that they named a specific time within which
DAW Go.N.
completion was lo take place, really intended no more than that it should take
place within a reasonable time.
lams/led Kllodaram lmui v. Burjorji D/wajibllaz, 40 Bam. 2.89(P.C.),
appro\cxl.
Held also: In the circumst.ancts of the case, the stipulation that if vacant
possession could not be given on or before the lllh !\larch 1952, the price
should be reduced from K 34,000 to K 20,000 was " stipulation in the nature
of penalty.
Ramaliuga Adard,tr mzd others v.llfecllak Shiszwdaram Pillai aud ot!Lers,
A.I.R. (1925) Mad. 177; I-Iiralal Hariram Efta/ad v. Mt. Dttrga Bai Mttrlidhar
Marwadi, A.I.R. (1937) Nag. 413, referred to.
Held furl her: A compromise decree merely embodies the agreement
arrived at between the parties and is therefore no more than any other
contract l:etween them.
Shyan Srmdcr1 Pad/li aud olltcr-s v. lndramaui Das and ,wotfler, A.I.R.
(1951) Ori ~s a 46, rderr;,d to.
Ordered a reduction of K 5 ,000 from the stipulated price _of K 34,000.

Kyaw Din for the appellant.

Ba Thaw for the respondent.

Judgment delivered by
U SAN MAUNG, J ._ In Civil Regul.r.r Suit No. 74
of 1951 of the Original Side of this Court the
plaintiff U Htan Hmat who is the appellant in the
present appeal, sued the defendant-respondent Daw
Go_n for specific performance of a contract of sale of
a house and site known as No. 793 Dalhousie Street,'~ ,.

Rangoon, for a sum of Rs . 20,000. H!s case was

that at the time the agreement for sale was entered
into between him and Daw Gon the house and site
' '

in suit were under an equitable mortgage by deposit

of title deeds with one U Ba Hla for a sum of Rs .
5,400 and th:1t at the request of the defendant he
had to give her an advance of R s. 200 on the 21st
September 1950 and also paid to U Ba Hla a sum of
1957] :.BURMA LAW REPORTS. 75

R~. 5,400 in full settlement o'f his claim but that when H.C.
t"J56
called upon to do ~ she failed to complete the sale
U HTAN
by accepting the balance of Rs. 14,400. The HMA.T
v.
defendant's case was that she had agreed to sell D,\\V GuN.
U Htan Hmat the house and site in suit for a sum U S,\N
of Rs. 35,000 but that she was responsible for the i\1;\l'NG, l
eviction of the tenants therefrom, and for the
demolition of the house which had already been
condemned by ti'le Rangoon Corporation. The suit
did not go to trial but was compromised upon the
following terms : -

d) That the plaintiff would purchase the suit

property for a sum of Rs. 34,000 if the
defendant was in a position to give
vacant possession on or before the 11th
March 1952 in which event the defendant
must execute ' the necessary deeds and
hand over the same to the plaintiff on or
before" that date.
(2) That the plaintiff should, except for the
money advanced by him to the defendant,
ii)ay to her the balance money on or
before that date.
(3) That the defendant must pay interest on
the money advanced to her at the rate
of 1-i per cent per mensem till the date of
the execution of the sale deed, which was
to be not later than the stipulated date
and further the defendant must pay the
plaintiff the ground rents and house rents
which were due and I~ecoverable from
the tenants who were residing on the
premises in suit from the date of order
recording the compromise till the date
of the execution of the sale deed.
76 BURMA LAW REPORTS. [195/
H.C. (4} That the plaintiff undertcok not to obstruct
195~

U HTAN
or interfere at all while the defendant
HMAT was taking steps to eject the tenants
v.
DAW GoN. from the suit property.
U SAN
(5) That if the defendant was unable to give
MAUNG, J. vacant possession of the property on or
before the 11th March 1952, the price
payable by the plaintiff to the defendant
should be Rs. 20,000 and the defendant
must execute the necessary deed of
conveyance, on the plaintiff depositing
the balance due after deducting the
advance paid by him to the defe1t.dant.

The defe11dant was unable to give vacant

possession on the stipulated date, namely, lhe 11th
March 1952, as the Rangoon Corporation did not
eject the tenants till two days later. Accordingly,
the plaintiff U Htan Hmat applied on the 17th
March 1952 for the execution uf the compromise
decree by directing Daw Gon to execute the necessary
deed of conveyance, on U Htan Hmat depositing the
sum of Rs. 9,998-5-6 which he claim.~d was the
amount due to Daw Gon after making the deductions
stipulated in clause 5 of the compromise terms. To
this Daw Gon filed a written objection stating, inter
alia, that the application for execution , was not
maintainable because the plaintiff had contrary to
his undertaking recorded in the compromise decree,
that he would not raise or cause to be raised any
objection to the ejectment of tenants from the
premises in suit, caused delay in her obtaining vacant
possession of the premises which could only be
secured on the 13th of March 1952. Daw Gon also
filed an application in Civil Regular Suit No. 74 of
1951 asking the Court to direct U Htan Hmat to
1957] BURMA LAW.REPORTS. 77

deposit )a sum of Rs. 34,000 Jess Rs. 5,400 with B.C.

1956
interest due thereon'. In that application she set ~ut
U HTAN
the reason why vacant possession of the premises HMAT
could not be given on the I 1th March 1952 as 1J.
DAW GoN.
stipulated in the first portion of the compromise
U SAN
decree. She said that this was entirely due to the MAUNG,. J.
tactics adopted by U Htan Hmat in obstructing or
interfering with. her attempts to obtain vacant
possession of the premises in suit. The learned trial
Judge, however, without making any enquiry into
the question whether or not the failure on the part
of the defendant Daw Gon to give vacant possession
on the 1 Vh March 1952 was really occasioned by
the conduct of U Htan Hmat in obstructing or
interfering. with her attempts to obtain vacant
possession.of the premises in suit in contravention of
his undertakjng, held that time was clearly of the
essence of contract between the parties and that
there was no jusJification in the claim made by
Daw Gon that the plaintiff should be made to
deposit Rs. 34,000 less the money already paid by
him on the basis that vacant possession was offered
on the date agreed. upon in the compromise decree.
Daw Gon appealed and the learned trial Judge's
order, dated the 23rd June 1952, was set aside on
the ground that Daw Gon should have been given
an opportunity of establishing her case that failure
on her part to obtain vacant possession of the
premises in suit was really due to the obstructive
tactics taken by U Htan Hmat in contravention of
his undertaking in the terms set out i:-1 the compromise
decree. The trial Judge then held an enquiry and
subsequently passed an order, dated the 9th November
1954, which is the subject-matter of the present
appeal. After a careful appraisal of the evidence
add ucea .by both the parties the learned trial Judge
78 BURMA LAW REPORTS. [1957

H.C. held that the evidence adduced on behal: of the

1956
juflgment-debtor Daw Gon, . _ both direct and
U HTAN
HliiAT circumstantial, lent no support to the objection raised
v. by her that the decree-holder U Ht<:n Hmat had been
DAW GoN.
responsible for the two days' delay in the eviction of
U SAN
MAU"NG, J.
the tenants who occupied the premises in suit. He,
however, held that she had been very diligent in
taking all steps possible, in the c;ircumstances, to
give effect to the terms of the compromise decree
for giving vacant possession on the lith March 1952
and that if she was unsuccessful in this respect it
was due not to any act of negligence or lack qf gqod
faith on her part but upon the failure of a third
party, the Buildings Department of the Corporation
ofRangoon, to carry out the eviction of the tenants
from the condemned building before the llth March
1952. Therefore relying on the obseryations of the
learned Judge of the Allahabad High Court in A udh
Behari Lal and others v. Faquir Rai and another
(1), the learned trial Judge held that this was a case
for treating the judgment-debtor's default with
indulgence. The concluding portion-of his judgment
reads: ..

"A compromise decree merely embodies the agreement

arrived at between the parties and is no more than any other
contract between them. It cannot therefore claim the sanctity
of a judgment followed by a decree of the Court and an
executing Court has therefore power to apply the equitable
principle embodied in section 74 of the Contract Act and
relieve one of the parties to the contract against any term
which operates as a penalty although the contract may have
been embodied in a decree of the Court. Sec Shyam Sundar
Padhi and others v. Indramoni Das and another (2). In the
present case payment of quite a large sum of money is made
dependent upon the judgment-debtor agreeing to do a certain

{1) A.I.R. (1951) A 11. 236. (2) A.I.R. 11951) Orissa 46.
1957] ;;n URl\JA LA}V REPORTS. 19

act. namely 1 giving vacant possession of the premises which H.t.

1956
she had contracted to,. sell to the decree-holder. Having
regard to the time at her disposal and the nature of the action U I-ITAN
-HMAT
which the parties contemplated that the judgment-debtor v.
should take in order to comply with her undertaking and to DAW GON,
the difficulties inherent in the situation in which she was U SAN
placed, it would clearly seem to be inequitable that the liJ ,~ UNG, J.
decree-holder should refuse to excuse the delay of two days in
the delivery of the property contracted to be sold to him."

He accordingly directed that the decree-holder

U Htan Hmat would be entitled to the conveyance
of the property in terms of the first Clause of the
consenf"decree only, that js to say, for a price of
Rs. 34,000'' but that he would be entitled to the
reliefs set opt in clauses 2 and 3.
In this. appeal the learned Advocate for the
appellant U Htan Hmat has argued that the learned
trial Judge having held in his first order, dated the
"'23rd June 1952, tha~. time was of the essence of the
contract and has in the order under appeal come to
a finding that U Htan Hmat had not committed any
breach. of the cbvenant not to obstruct or interfere
while Daw Gob was taking steps to eject the tenants
from the premises in suit, was logically bound to
execute the comprom1se decree on the footing that
the premises in suit were to be sold for a sum of
Rs. 20,000 only. The learned Advocate for the
respondent Da w Gon, on the other hand, contended
that the .learned trial Judge was wrong in coming to
a finding that the evidence on record, both direct
and circumstantial, did not lend support to the
objection raised by Daw Gon that the decree-holder
U Htan Hmat was responsible for the two days'
delay in the eviction of the tenants from the
condemned building, that on a true construction of
the compromise decree time was not of the essence
80 BURMA LA_.W REPORTS. [1957

a.c. of the contract, and that in any event, ever assuming

1.956
t.Q.at time was of the essencv of the contract the
U HTAN
HMAT equitable principles embodied in section 74 of the
v.
DAW GoN. Contract Act were applicable.
.U SAN Now; regarding the contention that the learned
.lllAUNG, J. trial Judge was wrong in the view which he took of
the evidence that it lent no support to the objection
raised by the judgment-debtor Daw Gon, we have
carefully perused the evidence in the case and we
are unable to agree that the learned trial Ju4ge's
finding on the facts should be reversed. Daw Gon
in her evidence has stated that when she went to the
Municipal Office to urge the authorities concerned to
take. early steps for the eviction of her 3enants she
was told that U Htan Hmat and his...friend U Ba
Tun, a Municipal Councillbr, had been there to
raise objection. Her informant was no other than ~

the Buildings Engineer U Khin Maung (a) Mcintosh

himself. She had also been infoni1ed by her
tenants that U Htan Hmat had told them that they
need not vacate since he had purchased th~ house
and had come to some sort of undersfanding with the
Tenants' Association. However, Mcintosh (a) U
Khin Maung (DW 6) cited by her, failed to
corroborate her story that U Htan Hmat and tJ Ba
Tun came to raise objection against the eviction of
the tenants. Two witnesses Cassey J ayaran and Ah
Shaung cited by her in support of h er story, that U
Htan Hmat had been roun:l to the tenants telling
them not to vacate, have been disbelieved by the
learned trial Judge for reasons which appear to us to
be cogent. The learned trial Judge observed that
considering that these witnesses had been brought and
examined in Court on the last day of the hearing,
their vagueness in regard to the date on which t he
1957] 1lURMA LAW REPOR'FS. 81
'
\

decree-hold~r came and spoke to them on this vital

matter did not appear ,to impress their evidence with
the stamp of truth. " UH~IAT
HTAN

Daw Gon and U Htan Hmat had been in DAWv.GoN.

negotiation regarding the sale of the premises in suit
U SAN
since 1950, and Daw Gon had been given one year's MAUNG, J.
time in which to eject her tenants. The reasons she
gave for considering that U Htan Hmat was obstruct-
ing her in her atteihpts to obtain vacant possession
of these premises, appear in the penultimate
paragraph of her statement. She said that she had
once seen U Ba Tun and U Htan Hmat in Mcintosh's
room some time before the compromise decree was
passed and sh'e therefore presumed that subsequent
to the decree also U Ba Tun who was very friendly
with U Htan 'Hmat had been helping him to delay
the" eviction , of the tenants till after the 11th
March 1952. She may have reasons for her suspic-
ion but this is not tantamount to proof of the fact
that U Htan Hmat wa~s either instigating the tenants
or otherwise actively opposing her in her attempts to
obtain vacant po~session of the premises in suit
before the crucial date.
Her husband U BaThein (DW 2) was himself a
pleader. On the 25th January 1952 he wrote the
letter Exhibit " o " which was delivered to the
Buildings Engineer by George Tha Khin (DW 4) who
being a friend of that engineer, had promised to
render some assistance in this matter. The Buildings
Engineer . referred U Ba Thein to the Chairman of
theBuildings Committee, U Tun Win !DW 7), and
when this was done U Tun Win promised to help.
Subsequently a promise was obtained from the
Buildings Engineer that steps would be taken for the
demolition of the premises in suit after the municipal
elections were over. On the 25th February 1952 U

6
82 BURMA LAW REPOR1S.
~...:
(1957
, H.C. Ba 1 hein again wrote the letter Exhibit '' ro '' addres-
195p
sed to the Buildings Engineer, wherein he alleged that
U H'fA!:'I .
H~IAT U Ba Tun was acting on behalf of the decree-holder
t..
DAW GON.
U Htan Hmat and was opposing the demolition of the
building. Two days before this letter the Buildings
;u SAN
MAU~G, }. Engineer had directed that notices be issued again to
the tenants for their eviction from the premises. U
Ba Thein then met the Buildings Engineer and from
him obtained the explanation tli'at the 13th March
was the earliest date on which the demolition of this
particular building could be carried . out by the
department in view of the fact that he had other
matters of similar nature fixed for the 11 H1 of March
1952. U Ba Thein alleged that whe'never he saw
the Buildings Engineer he was made to understand
that the opposite party, namely, U Htan Hmat,. had
objected to the eviction of the tenants :and . .that in
these circumstances the responsibility for 'the delay
in the ejectment of the tenants lay with U. Ht'fni.
Hmat. His witness George tha Khin (DW 4) stated
that when he and U Ba Thein went to see the
Buildings Engineer they saw U Ba Tun, .unicipal
Councillor, in the Engineer's room:- The Buildings
Engineer pointed out to U Ba Tun and told them
that he was objecting to the . demolition of the
building on behalf of the opposite party, meaning
the purchaser.
However, as already mentioned above, the stor-Y
sought to be established b.y Daw Gon and her witne.s,..
ses, namely, U Ba Thein and George Tha Khin; that
Mr. Iylcintos)l had himself told them that U Ba Tun
had been objecting to the ejectment of the tenants
and the demolition of the building at the instigation of
U !Han Hmat, had been strongly negatived by
the evidence of Mcintosh whom Daw Gon had
herself cited as her own witness. In these
1957] BURMA LAW, REPORTS. 83
>

circumstaq,ces, it carmot be said to have been proved H.t;.

1956
that U Htan Hmat ht"..cl either instigated the tenants
U HTAN
from. vacating the premises in suit or had himself HMA1'
actively opposed Daw Gon's application with the v.
)DAW GON.
help of his friend U Ba Tun.
0: SAN'
As held by a Bench of the late High Court in 1\f,~U_NG,' J.

Chinnaya v. U Kha (I), where there is a conflict of

oral evide11ce, and the issue in the case depends
upon -the credibility of the witnesses a Court of
Appeal ought to bear in mind that it does not see or
rehear the witnesses and should not interfere with a
decision arrived at by the trial Judge unless it comes
to the conclusion that the trial Court was plainly
wrong. This observation applies with full force to
the finding of facts of a Judge on the Original Side
of this Court.
~-In suppo;t of his c.ontention that time was not
_of the essence of the contract, the learned Advocate
for the respond_ent Daw Gon has cited the case of
Jamshed Khodaram Jiani v. Burjorji Dhunjibhai (2).
There, a stipulation as to time in the agreement to
.the effest that the. purchase price of a piece of land
must be paid em the execution of the deed of sale
which was to be prepared and received with in two
months from the date of that agreement, was held
to be not of the essence of the contract. In this
connection the Privy Council observed that section
55 of the .Contract Act did not lay down any
principle which differed from those that obtained as
regards contracts for the sale of land by which
equity in such a case looks, not at the Jetter, but at
the substance of the agreement in order to ascertain
whether the parties, notwithstanding that they
named a ~pecific time within which completion was
to take place, really intended no more than that it
(l) 1"4 H;tn. 11. - (~) 10 Hom. 289 (P.C ).
84 BURMA LAW REPORTS. [ 1957
H.C. should take place within ~ reasonable time.
1956
Although we agree that the l~w has been correctly
TJ HTA:-1
HMA'f laid down in the case cited above, we consider that
v. it is idle for the judgment-debtor now to contend that
DAW GoN.
time was not of the essence of the contract between
U fAN
l\{AUNG, J. her and the decree-holder. When the matter
regarding the execution of the compromise decree
came before the trial Judge the parties joined issue
only on the question as to who was at fault for
the failure on the part of the judgment-debtor
Daw Gon to give vacant possession of the premises
in suit on the lith March 1952. Even when the
matter came up before a Bench of this Court in
Civil Miscellaneous Appeal No. 52 oi 1952, it was
never contended that time was not of the essence of
the contract and this matter was therefore not
decided as it would otherwise have been, in the
judgment dated the 9th November 1953. Therefore,
in the circumstances obtaining in the case now under
appeal we must hold that time was of the essence of
the contract as embodied in the compromise decree.
The question which now remains for considera-
tion is whether the stipulation to the ~ffect that if the
defendant was not in a position to give vacant pos-
session of the property on or before the 11th March
1952 the purchase price would be reduced from Rs.
34,000 to Rs. 20,000, was in the nature of a penalty
so as to attract the equitable principles embodied in
section 74 of the Contract Act. In this connection,
the observation of Srinivasa Aiyangar, J. in
Ramalinga Adaviar and others v. Meenak Slzisun-
daram Pillai and others (l) may be usefully quoted.
The learned Judge said:
The whole principle of the law of penalty is this as I
understand it. The parties who enter into a contract no
(5) A l.t~. (1925) Mad. 177.
1957] - BURMA LAW .REPORTS. 85
doubt expec:;t that the-" contract would be carried out ; but H.C.
they also contemplate the.npossibility of !he contract not being 1956
carried out and provided for such a case. If in making' U H1A~
provision for breach of contract the promisee stipulates from H~IA'r
v.
the promissor on the breach only for such compensation as the .DAw GoN.
Court would deem reasonable in the circumstances, then there
t; SA~
is no penalty and the stipulation is not penal. But if, on the l\IAUNG. J.
other hand, the Court would on a proper consideration come
to the conclusion that the stipulation was put in not by way
of reasonable compenS'ation to the promisee but in order that
by reason of its burdensome or oppressive character it may
operate in terrorum over the promissor so as to drive him to
fulfil the contract, then the stipulation is one by way of
penalty."

In Hiralal Hariram Bhatad v. Mt. Durga Bai

Murlidhar Marwadi (1) Niyogyi, J. held that where
a contract contains a term which, not being an
integral parf'of the contract, is introduced only for
the purpose df securing the performance of the
c'ontract, that term is penal and equity interferes to
relieve a party to the' contract against it and that a
penalty is a term which is extraneous and collateral
to the actual contract. As to what provisions are
penal have als0. been made clear in Illustrations (a),
(d) ana (e) to section 74 of the Contract Act. These
Illustrations bear out the truth of the observation
of Srinivasa Aiyangar, 1. in Ramalinga Adaviar's
case cited above.
Bearing these observations in mind, we are of
the opinion that in the circumstances obtaining in
this case "the stipulation to the effect that if vacant
possession could not be given on or b<;fore the 11th
March 1952 the price of the house and its site should
be reduced from Rs. 34,000 to Rs. 20,000, was a
stipulation in the nature of penalty. The decree-
holder who had entered into an agreement to
(1) A.I.R. (1937) Nag. 4!3.
86 BURMA LAW REPORTS~ [1957

fi.C. purchase the house as early as 1950 with- the judg-

1956
ment-debtor, had waited for a~ long time before- he
:U HTAN
HMAT filed the suit on the 24th of August 1951. The
v. compromise decree was passed on the 24th of
DAW GoN.
January 1952 and the time limit seems to have been
U 'SAN
-MAUNG1 J. placed in order to compel the judgment-debtor to do
her utmost to give vacant possession of the house
a1id site. The judgment-debtor also probably
thought that since the house had been condemned
by the municipal authorities since 1950 she would be
able to fulfil her part of the contract by glving
deli very of possession on the 11th March 1952 and
accordingly agreed to accept a much lower,.. price in
default.
That a compromise decree merely embodies the
agreement arrived at between the parties and is
therefore no more than any other contract between
them is clearly laid down in many o{ the cases cited
by a Bench of the Orissa High Court in Shyam
Sundar Padhi and others v . Indramani Das and
another (1) wherein the same conclusion was arrived
at by the Judges of the Orissa High Court.
T he question now for considerat16n is how mu.ch
of the penalty stipulated in the contract should be
enforced. The penalty of Rs. 14,000 1i1entioned
therein is certainly excessive considering that the
house and site .in suit would not deteriorate -in vahie
with the passage of time. However, considering the
fact that the original contract for the sale of the
house whereby the decree-holder U Htan Hmat had
made an adv2.nce of Rs. 5,600 which took place . in
the year 1950 and because of the default on the part
of the judgment-debtor to give possession on the
11th March 1952 as stipulated in the compromise
decree' litigation between the parties and consequent
-------------------
(1} A.I.R. (1951) Orissa -46.
1957] BURMA LAW . REPORTS. 87
delay had r~sulted, we consider that the decree-holder H.c..,
1956
should get a reductionrin the price of the property
to the extent of Rs. 5,000 only. Accordingly, we . U HTAN
HMAT
v.
would direct that a sum of Rs. 5,000 be reduced DAW GoN.
from the stipulated price of Rs. 34,000 mentioned in ... '

U'SAN
clause (1) of the compromise decree and that the :MAUNG, J.
judgment-debtor do convey to the decree,..holder the
premises in suit, on the decree-holder paying into
Court the money due to be paid by him having
regard. to clauses 2 and 3 of the compromise decree
which reads :
" 2. That the plaintiff shall. except for the money
advanced oy him to the defendant, pay to the defendant lhe
balance money on or before the said date.
3. That the defendant shall pay the interest on the
advanced money received by her at the rate of Rs. l;l,- per
cent.per mense1Yl from the date of receipt of the said ad~ance
till the date of exec:ution of the deed on or before the said
da,te, -and further the defendant shall pay to the plaintiff the
ground rents and house re!].ts which are due and recoverable
from the tenants who are residing on the said property from
the date of this order till the date of executiop of the deeds,"

However', in tl)~ ~circumstances, the words " on or

before the said date " occurring in these clauses
should read "on the date of the execution of the
sale deed."
The payment by the decree-holder of the neces-
.sary amount must be made within one month of
the date of this order or within such further time
as may be' granted by the trial Judge.
Each party must bear its own costs of appeal m
this Court.

U CHAN TUN AUNG, C.J ..- I agree.

88 BURMA I.AW REPORts. [1937

APPELLATE CIVIL.
Before U Chau )'rm Armg, Chief ftul icc aud U Sa11 Mart1lg, J.

H.C. U KYWE (alias) U AUNG MYINT (APPELLANT)

1'.!56

Oct. 12. v.
DAw MY A MY A AND ONE (RESPONDENTS).*

Ex-parte Dccrcc-Scti ilr/!. trsidc-S. 18, Ariicl~s 164, 166 c,wd 181, Liwilal ion
Act-Auction Sale by Coltrt, Eetthg aside ou. grou1UI of fnmd--Ordcr
21, N.ule 90, Civil Procedure Code mrd Article 166 a11d s. 1,~, Limilalio1t
Act-Actual Positive fraud wtrsl l:e proved-Cell ificatc of Sule
1tccessit y of proof.
Held: Unless a pers:m aggrie\ed by an ex- parte decree apply within the
tine p~e~ented either under Article 16~ o; s. 18 of th~ Limitation Ad to set
it aside he is bound by it.
Markandn v. JT. /(, R. N,lidu, 26 Pat p. i17 ; l'alel 8aldeJdas /{ars.znda
v. Moha11lal BaPalal Bahia, I.L. R.. (1948) Bom. p. 145, referred to.
Held crlso: Unless a person file an applicalion to set aside t!:e sale under
0 rder 21, Hule 90, Civil Procedu c Code within tlre time p rescribed by
Arlide 166 an :! s. 18 of the Limitation Act, the sa!e is binding upon him. "'
If fraud is alleged, it must be actual (JOsi!ive fraud, a meditated and
intentional contdvar.ce to keep the parties and the Court in ignorance of the
real 1:! cts of the case.
fallki Kuar v. Lacfwri Narain, 37 All. p. 535; Rau Rali11 l,al v. Blmri.s
Begam, 38 All. p. 7; Krwja Bch,rri Chnkmbartt v. Krj~Fz11a [)flmt Majumdar,
(1940) 2 Cal. p. 477 ; Mohamed Golab v. Mohamed Sulli11uw, 2 l Cal. p. 613 ;
Molrendro Narai11 Cllat uraj v. Go pal Moudul, 17 Cal. p . 769, rderrcd to .
Held furl her A certificate of sale is not conclushe as to !he properly
which had b~en purchased at the sal<! as th e property offered for ~a le and biJ
for was in fact the propedy ordered to be sold and proclain:ed for sale.
Dalvtwt Babaji D/Joudgc v, Hirac!uwd Grtldcfw11d Gu;ar, 27 Bom. p. 334,
ref<::rrcd lo.
Held also: Mere production of the sale certi fi cate alone would not entitle
the plaintiff to deere(.', It is the duty of the pl<tintiff to prove (!) the existence
of a suit (2) the existence of a mor tgage decree and 13) the sale of the
mortgaged fTOperfi.!:S in p:usuant lhueto.
A sale certificate, if rroperly proved to be genuine, is a document of Iitle
and is !he best c1idence to prm e what was ;:ctually so~ cl.
Tradcrsmul ilfiucrs Ltd. v. Dlirrcdra Nalh Ba11crjc., 23 Pat. p. 155.

' Civil 1st AppeJl No.5 of 1955, ag,1inst the decree of the Original S:d~
High Court of I~augoc.n in Civil I~egular No. 30 of 1955.
1957] BURMA LAW REPORTS. 89
lj.C.
San Myint for the" appellant. 1956
u KY\\'E
Kyaw Htoon for the respondents. (a luiS)
\.J AUNG
1\1YJN1'
Judgment delivered by v.
DAW MYA
l\'lYA AND
!)NE;
U SAN MAUNG, J.-In Civil Regular Suit No. 30
of 1955 of the Original Side of this Court the plain-
tiffs Daw Mya Mya and Daw Hla Hla who are the
respondents in the present appeal sued the defendant-
appellant U Kywe (a) U Aung Myint for a
declaration that they were the owners of the house
and sile in suit. Their case was that in Civil
Regular Suit No. 331 of 1937 of the late High Court
of J udicat1,1re at Rangoon, in which the Receiver of
the estate "' of the deceased Mr. Robertson was the
plaintiff and the defendant U Kywe as one of the
heirs and legal representative of Daw Kha was one
of the defendants, tl mortgage decree was passed for
the sale of the mortgaged properties namely, the
house and site in dispute. Thereafter in Civil
Execution Case No. 58 of 1941 the mortgaged
properties w'ere sold by the Court in execution of the
said mortgage decree and the same were purchased
by Daw Hla Nyein, grandmother of the plaintiffs for
a sum of Rs. 10,550. The sale was confirmed on
the 20th of August 1941 and Daw Hla Nycin was
granted a sale certificate. (The original had been
filed w.jth the plaint). The proclamation of the sale
of the properties was advertised in the Rangoon
Commercial Advertiser a copy of, which was also
produced and the sale proceeds of Rs. 10,550 was
paid in three instalments vide the original receipts
also produced with the plaint. On the death of Daw
Hla Nyein in February 1954, the properties devolved
upon the two plaintiffs as her only surviving heirs
90 BURMA LAW _REPORTS-. [lY57
H,C. and since then the plaintiffs had been in actual
1955
possession of the same. On the 29th of December
U 1{YWE
(,Tiias) 1954 the defendant U Kywe gave a notice to the
UAuNG
II'IYTNT plaintiffs' father U Ba Tun, claiming that the said
ll. suit properties still belonged to the estate_. of their
DAw M'YA
MYA.Ai-"D mother Daw Kha and hence the plaintiff had to file
ON~
the .present suit to dispel the cloud which had- been
U SAlf cast upon their title to the suit properties.
MAU:-:!G, J.
The defendant U Aung Myint by his written
statement said that he did not admit the existence of
a mor.tgage suit as alleged by the plaintiffs or the
mortgage decree arising therefrom and the Si;l.}e of the
suit properties in pursuant to that decree. He
alleged that neither he nor the other heirs of Daw
Kha namely Ma Ohn Yin, Ma E Nyun, Maung Tin
U and Ma Khin Nyein were aware of the mortgage
suit or the sale thereunder. He also 'contendeci
that Daw Kha was so ill for many years prior to her
death that she could not possibly have executed
the mortgage deed in question, - and that since
Daw Kha died in December 1935 she could
not possibly have figured as the seeond defendant
ln the mortgage suit brought in 1937.' He alleged
that he and the other co-heirs had been purposely
kept out of the knowledge of the existenc~ of the
mortgage suit in question and the sale" relating
thereto with a view that the properties might be
pur~hased benami in the name of U Ba Tun's
mother-in-law Daw Hla Nyein so th~t U Ba Tun's
own children might benefit thereunder.
:- The plaintiff$ in reply to the written statement
contended that the defendant was barred from
questioning either the validity of the mortgage deere~
on any ground whatsoever after the lapse of so many
years or the validity o~ the auction sale as well.
They also submitted that so lqng as the auction sale
1957] BURMA LAvV ' REPORTS.

was not 1\et aside within the limitation allowed by .'fl,)2.

1956
Article 166 and Article 181 of the Limitation Act
UKYwE
the plaintiffs were estopped from questioning the '(a~;as)
'U''AUNG
validity of the auction sale. Accordingly two 'MY'i~T
preliminary issues were fixed by consent- .,v.. '
DAw MYA
- ~IYA A.f.io
( 1) Is the defendant estopped from question- ot\"it.

ing the validity of the auction sale. by U SAN

~'L~UNG, J,
reason of Articles 166 and 181 of. the
Limitation Act?
(2) Did the auction purchaser Daw Hla Nyein
fail to secure a valid title to the
property in suit by reason of the facts
set out in paragraphs 2 to 8 of the
plaint ? (apparently a mistake for
. written statement).

On the flrst preliminary issue, the learned .Judge

'on the Original Side held that the defendant U Kha
if he wishes to have the execution sale set aside
must make an application within the period allowed
by A~:ticle 166 of the Limitation Act. Also if he
could prove that he had, by means of fraud, been
kept from the knowledge of his right to make such
an application he could claim the benefit of sectioll
18 of the Limitation Act. A mere allegation made
by him 14 years after the sale took place, that he
was unaware of the institution of the proceedings
resulting in the sale was held not to amount to a
plea of fraud on the part of the decree-holder.
Consequenlly the defendant was helQ. to be estopped
by the provisions of Article 166 of the Limitation
Act from questioning the validity of the auction
sale. In the result the first preliminary issue was
answered in the affirmative and the second in the
negative and a decree was passed declaring that the
92 BURMA LAW REPORTS. [1957
H.C. plaintiifs were owners of the house and sire in suit.
195_6
Hence this appeal by the defen:lant U Kywe.
U KYwE
!alias) Now, from the allegations contained in the
U AuNG written statement, it would appear to us that, what
MYINT
t.
D.nv MvA
the defendant sought to contend in the case under
MYA A:SD appeal was, that he and the other co-heirs of Daw
ONE,
Kha, with the exception of the plaintiffs' father U Ba
USAN
l\IA'"NG, J.
Tun, were unaware of the institution of the mortgage
suit by the Receiver of the estate of Mr. Robertson,
deceased because summonses have not been duly
served upon them. Secondly they were also kept
in the dark regarding the sale of the suit properties
in execution of the mortgage decree, thus enabling
the mother-in-law of U Ba Tun to purchase the said
properties. The question which therefore arises for
consideration is can the defendant by way of defence
to the present suit for declaration contend that the
mortgage decree is not binding upon him, because
he had not been duly served with summons. In
our opinion, this defence is untenable. Assuming
that the mortgage decree was passed ex-parte against
the defendant, the proper course fer him to have
adopted was to have applied for the setting aside of
the decree on the ground that he had not been duly
served with summons. His application must be
brought within the period allowed hy Article 164 of
the Limitation Act although of course if he can
prove that he had, by means of fraud, been kept
from the knowledge of the existence of such a
decree he could also invoke the provisions of section
18 of the Limitation Act against the person guilty of
the fraud or accessory thereto, or against any person
claiming through that person otherwise than in good
faith and for valuable consideration. No such
application has yet been filed by the defendant and
so he is bound by the mortgage dectee even
1957] BURMA LAW REPORTS. 93

assuming it to be ex-parte. See Markanda v. H;C,

1956
V. K. R. Naidu 0) aad Patel Baldevdas Karsandas v.
U KYWE
Mohanlal Bapalal Bahia (2). Then again if the (alias}
U AUN'G
defendant wants to say that although the mortgage MVIN'l'
decree may be binding upon him the sale is vitiated t'.
DA\V M.YA
on account of fraud committed by his own brother lVIYA ,\No
ONE.
U Ba Tun, he must file an application for the setting
aside of the sale under Order XXI, Rule 90 of the U SAN
MAUXG, J.
Civil Procedure code within the period of limitation
allowed by Article 166 of the Limitation Act read
with section 18 of the Act the period of limitation
being 30 days from the date on which the fraudulent
sale first became known to the defendant. How~
ever, where fraud is alleged it must be actual
positive ~raud, a meditated and intentional
contrivance to keep the parties and the court in
ignorance of the real facts of the case. See
Janki Kuar v. "Lachmi Narain (3), Ram R.atin La! v.
Bhuri Begam (4), Kunja Behari Chakrabarti v.
Krishna Dhan lvlaju.lndar (5), and lv.lohamed Golab
v. Mohamed Sulliman (6). However, since the
defend.smt had not yet made an application for the
setting aside oi the sale it must be held to be binding
upon him for the purpose of this case. In this
connection the ruling of a Full Bench of the Caclutta
High Court in lvlohendro Narain Chaturaj v. Gopal
Mondul (7) is apposite. There it was held that
when circumstances atiecting the validity of a sale in
executio!l had been brought about by the fraud of
one of the parties to the suit and give rise to a
question between these parties such .as, apart from
fraud, would be within the provisions of section 244

(I} 26 Pat. p. 717 . 14] 38 All. p . 7.

(2) I.L.R {!918) Bom p. 145. (51 (19~0) 2 Cal. p. 477.
13) 37 All. p. 535. (61 21 Cal. p . 613
(7) li Cal. p. 769.
 BURMA LAW REPORTS. [1957

of the Civil Procedure Code, 1882 a suit would not

lie to impeach the validity of the sale on the ground
UKYWE
{nlias} of such fraud. For these reasons we consider that
U.. AVNG
MYlNT
the defendant has no real defence to .the present
v.-. $l!it.'
DAW MYA
MY.A AND ' However, it does not mean that the plaintiffs are
ONE,
entitled to a decree merely on the pleadings and the
U:.SAN production of the sale certificate which has been
Ji4 AUNG1; J,
filed in the proceedings. As the existence of the
mqrtgage suit .in which the defendant U Kywe has
bt;:en made a party defendant along with the other
co-heirs of Daw Kha has not been admitted, it is the
duty of the plaintiff to prove not only the existence
of such a suit but also of the existence of a mortgage
decree against the defendant as an heir and legal
representative of Daw Kha and the s,ale of their
mortgag~d properties in pursuant thereto. In this
9onnection the sale certificate, if proved to be genuine,
will be no"doubt a valuable piece of evidence. As
held in Traders and Mi~:zers Ltd. v. Dhiredra Nath
Banerjee 0). a sale certificate if properly proved is , a
<;locument o.f title and is the best evidence tq, prove
what was actually sold. However, as pointed out
in: ,Balvant Babaji Dhondge v. Hirachand Gula-
chand .Oujar (2) a certiticate of sale is not conclusive
as to the property which had been purchased at the
sale: as the property offered for sale and bid for was
in fact the property ordered to be sold and
proclaimed for sale. Consequently, what was sold
;was tbe: interest mentioned in the Court's order and
proclamatio!f a1.1d if: there is a discrepancy between
the ~ale certificate and the Court's order the sale
.ce.rtifica te itself may have to be rectified.
For these reasons it IS necessary to remand the
~ L.

(ll 23 P;tt. p. 115. : (2) 2i Bom. p. 334.

 1957] BURMA LAW .REPORTS .. 95

suit under the provisions of Order XLI, Rule 25 for Ji.C.

1956
the trial of the fol!cwing issues:-
U KYWE
(alias)
( 1)Was there such a mortgage suit as alleged U AUNG
in paragraph 1 of the plaint ? MYINT
tr.
(2) Were the properties in suit sold in execu- DAW MYA
MYA AND
tion of the decree in the said mortgage ONE.

suit to Daw Hla Nyein for a sum u SAN

of Rs. 10,550 '! MAUli'G, J.
(3) Was the sale duly confirmed by the late
High Court of Judicature and was the
sale certificate Exhibit A issued to Daw
Hla Nyein in respect of the house and
site in suit ?
_The lean1ed Judge on the Original Side will take
such evidence as may be produced by the parties in
proof or disproof of the facts .mentioned in these
issues and return the evidence to this Court together
" with his findings and reasons.

U CHAN TuN AUNG, C.J. _I agree.

96 BURMA LAW REPORTS. [1957

i" onp:~ ~g~~ ( 80~QO)~g~)

Grol3
- ~e~:9 ~$
c;~cco ~~~
(:)Ggags c 80~QO)~gQ) *
@~g~~g:::r.>: ~'J 80GDII .lt?,:::r.>?::D'JO C COtC:>UJ'J:OO~~~: <J,2o)~~::J.2~:01ro
CY.:lJt~>,~~~GOO'J~'J:@SGIDI YOO'J:SGID CjCfctt~f;;fJt~G~'J Ot?t:D'<l'J:~:
~5;;fJfl35:.1 ~o?~ D'<ld3~cof: ~qf~~o101jcf.il9 CY.:lJtbl~~::iC:>m?:::Dt
~,~q~OCJut ~:GooSro 8tl~'J:~:oSro'J~aE:u ~~:oS~cf.i~ <JCU2~
G~~cot: Gro'Jb I coot~G~s.lcot~GOO'JC: I GID?Dro~cf.iG~S)'.:Dt:
G<m5: ooSqjoSI3E:Y(Sl~1 G.poSrJoo?:~m SSrooSooSb[~~'Jt:
oosp:oo~:roD~~E:.I msp:<:>~~~: ~G8UGD~b~ ~~~ JC:robll'd)!]a~ .
91 ;>'JoSoo5G~~E8~e:>~., .
~~Jl~o~~[5~;n @:~:st5~~~=B~~~'J~Od&l,~D'<lli)t:6~tu ~~@;:
~:~:qcc:~tJO)'J:y':l D20j?~OOE>p:~ gGm:S~&J~I @:~:qfaa~~GE>poS@:Gf>'Jd)
8tl<~Jb@SG:x>t GG8tl:SrooS~~SG t~e~~

8tl<lJC:gSG~t ~com SS~dtmGG~: GDTG:n:~58~1 GC:~~m&l~

~SGoo'JoS OOGO)'Jcf.icoooS~co'J ~S~oS'J:G~Scot: e=9m S~co'J~I
oosp:r:>o~oo::i~cf.i~:l :Je~~ ~91 mspw~:~8tl~d3 o 02,E <:>GmiS;i~ 8tl'J:
OO<ip!~"l]?!GUTCJ65 qc:G"l]'J!~ sfrot9~!>ttO'JGp:~~ ~0)~9~C))'J: Bm~e')~
~otS mstCJ6Eo1oEG~'J G@"lJ?:~~p ~:@9cooSCJ6f~~ GE>prb:l6'J:G'Jb
ga~olmS~ Bm~~ mGp:~~S~"lJ?:m D20j?G~@n
~ 0Gpti S~ro'J@roj>oS~tmsp~r:>~ : r ~e~JJ '?~Sr ooE>p:G[i3:.Jt9'"~o5 ? o.2E
GGOd:Sm 02li~~~ ~:~:9C~D'<lG8mo.2oS q5:~d)~ oooSooSq~o1cotut
mbp:~;;fJootu

* :::>(!~? '?5>~" OOE>p::J~d3oo~o,r~ ~ aa~oS J 1

t :)@S? <"?~~~ mGp:;.>@3:JtDC~d3 ? o.2S S~ro'J~I oj>oS~Eoo>p:<,~ooE>p:
)jl~~~:Goo$)~ <lj~roG::D? 8ro~~m0j?~ot~1
19 .)7 J BURMA LAVv' REPORTS. 97'

~~:).)t~~s~ G::J<l?W~~GooS9S~:0o?:~n ::>@ ~? <?~S1 ror;p~(,l~:5l 8<l'Jcf)

o CJ6C ~,~~cq~ ~~gcEro?~G0r;?~ I,IGGO:S~ 02uSC2~~ ~d~~6)C~ S~~~,~~S
:xJ~8<!GmpoS moSooS6)G00f Elm~~(joSGm~:xJ~I - '
~8<!S~~m~~ ~:9m oor;p:~oSGooS~ 8<llljlQbp c:goSGooS~ ~~Q
oq:~ oS~ oS 1 IC?9 :JJ?:xJ?C Ea:: E~,~m'J: oo~~~:o;pSC2~~?:u1m CX(J~6j~~::>j? 5?9
GGO<J:S.I
Gm?rf4l?:~5G~VI gw?:~SG0 'it:~~E~S~G:D? o~t:'"Jp:3<l:l:o?:~t~E:).)tl
G~,i?C8oSi~ '2 :~9 GG?t~S~u <li/1J.krcn(q)1 :::lO @'21 :::l@OOI 0'J'"ljd)p
or:;Gu
~~6Jf:a?:~ G8<l'Jd5~:9S~~0o?:m 1l~o1roJoS99 :::l@::J::> '?'IS' oor;p~g~~Si
GeyoS o 02E GG8<l:Smcf.iooS GO~tg~SG@8"J'J::\:.-~ ~028<!01lm ~:9'J'J
rooSo ro:xJ?6) ~d)~t '}'.) co tl?WlcgoS99 GS8<l?: ~:~ ~~8~ moS :: 8<lbGO:
G0CJ? ~:~oSc~oSG:xJ:lmS~:xJt roCcotl?!~'.):23:??~?::Dtu
oo~:oo~:y ~'}oSoo?:G:).)'J Elm~d?::J<lOiiQG:DS::;c:l ~Ero5~rg$~GJ:J.Sqb
G0'J~m ooaSG80 5qE: ())~ tq,t:~~ eoG:J 8<l~C: ooS qJoSt:G~ C\j]C sE:\Jm~
::l)t Ud~dl~So 1~~? oosp:c~oo6p:~'"lj'J!GOGoTOJC rot~OiJd.:ot~:xJtn
~@SS) ::l@::J::l ~9 S1 rosp:d@3:~8'd:;oS o 02S ~a:o:'?:1J'J Bm~20t
~?:UC(j?:?:GOJ.Smt: g]~:8oSoo?::x>e2 ~6)t'lJoSd? ooS~6)~ S<lO)(QGot~
@c:G6')~ qS:::raSi~E~co?:Go.n 8m~20~ oot;;Ooc@So..,t&u o:>E;IJ:gCY.lJ9o?:
d?G80GD((fig oo 836)1 GG:::r.l:Sr? e<g~ro:y 8<JG~OJo~ooSbJ.~I( ooGYOOGp!
oocx?: 3<l:xJ52~~cz9Gu
Go5~5qj~::DC~EJ'-P~,~olo1ro~r~ ~')~e') ~:JJt ~t:)oScoi9~oo~:J ~E rG8<ll J '2 1
V:l'"ljd)p pG'u moS(~) IG~I<j>:xl~j-9 ~:f.i(~)!8<!?(q) 1 roGro61 @r G)~Q{~' 0?
"ljW?'J CjOO ~~ ~oS<j>'J:xJ~II ~,~~1:18 9 ~:~E ol J 1 GS<ll~tJ8<!'J(~)r
:::l@? '2 '?I G)~O(fl ~'J'ijoS~'J ? J 9 28'J~8Utll

8a0jl~ m,;p:~aa02oSr ~~a)~~:rr

8a0jl@ OJE>p~8a02oSr ~~G<'-lJ~C~gu

e~ G'~? S~Srr H~8a)!GOTGO1oSCD')b]~tg Gf'JoSG&t~5p~Ot

(j'J GGa'Jcf.iO1Gaqtg@~OJtrr
Ga)Jl025o1GOJ'JG"!!'J~(j'J ~CD G!JTGOJ~~::ljl~tOJ;:u' G9TGOJ~025
OJ')gOJ~g ~ GOJ'JOO~OJ;:rr qtzcSl'J J?~g~~ ~gm8sr ~~d?OS'l~ GC 1~
~@~~OJ;:rr G9TGOJg ~oS~~8a~GspriJ@~Gf"Jd) 8?~g@3g ~gm8s

7
98 BURMA LAVf REPORTS.' [1957

O?bf:~oS ':P O't~~~~@~@ 9G!G'3~'J~CJOOo5@J ~~~o)~'J OJ~gOJGUJilo) CJq5~~6)C

GO?S
tY.( 1J2~W'J'Jg~8J~II C1t:CJd3~:bjC~::>)I~'JCX:~g UJ~CJ~Gm?l @d~o)~
:)~~~
~WcD~~oS~~ ~G@~~~GB'J1~~G~II CJC1~~') 8J'J:OJ~~ tJ GUJ'JJ3~
~:9 ~OJ~II c.t~~~'J ~d~~bjCI @~@9iCJG9G!:@cfl@~60J~II
~~
GGS<l~S;t G~TG8J:~tG@~'J:OJ~l Gpo5~:8J3~ @w:l8~roffic:O~ Oij~~
o:>~u zm8~02oScg~zGpoS1 g]G5i9ooSOJoS@ ~5~5~~'J:5l'JI
@d~:bj'St ~~@~i~GG9<!:~@~60Jtu ~~~~qE~ogG S~:G CJGtb@~
OJ~ II GCJoS9G!~~GE;IJcD@:Gcf>':lo)1 CJG9G!Z8~9 9G!G6'JtWl8Jtll
CJG9GI:[g~t OJ'J:8J~~i~@:IJ2~:m'J:OJ~II qt~c~'J GCJ'Jt~:o_;>~~CJ@~
@~::ntn GG'JC~~C\}OJ~ ot~~@j~@~~'Jggr cg~~G8J'J J o i~
GCD'Jffiml bjOJ~:ooSi~Ot{jjcg~GOJS)WOJtu G@~'J ~~~~: ~~'!~
rnG'Jt:o1mtu q5~<:025 OJ~~ CJmtGro:~~ro~ tg~:m'J:OJtu
~l@i~CJOJCGrog~'J ruyG~Ga:>?n @:m8~ tn~~GooSw:G.p'JoSJ C1t:~
~1rum'J ~ 10Sm::>CJ~'J:G(9'J~~o59<!6]1 @:~:6jtm Gp '{o8 ot~:@:4J
9G!CQoS ro~~mfn qt:G '{o8 rn.poS1 @:9rooo5@bj~ md3~::Dt~
p:rot~~ro'J:68Jtng]l9<!~CQto'iGOJ'J G@9<!-:>:~:~~'J @:m8~~cg~
gG~'JoSr ~:~:b)t~roo5o 0SGE;IJo5~'J:~:r.Jtu :~~~02oS cg~~'J:
~OJ~Gcp'Jo5 1 qt:~qcBw~ru'J: CJG9<!~8roo5CQt:~ rn~o 1G@~'J:
OiJGt;prb::llp: ::Dt II
@g@m S~ro'J~J OJE;IJ~GO~Goo'Jd:.~:l o @~~, ~i~J a:>E;IJZG~:~
rn~o5 -;-~5~ ~Grn:S.r G~'Jt~:~i~@'J: @ ~:~~'J:J qt:G~~:
~ (9~mtC>J~6J~ ror;p:~~~mtu sE:m mbJ?:g~~OJ~9G!~t:r
s~C\)'J~ I OJbj?gGO ~Gro'JoS~:m GB~')g~ ~:@9~rooS~rnbG~0?
rn8~Bm~~SJoSGo:~8J~uBm~~G>'J~~8~9G!}t02tolo CGOJ'J G@~p:
~~p :9~roo5065:~ Gq:>cDro'Jmtn 9G!~o1rnS~~m~~ a:>q-:>gQ
~8~~'Jgm rnOi(Gi=>OiJH @:@~rocb02tg~ G@~pgGr;poS~~gGpoS51
S~ro'J~( f'oS~Em~:CJ~:' ::>@~J ~5'!~' roE;IJ~CJrngSirn~oS ? 02E1
~GgagSm 02oScg~~ 2.ctbbJt~9G!G~~02oSI qc:G@mp oorf.ioc6]~
~1~20{ rospg~~8Jtll a:>E;IJ~~~~~ 9G!kf~oospg~~ -o@~ o yi~l
oosp:G~:~9<!5lo5 0 02t1. 9G!G~cf3~i~OaS8Jo)~g ~~g~~t~:@aS~:
@~ o:>~5lOJ<S~S~~~ g)jrn)l~:~ G~~o~m9olO{G~oOJtu
 Roob dp!Bc@ l~eos\3 I eJ (r) rsc r c~plk@ ll, r ufu~l3fp (C)
eo~ccLo~g~ggeggg.>oco e:c(!:)e~:geeG soroensccc~~wgeeG
~gb:&cg~ :c~occoe:g!J l&~g.>checro CO@:eG6B 3GlCOeeCO
n~cc~@go~~co ~cc~cog ccce~crolegro~en:gb gcJe:g
~goe~&-Jeo 3bsolb:ro~piegbg sccc:crosofr.~~ 1:3mscce
:c:cegoqd n3eoebbeCr.3cc:ce benccceccgs!W sccc:g:cro
so:~ :<;p~ ll~cc~plep:~ Co~egggg:crogolhpm :3mp
~c!be J:ccepfpgc(}~{')ho@e pooeGgb:Sc:~ :cfSoccoe~:gb ce
a:eneft ~soccsoo~solesoccoe:gb u3ccgcropC:oecoplepccoe a-:
cmeccp~~~ben Soe~:geeG ~cca:enee goo~eG ~:croSeCr.3cc
soE?c:sooe~somSo~ ~~ggggegg~poe ~>e~fr.geeG wa:enee
( ~:chco c) Jc~3cc:crolGle~ggeGcoffco c.tui&ero~a:~e~zchco
c;&ieG gro~en:gb n3~oeboe&i Cr.3cc<i-egosol!:u~3coeG pooeG
:clb&cccegoLogoo~eG 3cc~cog ccceS?elegoo o peen~g~e:chco
~~~e cG ~c ~~:: n3ccgeCr.3cc~gosoll:u~3co gro,Loeen:c~
~ibco ~~~chco ccceLogroC<J~eG 3cc~cog:gh Jg!fu~Be:gsolt-J.soo
:g~enceoa g~:34:34co :gbscce~socococc0e r~gbscce~g3~gce
g r:gbscce~~&-Jenfp~cog ccce~cropelee:~co:~ w:clb:?pgb~ggb
n3ccgcoSoSO.:?pp ~~ ( r) goe~oe I(~) CeG I(~) ::jJeG g~~CC~
~~G)SOeG lescoeprogcJsco r~3w3b g\li:?pp~~ (c) g~cog~
Logso~~gcc~co~c4 ~l~oeL<loechc~gcc~lbcco~e ~gc.wl;~~o
n3ccbeeo3eb<f>es3coec :~pomccol&ccplbsooe 0e9~cc
3e 10e~3cc:ce 3cc~co~gb gcc~~e&iec3bsolbsoo So~cog:gb
rg.>desccc:~Je~cog gro o peen~:0e:cl9co r~\lie cG~c rce3cc
r3Sgcen~~g
~socfEDe co:fB~Btgescoepro ~g:~f?:chco~&ien goo:~~
11g:en~~
~~~cc~:oesoele~cog ccobeeo3cc
3~
g:g Loso~bSosoosoro so~emclbe~:geec; Ig.>cll:ueensccc~e:~a~
t;GeJc
gb:ffi:g &38.Jso&J 3cca:ec;ee n3cc~eo~cc~cce~ggggge~:chc.o
sco~
ces:enee {Jjcco0e~cooso:Se ::Zo~~ gOO () s00eG~:0e:chco
piD:cbco I ~~e c G~ c co:~0:~~~scoe:~soceGe I :~soccsoo~c4ccc~
66 s.rtrodtni A\v1 vwtrfla; [L56I
'-100 BURMA LAW REPORTS. Ll957

o:lqY.~oS OJ6p:~~~::Dtu ~qcBo:~rro5i~ aJS():~~:~ ~S.C9J<f.i06~ l GG'Jt8oS

S'~ ~:~~GG'JttS: ( o) ~~~f>!C~:~ ~:m':>:Gl9 T@co':>:::Dt~ISE;
GO::S)

,q@~~
7
@oScq:<?2C Gl9Ta)'):::Dt~-:> t(~OY.)::D-:>ot rotgWJ: cn~:~;06J)~~
e:
~9 Oz1':>:o1m OOGC\J:~'J~G'~~cqtl Ol~(;)~~~GWJct~e:@tGDI (;OJ')~@~G0
GeoG<l:SJ qc:~~E~c~G::D') o~t~c,lp:m-:>:~: ~f~EOJtut~OJ;:u ~~:@oS
9jc0002t n<lG~G~~GOJ:GOJ'J o~t:~':>m~ . 6)Ujli>,~D<lg~n<lGG):~o1
~E~tOJt~~::Dtn ~36)fcq:~ d3~o1o:n~~~ ()~~o ~~~~ oosp:G
~:Sim~oS o CJ6C GGm:ScooS'o<.S~ mdS:@G@m-:>:~J~ @:~~
cooS~ n<l0GO:G0CJ:? 9j~cfj~cfG::D'Jn<l8~::Dt qs~~p~[?90spofu
~088lld1m ~:9~') n'adt:~G@~'J:~ roJ3oro6.J':>r>j~cOJt~')
rot)-:>:01o:nd.J~~ mdt~@~G@m':>:~:~ qE:q;m':>:n<lOGO:G~CJt ~:Goo$)
m 9l~oS@t:OJ;: roErot1':>:~p:~:~'J:~OJtu cnsp:GOil~c:q~~GeoGo
ct,SG o o' 15:ro5:91 &m~5 c; mf>l' m~GGm~S2~0J?:GOJ') m5i<:Y65
qf:m'J:OO':>:G::D':> na~romcoro~OJt 0 ~ ~0 ~~I aJS():g~:Si
n<lljoS 0 CJ6C cqoSGl9Tf9 ~~~G:xl'J ( ~Guto5) ~~~tG:xl')n<lG')E:
e:p:of@~::Dtu mG(':>t:~p:~gj~@: :t~CO-::l::Dt~E:~ocot:l n<lSJ~
oE@~OJt G(Y.)')cfl9jroOJ~(\)t:ato5~::D~I( ~@a:i~g)1c13~~ud3::Drl3~
!Jd~O1mS?CJ6C <:JO~:m@cf.i~:@oS~:@otPi?oof>!GOG'tll ~~ OOS():G
01J~~:~G80G!J~bG oo n<l6)1 GGn<l:Sro o~~j ~~~~ cnr;p.:,~rroSloS
~ CJ6E mE>-p:cncq:ro89na::Da:iG~~~Eu '
. GGn<l:Ss>-:> GOO':>C:G:xl') eoGonage'JCSGugg~~ (:)~o.J')<:qtl
::l@~O . ~~a;, oosp:g~:SimjoS o CJ6C 9J~oSGu:ro-:>:G:x>':> m~~aa02
G:;d~l o @~J ~~~~ mbp:G5i80SJch ~ ~ m<;p:2~m~OflOJt n aa0
e')a6Goo':>t:Go:Gt&Oi?G~::D ssf>!s~61~roGo.J') GB~')=~ ci?~~~f>l
~m7~tn qt:::Dt' aa~~aJGpSJOC ::D-t>':>:IDEl(:>Gro'JC~G::D':> cr_aG@rnG;:>~
~ttG~cGo\>G9J@II ~8aUjl~~~ OJ tGl91'G::D':> !JdG':>t:rro~ro
~p:G':>~ OdUjlQmsp:~ ~:@~aa'J: Da~tGO:~ 8delj?QOO;p: Q GGaa:S
n'd'J: oa~:GU:b)GOC:lt'll
~trt35iCJ6C DaPi(~Q--Jsp:~ @~~i G~G;:.~:m roOGG@':>~Gx:
o::>t~':>l ~Grr.;:S~ aJGp:2~2.pt:~':>G~~~ gJln<lji~:~ n<lG~80CY6ro
" , (::>) ott::8m';)')(~)t ::>O@'l 'oeo:)t ~':l'ijrb~-:> oc;tSii
1957] BURMA LAW REPORTS.

o~tg~p:J? ~@~;Gom1o;?] !T.lG~aKE~~Oj{ffi CD6p~~2~f1 ~:GCDS OJGp~~oS

G(l)~
CJ2C <:~t:::ot&!T.lG~~3o2t:~p~~JJtS0f o2t~~'J~~~J? CX(oSGGT GB~
~e~:J
~@:1 ~:GooSen ~E>JCCX(Go:E>J~,>t~G[S'Jt:Gc\jj')OOCO'J:~ CD6p:~~~$
o1:::Dttr,J~:::Dtu g]jd3~i~ooS:::DoS~J ~~1~1f~{~~Q:: o1 J ( ::>) ~<99
. ~9 .
~~~oS~:J?oocgJ:::Dtu ~@oS~:CJ2CO1~GJJ~ 8'aG~c:!T.l6p~~:l~ I:)G8<l:Si1

WC(!T.ljieldCo 1G:::o'J~G6'Jt:!:r.l6p~~:s-~Go;(ll @oS~:CJ2C o1GJJ'J!T.lst~

!T.lG~F~fo~t;sa~:~:~J? <X(OOG<9T~~,>[9:Y.ll O[lt:oo~ooo oS~02oS
JJ~ CD6p~~~m~o;(:::Dtu ~80J?Odfm~: @~~:E>JCl~~:~~ct?g1:saG~~f
:::Dt& o'8t~~~:o?~:::ot ~~GooS::OJt\9 Gl'lT@o:rJ:~:@~:::Dtu ~o1
G::D5:lC\Jt: ~saG6~tg~~d)9J~~1~0c})JJrf)~ OJy~:@ch~rbGO!E>J~
~,>,~GW?G911
!:r.lmd302 5.G<9 T8c:o~~JJt&~~f:, CD6p!I,>:Y.JJ~~: J?0eoG~ <t5(:)
::>o ~Eijl ~G:J0:85l~ ~~m51 !T.lG~::orbo chElJ~ji mb~ msp:m~:
8a:x>D2~~fs(;}~u i2~~ G:JO~J3~g~~~:~~:~ ~s~qJ'J:d?ocl~oS
~oS~, (:)G8Cl :8 ~Sid? oC\Js~ oSJJ~" GG::ro :s5l~ !J,lOJ cf.i.PJG<9T[9m~:
;nt&8Cl~C:i SSE>Js$6J~ch~GOJ'J o~t=~~:J? qt:!T.l~=~8e~cSGmOj(
~~5:~ q5:E>J~oS:::oto'8ii:qj~: ~: ~:E>J5:@0:::Dtu ~naG'Jt:
G0'J~ !:r.lu;?~CD5p~~ @~rg~g;; OJ"f_)~ID~OO~ c:ob~~GO~EijGt~o1m
OJ~Gro~.~.~tGtr,JoS" 0?.6p:~:~~~:~~: 06 5 ~x:::Dt~'Jw~~:x>t ssc:e~
ID~o5~ SS~JJX'SfC CY.JIQGIDElJ~!T.l8~~5JoS~oS::utu
 II COO
scclfo~ccc~:s&:gc.o3b:sf?S01bbo 0c peeo~:~soo~ch ~~~e GGeJc ~scoe:~
( f) :~&::chco:&eG ( ~ocsueo 4c5:be:c:e~~(j)=s(j)~:&eG) ~1eo3b -!-
rr (e) oGc so~eo~gc:eg~soo~ch ~~~e GG elc *
u~cc:cc:o
~giU~gxctogchco eo~ccgro~ 3:-flLGleJ~SOL (ileJ sam~~ r~w:c
~es Sog~8ogg&:~ scccb~~gPg~gespfi~ gce.GeJ:fl~83So!~eG
(o&:,C:C~ I SO~':bso~gccee> g~e>emgco~cbesgcce~~eG r goo~e.G
:bepo:gcbe ~:?fqpccoescoe?g~ r~cdng rcfiglle:ft.oeG~eG
u~cc~~~:chco beG
( r) bI (ro) (c) b egoG::lo2pembe>~:cco~:c0so&>so Oe.G JgceG
o:g ~cheGgcree>~eG ~~eG:be>Tmgclse>~:?fQc;pccoe>scoe>?g~ 1300
GC so~~ ~:~sao~~ ~~~e GGelc r:~'(l):gejlbchco:&>e.G(Ge>OC
:pen ~co:be:ree>~0:~0~ :&:leG) ~3.w~b rr rr 383 c.ec ~ &g
u( <b~eb:~es) gc(')~gcogg-pfues<:cb~:cc:opcfuesbgreg
u~z.Ge:g g~gc:.ee>:eG8:gccosoLGe-pfueG&:cc:opcfue>gceg
~
rS2cc~: gco:sco~ o&p beosoLRgeo:!P c f ~go socc~ch S2ccscccoeco:gc.o
~lOccce:ccose li~ec:besoo:gche~:~Qg.>ccoe ~c.oe?~~r uplep:~
/' u~<'l~ :cl5:gro!o&p pccf:cl5:9co
~eG :~rochw ~~ez:besoo:gch~:g::qg.>ccoesc.oegg~ c r egosocc~ch
II rrplh~ beo ( f) b I (00) ( c) b egoG~o2 soro :beg:cc.o?i:cCllp~g> oro
*(&b~
~cmsocro~~bgcesB) sco~ 93 ~c~~0gc-co~scB r0
3~ co~L o J.lil~6H:l
.( &~ccopclfu~~bgceg) ogg 3Gtlc -~
jg~393ceGe:g =~~ osc.oesoro:chc.o
~ &; t'.G ~ 0 ..v c1
lS61] ~~Od3~ MV'l vw~nn Z:Ol
1957] BURMA LAW REPORTS. 103

G8d'Jcf.i.~:CY6C oospg~@OJcf.iG::D ~g~g:xJ'J ()~G00:6jGOJg:xJtn

m)i()0GOO~G.p~cf.il GC\jj'JOSCX)')~~~~ym ~~~Gem~ C\J'JGGp059?'Jr
qf:~ GcgpoS~'JcOCY65 mG6'J5:8d9JoS 8d~:~~ GcToo'J~::o~
mqb CjCgGC)']g 006pg~~CO'J~@f:::ot eoG~8df] ~'J:O,SC:gjaSG9j>)
G'l"::D~m02chJ 8dOJcf.i8d~01006pg~~g~gJ 0@ ~~ ~~01 GpG-oaSfS:Si
m~oS ~ ?_ ~ ooS~oSGmo 16]~ Goo'JS:~GcgpoSco')g::otn
gf:~GOjj'Jcf.i~'JOOCY6t mGf]gm~g~gG:xJ'J8d~b~p 8d~b ( \)) of
@0::Dtn c;t:8d~b ( \) )'02,5 GOjj'JoSoo':l:~m Gt9TcxJ'Jg:ot9'J "88
::Ofg @t~oo ~roGW)@~ooGo:>'Jcf.l(,)otoS::Dtm@f I gf:cB~rot::Dt 1
~oot:(,)otoS m~~:l!l'J:otSOJtr ~oot:GotoS G\91oSc]Gt91oS~
fSloto::Dt~G::D'Jo~t~~ @tO)I~Co~t:G:JtoS' 'CJt ~OJ'Jg::otn
GOjj'Jcf.iOJ~gO)I~ ~cGooSGS]G'1'0: G~ 1oSoo'J~:Gm:GG'Jt m1
'' GOjPOOOJ':lgP,il::otspG-::ooScr5G J ~ DG!f]IBt~oo ~ooS~oo~~f~0::ot
~ G~~cn ~tf;GooSGm'JoSod5:~G6pC:o oSGf]:33~c oS?t:C:lp:::ot
@tO)I~fo~t:GCJtcf)GE)'Jt~ OJC}'J::ot~'JJ c;f:~c8d~o 5C\j?~:~p~
moo02f na~:f]8d;;p~::DOO::OcbGCJtoSG::D')O)I~')W1~::ritJ c;f:~05m~
ofC\j?~:'=lp:mt OJ()'JG~~~m~ m~:6Jm6p~C:)j'J:cyt~ GGJ~6n ~@ 97.
e
~5i~CD g)jO?oSm~ ()Q)to?tGoo'Jt::ot~ooS:8d~5 025' GC:lJ')g~
~oSm~,[<l~oS o3G: ;;ot :6p~ 1 m~ ::J:[9tO)I C\)lCX( m CY.J1l:na~oSoS S:
etd3::Do)~ ~S~oot~6JG~CJt G<9Too'J~::otn ~cJt~G(9T@oo?~
@t:G6'J91 c;f:ptoSm~J.Jt t~~Er ~oot:GotoS t~C\j(<X(~~
nJoS~tnJ~ ~oS~<>~G<JtoSG?c:~prot'l?:oJtu P?oSm~~'J 33~:6]
~9 Gt~~GOJcf.i~tOJ@~I c;t:O?d)nd~J.Jt m~g6]~8GlC\:200g:?6pgqp:
~otOOJtCJtG~::O'JH ~CcGcdlGm'JrboJ3:~GGptW oSGGJ:~~SJ m@oS
m2~: 6JG::D'JG~C:lj?:::o t 1 ~CcGoo Sm ~:6] ~ 8dGCJgGogm 2~GooSG~C:lj'J:
5i$Gt:~~cb~t[3t:G~II ~*3o1Jlrr.:Jcf.ieoGSI ::f2GtJtd) 6J~CJt~~*~
o1J3 rr.:JrfiflOGS5i~ m'J: DG!OJ'JgOijl mcb eoGS'ij'Jg02CI c;f:m~~'Jg
m ~~OJ'J:GOJ'J mGp~~'J:~r GpG-o:>oS~~ y5G J ~ nab] GGT@co':l:
G::O'J Qt.~ 0o~oos~ na6f:l~(jj?~@~G'Jc~ o;troqGt<Jt G0!T(gro?:
nJirr ~sp02f ~tcGooS Gm:Jcoo3~~ G6pcwoSGq:na~ naoSeoGo
oo02S, ~rid~ J5:[3?:GG T@oo'J~E:g~u ~@ ~o ~t~~025' ~Ec
 ('l.)t)' .......
cr.l(t."J 0
3 4)
.-ffl'1CB-. u ..j:>.
8 8 8%~1G?
I g'l~ u ..c I~
.ill (Jo m '
~ .-e
""'"'_o_ o II) ....co ..n ll) o. il) r.l!/0 J;CJ il) o Ci5[) ll) ll) --o 8 ...co .4< ~- ..0 .4< ~ (D.) 8 9/l,.&~
rt ~ .!!C<J .-o ~ en en rB ...o c en ..8 8 ...o o 8 .-8 \._ en 0_ .-GG
il) 0'1
" u
_ .u. u
e u I.1
~ m a ~ 8(i)
Len CG"'J g'1 m c o m-g., -::-3 o 0'l ~ ~ v en ~-... [3d <;; riJ 8 fB <S) 8 <.) oo ro <S) 8 0'l
J:l ~ "i1' 0 ~ ~ 0 Q)o o8 ~ ~ Q)o 0 ~ 0 o8 U } (B, r.l!/0
8 ~ u .0[8].-Q.)_ 0 ~ cc. ~ \.) (i)
Len - 0 8 il) C OCY u 0 . ..0
~...8~8~-~~~8m~~t~~&lm~~~
il) ll)
CC"'JW/ en il)
~ 0"1 u ~ en IS:> r.> 0"1 8
8 re = &-, m ..8 u . ,.B. o(Y) ~ Q
~ fi3 ~ ~ -l?ln8 ,& 13 ..8o ~ ~ J;_ g.,Jg O 8 ~ Jf ~8 8 0'l 8[0- EcisS j~s,g.,
Q I!.G' v
fi3 ~- ~ m m ..!!J Len C' t:~ ro . ~ m ro_ II)
~ "S ., 0 "1:/Yl4b - [31~ C' (i)
~ ~/) @ I!.G' (2n ?.'ri I!.G' 8 e 8 = & ~ 8 Lg-> ~ Jj. 0'l Len S - 8 .-8 .--0 ~ & II) QY o:;
01 U VI 00
~ 8 0 o8
~ ~ 8 llQn QY 8 Q.l ~ cRP 0'l nr> m o8 IC u ~ 8 &, ~ ~ <Yl CCJ 8 8 '-1!1>
o8 C2n 8 C2n ~ S '5fl>l (8] fi3 ~ .4< 8 II) !;dtJ CGD m cru &, (&, 8 ~C C2n riJ ~
c:cJ - U n_!?)~ - " ,2 [:J -
fEn rB
~~~fB~~t~~~i]~tit~~w~ ru . t:J '='='' m" ~ m s:::
len .o_ ,2 ~ 0 ~ o ..!!J -"
..8 p 8 ~ .s..%-fh ~ J3 8-> 8 u
re 3; ~ g"l~ ~. il) D' .2 =~ 0 0 ~ -1?/n'D 0'1 0 >
01 I ~_!!) .-8o oo .m- fi3 8 '~..8 ~ &~ il)
8.-()().-<::X) II) ..coS 8->&,8 ~ &-,
en ru "'8 0 ~ ru -f.'>'1 fB o)) o)
~ C2n G) 8 G) .-.Y m ..8 0
o
oo ~ 0 ~ w .;; c s C2n El") 8 rB c L<-n 0 o_
8 ~ ~ ecJ ~~ &> ~C8J ~Cl\.Yl 2 rr re "" 8 ~ c .,g;; kl ~~ ..!!J
ru_ ..eo ll) ro :J ~ u c ...:::o co '!!!:!~ 0 o - o
J5 8s-, ~,__~1 = ~GB-J CP.n ..8 rB-> CP/) ~ 8 ~ ~ cg 0
~f51 _E) 8 Len v1 WY i5 ~ ..8o - ~'[ill 0 ~ ~ ~ ~ u fB ~ q; 0_ 8 Q:: DO
.-8o UoJ 8 (i) 8G' ~
c 0'1 ro_ e'1 U} t:l ~
re ~ u .2 ~ o8 -~ ~ e o il) ;. ~ o tl '-6 ~ ~ ~ G) ...o len 8 cr; riJ ..c t:J
0 . g:"] r.l!/0 f':')J ['Y) ~ ~
CP.n o :2 11@0 Jb3 tJ-...- ~ fl o ~ '-- ~J ~ ~ II) ffi-> o 0'1 LiJJ 0 IC :"l_
m ~
o 8 ..8 G) 3 em C2n 8 '-'~ (.81 ('/) CGJ il) t! .__, fi3 riJ G CC-:J = o a u 0'1
,8 C2n ~ Q3 8 G) ~ [8] C2n t:l .8 0"1 ~ ~ .-8o u ~ Vol .gr...- [81 ~ CB ) fB GB> (i) ~r 8 --o rg ~
~n- ~ ~ ~ u og r.I!!Ocffi..SQ:: ,~_,'01 8 o~ 9 _ ~~ ~
-;;O Q m c <:J m m I.JV-' & (2n WY .B 8 ..RI'()1 .-8 c ~oP/ ~
~ riJ
~0 88" C>."'~ o~~o_ ~ 0t:~ 8c:J
~ R.o n~ ~ 2 (8, 8-> o c g., 8-> en = 8 -& ~ R". C9 g m co -{'Jl') 0'1
.. ---" Q_ 0 ~ _!!) ~ {))'
r.l!/08~88-il)<$) ~ fi38..nC2n~~G)o ~l~ 6) ~ <C c 'D _!!) d
0 0
ffC2n.-S D8 U'lfj cfu 0-, 8 = fB ~ [! - &, 8 8-, 8 & ~&,8 G - B:f> C9 -~
:"l_ il) riJ ~ (.) il) fi3 e 2o as' r:1 &, ~ il) ~ frl~_o 8 cr; 8 -{},
ffi>.S J3 !0!18 8~ 8 ~ &, rB WY~ C1{l U} 8 N e~ 8 " o 8 c rn (&, o. o C3
W CUD --" 0'1 k'J r..J
~ 0 _ <-<r: 0 C2n u 8 (i) E mn8 ,..J e CGJ 0 J3 an ~:rq; fB ~ ~ .s ..c 1!.(0/
riJ 0'1 &, ~ ~ 8 ~ ~ 8 ~ o Ceh ~ om &, ~ - r---,
20 fB _!!) OS 0'. ffiJ 8 C' dP. 0'l --,3 ~ - ~ ~ .-_ C' k1 fl5'} 8t 01 ~ ffil rfr; ~ (i) ~ og, rS
.4< ~ a1 & LC/"l &-, & ~ ~ o8 em ~ 0"1 c3 ()') & ~ mffi-> ~ G <-. a 8 -,::;
0
l..n
~-
8 r.l!/0 u c6) 1.0
ru" g 1 m
f.:"}l ,.:;;;;:?, .-v o
0
~ ~ = -Po ..;_; .2 @.!) .;; ..8o LP..J Q'l ~ 0. 8 (1) :A .;; 8-> 8 .2 0
~ Len - tO 0'l '-1-'-' 0 Gr1 O"l ~
1957] BURMA LAW REPORTS ..
qt~~CcGroS3~m"JttO~:~G~tgooSGG)~;,~~c o~t:~"Jgo:>tl jgt~~c :::>@~G

o~t~~~::Dt<J.?02~00JoSSJo~~OJtu ~~<(
~~o:>oS~oS~GOJ') 3<l~~:Y my30~~mo3r ~ccGoo SGm"Jmoo3:~ ~9
GtGco'JC~
Gspt;ooSe6)~Yc~~ rot~cc')C~GX') @~')~~~oS~')~ G@')Cgro@cooc @~G'J~tc
GOJ:::DtJ? o;s;~OG:f'6)u m~tm OJ)~OSJ~m~o:>t<J.? o;roocco:Go:>"J GOJSu
so9jm3<l oxf.i~')~ ~ ffiySO~~~c OJ~WJ ~G@') C:cDOj?OO ~86)~SOG'J c:
~"J:mt: GGoTGo1d3Goll
~~:GmS)~ 8~~3 <t~Sr sp~od:iG0'JSOJS? 8C!'jd) 8Cf ~CI
~~G'J~CcGmS) GC\JG0"Jtgo.:JJlo;(~GOO'JCG6)~3<l~~ Q~OO'J:G::D'J306p~
m~:::Dtr ~~o:>c~bbl j 8 ~a28g1oS3<l6)1 t~ 0 0~COG~OJ~:@~
o:>tbl@t::D,~~GX'J@::o:>.p~ 0g0')~~0Je;U ~~0g0'J~qJ~I ~bl'J
~CcGooS GCDGG"JC~::DoSOif~GOO"JCG6): 3<l~::Dt ~zg 1:G6):at8c~:oo6)0
@~GOJSC\Jt3r ~ccGooS3<l~g6)m ootGo:J"JCGo:~o:>t3<l@tr qt~~
L'tOc~:rH@nao o~~ ~tcGooS::ro~:6)moS fiN~!38~89I(O~::D@~r qc:
SO~'j'J ~tc:G0?~3<l~26)m OJ"JO~GGOO'JSlc6)GXO Sd~O?yot~~C
~OJ'JG6')9 qt:Sd~~Q~CO'J~GjJ'Jy~[ cDro @: O?Gffi')rt)~t I ~~o:>o)
~5G j 8 ~a28gloSrn6)r @t~oo~coG:oo~:@So:>t~ ~:@oS~GC\J
o:>t,u qt~3<l5l~~ myC\Jdl~n<>:ff::Dt @')~~.j~t:G~OJII ~~~~ ~nasr
CJ6C GC~jpdlco"J:~~~O?'JC:~<t[aS~ bl~cf.:GC\1j')~to:>t::roGo:poSr
q5:~Go~?5oS~"J~fJ.C\JO~oSx~u
106 BURMA LAW REPORTS. [195/

APPELLATE CIVIL.
Before U Ch,w Ttm Auzr~, Chief .Justice arrd (J San Matwg, ).

H.C.
1956 U SHWE LONE (APPELLANT)
July 30. v.
MR. KHA CHOUNG (RESPONDENT). *
Sale of Goods Act, ss. 55/o 61 (1) -Contract Act, s. 73-Co~ttract of Sale-
Deposit by buyer as part payment or cartLest mottcy-Brcach of contract
byB11yer-Dcposit 7/Jitclltcr recoverable by him-WlrclherSellu entitled
to sct-offllre deposit' agaiust d.rmages or: vc-sa.lc or retain tl1e deposit itt
addi lion to datil a gc.
Held: The Buyer is entitled to recover the deposit he had made s ubject to
the right of th e Seller to set. off his damages on re.sale agait\st the claim.
The Seller is entitled only to the deficiency and expenses incurred on
re-sale and cannot retain the deposit in addition.
Soper v. Arnold, {1889) 14 A.C. p. 429; Ocllcwfw v. H<rrly, 12(1 English
Reports, (Vol. CXXl K. B. p. 590; TIIC T'ellorc Taluk Board v. Gopalasami
Naidu, I.L.R. (191 5) 38 Mad. p. SOl; ]'iad Lal and others v. Miua Mal,
Balkislum Das, (1928) I.L.R. SO All. p. S~; Dies mzd auothcr v. Btitish am~
Iuterua/ional Mi11i11g and Fiuauce Corporal iort Ltd., K.B ( t939l r- 724;
Jlla11ePalli SatyallaraYmanmrtlti v. Th~mmandra ErikalaPPa, A.J.R. (1926)
Mad. p 4l0, referred to.

Ba Than, Advocate, for the appeltant.

Tun Aung (1) , Advocate, for the respondent.

Judgment delivered by

U CHAN TuN AuNG, C.J._This appeal raises

quite interesting points of law under the Sale -of
Goods Act, as to whether a purchaser . of goods
who has made a deposit with the seller either as
part payment towards the purchase price or as
earnest towards the contract, can recover that sum
Civil lsi Appeal .No. t 12 of 1953, ngainst the decree of the 2nd Judge,
City Civil Court of Rangoon (l.J S!IWE BrN) in CiYil Regular No. 308 o 1952,
dated the 26th Augusl1953.
1957] .dURMA LAW REPORTS. 107
'
H.C.
when the, contract falls through by reason of his t9Su
default; and whether. on breach of the contract U SHwE
by the buyer, the seller who re-sells the goods and Lo:m
'U
sues for the recovery of the loss arising on such MR. KHA
CHouNG.
re-sale, should take into account the deposit made
by the buyer towards the diminishing of his loss. U CHAN Tt':-.'
AUNG, C.J
It may be noted that under the Sale of Goods
Act as it now stands, apart from section 61 (1),
which expressly saves the right of both buyer
and seller to recover special damages, sections 56,
57, 59 and 60 lay down the right of the buyer
and seller respectively to sue for recovery of
damages' on other party's breach of contract. The
general rul'e as to the measure of damage is
governed by what is laid down in section 73 of
the Contract Act. When the breach is on the
part of the buyer, the seller's right is to sue the
buyer for the ~price of goods as declared in section
55, either in case property in the goods has passed
to the. buyer or when the price is p~ayable at a
certain date even when the property in goods has
not ~~sed to -the buyer. The seller can also
under section 56 sue the buyer for damages for
non-acceptance ; and the measure of damage is to
be calculated on the basis laid down in section 73
of the Contract Act, i.e. he is entitled to sue the
buyer for the difference between the contract price
and the market price prevailing at the time when
the goo~s ought to have been accepted by the
buyer. The buyer's remedy is to be found in
section 57 of the Sale of Goods Act. He can
sue the seiler for damages for non-delivery of the
contract goods, in case the seller refuses to deliver
or neglects to deliver them and the measure of
damage which he can claim is as envisaged in section
73 of theContract Act l.e. he is entitled to claim
'
108 'BURMA LAW REPORTS. [ 1957

H.C. the difference between the contract price and the

1956
market or current price prevailing at the time when
U SHWE
LONE the goods ought to have been delivered; and if no
v. time is fixed at the time of refusal to deliver by the
1\IRIliA
CHOUNG. seller. In certain exceptional cases, the buyer is
u CJ-iAN TU:-l entitled to sue for specific performance under
AUl'\G, C.J.
section 58.
Now, the facts giving ris~ to this appeal and the
counter-appeal are very simple. The present
appellant U Shwe Lone filed a suit as against the
respondent for recovery of Rs. 10,000 which he
claimed to have paid under a verbal contract, as part-
payment towards the purchase price of tobacco
leaves commonly known in the market as" Kyangin-
Shwe-Letwa-Yolone Tobacco", on !he ground that
the respondent had failed to supply him' the contract
quality, or in other words caused tl-ie breach of
contract. The respondent, on the other hand, main-
tained that the breach was not on his part; that the
tobacco leaves of contract quality were duly sorted
out from respondent's godown by the appellant
himself, after the appellant's examinatig.r. and
satisfaction of the samples shown, and that thereafter
the tobacco leaves were duly set apart in bundles
ready for delivery to the appellant. On the date of
delivery, the appellant refused to accept the tobacco
saying that they were not of the contract quality.
The respondent has made a counter-claim on the
ground that it was the appellant who by his failure
to accept the goods has occasioned the breach of
contract he averred that he had to resell the
tobacco at a loss ; the loss claimed was Rs.
5,733 inclusive of godown charges for storage of
tobacco in question.
Four material issues were framed and the
learned trial Judge, (the Second Judge of the
1957] BURMA LAW REPORTS. 109
'
Rangoon .City Civil Court) in a somewhat rambling H.C.
1956
judgment found that: the breach was occasion~d
U SHWE
by the appellant and dismissed the appellant's LONE
claim in toto, with the following observation :- ~.
MR.KrIA
CHO.UNG.
" . since the basis of the claim of the plaintiff
is on the breach committed by the defendant while it is found U (!'J.fA:-1 TUN
~\uNG, C.J.
that the breach was not committed by the defendant but by
the plaintiff himself. The plaintifi however, could have sued
for recovery of the prices of the goods obtained by the
defendant in resale in excess of the amount of the portion of
the price he had not p:tid as the property in the goods had
passed to him. Since he has not done so, the same relief
cannot be given to him in this suit as the relief is founded on
a cause of' action different from the one on which he is basing
this suit. The relief h:! is claiming is based on the breach of
contract by the defendant, while the relief he could have
claimed is ba~ed on the resale of the goods by the defendant
.
as his bailee."
Dealing with the respondent's counter-claim, which
rh fact, . represents the diflerence between the
contraCt price and 'the price the respondent had
obtained in the resale of the tobacco in question,
the l~arned trial Judge, after making certain
reference to section 56 (2) of the Sale of Goods
Act which, we may note, is absolutely irrelevant to
the present case, observed :
" But where the buyer has paid part of the price, as in
this case, it appears that the seller cannot claim tl1e difference in
the prices when the portion of the price remaining unpaid by
the buyer is equal to or smaller than the price fetched at
re-sale. for' then it cannot be said that loss is occasioned by the
breach of the contract."

As regards the deposit of Rs. 10,000 which is

being retained by the respondent, the learned trial
Judge finds himself in deep waters how it should be
dealt with. It is common ground that the suit
contract was based on a verbal contract with no
JtO BURMA LAW REPORTS. [1957
G.C.
1956-
stipulation whatsoever as regards forfeitur~ or other-
wise of this deposit. of Rs. 10,000 which has been
u SHWE
LONE differently described by the parties_the appellant
~. claims it to be a part payment towards the purchase
MR. I{HA
CHOUNG. price, while the respondent maintains that it was
U CHAN earnest money "~~" and the learned trial Judge's
TUN AUNG,
C.J. remarks concerning that _deposit are as follows :
" If, of course, it is held that the plaintiff forfeits the
whole amount of Rs. 10,000 he has paid as advance, the case
would be different, and the defendant would then be entitled
to claim, as he is doing now, the differe.nce in the contract price
and the price at resale.
But, there is no specific provision of law that ap advance
paid must be forfeited when the seller commits. breach of the
contract . There is no such penal or forfeiture
clause in the agreement between the parties in t]).is case."
The )earned trial Judge then sought to invo\(e
section 73 of the Contract Act, and ftnqing it to .be
inapplicable, brought in equitable principles ; and in
the concluding portion of the judgment be observes :
" Is there any equity to allow the defendant to retain
the whole sum of Rs. 10,000 paid in advance as forfeited and
to appropriate the whole price of goods fetched at :resale as
his own ? There cannot, in my opinion, b~ anything more
equitable than allowing the defendant to do such a thing, i.e.
to swallow up the substantial sum of the advance paid and
also make use of the goods. purchased from him and not taken
from him, as his own. What is reasonable is to allow him to
only recoup himself the unpaid portion of the price and the
godown charges from the proceeds at resale ."
But, surprisingly enough and quite contrary to the
above findings, the learned trial Judge dismissed the
appellant's suit and also the respondent's counter-
claim without making any decision whatsoever as to
the fate of the deposit of Rs. 10,000. Now, from
the facts it appears that the appellant agreed to buy
from the respondent 6,000 viss of tobacco iP.. question
1957] BURMA LAW REPORTS. 111
I'

at the rate of Rs. 280 per hundred viss. Owing to H.G.

1956
appellant'~ failure to take delivery of the said tobacco,
U SHWF.
the respondent had to resell them at a loss, i.e.,, at LO NE
the rate of Rs. 185 per hundred viss, total net loss v.
.MR. KBA
being Rs. 5, 700. This in fact, is the difference CHOUNG.

between the contract price and the price which he U CHAN TUN
fetched on re-sale of the said goods, while Rs. 33-5 AUNG, C.J.
being the godown charges. It also appears that in
the counter-claim oy the respondent he has not given
the appellant the credit of Rs. 10,000. In our view,
there being no specific terms regarding the deposit
of Rs. 10,000 inasmuch as the contract in question
was verl:Jal
. ' there is no material difference whether
we characterise that deposit as earnest (<D~) , or part-
payment. In any event, it is a deposit, and as
observed by"Lord Macnaghten in Soper v.Arnold (1)
" che deposit" serves two purposes._if the purchase is
carried out it goes against the purchase-money_but
its primary purpose is this, it is a guarantee that the
purchaser means business." On a careful survey of
all the relevant facts, we find that the following
points . are not seriously in dispute between the
' >
par~tes :- ..
( l) The contract was a verbal contract ;
(2) The appellant had made a deposit of
Rs. 10,000 either as earnest or as part payment
towards the purchase price ;
(3) The rate at which the appellant agrees to
buy from the respondent is Rs. 280 per hundred viss
for a total quantity of 6,000 viss;
(4) T he appellant refuses to take delivery of
the said bundles C"f tobacco on the date fixed for
delivery ;

(1) (l:>t>9) 14 A.C. p. 429.

 112 BURMA LAW REPORTS. [195/'

ILC. (5) The respondent sold the said tobacco at
1956
the rate of Rs. 185 per hundred viss and fetched
U SHWli
Lo~E R.s. 11,100;
tJ,
MR.l{HA (6) The respondent has retained the sum of
CHOU~G
Rs.- 10,000, claiming it to be a forfeit.
'u CH,'\NTUN As regards the question who has committed the
AUN.!i, (;,],
breach, we agree with the trial 1udge that the
appellant was the defaulter; but v.:.e cannot subscribe
to the view that because the appellant has, committed
the breach , he is is not entitled to recover the
.

deposit of Rs. 10,000 merely on the ground that his

frame of suit is one based upon the breach . .
of
contract on the part of the respondent, ap.d not based
upon the recovery of the price of the goods obtained
in resale by the respondent as bailee. We really do
not see the justification of such a finding in the
circumstances obtaining in the case. Here, the
learned trial Judge should not have I~st sight of th~
counter-claim by the respondeJI.t, which is in fact a
claim for damages quite in conformity with what has
been laid down in the Sale of Goods Act.' If it is
found that the breach was not occasioned 0y the
default of the respondent, but - by that of
the appellant, then the remedy available
to the respondent is a claim for damages
as laid down in the Sale of Goods Act, the relevant
provisions of which have been quoted above. This
is clearly what the respondent has dorie in his
counter-claim. He claims damages on the basis of
difference in price between the contract price and .the
price he realised in the resale of the commodity in
question, but he failed to account the appellant's
deposit of Rs. 10,000, obviously because there were
no terms 1 egarding it, whether to treat it
as earnest and suffer forfeiture or as part-
payment towards the price. In these circumstances,
1957 J BUR)VIA LAvV.. REPORTS. 113

we really "do not see how the respondent's claim H.c.

1956
should have been dismissed in its entirety withauJ
U SHWE
also taking into consideration the appe1Iant's claim as LONE
against him. In our view, the appellant's claim and v.
1\'IR. KHA
the respondent's counter-claim must be considered CHOUNG.
to12ether ~o ~" tn ~.,.~., ,~ : ..

.,-.-_--- ~~-'='"' .....'""... .. !~ll Luc expenses~

-to be made good
by the purchaser, . and on non-payment the entire
SlL11 reco-verable from the purchaser as liquidated
damages. Owing to his non-compliance with the
(1) IZJ Englisl1 Reports (VQI. CXXJ K.B. p. S'JO.

8
112 BURMA LA\N REPORTS. [f95'i

H. C. (5) The respondent sold the said tobacco at
1956
the rate of Rs. 185 per hundred viss and fetched
U SHWE
Lmm Rs. u.wo;
v.
Il'lR.l<HA (6) The respondent has retained the sum of
CHOU;>;G
Rs. 10 000, claiming it to be a forfeit.
---

---~--Tn tho rn'"""t1r.n urh() h:=t~ r.ommitted the

- que~uuu, UUl u~; 1a.uvu LV u.'--''--''-'"'u~ .... ~ ~ yy ~ ~- _

deposit of Rs. 10,000, obviously because there were

no terms 1egarding it, whether to treat it
as earnest and suffer forfeiture or as part-
payment towards the price. In these circumstances,
1957 J B URlVIA LA vV. REPORTS. 113
we really do not see how the respondent's claim H.c.
1956
should have been dismissed in its entirety \Vith0uJ
also taking into consideration the appellant's claim as ULo~m
SHWE

against him. In our view, the appellant's claim and UR.v.KHA

the respondent's counter-claim must be considered CHOU~G.
together so as to result in a fair adjustment as U CHAN TUN
between them, having regard to the provisions of law AU:-;G, C.J.
laying down the principles concerning the claim for
damages in cases of breach. No doubt, the Contract
Act or the Sale. of Goods Act make no specific provi-
sion relating to the refund of money paid as earnest
or as part payment by the buyer on a default either
by him "'or b,y the seller. But, there are numerous
judicial decisions where it has been held that on a
breach of c0ntract owing to buyer's fault, and the
seller resells and sues to recover the loss arising from
.such resale, t4e seller must take into account the
.deposit made by the buyer in diminishing his loss.
There are. also decjsions in which it has been held
that where part payment of price has been made by
the buyer and owing to his default, the contract falls
througl1, the buyer is entitled to recover the part
purchase price he has paid subject to the right of
the seller to set oif the damage against that claim.
In Ockenderz v. Henly (1 ), the plaintiff sold property
upon condition that the purchaser should forthwith
pay into the hands of the auctioneer a certain
deposit, and the remainder some time after, that on
purchaseo:r's failure to comply with this condition, the
deposit to be forfeited and the vendor shall resell the
property and any deficiency that may arise upon such
resale together with the expenses, to be made good
by the purchaser, and on non-payment the entire
sum recoverable from the purchaser as liquidated
damages. Owing to his non-compliance with the
(1) 12J Englisa l~eports (Vol. CXX) K, H. p. SYO.

8
 114 BURMA LAW REPORTS. [ 1057

H.C.
. aforesaid terms, and the plaintiff having resold at 'a
1956
price below which the defendant had agreed to
U SHWE
LoNE purchase, the plaintiff preferred a claim in terms of
..
MR. KHA
the condition. It was held that the plaintiff was
CHOUNG. entltled to recover from the defendant-purchaser the
U CHAN TUN amount of the deficiency and the expenses only, and
AUNG, C.J.
not, in addition to those sums the amount of the
deposit. . In The Vellore Taluk Board, By its
President v. Gopa!asmni Naidu (1) it
was held that where a person deposits a certain
amount as earnest money for i:he due performance
by him of his part of the contract, under w~1ich he
agrees to pay the other party a certain sum and breaks
the contract thereafter, the other party who becomes
entitled to retain the deposit as forfei ted , under the
terms of the contract, must, in a suit iJy him for
damages for the breach of contract, give credit for
the amount retained as forfeited and that he can
only recover the difference betw~en the actual loss
sustained and the amount of the forfeit~d deposit.
In Piari La! and others v. lV.lina !vial, Balkislzan Das
(2), the defendants sold a quantity of, grain to the
plaintiff, who paid substantial sum as earnest money,
the delivery date being not fixed. The plaintiff
assigned his right under the contract to a third person
and he filed a suit for breach of contract. Apart
from the question whether he should implead as
plaintiff the assignee of his contract, the question that
arose was whether the plaintiff was entitled to sue the
defendant for the return of what is called the earnest
money which in fact was a part payment towards the
price of the goods to be delivered subsequently. It
was held that that although there w2,s no specific
provision in the Indian Contract Act relating

11! I.L.R. (1915) 38 Mad . p.8Ul. 121 i11'J2S) !. L. I~ . ~0 A.il. p . 82.

1957]
.. BURMA LA'V-.t1 REPORTS. 115

to the ref'und of money paid as earnest money H.c.

1956
or part payment by the buyer and the
seller failed to make delivery, the buyer was 0 LoN~> SmvE
entitled to recover the money so paid. Dies and J\IR.v.KHA
another v. British and International /!,dining and CHouNG,
Fin':!nce Corporation, Limited (l) is a case in which L1 CHM< TuN
the purchaser had paid one hundred thousand'pounds AuKG, c.J.
towards the contract for purchase of certai"n rifles
and ammunition from the vendor. He com-
mitted a breach which he himself admitted, and
failed to take delivery of the goods under the terms
<.1f the WJ;itten contract. The vendors having elected
to treat the contract as at an end, the plaintiiT-
purchaser filed a suit for recovery of one hundred
thousand pounds less thirteen thousand fi ve hundred
po.unds which he admitted the vendors were entitled
to retain under- a clause of the written contract, it
'Nas held inter alia that the payment of one hundred
thousand pounds was n ot in the nature of an earnest but
was a part payment of the price and that the plaintiff-
purchaser was accordingly entitled to recover the
sum of ~one hu;1dred thousand pounds subject to the
defenda:ti.t's cla]m for damages for the plaintiff-
purchaser's bryach of contract. In lvlanepalli
Satyanarayanaraurthi v. Thommandra Erikalappa
(2), both the buyer and seller of goods appealed
against the order. of the trial Court in a case where
the buyer failed to take delivery of the goods on
the stipulated terms and the seller filed a suit for
damagesJor non-acceptance. The seller was only
allowed damage he actually suffered: but not the
deposit made by the buyer. It was held that it was
never the practice in mercantile contract to hold that
whatever be the damage suffered or not suffered, the

(!) 1 K. B . (193<)] p. 724 . (2 1 !\.I .r~. (l<.libl Mad r 410.

116 BURMA LAW Rf.:PORTS. [1957

H.C. seller was entitled to keep the deposit. Therefore,

1956
from a catena of authorities cited above, we are
uL~~;l! 'c~nvinced that even if it were found that. the buyer
v.
MR.KHJI.
is in default, the buyer is entitled to recover the part
CHouNG. payment he has made, subject to the right of the
U;CHAN TuN seller to set off his damages against that claim. In
AuNG, c.J. our view therefore the
'
trial Judae
0
was wron()'
0
in
rejecting the claim of the appell":nt as well as the
counter~claim of the respondent. Since both the
parties have preferred an appeal and counter~appeal
to this Court, we must hold that, on the facts and
.. view of
circumstances obtaining in the case, and alsoin
the judicial decisions cited above, both Ifave partially
succeeded in this appeal. Accordingly, the order of
the trial Court will be set aside and there will be a
judgment and decree in favour of the "appellant in
the sum of K 4,267 being the surplus, of the depo'sit
of K iO,OOO paid by the appellant after setting off
the sum of K 5,733 being tq,e difference between
the contract price and the sum realized on the resale
of the tobacco in question plus the godown charges
payable by the appellant to the respondent: Since
both .the parties have partially suc'c'eeded in this
appeal, there will be no order as to costs in this
appeal.

CIVIL FIRST APPEAL No. 112 OF 1953.

U SAN MAUNG J ._On the facts disclosed 111

evidence I do not c~nsider that the transaction now
under consideration ever proceeded beyond the stage
of a contract for the sale of the tobacco. Section 22 of
the Sale of Goods Act provides that where there is a
contract for the sale of specific goods in a deliverable
state, but the seller is bound to weigh, measure, test
<.>r do some other act or thing with reference to the
1957 J BURMA LAW REPORTS. 117

goods for the purpose of ascertaining the price, the H.C.

19%
property Cloes not pass until such act or thing is
done. In this connection the plaintiff's contenti0n uLo~E SH\\'E

that the tobacco was to be packed in his presence II!R.v.KHA

after weighing is much more probable than the CHOUNG.
defence story that the plaintiff had instructed him to U SAN
MAt:NG, J.
do the weighing and the packing of the goods in his
absence. Therefore the property in the tobacco
had not yet passed from the defendant to the
plain tift'.
If the contrary had been true and if the whole of
the purchase price had been unpaid, sub-section (2) of
section 54 of the SaJe of Goods Act would be appli-
cable. Hovvever, this section does not specifically
deal with the position which may arise when the buyer
has pre-paid' part of the price a nd I would reserve judg-
ment as to what should be done when part of the price
is pre-paid in a case where the property in the goods
had passed from the seller to the buyer.
On the facts and circumstances arising in the
case under appeal I agree that the authorities cited
by the learned Chief Justice are apposite and that
the def'endant must, in equity ,refund to the plaintiff
the difference between K 10,000 and K 5,733. The
learned trial Judge was wrong in thinking that he
could not give a decree for this sum in the suit
under appeal because the plaintiff had claimed for
the recovery of the whole of the amount of K 10,000
paid by him as a deposit. There is nothing in law
)o prevent a suit being decreed for less than the
;amount claimed by the plaintiff.
,~ I agree in the order proposed hy the learned
,.iChief Justice.
118 BURMA LAW REPORT~. [ 1957

APPELLATE CRIMINAL.
Bcfo,e U Shu Mauug, J
H.C.
1957 ABDUL HAl (APPLICANT)
APril :. v.
THE UNION OF BURMA (RESPoNDENT).*
Immigraliotl (l!:merge11cy Provisio11s }Ad, s.13 (7) (b)-Act No. 26 of 1956, rto
retroJ#clizc c!fsct-Ss. 263 ancl 264 (1) Code of Criminal Proc~dura.
Held: Barma Act No. 26 of 1956. The Burma Immigration Emergency
PTOvisions (Amendment) Act, 1956 has no retrospective effect.
Held further: Under s. 264 (1) of the Coue of Crimin:1.l Procedure, it is
imperative on the Magi strate trying such a case summarily to record a Judg-
ment embodying the substance of the evidence an:! also the particulars
mentioned ins. 263.

Ba Saing, A.T.M., for the applicant.

Ba Kyine (Government Advocate) for the

respondent.

U SHu MAUNG, J.-This is an application in

r~vision against the conviction and sentence passed
by the learned 3rd Additional Magistrate, Rangoon,
in his Criminal Summary Trial No. 862 of 1955 in
which the applicant was convicted by the learned
Magistrate under section 13 (7) (b) of the Burma
Immigration (Emergency Provisions) Act, 1947.
This trial, as it appears from the record, is full of
unsatisfactory features both in regard to procedure
and in the way it has been conducted by the learned
Magistrate .
..Crin-,inal R ~vision
Xo. 29 (B) of 1957.
the order of the 3rd Additional Magistrate of !{angoon, dated
T\eYiew of
tile 5th d::y Of October 1956 pass.~cl in his Criminal Summary Trial No. 862
,....; 1 o.:;.:;
19 57] BURMA LAW REPORTS. 119

., First of all, there is a complaint filed 1n this pro- H.C.

1957
ceeding aJ: page 2 and the complainant who filed this
ABDUL HAI
-complaint is the Immigration Officer and according v.
to him_as related in this complaint_the accu'sed THE UNION
OF BUllMA.
committed the offence alleged on or about the 11th
USHu
December 1953 when he filed an application for l\IAUio!G 1 J.
:issue of re-entry visa stating that he resided in Bufma
continuously during the period lst January 1932 to
1st January 1942 without absence. However, it was
alleged that the statement of the accused was false
as he came to Burma for the first time in 1947.
However, when we look at the record of the order
of the learned Magistrate, the form used is Criminal
Form 'No. 75 and the first entry relating to the
date of con1mission of the offence alleged appears as
5th July. 1.955 which is clearly not the date of the
alleged off~nce. Although this particular entry does
1i.ot, to my mind, vitiate the whole trial there are
other aspects ~which have to be considered.
' The 'l earned Adyocate appearing for the applicant
submitted in the first instance that the trial of this
offence by way of a summary trial was not in accor-
dance~ with law in view of the fact that the Burma
Immigration ""(Emergency Provisions) Act was sub-
seq"l.writly amended by Act No. 26 of 1956 which came
into force on the 28th September 1956 and by virtue
of this amendment, the punishment that could be
awarded for an offence under section 13 (7) (b) was
a term of imprisonment not exceeding two years or
with fine or wii:h both ; and it is therefore urged that
a summary trial was not permissible and that the
trial was vitiated. However, the learned Government
Advocate contended that when the accused was sent
up the .original punishment that could be awarded
was only one year and therefore, at the time the case
was sent up this amendment had not been done and
120 BURMA LAW .I{EPORTS. [19S7
H.C. as the substantive law in respect of the offence:
1957
committed was amended it could have no retrospec-
ABDUL HAl
v. tiye effect and the trial therefore was not bad in law.
THE UNION
OF I:!UJmA.
As far as that argument is concerned, I am in entire
agreement with the learned Government Advocate.
U SHU
MAUNCl J.
1 and I am prepared to hold that the trial was not.
vitiated on that ground. However, there is this
other aspect to be considered, namely, even assuming
that th~ punishment was imprisonment for a term
of one year only, this was an appealable case and
that therefore under section 264 (1) of the Code of
Criminal Procedure, it is imperative on the Magistrate
trying such a case summarily to record a judgment
embodying the substance of the eviden::e and also
the particulars mentioned in section 263. That
aspect of the case seems to have been entirely ignored
by the learned Magistrate and all that he has recorderi
in the order is that the accused pleaded "guilty" and
that therefore he was convicted and sentenced to pay a ~
fine of K 75 or in default to suffer two months'
rigorous imprisonment. That to my mind-is most
unsatisfactory especially as the offence alleged is a
serious offence under the immigration.Jaw and if an
accused is convicted he might even l::e deported from
this country. As the consequences which might
follow from such a conviction are of a very serious
nature even if the tr1al had been a summary one,
the learned Magistrate should have called upon the
accused to explain to him explicitly the particulars
in regard to the offence with which he luis been
charged and if the accused comes to understand
these particulars then, he might be called upon to
plead whether he is guilty or not. As these were
not done in the first instance, I am unable to accept
this conviction as one being properly awarded under
the provisions of the law. The conviction and
1957] BURMA
, LAVv REPORTS. 121

sentence imposed upon the applicant are therefore H C.

1957
set aside a1'd the proceedings are remanded to the
ABDUL HAI
Court below to proceed with the trial-not in . a v.
TH~; Ut>:I0:-1
summary manner but by way of a regiflar trial and' OF IWI~MA.
to come to a finding on the merits after he has
u SHU
heard the evidence. The fine, if realized, should be MAUNG, J.
refunded to the applicant.
122 BURMA LAW REPORTS. l1957

APPELLATE CIVIL.
Before U San J1aung a11d U Ba Thormg, 11.

H.C. AH HTAUNG (APPELLANT)

1957
lfiur. 8.
v.
THE UNION OF BURMA AND ANOTHER I

(RESPONDENTS).*

Sale of c.rcise liccuscs for one year-lnterntPt ion uy Commuui.<t

Insurgeats-Resumption of business by licemce on cessation of inlerrup_
lion till tllc exPiry of the Ycar-A~Plicatio11 for remissiOIL of1 reve rwe due
fort l1e Peroid ofinlermPlion-Rr;ectioJL by Government-Snit by licensee
agaitlSl Govermnentfor a dcclaratiotx a1ti aTL injunctioh-Tflc nature of
excise liceuse ia Burma, arigl1t in personam-Completed contract-Obiter
dictum by t!te Snj:>rcme Court-S. 1S Burma Excise Ac(-S. 56 Colltract
Act, tile doctJiue of frustraliotx.
,.
Two Excise Lice<'ses were s >lcl by public auction at Bogale to the higf1est
bidder, the appellant forK 90,030 for the year 1949.
The appellant carried on his business fr om 1st January, 1949, to 6t'1
February, 1949 .
On 6th Febrnary, Bogale was overrun by Communist insurgents. He
11ad by then paid K 27,000 towards his license fees for the year.
Bogale was reoccupied by Govemment in August, 1949 and appellant
resun:ed his busimss till the end of the year.
He had paid a further sum of K 18,000 leaving a bal"11ce of the K 45,000.
As a ppellant had been prevented entirely from carrying on h's trade
during the insurgent o:c.1p:ttion of Bog:1.le, he submitted an ap;'lication
fOr remission, wllich was rejected.
The appellant therefvre filed a suit against the Government for-
(a} a d,:claralion tlut he was not liable to pay the sum Of K 45,')00 and
(b) an ir.junction restraining the revenue authorities from enforcing bll
p:tyment against him, basing his claim on two main grounds, t'i<:
(i) Th~t the auction sale carried an implied condition that law and
order would be maintained in Bogale Town, and
(ii) That ihe prohibition of his trade ty tbe inmrgents in occup:ttion of
the Town _for ne:trly seren month s rendered the contract in:p,: s-
sible of performance and consequently void.

" Civil 1st Appeal No.ll of l93:l, aJ:ainst the order of the Original Side,
High Court of Rangoon in Ci\i! Rege~lar S:1it No. 95 of 1952," elated the 6th
January 1955.
1957] BURMA LAW REPORTS. 123
T.~e de"en:~ rai;<:d bf the G)ver~ncnt was that the excise sales were H.C.
-c ol~pleted contracts. 1957
The Trial ~ourt dismissed tile suit; relying on Sri P. Gumviah ,.. Tltc Au I-iTAUIIG
-Uuiou of Burma, (Civil I\egular Suit 1\o. 163 of 1947). v.
On an appeal by plaintiff. THE UNION
OF BURMA
Ileld :That an excise license under s. 18 !3arm l Excise Act gives nothing AND
more than a right e.vCOHtracttt which is a right in personam. There is no ANOTHER.
room under the Excise Act for a license coupled \vith an interest.
HttP For v. The Deputy Com:lliSsioucr, illSeiJt aud two otllcn, (1950)
B.L.R. 86 (S.C.} ; Hurst v. Pictures Theatres Ltd, I. K. B. 1 (!915>
reierred to.
The aba\e conc:usion is n')t a mere obiter dtctttm but even assuming them
to be so, such observation by tf1e Supreme Court should be received with the
greatest respect.
N. A. Aun.tmalai Chctty.~r Y. Mofwillc.l YtHJ<T aud two otlters, (1954)
B.L.R. 86 (H .C.), referred to.
Held also: Th:tl unbss the license is coupled with a gran~, it is P<trely a
contractual-right in paso11aw.
Thomas v. Sorrell, Eng. R~ports, 12{, Common Pleas, 1098 ~Vaughan
(330); Muskett / Htll attd Toz~r, 5 Bing. (N.C.) 6'H mEn~. Reports, 132.
Comm:m Plea;, p. 1267; Heap v. Hartley, (1889) L .R. 42 Cil. Div. 461 at
468, rdened to.~
Held furl her;, The license ~rante:l u1der s. 1 S of the Sntnu Excise Act
is<'a co nrleled contract a:td th~ dQctrine of frustration us embodied in s. 56
of lhe Contract Act applies only to contracts which are m.erdy executory and
~1ol to executed contracts.

Therefore, the licens~ had not become voi-:1 owing to the Licenste's
impos.;ibility to perform his part of t.he contract nor \'VaS there any implied.
guarantee by the Go\ernment that the appellant would for the whole period of
one y~ar be not disrupted by insurgent~, there was no breach of contr <~ct .
Th; King v. Dat'id Allm and Sons; Billposlittg Ltd., L.R . (1916), A.C.
Vol. 2 p. 54; Walt<Ju Hart-'CY Limited v . W.tlkerand Homfrays, (1931) L.R
1 Ch. Div . 274, distinguished.
r\ppe<!l (]isn;lssed.

Dr. E l'vfaung for the appellant.

Kyaw Tha ung (Government Advocate) for the

respqndents."

U SAN MAUNG, J._In Civil Regular Suit No. 95

of 1952 of the Original Side o this Court, the
plaintifi, Ah Htaung who is the appellant in the
present appeal sued the Union of Burma as represen-
ted by the Hon'ble Minister for Finance and Revenue
124 BURMA LAW REPORTS. [1957
H.C. and the Deputy Commissioner, Pyapon, for a declara-.
1957
tion that he was not liable to pay a sum of K 45,000
AH HTAUNG
v. claimed from him by the revenue authorities as balance-
TBE UNION
OF 8UlU!A
of excise license fees due on two excise licenses for
.A.ND
AI\ OTHER.
the manufacture and sale of Hlaw-za-ye and country
spirit in Pyapon district. He also sought an injunc-
U SAN
MAUNG, j. tion restraining the revenue authorities from enforc-
ing full payment against him in respect of these dues.
The facts which have been fully set out in the
judgment of the learned Judge on the Original Side.
now under appeal, are briefly these. On the 5th
November, 1948, two excise licenses for the manufac-
ture and sale of Hlaw-za-ye and country spirit for the
year 1949 were sold by public auction at Bogale.
The plaintiff having made the highest bid of
K 90,000 for these licenses became their. purchaser
and the usual earnest money was depos?ted by hi!J].
He then carried on his trade from the 1st January
1949 til the 6th February 1949, at Bogale. On the,,
6th February 1949, however, Bogale was overrun by
Communist insurgents so that the plaintiff had to.
suspend his activities. By then, he had paid alto-
gether K 27,000 towards his license fees for the year.
On Bogale town being reoccupied by the Government
in August 1949, plaintiff resumed his business till the
end of the year. He paid a further sum of K 18,000.
leaving a balance of K 45,000 for which he applied to
the revenue authorities for remission on the ground
that during the insurgent occupation of Bogale he had
been prevented entirely from carrying on his trade.
His application for remission being unsuccessful,
plaintiff applied to the Supreme Court for a writ of
prohibition prohibiting the Ministr:y of Finance and
Revenue from demanding from him the balance of
license fees and a writ of certiorari to quash the
proceedings of the President who had refused to
1957] BURMA LAW REPORTS. 125

interfere "with the order passed by the revenue H:c.

1957
.authorities for the recovery of the amount of K 63,QOO
from him. The Supreme Court dismissed his All HTAuNc.;
v.
application observing_ that the only contention raised THE UNION
OF BURMA
by Ah Htaung was that he was prevented by the ,\ND
ANOTJIER.
insurgents_ from carrying on his business in accor-
U SAN
.dance with the terms of the bcenses and that he MAUXG, j.
.should therefore ,not be made liable to pay up the
whole of the license fee, that this plea was tanta-
.mount to one for the frustration of the contract
.and accordingly his proper remedy was by way of
.a suit. ,,
The plaintiff, therefore, filed the present suit on
.the ground that the auction sale of the excise
.licenses catried an implied condition that law and
.Qrder would be maintained in Bogale town to enable
him to carry on his trade for the period covered by
:.the licenses and that by reason of the prohibition of
his trade by the insurgents who occupied the town
.for nearly seven months, the contract entered into
by him with the revenue authorities had been
rendered impqssible of performance and consequen-
tly void.
The defence raised by the Government was that
the excise sales were completed contracts in so far
.as the Government was concerned and that the
interruption of the plaintiff's trade by the insurgents
would .riot absolve him from his liability to pay the
license re~s as stipulated at the time of their sale.
The following issues were ther~fore framed :-
1. Did the sale of the liquor license in suit-
constitute a completed contract as be-
tween the plaintiff and the Government,
or was the transaction in the nature of
an executory contract, subject to the
126 BURMA LAW REPORTS. [1_957

H.C. condition set out in paragraph 12of the

1957
plaintiff's reply ?
All HTAUl\G
v.
2. Is the plaintiff entitled to the declaration
THE UN!ON and the injunction asked for ?
OF BUR:.r,\
ANO On the 1st issue the learned trial Judge came to
ANoTIJER
the conclusion that the transaction constituted a
U SAN
MAUNG,J. completed contract as between the plaintiff and the
Government inasmuch as ~he GoVernment had by
the issue of licenses already granted the plaintiff
permission to manufacture and sell Hlaw-za-ye and
country spirit. The fact that the plaintiff was
allowed to pay the sum of K 90,000 for 'Lhe two
licenses in 10 equal instalments instead of in one
lump sum did not make any difference as the
instalments were allowed by way of concessions to
hiri1. Accordingly, the plaintiff was held: not to te
entitled to the declaration and injuncfion asked for
by him and his suit was dismissed with costs.
Hence this appeal. ~
Now, the learned trial Judge in coming to the
conclusion he did, relied upon a decision of a,nother
Judge on the Original Side (U Bo Gyi; J.) in Civil
Regular Suit No. 163 of 1947. There, the plaintiff
Sri. P. Guruviah Raju sued the Government of the
Union of Burma for the refund of part of the license
fees paid by him in respect of Toddy-shop licenses
for the sale of toddy at Rangoon on the ground that
the contract was frustrated by the bombing of
Rangoon on the 23rd and 25th December '1941 by
the Japanese inyaders. The learned Judge observed
therein that the point for consideration was whether
the sales of the licenses were mere contracts or
completed sales and that having regard to the rules
regarding the auction of excise licenses, the transac-
tions were in the nature of completed sales inasmuch
as the Government had nothing more to do after
1957J BURMA LAW'REPORTS. 127"

licenses to sell toddy had been knocked down to the H.C.

1957
plaintiff. It was held that the fact that Governmeiit~
allowed the plaintiff to deposit 1/lOth of the sale AH ~~AuNG
price forthwith and to pay the balance by instal- ~:;~ 3~~~~~'~
ments did not alter the position. ANo
ANOTH~R.
Regarding the nature of licenses for the sale of
u SAN.
liquor the observations of the Supreme Court in l\iAuNG, J.
Hup For v. The Deputy Commissioner, J.nsein and
two others (1) are apposite_ In that case the
Collector of Insein under the orders of the Excise
Commissioner, acting under the instructions of the
G<;>vernm~nt of the Union of Burma held an inquiry
against the appllcant Hup For and cancelled the
licenses granted to _him for the sale of alcoholic
liquor in Kai~1ayut, Kanbe and Thingangyun areas of
In~.ein distric'C These licenses were then granted to
a third party and Hup For applied to the Supreme
Gourt for directions in the nature of certiorari to
have the proceedings 'of the Collector quashed and
direction in the nature of prohibition prohibiting the
Commissioner from granting the license to his rival.
The Supreme .Court held that the Collector in
deciding to cancel the unexpired license under
section 29 (1) of the Burma Excise Act was
performing a purely administrative function and
therefore his proceedings could not be quashed by
the Court. After coming to that conclusion, the
Supreme Court further observed :
" It has been contended also before us by the learned
Counsel for the applicants that the license being one which
had been granted for a consideration is nof revccable. We
are aware that there is a conflict of judicial opinion in
Eng1and on, this point, but even the case of Hurst v. Pictures
Theatres Ltd. (2) cannot be read as clear authority for the
view that the licensee for consideration thereby obtains an
'interest'. Section 18 of the Burma Excise Act seems to us
!lj [195J) B.L.H. S6 (S.c.;. (2) l K.B. 1 [1915)-
128 BURMA LAW REPORTS. [ 1957

H.C. to be sufficient authority for the view that an e:.cise license

1957
gives nothing more than a right ex-concractu which is a right
.AH HTAUNG in personam. There is no room under the Excise Act for a
'1).
THZ "CN!O'<
license coupled with an interest. It is therfore very difficult
oF BUl{)!A for the applicants successfully to claim that any fundamental
AND
ANO H!ER.
rights assured to them by the Constitution have been
encroached upon by the Collector whe:1 he decided to revoke
.USA:-< the licenses in their favour."
MAU~G, J.
In our opinion, the above o.bservation of the
Supreme Court js not a mere obiter dictum inasmuch
as the Supreme Court has given reasons why the
revocation of the excise license coi.1Id not be
regarded as an encroachment by the Collector upon
any fundamental rights assured to the ipplicant by
the Constitution and therefore no interference by
the Supreme Court was called for. Hcw~ver, even
assuming that the above observation was a m~re
obiter dictum, there is clear authority in the c~se of
N. A. Annamalai Chettyar v. lvlohamed Yava and
two others (l) that observation1: in the nature of an
obiter dicta by the Supreme Court should be
received with great respect as they come from the
highest Court in this country. .
Besides, the above conclusion of the Supreme
Court regarding the nature of excise licenses in
Burma is clearly supported by authority. In the
famous case of Thomas v. Sorrell (2), it was observed:
" A dispensation or licence properly passeth no interest
nor alters or transfer property in any thing, but only makes
an action lawful, which without it had been unlawful. As a
license to go beyond th~ seas, to hunt in a man's park, to
come into his hopse, are only actions, which without licens~.
had been unlawful.
But a license to hunt in a man's park, and carry away
the deer killed to his own use ; to cut down a trc.; in a man's
ground, and to carry it away the next day after to his own
{I) (:954) B .L.R. 86 (H.C .).
(2) Eng. Reports. 12f, Co;r.mun Pk:.s. 1C.9S Vaughan (330}.
195i] BURMA LAW,)REPORTS. 129
use, are licences as to the acts of hunting and cutting down ns~
the trees ; but as to the carrying away of the deer kill'd, and _
tree cut down, they are grants." " ., AH HTAUNG
v.
These observations were quoted with approval THE UNION
OF BuRMA
by Tindal, C.J., in Muskett v. Hill and Tozer 0), ANn
where it was held that a license to search for and ANoTHEII.
raise metals, and also to carry them away and u SAN J,
MAUNG,
convert them to the licencee's own use, passed an
interest which was' capable of being assigned. In
Heap v. Hartley (2), Cotton, L.J., said :
"That is pointedly put in the judgment of Lord
Hatherley, then Vice-Chancellor, in this way: 'With regard to
the word license ', there is some little ambiguity. It is,
however, well defined in the case of Muskett v. Hill (l) and I
prefer stating it in the language there cited by Chief Justice
Tindal to givint; my own. It is thus stated : ' A dispensation
or license prop.erly passes no interest, but only makes an
action lawful which without it had been unlawful ~ as a license
to go beyond the seas, to hunt in a man's park, to come into
hi's house, are only actions which, without license, had been
unlawful; but a license to hunt in a man's park and carry
away the deer kllled to his own use, to cut down a tree in a
man's ground and to carry it away the next day after to his
own use. <~.re licenses as to the acts of hunting and cutting
dov;n; but as to carrying away the deer killed and the tree
cut down, they are grants.' So here. a license to enter upon
a canal and. take the ice is a mere license; and the right of
carrying it away is a grant of the ice so to be carried
away."
From these a11thorities it is clear that unless the
license is coupled with a grant as, for instance, the
right to take game has been killed or timber which
has been felled, it is purely a contra,.ctual right in
personam.
Now, section 18 of the Burma Excise Act
enacts that no alcoholic liquor shall be bottled for
sale and no excise article shall be sold except under
(11 5 Ring. (N.C.) 694=Eng. Rep. 132, Common Pleas, p, 1267.
(2) (l!l89) L.l-:. 42 Ch. Div. 461 at 468 .

9
130 BURMA LA'vV REPORT.S.
~
[1957
B,.C. the authority and subject to the conditiQns of a
1957
license granted under the act. Therefore, an excise
AH HTAUNG
v. Iicense makes the manufacture and sale of liquor by
THE UNION
OF BUR~!A
the licensee legal; otherwise it would be entirely
A Nil
ANOTHER.
against the law. Turning to the excise license now
under consideration it clearly shows that the Govern-
U SAN
MAUNG, J. ment had completely carried out its part of the
contract, having already granted to Ah Htaung
-permission to manufacture and sell Hlaw-za-ye and
country spirit. The opening paragraph of the
license, Exhibit A reads :
" Be it known that Ah Htaung, resident of Bogale
having paid to Government the sum of Rs. 5,400. being one-
tenth of the license fee payable by him for this license, is
hereby authorized by the undersigned, Collector of Pyapon, to
open a shop for the manufacture and retail vend'of Hlaw-za-ye,
at Bogale from the 1st January 1949 until the 21st Decem her
1949, after which this license will cease to have effect."
Then, follow the terms regarding the payment of
the balance of the license fee by instalments and the
conditions under which Hlaw-za-ye must be manu-
factured and sold. How can such a contract
between the Government and Ah Htaung be frustrated
by the occupation of Bogale by the insurgents ?
The doctrine of frustration is embodied in section
56 of the Contract Act, the relevant portion of which
reads:
" A contract to do an act which, after the contract is
made, becomes impossible, or, by reason of some event which
the promisor could not prevent, unlawful, becomes void wherr
the act becomes impossible or unlawful.. "
c

From the language of this section it is clear that

it applies only to contract which are merely
executory and not to executed contracts. Govern-
ment having given to Ah Htaung the permission to
manufacture and sell Hlaw-za-ye and country spirit
1957] s'URiv1A LAW. REPORTS. 131
,
for the y~ar 1949, had nothing left to perform its H.C.
1957
part of the contract. If it could be contended tha~t
AH HTAUNG
by the terms of the excise license granted to him, Ah 'U.

Htaung was bound to keep the liquor shop open at THE UNION
OF BURMA
Bogale throughout the year 1949, it might be said A'o/D
ANOTHl>R.
that his part of the contract had become impossible
of performance owing to the occupation of Bogale U SAN
MAUNG, J.
by the insurgent~ and the prohibition by the
insurgents of the opening of such a shop. But, Dr.
E Maung for the appellant has frankly conceded
that a licensee is not bound by the terms of the
license ~iven to him to open a liquor shop in the
locality me,ntioned in the license. Therefore, it
cannot be said that the license had become void
owing to the impossibility on the part of the licensee
to perform ]Jis part of the contract.
" In our opjnion, the excise licenses granted to
~h Htaung by the Government did not imply a
guarantee that he wq,uld throughout the year 1949 be
guaranteed interruption of his trade by the lawless
element~ 1n the country. To hold otherwise would
lead to the conclusion that even if Ah Htaung had
been prevented.'-even for one day-from selling his
liquor by a large band of dacoits attacking his
house the license would be void and he would be
committing an offence punishable under the Excise
Act if he carried on his trade the day after the
dacoity.
Two. cases which have been brought to our
notice on the question of revocation of licenses are
distinguishable from the present on facts. In The
King v. David Allen and Sons, Billposting Ltd., (l),
the defendants gave the plaintifl's permission to
affix posters and advertisements to the flank walls
of a picture house proposed to be erected on his
(1) L.R. (1916} A.C., Vol. 2 r. 54.
132 BURMA LA.W REPORTS. [ 195 7

~~ property by a company about to be form.ed for a

Ali H~uzm period of four year_s and t~e defendan~ agreed that
v. he would not, while the license remamed in force
THE UNION '
oF Bu.m!A permit any other person to affix any advertisement
AND
ANOTHER.
to the said walls. By an agreement for a lease of
the site made between the defenda11t and a trustee
U SAN
llrLHJNG, J.
f or the picture house company, the defendant
agreed to assign to the trustee all l).is interest in the
aforesaid agreement and the trustee agreed to obtain
the ratification by the company when formed of that
agreement. Later, the company having refused the
permission granted to the plaintiffs by that agree-
ment, the plaintiffs brought an action for 9am'ages for
breach of the agreement against the defendant, their
licensor. It was held that the agreement merely
created a personal obllgation on the part of th_e
defendant to allow the plaintiffs to ~se the wall for
advertisements and that as he had put it out of his.
power to fulfil his obligation under the agreement,
he was liable in damages for breach of contract.
In Walton Harvey, Limited v. Walker and
Homfrays, Limited (1) , the lessees of a hotel entered
into two contracts with a firm of adveitising agents,
under the terms of which the latter were entitled
to erect and exhibit, for a term of years, electrically
illuminat_ed advertisements on the roof of the- hotel.
Before the expiration of. the term, the local authority
in exercise of its statutory powers, served the lessees
with a notice to treat for the purchase of the~r estate
and interest in the hotel and ultimately having
acquired the re:version of the lessees' term took
possession of the hotel and began to demolish it.
The electric sign was removed by an arrangement
with the advertising agents who subsequently
commenced an action against the lessees of the hotel
(1) (1931) L.I?. 1 Ch. Div. 2 74.
1957] J3URMA LAW REPORTS. 133
-,

to recover damages for breach of contract. It was H.C.

1~57
held that as it could not be said that both parties to
AH HTAUNG
the contracts had made their bargain upon -the v.
footing that if the local authority exercised their THE UNION
OF l:st:RMA
powers and took the hotel, the contracts were to be AND
ANOTHER.
discharged, there must be a declaration that the
defendants were liable to the plaintiffs for damages u s.~N
MAtiNG, J.
for breach of those contracts.
As already h~ld above, there being no implied
guarantee on the part of the Government that the
plaintiff-appellant Ah Htaung would not be
interrupted in his trade for the whole period of one
year, there was no breach of contract on the part of
the defenda-nt-respondents in this case.
If the plaintiff in this case had thought fit to do
so he shdllld have surrendered his license under
Rule 14 on"finding that Bogale had been overrun by
insurgents. As it is he elected to treat the license
as subsisting and had, on occupation of Bogale by
the Government for~es, carried on his trade from the
1st of September 1949 till the end of the year.
In these circumstances we consider that this suit
had been rightly dismissed by the learned I udge on
the Original Side. This appeal fails and must be
dismissed with costs. Advocates fee, 10 gold
mohurs.
U BA THOUNG, J .-I concur.
134 BURMA LAW REPORTS. [1957

APPELLATE CRIMINAL.
Before U San M111111g, J. a11d U Slm ilfa!IUfi, ].

H.C. AI HTWE AND TWO OTHERS (APPELLANTS)

1957

!Jlay 14.
v.
THE UNION OF BURMA (RESPONDENT};*

Peual.Code-Ss. 302 (a) (b) aud 40-!, 201 (21 and .;o.;-Ss. 2Sl'i and 342 Cnmirml
P1ocedurc Code as amwded by T3ttrrna Ad 13 of 1943, applicability to
Naga Hills Di>trict-Tiie Chirl Hills Regulatio11s of 1~9J-Code of
Crir;ziuai P1ocedure 1882-Bttrmd Act 33 of Ii.J47-,:-Prcrilcdt!atiou-
hregularity in rccordi11g conjessiort, bow cured.
Held: The Chin Hills Regalations of 1896 are still in force within the
Naga Hills District, as existing Law.
Held also: In th{: cas~ of Chins residing in the :\~ga Hills District,
amendments to ss. 256 ama 342 of the Criminal Procedure Cadi.', 1898 by
Burma Act of 19-lS cannot apply unless Burma Ad 1J of l9j5 is extended to
the Chins in the Naga Hills District under s. 3_of the Chin .fiills Ri:gulation
of 1896.
Held judlur : Neither of the amended so. ~56 and 3-t2 o the Criminal
Procedure Code apply to the non-Chins in tl1e N<lga Hil:s District without
amendment of s. 9 (2} of the Chin Hills l~e gulations 1896.
The procedure to be followed in the tri<:li 111ust be according to the
P'Ccedure prescribed by the Code of Criminal Procecl ure ISS2 far the tria) Of
warrant cases by l\Iagistrates.
Held also: Tv constitute a premeditatcclldlling it is necessar'{ that the
accused should have had time to reflect, with a view to d~term i ue whether, he
would kill or n ',t, and that he should have determined to kill as a result Of
that ref!ec:ion.
Than 11/yiuf v, TIIe Uuio11 of Burma, (1953) B.L.~. '342, referred to.
Held also: \\'here there is any irregularity in the r ecording of a co~1fession
by a 1\Iagistrate empowered to n cord such confessions the Mag islrale
hia.self ca~1 be called and examined as a witness with a \iew to consider
whether the confe~~ion should or should not be admitted in spite of the
irregularity.

Daw Mya Than Nu for the appellants.

Ba Kyaing (Government Advocate) for the respon-
dent.
Criminal Appeals No. 56, 61 and 62 of 1957. ..
:\ppeal from the order of Mr. R. \V. Mundt, Sessions Tuctge of Naga
Hills District, dated the 15th day of January, 1957 passed in Criminal
Regular Trial No. 1 of !956.
1957] BURMA LAW REPORTS. 135

The judg1pent of the Court vias delivered by

U SAN MAUNG, J ._In Criminal Regular Tf'i!.l AIHTWE

AND TWO
No. 1 of 1956 of the Sessions Judge, Naga Hills OTHERS
'V.
District, the appellants Ba Pe, Ai Htwe and Ai Y oe THE Gnion
were sent up for trial under sections 302 and 392 of OF llUHMA.

the Penal Code for the offence of robbery with

murder of one Maung Htwe (a) Maung Hla Shein.
At the conclusion'of the trial the appellant Ai Htwe
was convicted of the offence punishable under section
302(1) (b) for the murder of the deceased Ko Htwe
and under section 404 of the Penal Code for criminal
misappP<:>priation of the cash and jewellery belonging
to the decectsed. The appellant Ba Pe and Ai Yoe
were convicted of the offence punishable under
section 201 ~of the Penal Code, for causing disappe-
a?.:ance of fhe evidence of murder by assisting in the
disposal of thedead body. They were also convicted
of the offence punishable under section 404 of the
Penal Code for criminal misappropriation of the cash
and jewellery belonging to the deceased. The
sentence on the appellant Ai Htwe was death for the
offence" of murder and 2 years' rigorous imprisonment
for the offence under section 404 of the Penal Code.
The sentences on each of the appellants Ba Pe and
Ai Y oe were 7 years' rigorous imprisonment for the
offence under section 201 of the Penal Code and
2 years' rigorous imprisonment for the offence under
section 404 of the Penal Code, the sentences to run
concurrently.
The facts of the case which have been fully set
out in the judgment of the learned Sessions Judge are
briefly these :
On the 5th lazan of Tabodwe 1317 B.E.
corresponding to the 16th of February 1956, a dead
body was found on a sand bank in the Chindwin
136 BURMA LAW REPORT~. [1957

H.C. river near Khaungkhaa village. There were eight

1957
injuries on the body, which was partially decomposed,
AI HTWE
AND TWO qnd in the opinion of the doctor who performed the
OTHERS
v.
post-mortem examination, they were incised wounds
THE UNION caused by sharp and heavy weapons. The dead
OF BURMA.
body was subsequently identified to be that of a
U SAN
precious stones seller by the name of Mauug Htwe
MAUNG, J,
and police investigation pointed to the three appel-
lants being concerned with tb_e murder. The
appellants Ba Pe and Ai Yoe were arrested and
precious stones, cash and clothings belonging to the
deceased were recovered from their . possession~
Ai Htwe was subsequently arrested and c:a.sh and
precious stones were also found with him. All the
three appellants later gave confessions, implicating
themselves of the murder and the robbery of the.
deceased Maung Htwe. These confessions were~
however, rejected by the learned trial Judge on the
ground that they were not voluntary, his main reason
for coming to this conclusion betng that they were in
a narrative form when they should have been in the
form of questions and answers and that one of the
persons who gave the confession, nam~ly, the appe1-
lant Ai Htwe, was not sufficiently conversant with
the Burmese language to be able to give a statement
without the help of an interpreter. However, the
learned trial Judge, examined all the appellants on
oath on behalf of their own defence as provided for
in section 342 of the Criminal Procedure Code as
substituted by Burma Act No. 13 of 1945. In his
statement on oath the appellant Ba Pe retracted
the statement made by him in his confession that the
murder was the result of the conspiracy between him
and the other two appellants. Instead, the appellant
Ba Pe stated that what really happened was .that
Ai Htwe had cut the deceased Maung Hla Shein in
 1957 J B~URMA LAW REPORTS. 137

the course of a quarrel in which the deceased tried H.C.

1~.57
to catch Hold of Ba Pe's dah to cut Ai Htwe. Ba Pe
Ar HTWE
admitted in his statement on oath that he helped- tn AND TWO
OTHERS
the disposal of the dead body and in receiving v.
some of the cash and precious stones belonging to THE UNrON:
OF BURMA.
the deceased as his share of the spoils.
U SAN
The appellant Ai Htwe in his statement on oath i\JAU!\'G, J
denied that the deceased who was known to him as
Bo Khin Maung ,;was murdered in pursuance of a
conspiracy between him and the two other appellants.
Instead, he said the deceased insulted him by saying
"you Shans are fools ". In the course of the quarrel
which eusued, the deceased tried to snatch the dah
which Ba Re had, slung on his shoulders. At that
moment he (Ai Htwe) cut the deceased on the neck.
Subsequently Ba Pe and Ai Yoe helped him to throw
tb.e dead body which was weighted with stones, into
the river. The cash and precious stones found in
the possession of the deceased were divided between
the three of them.
The appellant Ai Y oe in giving evidence on oath
said that he was not present at the time the deceased
was cut by Ai,,Htwe. He heard the sound of quarrel
and saw ,Ai Htwe cutting the deceased at a distance
of about 40 or 50 fathoms away from him. Later,
he assisted Ba Pe and Ai Htwe in throwing the dead
body weighted with stones, into the river. He
received some cash and precious stone and clothings
as his share of the spoils.
The 'learned trial Judge relied mainly upon the
evidence of the three appellants in coming to the
conclusion that the murder was cor11mitted by the
appellant Ai Htwe and that the two other appellants
Ba Pe and Ai Yoe had merely assisted Ai Htwe in
causing the disappearance of the dead body. There-
fore, the learned Advocate for the appellants has
138 BURMA LAW REPORTS. [1957

H.C. argued as a preliminary point in this appeal that the

1957
whole trial is bad because the provision of section 342
AI HTWE
AND TWO ef the Criminal Procedure Code a.s amended by
OTHERS
V,
Burma Act No. 13 of 1945 is inapplicable to the
'THE UNION trial of accused persons in the N aga Hills District.
OF BUR11A,
In our opinion this contention must be allowed to
U SAN
'1\IAUNG, J. prevail.
The present Naga Hills District forms part of the
Sagaing Division as one of the administrative units
within Burma proper. It is not within the Special
division of Chins as Acts Nos. 48 and 49 of 1948,
namely Chin Special Division Act of 1948 and Chin
Special Division (extension of laws) Act 1948 have
no application to this area. (See Ministry of Home
Affairs Notification No. 423, dated the 1st of April
1948.) Accordingly, the Chin Hills Regulations of
1896 are still in force within the N aga Hills District,
as existing law. This was the decision arrived at by
a Bench of this Court in Criminal Appeal No. 385
of 1954 relating to Sessions Trial No. 1 of 1954 of the
Sessions Judge, Naga Hills District. The appellant
in that case was a non-Chin and it was accordingly
held that Burma Act 33 of 1947 which amended
section 302 of the Penal Code applied . to him as
the law for the 'time being in force in Upper Burma
vide section 4(1} of the Chin Hills Regulations 1896.
However, it was not considered in that case
whether or not the Code of Criminal Procedure
(Amendment Act) 1945 [Burma Act 13 of 1945] in
so far as it amended sections 256 and 342 of the
Criminal Procedure Code was applicable to the
Naga Hills District.
Now sub-section (4) of section 4 of the Chin
Hills Regulations 1896 provides inter alia that
section 4 and section 9 shall apply to all persons
within the Chin Hills and sub-section (2) of section 9
1957] BURMA LAW REPORTS. 139
thereof enacts that the Sessic,ns Judge when taking H.C.
19:!7
cognizance of an offence as a Court of Original
Judisdiction shall follow the procedure prescribed by Ar HnYE
AND TWO
the Code of Criminal Procedure 1-882, for the trial OTHERS
v.
of warrant cases by Magistrates. Subsequently, by THE UNION

Political Department Notification No. 1J, dated 27th OF BURMA.

of March 1922 it was declared that on and with effect u SAN

ii!AUNG, J.
from the 9th of March 1922 the Criminal Procedure
Code 1898 with the modifications set forth in the
schedule appended to the notification shall be appli-
cable to Chins in the Chin Hills. Among the
modifications, the one most worthy of note is that
all offe11}:es against private persons and property,
with the exc.eptlon of robbery or dacoity committed
or attempted to be committed by organized gangs or
members of such gangs, may be compounded with
the permission of the Court by the individual who
has been injured.
There can be no doubt whatsoever that in the
case of Chins residing in the N aga Hills District
amendments to section 256 and 342 of the Criminal'
Procedure Code of 1898 by Burma Act 13 of 1945
c-annot '-possibly apply unless Burma Act 13 of 1945
is extended to the Chins in the N aga Hills District
under section 3 of the Chin Hills Regulations of 1896.
The question which therefore arises for our con-
sideration is :
Are the amendments to sections 256 and 342
of the Criminal Procedure Code by Burma Act 13
of 1945 applicable to the non-Chins in the Naga
Hills District as the law for the time being in force
in Upper Burma vide section 4(1) of the Chin Hills
Regulations 1896 ?
The answer to our niind is in the negative.
Section 9(2) of the Regulation is specific in that the
procedure to be followed in the trial of cases is the
140 BURMA LAW REPORT8. [1957
H.c. procedure prescribed by the Code of Criminal
1957
Procedure 1882 for the trial of warrant cases by
AI HT\VF.
AND TWO Magistrates.
OTHERS
v.
Section 256 of the CriiLinal Procedure Code as
THE UNION supstituted by item 55 of Act 13 of 1945 reads as
OF BUR~IA.
follows:
U SAN
MAUNG, J. "256. (I) If the accused refuses to plead, or does plead
or claims to be tried, he shall be required to state forthwith
whether he wishes to crossexamine any: and, if so, which of
the witnesses for the prosecution whose evidence has been
taken. If he says that he does so wish, the witnesses named
by him shall be recalled and, after cross-examination and
re-examination (if any), they shall be discharged. The
evidence of any remaining witnesses for the prosedtion shall
next be taken, and after cross-examination and re-examination
(if any) they also shall be discharged. The accused shall
then be called upon to enter upon his defence, and if he puts
in any written statement it shall be filed with the record. ,
(2) On entering upon his defence tl!e accused shall be-
asked whether he 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 decides to give
evidence, his evidence shall next be taken, 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, he shall, b~fore the evidence
of the witnesses for the defence is taken. be examined in the
manner provided by sub-section (2) of section 342."

The amended section introduces a radical change

in the procedure, which, cannot in our opinion, be
effective in the N aga Hills District without amend-
ment of section 9(2) of the Chin Hills Regulations
1896. Accordingly, neither of the amended section
256 or 342 of t'ne Criminal Procedure Code can apply
to the non-Chins in the Naga Hills District.
It must be noted in passing that one of the
appellants, Ba Pe who is a Burman domidled in the
Chin Hills is a Chin as defined in sub-section (3) of
1957] BURMA LA\V REPORTS. 141

section 2 of the Chin Hills Regulations 189(5. The H.C.

1957
other two appellants, Ai Yoe and Ai Htwe being
AI HTwE
Shans who have not adopted the customs and ANO TWO
OTHERS
language of the Chins, they cannot be Chins as v.
defined therein. THE CN!ON
OF HUHMA.
The position therefore is as follows : So far as
u SAN
the Penal Code ls concerned Ai Htwe and Ai Y oe !ILWNG, J.
being non-Chins will be .governed by Burma Act 33
of 1947 which amends section 302 of the Penal Code,
this being the law prevailing in Upper Burma. As
regards Ba Pe who is technically a Chin the law
applicable to him will be section 302 of the Penal
Code as lt stood
>
before it was amended by Burma
Act 33 of 1947.
As regards procedure, the trial of all the three
:accused mus..t be according to the procedure pres-
-cribed by the Code of of Criminal Procedure 1882
f9r the trial of warrant cases by Magistrates.
As all the appell~pts have been convicted mainly
,on the strength of their own evidence on oath, their
,convictions and sentences must be considered as bad
in law and accordingly set aside.
We would therefore allow the appeals of the
three appellants, set as.ide the convictions and
sentences against them as set out above and direct
that they be retried by the learned Sessions Judge,
N aga Hills District in the light of the remarks made
above. For the guidance of the learned Sessions
Judge W"! would cite the case of Than Myint v.
The Union of Burma (1) where it was held that
to constitute a premeditated killing it is necessary
that the accused should have had time to reflect,
with a view to determine whether, he would kill
or not, and that he should have determined to kill
as a result of that reflection. In other words the
(1) (1953) B.L.R. 342.
142 BURMA LAW REPORTS. [1957

H~C. killing should be a predetermined kil1ing upon

1957
consideration, and not a sudden killing under the
AI HTwE
AN!J TWO
momentary excitement and impulse of passion upon
OTHERS
v.
provocation given at the time or so recently before.
THE UNION as not to allow time for reflection.
oF BuRMA.
We would also observe that where there is any
U SAN irregularity in the recording of a confession by a
MAUXG, J.
Magistrate empowered to record such confessions.
the Magistrate himself can be called and examined
as a witness with a view to consider whether the
confession should or should not be admitted in
spite of the irregularity.
1957] BURMA LAW REPORTS. l
14.),

APPELLATE CIVIL.
Before U Chat! Tun A1111g, Chief Justi_e, U Sau i'rlaung, I. atid
U Ba Thon11g, I.

DAW HLA OHN AND Co. (APPLICANT) H.C.

1957
V. Mar. 11.
THE INCOME-TAX APPELLATE TRIBUNAL
(RESPONDENT).*

.4P pecrls to Assista11t Commissio,zer of lncome-Ta.~ again~! orders of asscsswcut

by Income-Tax Officer-Rejection of applica/ialt111ade rluriug pwdeucy Of
the appeals for permission for regis! ration off he firm tttlder Rule 2 (c) of
the Bun'>la l11come-Ta.r Rtzlcs, (;ide Notification No. 37 of tire Office of the
FinMtcial Cow.missivncr, dated tile 21st APril 1939}-Furthcr aPPt:als to
the Income-Ta.v APPellate Tribuualu11der s. 33-A, Burma l11COmc-Tax Act,
against the co!ljirma l,o!t of tlze Income-Tav Officer's assessment and also
a ~clinst the ~c'jcction of t/te apPficalion for Permission by lite A ssi stant
Commisriuuer,dismissal of-APplication to lncome-1'a.t ApPellate Trib1111al
m;dcr s. 66 (l} Burma lucomc-Tax Act to stale a case to High Court
refusal tftereof-A'pplicalion 1111de1 SHb-sectiotz 12} oj s. 66, Burma bzcomc-
Ta.t Ad to tire Higlz Cowl rcqlllriiJgtltc[llcowe-Ta;r:A.Pftellate Tribzmnl to
stale a case orr question oJ.,Law.
Htld: The rule that the asse~see req"iring U1e Income-Tax Appellate
Tribt1nal to refer questions of Law to _ Hi~h Court shottld for111ulate the
questions he wants to refer is a rule of practice based on consideration of
c~llvenienc~ to pro~ect the Conr t from unnece;sary application under sub-
s. (2} of s. 66 of the Iri'come-Tax Act .
Th e Appellate Tribunal is not bouad to refer only tile questions so
{orm:tlated, In cases where the Appell:i.te Tribunal refused to stde the ca~e
under sub-s. (2) on the ground that no point of law arises, the High Court,
under sub-s. (2} if not satisfied with the co rectness of the Appellate Tribunal's
view, ca 1 require the Appellate Trib.mal to state the case, i.e. the case which
the Appellate Tnbunal ought to hav<! stated under sub-s. (2) and to refer the
case to the High CutJl t. 1-Ioweve", the actual framing of the questions rests
with the AplJ.e!late Tribunal.
llcld also': An applic.-1tiOn under Rule (2} (cl of the IncorneT<tx Rules is
n:>t by itself an application fur registration. All that the Appellate Assistant
Commissioner of Income-tax is in effect em;Jowerec! to -;lo under that Rule is
either to condone the delay, or to refuse to condone the delay in pref~rring an
application for registration Of :t finn under s. 26-A o[ the Income-Tax Act.
The Appellate Assistant Commis~ioner of Income-Tax Ins no authority under
that RLJle either to allow or di sallow registration.

civil Heference Nos. 9 and 10 of 1955. Under s. 66 (2} of the Burma

Income-Tax Act.
144 BURMA LAW REPORTS. [1957

Hie. Held Jttl't her : A decision affecting the very quanbm pf assessment
1957 according to whether a particular assessee firm is regi5t~rcd or not registered,
or whether permission for registration should or should not be gr;!lltec', or
DAW HLA whether there are sufficient materials to j.1stify the rejection or acceptance of
OHNAND Co.
v. such an application, even though such a ded~ion can be said to have betn left
THE to the direction of the Income-Tax authorities, yet the que>tion as to whether
INCO~IE-TAX such discretion has been exercised perversely, illegally or arbitrari!} is a
APPELLATE question of Law.
TRIBUNAL.
R11i Sahib CltrtwJi La/ aml Sons v C:mzmissiouer of lnc,m;c-Tax, Pu11j.1 b,
. (1937) 5 I.T.R. 44; Mo'c S'ta't attd CJ. Ktr.td v. C?tnmissioncr of lttco'Jtc-
Ta:o:, Bombay South, Eombay, (!952) 22 LT.R. 39.

Horrocks for the applicant.

Kyaw Thoung (Government Advocate) for the
respondent.
U CHAN ToN AuNG C.J._These two matters
'
should not have been treated as civil references.
They arise out of an application by Daw Hla Ohn
and Company, a partnership firm carrying on
business at No. 62, 29th Street, Rangoon, to this,
Court under sub-section (2) of section 66 of the
Burma Income-Tax Act requiring the Appellate
Tribunal to state a case on the ground that a question
-of law has arisen. The applicant firm consisting of-
three partners, namely, Daw Hla Ohn, U Ba Lat and
l\.1rs. C. M. Devi, was assessed to income-tax for the
years 1951-52 and 1952-53 in two separate proceedings
by the Income-tax Officer, Central Circle, section L
Against the orders of assessment in the said two
proceedings the assessee firm preferred an appeal to
the Assistant Commissioner of Income-tax who dealt
with the said appeal in two separate proceedings,
namely, Appea~s Nos. CEN 76/53-54 and CEN
77/53-54.
Pending the hearing of the two appeals before
the Assistant Commissioner of Income-tax, it appears
that the assessee firm, taking advantage of the provi-
sions of Rule 2 (c) of the Burma Income:.tax Rules,
 19571 BURMA LAW' REPORTS. 145
''
(vide Notification No. 37 of the Office of the ~9fi
Financial Commissioner dated the 21st April 1939); DAw HLA
sought for permission of the Assistant Commissioner OHN AND co.
of Income-tax to make an application for ;~E
. .
reg1strat10n of the fi rm. H ere, we . may observe Ii:\COME-TAX
APPELLATe:

incidentally, that the said Rules published in Notifi- TR~AL.

cation No. 37, dated 21st Aprill939 of the Office of UCHANTuN
the Financial Commissioner have been amended by AuNG, C.J.
Notification No. 38, dated the 11th September 1956
and Notification No. 49, dated the 13th December,
1956. In view of these subsequent amendments,
which substantialiy alter the previous Rules, a point
has arisen before us as to whether in determination
of the question involved in the two assessement
proceedings, \ve should be guided by the old Rules
or py the new Rules published in Financial Commis-
sioner's Notificat4on No. 49, dated the 13th December
1956. Both the learned Government Advocate and
the applicant's Counsel Mr. Horrocks agree_and in
our opinion rightly too_that the new Rules are not
applicable to the present proceedings, inasmuch as
th"e new Rules dp not operate retrospectively. We
fully agree in this submission there being no expressed
or implied retrospectivity of the new Rules published
in Notification No. 49, dated the 13th December
1956. Therefore, we will be guided in the considera-
tion of this present application, so far as they are
relevant, by the old Rules published in Notification
No. 37, dated the 21st April 1939. Now, both the
applications seeking permission to make an applica-
tion for registration of the finn were rejected by the
Assistant Commissioner of Income-tax. We may,
here, point out that if the permission sought
for in both the proceedings were granted by
the Assistant Commissioner of Income-tax acting
under Rule 2 (c) of the Burma Income-tax
146 BURMA LAW REPORTS: [1957

H.c. Rules, the applications would have to be sent

1957 , to the Income-tax Officer concerned who is the
DAW HLA only competent authority to deal with such
0HNAND Co.
V applications in accordance with the provisions of
THE
INCOME-TAX
section 26-A of the Income-tax Act and the relevant
APPELLATE rules made in that regard. However, in rejecting
TRIBUNAL-
the applications seeking permission for registration
u CHAN TuN of the firm, the Assistant Commissioner of Income-tax
AUNG, C.J.
remarked in Appeal No. CEN 76 j53-54 as follows:
"Before me the appellants filed a fresh Instrument of
Partnership dated the 31st October 1953 and prayed for leave
to submit their application for registration of their firm under
Rule 2 (c). According to this new Instrument there had been
a change in the constitution of their firm owing to the death
of Daw Hla on the 3rd September 1953 and her shares had
been also taken over by Daw Hla Ohn. '
From the facts stated above it is quite apparent that the
appellants had no operative Instrument of Partnership during
the period from the 19th October 1952 to the 31st Octoqer
1953 or up to the time when the As~essment Order was passed
by the Income-tax Officer, i.e., on the 9th October 1953, to
enable them to file their application under Rule 3 or Rule 6
of the Burma Income-tax Rules.
Therefore, in view of the fact that tl)eir finn must be
deemed to have come to an end on the expiry of three years
as specified in the Instrument and that there was no operative
Instrument of Partnership I hold that the appellants were not
entitled in law to apply for registration for the assessment
year 1951/52. Permission prayed for is therefore rejected " ;
and in Appeal No. CEN 77/53-54 as follows:
"At the time of making the assessment, i.e., on the 9th
October 1953, the appellants had no operative Instrument of
Partnership to enable them to apply for registration under
Rule 3 or Rule 6 of the Burma Income-tax Rules nor had
they any inherent right to enjoy the benefits of registration as
their assessment had to be made by the Income-tax Officer
under Section 23 (4) of the Act.
On the above observations I see no warrant to
interfere with the assessment. It is therefore confirmed and
the appeal accordingly dismissed."
 .
19.57] BURMA LAW .REPORTS. 147

The above two orders were passed by ~he H. C.

1957
Assistant Commissioner in one and the same releva'ut
.
appe 11a t e procee d mgs. I n b oth the appeals the OHN DA w fiLA
ANoCo.
Assistant Commissioner held that the assessments Tv.
HE
made by the Income-tax Officer for the relevant INco}!E-TAx
t wo peno d s were f u11 y JUSti
"fi ed , bemg
not ar bitrary TRrauNAr..
APPElLATE

or excessive in any way; and at the same time, as u CHAN Tu!-1

could be seen from his remarks quoted above, he AvNo, C.J.
dismissed the application seeking permission for
registration holding that the assessee-firm " is not
entitled in law to apply for registratio'n. n
As ..against the said order of the Assistant Com-
missioner the assessee-firm preferred two appeals,
namely, N.,os. 29 of 1954 and 30 of I 954, to
the Incom_e-tax Appellate Tribunal under section
.33-A of the Burma Income-tax Act not only as
against the confirmation of the Income-tax Officer's
'assessment, but alO as against the order of the
Assistant Commissioner refusing to grant the
permission under Rule 2 (c) of the Burma Income-tax
~Rules , for registration of the assessee's firm. The
Income-tax i'\ppellate Tribunal, however, after
admitting the two appeals passed orders confining
itself solely to the question as to whether the rejection
by the Assistant Commissioner of the application to
grant permission for registration of the firm was
perverse or not. Holding that it was not perverse, the
Appella.te Tribunal dismissed both the appeals. It
appears tb.at, although it was contended on behalf of
the assessee-firm, that the decision of the Assistant
Commissioner of Income-tax should not only be
considered from the aspect of perversity, but in view
of the patent illegality in that the Assistant Commis-
sioner of Income-tax had exercised a jurisdiction not
vested in him by law, or in other words, had exceeded
his jurisdiction in giving a decision not authorized
148 BURMA LAW REPORTS. [19.57
H.C. by law, there had also been an arbitrary decision,
1957
thereby involving questions of law; yet the Income-
DAW HLA
0HN AND CO.
tax Appellate Tribunal refused to accept this submis-
v.
THE
sion and refused to interfere with the decision
lNCm!E-TAx of the Assistant Commissioner of Income~tax.
APPELL,\TE
TR!Hl!NAL- Thereupon, the assessee-firm applied to the Appellate
U CHAN TuN
Tribunal under section 66 (I) of the Burma Income-
AUNG, C.J. tax Act to refer to this Court the following three
questions as Questions of law arising out of the
aforesaid appeals : -
( l) Whether the Income-tax Appellate Tribunal, while
passing orders in the Second AppeaL was not bound to
examine the correctness or otherwise of the reasons given by
the Assistant Commissioner of Income-tax, in his Appellate
Order, for having exercised his discretion in refusing pennis-
sion to the assessee to apply to the Income-tax Officer fo.r
registration of the Firm under Rule 2 (~) of the Burma
Income-tax Rules.
(2) Whether the Income-tax Appellate Tribunal was''
not entitled, in its capacity as the higher judicial Authority.
to correct the Assistant Commissioner of Income-tax in having
exercised his discretion on unsustainable grounds or incorrect
finding of facts .
(3) Whether the Income-tax Appellate Tribunal was
not bound to correct the order of. the Assistant Commissioner
of Income-tax after examining whether the Assistant
Commissioner erred in law in withholding his permission to
enable the Petitioner to apply for Registration under Rule 2 (c).
By its order, dated 11th February 1955, the
Appellate Tribunal, however, refused to state the
case holding that they were not really questions of law.
In refusing to entertain the application to state the
case the learned Appellate Tribunal observed, inter
alia. that it was not concerned with the correctness,
incorrectness, legality or illegality of the order of the
Assistant Commissioner of Income-tax, but that it
was only concerned, in the light of the two rulings_
Rai Sahib Chranji La! and Sons v. Commissioner of
1957] BURMA LAW REPORTS. 149

lncomeMtax, Punjab (l) J.nd Mote Shah mid Co. H.C.

1957
Karad V. Commissioner of Income-tax, Bombay
D.Aw HLA
South, "'Bombay (2)-with the question whether or 0HN AND Co.
not the Assistant Commissioner of Income-tax 'Vas 11.
THE
acting perversely in refusing the pernusswn to INCOME-TAx
APPELLATE
register the firm. It also appears that the Appellate TRIBUNAL.

Tribunal refused to state a case by holding that there U CHAN TUN

was no question of law involved, but that the issue AUNG, C.J,

raised concerned only as to the exercise of discretion

available to the Assistant Commissioner of Income-
tax under Rule 2 (c) of the Burma Income-tax Rules.
It further holds that there being no perversity .in the
decision of the Assistant Commissiop.er of Income-
tax, it.ciid not see how the questions formulated arise
from its O!'der dismissing the appeals in exercise of
its power available under section 33-A of the Burma
Income-tcrx Act. Hence the application by the
.assessee under sub-section (2) of section 66 asking us
to require th~ Appellate Tribunal to state the case.
The assessee-firm has, however, in its application
before us recast the three questions of law raised by
it into one, as follows :
'' In an appeal against the assessment to the Appellate
Tribu~al under section 33-A of the Burma Income-tax Act in
which the only grounds put forward are those relating to the
propriety of the decision of the Assistant Commissioner of
Income-tax declining permission to the assessee-firm to
submit an application for registration of the firm to the
Income-tax Officer under Rule 2 (c) of the Burma Income-tax
Rules, is the _ jurisdiction of the Appellate Tribunal with
reference to such decision of the Assistant Commissioner
confineCl to an enquiry whether or not the said decision was
perverse or does it extend to examining and determining the
correctness, legally and/or factually of th-'t said decision ? "
There are some Indian decisions which lay down
that the assessee requiring the Appellate Tribunal to
(1) (1937) 5 I.T.H. 44. (2) (1952) 22 I.T.R. 39.
150 BURMA LAW REPORTS. (1957

H. C. refer questions of law ~o High Court should

1957
formulate the questions h~ wants to refer. Howevet,
0 ~~:N~~o. those are rules of practice based on consider c:~.tion of
;~E convenience, to protect the Court from unnecessary
INcoMET,\x applications under sub-section (2) or section 66 of
APPELLATE
TRIBUI"'AL. the Income-tax Act ; but in our view the Appellate
l.i CHAN TuN Tribunal is not bound to refer only the questions so
AuNG, C.J. formulated. In cases where the Appellate Tribunal
refused to state the case under sub-section (2) on the
ground that no point of law arises, the High Court,
under sub-section (2) if not satisfied with the
correctness of the Appellate Tribunal's view, can
require the Appellate Tribunal to state the case,
i.e., the case which the Appellate Tribunal ought to
have stated under sub-section (2) and to refer the
case to the High Court. However, the actual framing
of the questions rests with the Appellate Tribunal.
Now, in view of the special circumstances presented
in these two cases, we are of the view that a prima
facie question of law arises for consideration. It
should be noted that an 2 pplication under
Rule 2 (c) of the Income-tax Rules is not by itself an
Application for registration. All that the Appellate
Assistant Commissioner of Income-tax is in ~ffect
empowered to do under that Rule is either to condone
the delay, or to refuse to condone the delay in
preferring an application for registration of a firm
under section 26-A of the Income-tax Act. The
Appellate Assistant Commissioner of Income-tax has.
no authority under that Rule either to allow or
disallow registration. But here in the instant cases~
the order of the learned Assistant Commissioner of
Income-tax cleariy shows that he has taken upon
himself the task of deciding whether he should
allow or disallow registration of the assessee-firm,
instead of merely considering whether he should
 lY~IJ ts u KlVlA LAW REPORTS. 151
.
grant the permission sought f"r or not. In our view n&
there'is considerable force in the submission made
~
b y t h e assessee ,s C ounse} t h at registratiOn
. or non- DAW HLA
OHN aNn co.
v.
registration of the firm being a matter that goes to THE
the very root of any assessment of income-tax, a INCOMETAX
APPELLATE
question which directly arises out of such matter, TRIBUNAL.

whether the Income-tax Appellate Tribunal had juris- U CHAN Tu~

diction only to enquire whether the decision of the AUNG, C.J.

Assistant Commissioner in that regard was perverse
or whether it exte:ilded to examining correctness,
legality or otherwise of the Assistant Commissioner's
order, involves questi01i of law. In our view the
decision in such an important question as
affecting th.e very q11antum of assessment according
to whether a }?articular assessee-firm is registered or
not registered, or whether permission for registration
should or sholtld not be granted, or whether there
are. sufficient materials to justify the rejection or
acceptance of such an application, even though such
a decision can be said to have been left to the
discretion of the Income-tax authorities, yet the
question as to whether such discretion has been
exercised perversely, illegally or arbitrarily seems to
'""us to involve a question of law.
Having regard to the above circumstances, we do
not, however , wish to suggest in what form the
question of law involved should be stated to us by
the Appellate Tribunal, but we feel that there is
sufficient indication in the application of the assessee-
firm as to the point of law. it has raised to enable
the Appellate Tribunal to formulate one, and we
hereby require; the Appellate Tribunal to state the
case and refer it to this Court. The costs of these
applications shall follow the result of reference that
will follow hereafter.
152 BURMA LAW REPORTS. [1957

APPELLATE CIVIL.
Bcjo1e U Clzan T1m Azwg, Clliej Jmtice atzd U Sa11 Maung, J.

H.C. DAW SAW MYINT (APPELLANT)

1957
v.
Mar. 29.
DAW MYA THIN (RESPONDENT).*

Admiltislratiou Snit-Order for faymcut of wainteuaude allowauce for the

Respondent and her juur children during th;., Peude11cy of tlteadminislra-
tion suit-Such order, 1oTzltlter a "Judgmcut " witltm the mcani11g of
s. 20 of the Vuion JudiciarY Act or a11 apPealablr order Utzder Order '13,
Rule 1 of flu; Cidl Procedure Code.
The RespCJ;ldent li.led an adminis:ration suit against the appellant and
obtained an order for payment uf maintenan.;e allowance durinf-,.tlle pendency
of the s uit.
The appellant appealed against this order.
Held: The appeal is not m 1intain1ble, 1becaas:! the order i ,; neither a
judgment within the meaning of s. 20 of the Union Jud9ciary Act, nor an
appealable order under Order 43, Rule 1, Ci1il Pro;cdure Code.
Maganlal Pranjjvan !Jlellt"a v. Mrs. Cltamfmkultvar Ratilal M elzla a11d
others, (1952) B.L R. (H.C.J 192 ; Dayablzai Jifcoarzdas aud others v.
A.M. M. Muruggapa Cllelfiar, (193SJ 12 Ran. p. 4)7; T. C. LfOII/!. aJZd J IIC
v. U Po Titcin, (1953) B.L R. (H.C.) p. 1, refe..:rcd to.

Kyaw Myint for the appellant.

Ba Tin for the respondent.
Judgment of the Court was delivered by

U CHAN TuN AuNG, C.J._A preliminary question

has arisen as to whether the present appeal against
the order of the learned Judge on the Original Side
is maintainable in view of section 20 of the Union
Judiciary Act.
The respondent Daw Mya Thin filed a suit
against the appellant Daw Saw Myint for administra-
tion of the estate of U Ba Win, B.Sc., B.L., Advocate
* Civil Misc. Appeal No. 26 of 1956, against the order of the Judge,
Original Eide, High Court in Chi! Regular Suit No. ~9 of 1<;56.
1957 ] BURMA LAW REPORTS. 153

or' the High' Court, who died in Rangoon on the 21st H.C.
1957
March, 1955. The respondent claimed that she was
DA.w SAW
the wife'' of the late U Ba Win with whom four MY!NT
children were born, namely :_ ' DAW MYA
v.
THIN.
(1) Dora Win (a) Tin Tin Win;
U CHANTUN
(2) Michael Win (a) Mg. Myo Set; Amw, C.J.
(3) Tommy Win (a) Mg. Htay Myint; and
(4) Cissie Win (a) Su Su Aye.
The respondent also alleged inter alia that Daw Saw
Myint is a widow of the late U Ba Win.
During the pendency of the suit the respondent
asked for the appointment of a ~eceiver to take
charge. of the estate of the late U Ba Win and also
claimed raaintenance allowance for herself and the
four children. The learned Judge on the Original
Side aftei considering the affidavits filed by the
~parties and also the documentary evidence produced
before him, directed the payment of K 300 per month
as maintenance allowance for the respondent and
her four children during the pendency of the
administration suit, but he, however, rejected the
application for the appointment of a Receiver of the
suit estate. . The appeal now before us is as against
the order of the learned Judge on the Original Side
directing payment of maintenance allowance out of
the estate.
The question therefore is whether the order
against which the appeal is now being preferred is a
''judgment" within the meaning of section 20 of the
Uniorl Judiciary Act or, if it is not a judgment,
whether it is an appealable order under Order 43, rule
1 of the Civil Procedure Code.
There have been numerous decisions on this ques-
tion and after reference to them, we have not the
slightest doubt that the present appeal is not
154 BURMA LAW REPORTS. [1957
H.C. maintainable, because it is neither a judgment
1957
within the meaning of section 20 of the Union
DAW Si.W
II1YINT Judiciary Act, nor an appealable order under the
'II.
DA\\' MYA
provisions of the Civil Procedure Code. What is a
THIN. judgment within the meaning of section 20 of the
I.T CHAN TUN Union Judiciary Act has been carefully considered
AUNG, C.J.
in Magan!a/ Pranjivan i'ldehta v. Mrs. Champakunvar
Ratilal lvlehta and others {1), following the decision
in Dayabhai Ji-..vandas and others v. A.lVl. M.
l~urugappa Chettiar (2). A judgment has been
defined as a decree made in the suit whereby the rights
of the parties are determined. It was also held that
the word "judgment" in section 20 of the Union
Judiciary Act should not be accorded a wider .mean-
ing than it possesses under the correspond~ng clause
13 of the Rangoon Letters Patent. See also T. C.
Leong and one v. U Po Thein (3).
In the light of these judicial decisions we must
hold that this appeal is not maintain'lble and it is
therefore dismissed with costs. Advocate's fee three
gold mohurs.

U SAN MAUNG, J ._I agree.

(11 (1952) B.L.R. (H.C.I ~ 192. (2) (1935) 13 Ran. p. 45.

(3) {1953) B. L.R (H.C.) p. 1.
 ul!iggce~B '
So~SEG !f~~fu~cho (gl!i~CD) g~ewccccc;o3~sw~b Lo~b~h 0 r roso~
~~~e 0GeJc ccce.soe!e gC'o soeeGI!igresBsoc~cb 1:g~e sGeJc -1-
6s
r(e) c6 sof> et~:;reg[soc~ch 1:g~e 0Gelc ,~
rr 3ccole 0Cc:g~~osep~ogco:rosw ~
~8:: rg~~~:ro0w cccsb3~~g!J c&mswscccb~:~cc~s ~sacosccs
~9gcm~grogec~ngb 3~&:cccsocl81~rw~c!'' l ~ec leG~
. u3cc~eo
3cc~ :ccoegcosorobec~:~cccccc gm~~ccoe ~~chcl ljeG leGe>
c&gb w&~ccosocfu0 rr3cc:ccosoc.!fue,g~F-l~S?b go c 8e1so~o
:w:rosw gooloeeGf?chcl 'l~eG 1(;0 reo~~~~ee (les) ~~c<?
~L6) &:ccosocfu0 rgoo G6 soeed~~~~ecsoo~ch"13~e (;t;eJc ~
r:~~0&:chco soo~ch.soccchrosoco ~~~~~~~~ ugg.s;:-ec:a;g

ugceLGgco r:~ I(~) cec ccoae g>roec/X:b~:cccg>c.!fu03bgceg "
.
. uges!Ws:g pt'.oeGocg!i.copciEDe3bgceg
l'sccc~~
soocrog.>croe. llCCXJI'l~~oe. !fl[p:~&:::cbc:p~:" jWQJGe.oceSo
~?i!:.os,oo~cb w:cl!'lcCEG SCCC3~:re~S0~SOLble.lf~8:~~\il;co;,w
beGG00Cf rg.>!e~~:~ ucrosocffue.sb~~~:flCo6 socmcccss
:cc:co"w c.ogecc r:gce.8'lsso\j<~~l~o&:lJGe.oceff :?ogi!:.os.oo~ch
* (~d3~gcco::pdfoa~bg,~~: ~chcl l~ffi leG3
~~:
uc c co(}e ( ~gcc:osoclfua
-0Gelc 3m3) o~g~g;.oo{l~~) ~~c0~L6)
gC'ole.gggcece:r ~3cscoe.soro( chco
~!In eG ~-~ '<i) c1
<;"Sl sJ.1I.Od31! A\V'I VW~fUI [LSM
156 BURMA LAW REPORTS. (1957

;)@ ~ '2 ~D'il~~0~G;;o~Gf>0GS'3]'Jo5ro'J~~E>j~ GD'iliD'ilGJ l'Jbp~O?I O?Gro~

T
..9 d3G'J d3d3 J.Jt 88~CD'J~(Y.(d:>J.JtG~oSo:>t~ G02~0~6t2olf)~ GcgpoScxYJ~
( G~1) , o:>tu ~~~~~:~ ::BE>jo:>Gro'JoS m:;,5m~0::ro:;,l~GajpoSro'J:@Eg
-GG::>:J~g~ ~9 G~~~w1u ::olGo:>S3rot: rod3mt;p:DoS~e-oo56Jt;pg~~mJJ D'ilsr~
~G';liG';lb.lj'J r> Q ...,Q r
bp~ll CYJ~:':JJCD~p ~:(9oS~tG0~t:D'il'-:;911 O'JGCD~~G~W~ 0~G;;o:@~E>j~l
~:Goo-:Jf~tll GC\jpoSm'J:~m ffiGro~~cxtOOGOgG)G~(J.( 838~~~c~o:>tu ~838~~
GGCT.J.cj>O~ Gm:J."'~g~m aJJ.J'Jod5~~E>!~O?~Q~t 0oSlE~~~ GO]'Jcf.i
m'Jg~ 1 0oS~Erosr:~[ill:m rod3mqxnoS~e-o aSoot;p:~~:~mS~
5l'J 1 OJ>(lwbo.,'Jm8~GotoSJ.J@~ c;E:~ D'ils~~t11Sd3S:Go:61~ c;E:~
Gm'JoS~~oSl~OJ 06 ~~gGroS:: q5:~;;)8dsr~ :J@~\3 ~5\~' E>tJ;o~
@t;;ot~To~aS (3 9 ~o looE~~oSo:>tu
80GDS'dE>jl OJGro:~Gqs:~ Gc.91d)CXfcf.l!I~GWg~tOJ@ SC'J(]')'J"jj'Jg
~ bf'G'oo5a:;J9~g ~GBOGDOOoi; G20Jt oosp:~:~'=_l;Go:<Jm'J:J
GcypoSco~:QEi)8i(:Drf'jl ~0:: OJ Gro:~) G~:~0~G;;QWl~ SCSi a?
~:oS~oSG0:6p~ ~qscS:r;2c8~Gt(J.( G~jpaS:o'J~~~~o m@'J:
G~o ~oS<:p:cxrd:iGc.9rGGB'J~ E" .
moooSol::BG'Jt:~:nG'J~ E>1nt~~9 aJOJ'Jod3 :;,~5003)5
OJ 6p: ~ [:~ Gco'JoS~ ~d3~ro oS ~~ 1 OJ d3wqJJJoS t;pe-o OOOJE>(J:
~@3:ax:;E~.~: :::l@~~ 1>1&;' 6p3-ochmGOJ:::B~ D'il~8rl~o5 Cj~ 026
:::l@~ (3 y~S1 Gm'Jo5~JJ'Jro J? E>]oSGf;m ~~oS~oSGo.J'JmS~~
odi~oS~oSOJtu
 .,
1957] BURMA LAVVY rxEPORTs. 157

APPELLATE CRIMINAL.

MAUNG SO SAN (APPLICANT) H.C.

., 1957
v. Oct. 4 -
THE UNION OF BURMA (RESPONDENT). *
Suppres . ion of Corruption Acl, s. 4 (1){-/- (2.-'' Acquittal" on g1om:d of
dcfective"SatlC/ioii-Appcllallt re-anestcd 1111d again smt rtP under
1equisitc S.l1lcl;jou--APPli~'fion to Quash the scco11d f>roceediug- S .403
(ll, Criminal Procedure Code-S. 26, Gc11crnl Clauses Act -Se11ltuce scned
muler atl abortive trial cannot be treated as served uuder a lawful
convict ion. "
'1:!1e applicant was coadcled and sentenced to one year's rigorous
imprisonment tonder s.1 (1)/4 (2J of the Suppression cf Corn:ption Act, 1948.
On apre~l, the High Courtiset aside the conviction ar:d "acquitted hi!ll '
b~cause of defective sanction. By this time, the <tpplicant had already sen-ed
his sentence.
He was re-arrested and again se:lt up for trial after obtaining proper
sanction.
The a pplic:mt filed an application to quash the tr!al proceeding s.
- Held : ri' the trial of the ;~pplicant is b.rsed upJn an invalid sanction then
the trial is void and tlt-~t the'' acqui tlal o~ "conviction " thereunder i's also
void.
The first trial Of the Applicant under a defective sanction was a nullitv
and that the ultimate orde~ acquittin~ the applicant by the appellate Cou;t
cannot operate as a bnr under s. 403, sub-s. (1) Criminnl Procedure Code to
the institution of a fre"sh prosecution against the applicant.
Yttsofalli Mulla Noorbhoy v. The Kiug, 76 I.A. (1948-49) p. 15$ ; lllau 11 ~<.
C/tit Po <1td 011e v. The U11io11 of Burma, (t948l B.L.H. p. 175, fo llowed. -
Held also, The fanner trial bdng no trial ab i11itio, becatse of a defe;cli\"e
sanction, the order quashing the case could only oper:?.te as an order of
discharge and not as acquittal.
Irt Re. C. DL<'aJlll[!.l"flham, A..I.R. (1951) Mad. i;. 725, referred to.
Held further: The principle under! ring s. 26 of the General Clauses Act
is the sam<: as that in s. 403 of the Criminal Pmcedure Code. One is
(Otnplementary to the other in reiterating Ute fundamental pri ncipal of

C'ciminal Revision No. 91-B of 1957.

Applicathn to quash !he proceedin~ in Criminal Regular Trial No. !9 of
1957 of the Co.srt of t :tc Special J .sdge ( 3) (S.l..-\. U. & B.S.I.A. Act). !~angoon.
:158 BURMA LAW REPORTS.

H.C. criminal law that no person shall be put in jeopardy of hi~ life and Iibert.
1957 more than on~e; and s. 403 of the Criminal Procedure Cocle is n'1 more thai
an elabor<1tion of this principle in detail. .:vloreover, the General Clau~es Ac
MAUNC. So
is essentially, an Act to be in\aked only for purposes of interpreblion o
SAN
v. legislative ena:tments and statutes.
THE UNION Hclda!so: A sentence serve:! ro:Jo.ving :t convictbn under an abortiv'
-oF BUR~!A. trial cannot, in law, be treated as sentence serveJ un:ler lawful con\'iction.
Altsattul Haq arzd anJthcr v. /(ir:g-Empcror, A.I.R. 11949) Nag. p. 327,
referre;:l to.

Aung Nlin (1), Advocate, for the applicant.

Tin Maung (Government Advocate) for the
respondent.

U CHAN TuN AuNG, C.J._The applicant Maung

So San who was, at the relevant time, an auction
clerk at No. 4 Godown, Port Commissioners, Rangoon
was prosecuted under section 4 (I) (c) read with
section 4 (2) of the Suppression of Corruption Act,
1948 in Criminal Regular Trial No. 13 of 1955 'bf
the Court of Special Judge (1) ,' (S.I.A.B & B.S.I. Act)
R angoon, and was convicted and sentenced to
undergo one year's imprisonment on the 22~
February, 1956. On appeal to tne High Co urt, as
against the said conviction and sentence, in Criminal
Appeal No. 102 of 1956, U Aung Khine J., after
remanding the case twlce to the Trial Court on the
ground of, what appeared to be, absence of
satisfactory evidence showing that a proper sanction
to prosecute the applicant, in conformity with the
provisions of section 6 of the Suppression of Corrup-
tion Act, 1948 had been granted or .not ultimately
set aside the conviction of the applicant and
... acquitted'' him,
From a perusal of the judgment 4ated the 13th
March, 1957, passed by the learned Appellate Judge,
it is undoubtedly clear that the setting aside of the
Conviction of the applicant was mainly because of
 1957] BURMA LAW, REPORTS. 159
;.
H.C.
the defect in the sanction for his prosecution. The 1957
concluding portion of the judgment read : MAUNG So

'' moooSG<-9T@ o1~G0?C~<:fi'J~G'J9r G8'3 ?o5~W)6p~~~s m SAN

v.
mu;!QOJspld1GG'Jt~~tOOGo T02cr 0@90 y~~r 8Clod3d1oSID?~~ oo?:
THE UNION
OF BURMA.

@~GGJ~ moSeoGaq6G 9 ( o) ( o) I 9 (J) 8'35J' 83o:(8S:~9 U CHAN

Gro?baf.i o ~~0':1]QG06)~ 8'38~~~o5ro?:@c:~ ouS~oS I C]C:D<l?g
TUN AUNG,
C.J.
~m~~~ oo50JoS oo,;pgGOJ~o5 6)~8'38~~~oS~ oSOJt 11' '
However, by the time the appellate order setting
aside his conviction was passed, the applicant had
already served his sentence awardecl by the Trial
Court with the remissions given by the jail executive
authorities.~ Now, the applicant has been re-arrested,
and in Criminal Regular Trial No. 19 of 1957 of the
Special Judge, (S.I.A.B. & B.S.I. Act), Rangoon, he
i3 being-sent up for trial after obtaining the requisite
sanction. The present revision application is to
"quash the trial proceedings now pending before the
Special Judge (S.I.A.B. & B.S.I. Act), Rangool'l.
Two grounds have been urged in support of the
, ~pplic~tion. Firstly, it is urged that the fresh trial
of the applicant is barred under the provisions of
section 403 of the Criminal Procedure Code inasmuch
as, the appellate Court (the High Court) has
" acquitted " him after setting aside the conviction
and sentence of the trial Court. It is further
contended -that the words " ~8'3~'19oo5J.Jo5~ oosp~GOJ~d)
6)~ 8'3~~~ts>oS~oSOJ~rr" are not without significance, and
that they should be regarded as'' complete acquittal"
entered by the learned appellate Juc;l.ge after a full
consideration of the entire merits of the case, and
not confined to validity or otherwise of the sanction
accorded for the prosecution of the applicant.
However, the applicant's Counsel has to concede
that"if the trial of the applicant is based upon an
invalid sanction, then the trial is void, and that the
160 BURMA l:AW REPORTS. [19.57
H.C.
1957
"acquittal" or "conviction " thereunder is also void.
That proposition of law seems to be quite settled and
lliAU!\G So
SAN has been accepted by many Courts, although there
v.
THE UNION
were at one time conflicting views ; but these conflicts
<>F BURMA. have been set at rest by the decision of the Privy
U CHA!'I Council in Yusofalli Mulla No01bhoy v. The King
TUN AUXG,
C.J. (1). See also Maung Chit Po and one v. The Union
of Burma (2). There is no doubt ~herefore, that the
first trial of the applicant under a defective sanction
was a nullity and that the ultimate order, acquitting
the applicant hy the Appellate Court cannot operate
as a bar under section 403, sub-section (1) of the
Code of Criminal Procedure to the insti~ution of a
fresh prosecution against the applicant. However,
the learned Counsel for the applicant iaid special
emphasis on the expression : " g]ga~~~oo5o:>o5 ooGp:Gro
~o56)~ gaS~~~o)~cf.io:>tu" '' <icquitted so 'far as this case
is concerned " used by the appellate Judge, and he"
submits that the principle of acquittal enunciated in
section 403 of the Criminal Procedure Code should
apply. I see no substance in this submission. The
use of the word " acquitted " instead of the word
" discharged " in the judgment of the learned Judge
in appeal is, with due respect, somewhat unhappy.
The former trial before the Special Judge (S.LA.B. &
B.S.I. Act) Rangoon, being no trial ab initio, or in
other words being void, because of a defective
sanction, the proper order of the appellate Judge
should have been an order of discharge and not
acquittal. From the reading of the entire judgment
of the learned Judge, it is abundantly clear that the
so-called acquittal order was made, because of the
defect in the sanction for the prosecution of the
applicant, and on no other grounds what$oever. In
my view, the objection taken by the learned Counsel
{l) 76 I. A. (1948-49) p. 15~. (2) (194~) B.L.R. p, 175.
1957] .BURMA LAW, REPORTS. 163

King-Emperor (1), it was held that the fact that the H..C.
1957
accused had served a part of the sentence inflicted
1\JAUNG So
under the original void trial for want of proper SAN

.sanction for prosecution was not itself a good v.

THE UNION
ground to debar a fresh trial after obtaining the OF BuR~rA.

proper sanction. Therefore, under the circumstances U CHAN

of the case, there is no substance in the contention TUN AUNG,

C.J.
that the applicant having served the sentence
.awarded him in his first trial, he should not be
put to a fresh trial for the same offence. This
revision application is therefore dismissed.
A few more words, and I am donewith it. The
applicant will no doubt, on conviction lose his
employment'. His first trial and the subsequent
appeal agaipst the conviction had taken quite a long
time and he had, as a result of the first abortive
trial served some months of imprisonment. Though
these facts and''circumstances cannot however stand
fn the way of the fr([,Sh trial, I do hope they will be
taken into consideration in assessing the sentence
awardable to him in the event of a conviction
fell owing the fresh trial.

'
(1) A.I.R. (1949) I'\ a g. p. 327.
164 B URIVIA LA Vv REPORTS. [1957

APPELLATE CIVIL.
Before U Armg J{/ziue, I. and U Clzoon Foung, J.

H.C.
19.57
Q. S. MARIANO (APPELLANT)
v.
lttly 3.
C. J. GRANT (RESPONDENT).*
Civil Procedure Code, s. 107, Order 43, Rule 1 (w) and Order 47, Rule 7-
Appcllatc Cottl, wlzdlzer p1ecludcd from questioni1tg tlze propriety of a
retiew granted by tire Lower Court ou the grotllld of i1zsujficicncy of
evidwcc-luterprctation of the word St1ict proof" iu Order 47, Rule 4
Held: Order 43, Rule 1 (w) must be r ea.d togelher.with Order 47. Rule 7
of the Code o Civil Procedure.
The phrase '' Strict proof'' in Order 47, R.de 4 r efers to the formal
correctness of the evidence offered and not to its effect or result and so far as
the sufficiency of evidence is con~erned it is purely a matter If) be taken care of
by the original court, and the appellate Court i s p recluded from going into the
sufficien~ y of the quantum of the evidence addr;ced.
Ahid KlroiUlkar v. ll[,,freudra Lal De, I.L.R. 42 Cal. 830, approYed and
followed.
Na11dalal Mullick v , Pmzcltallatt Mu kerjee, 45 Cal. p. 60 ; Bai Nematbu ~':.
Bai Nemat:tllabu, 42 .13om. 295 ; Ali Akbar ahd others v. Klmrslzed Ali a11d
mroUrer, I.L.R. 27 All. p. 695 ; Rajah of Bobbili v. Marandaua Venku Naidu,
A.I.R. !1948) Mad. 340 ; Nanzin Dao aud of hers v, Clliran]i Lal, I.L.R. 47 All.
p. 361, referred to.
Patlan Ahmad [(fum v. Pyda VLnkalachelam.ryya and a not her, AJR-:""
(1942) Mad. 511, dissented from .
Sonaji ':. Mofiram, I.L.R. (1949) Nag. p. 502, referred to.

P. N. Ghosh, Advocate, for the appellant.

R . Basu, Advocate, for the respondent.

U AUNG KHINE, J.-This appeal under Order 43~

Rule 1 fw) of the Code of Civil Procedure is against
the order dated 8th November 1954 passed by the
3rd Judge, Rangoon City Civil Court in Civil Miscel-
laneous Case No. 104 of 1953.
* Civil Misc. Appeal No. SO of 1954.
Against the order of the 3rd Judge, City Civil Conrtof Raugoon 'Jn Civil
Misc. Case No.104 of 1953, dated the 8th November 1954.
 1957] {J BURlVlA LAW REPORTS. 165
' The sole question that calls for decision in this H.C.
!.957
appeal is as to whether an appellate Court can
question the propriety of a review granted by t!le Q. s~N~wa
lower Court on the ground of insufficiency of evidt:nce. c v.
This question has now assumed a general importance, J~ANr.
in that there has been nu authoritative decision of 1?1-fl~~~f.
this Court on the point. The facts relating to this
case briefly are as follows :
In Civil Regular Suit No. 1613 of 1947, the
plaintiff Mrs. D. Grant obtained an ex parte decree
for Rs. 1,287 with costs against the defendant Q. S.
Mariano. Mrs. Grant died and her son C.J. Grant
was br.ought on record as her legal' representative.
On 24th April 1952 Grant applied for the execution
of the decree but his application was held to be time
barred an< it was accordingly dismissed. Prima facie
~be application was filed out of time but jt was
contended inter alia on behalf of Grant thar iimita-
.. tion was saved by the two deposits made towards the
decree- by the jwigmentNdebtor. Grant filed an
application for the review of the order dismissing his
application on the ground of discovery of new and
important evi.dence, which, after the exercise of due
diiigence, was not within his knowledge when the
previous order rejecting his application was passed.
The evidence adduced at the hearing of the review
appli~atlon was to the effect that the two deposits
towards the decree were made by Pleader U Ba Win
at the in"stance of either the judgment-debtor or his
pleadet, Mr. Pillay. On this further evidence the
review application was allowed, the previous order
set aside, and the case re-opened.
When in this appeal in support of the grounds
canvassed, the evidence in the hearing of review
application was touched upon for consideration on
morits, the learned Advocate for the respondent
166 BURMA LAW REPORTS. [ 1957

H.C. pointed out that the appellate Court is precluded

1937
from going into the sufficiency of the reason given
Q. s~N;;rAru- on the basis of the evidence tendered.
c. J. ~~ANT. On behalf of th~ appellant it is submitted. that
- we are dealing w1th an appeal and not With a
;IH:;,~~J. revision and further that section 107, Code of Civil
Procedure provides that an appellate Court shall have
power to 4etermine a case finally and therefore even
though the appeal here is under Order 43, Rule 1 (w)
its scope is not restricted in any way. In other
words, it is claimed that the appellate Court has
jurisdiction to go into the merits of evidence tendered
by the appellant in the lower Court.
It seems clear, however, that Order 43, Rule 1 (w)
m1:1st be read together with Order 47, Rule 7 of
the Code. Order 47, Rule 7 says thal' an order
granting an application may be objected to on thi!
ground that the application was (a) in contravention
of the provisions of Rule 2, {b) in contravention of'
the provisions of Rule 4, or (c) after the expiration
of the period of limitation prescribed therefor and
without sufficient cause ; and such objection may be
taken at once by an appeal from the order granting
the application. The portion of Order '47, Ru.le 4 as
relevant to this case reads :

"(2) Where the Court is of opinion that the application

for review should be granted. it shall grant the same provided
that . . . . (b) no such application shall be granted
on the ground of discovery of new matter or evidence w,hich the
applicant alleges was not within his knowledge, or could not
be adduced by him when the decree or order was passed or
made, without strict proof of such allegation."

As to what " strict proof " means has been a

subject of a good deal of judicial interpretation, not,
however in all cases harmonious. In the case"of
1957J BURMA LAW .REPORTS. 167

Ahid Khmzdkar v. Mahendra La! De (1), Jenkins, H.C.

1957
C. J. observed.
Q. S. MARl-
" The word ' proof 'ordinarily has one of two meanings: ANo

either the conviction of the judicial mind on a certain fact, or c. J. ~~ANT.

the means which may help towards arriving at that conviction. -
The use of the word ' strict ' seems to me to paint to the Ku A UNTG
!liNE, .
second of these two meanings, and 'strict proof', in my
opinion. means anything which may serve directly or indirectly
to convince a Court ar.'Cl has been brought before the Court in
legal form and in compliance with the requirements of the law
of evidence. It is formality which is prescribed and not the
result that is described."
In a ...separate judgment Woodroffe, J. agreed with
Jenkins C. 3. and said that-
'
" The term ' strict ' refers in this section, in my opinion,
to formalities."'
and he finally held that the question as to whether
the proof is according to law or not is within the
jurisdiction of the appellate Court to determine and
the question of sufficiency of evidence is for the
Court admitting the review.
_. In l'jandalal Mullick v. Panchanan Mukerjee (2)
the dictum laid down in 42 Calcutta page 830 that
" strict proof " means proof according to formalities
of law and has no reference to the sufficiency of the
quantum of the evidence adduced was followed.
Sanderson, C.J. in one portion of his judgment
remarked-
" ~. , and if I had been the learned Judge
who had to exercise his discretion as to whether he would
grant a review or not, I would have refused . "
'
In spite of this adverse opinion held, he refused to
interfere with the order granting the review as it
could not be said that the provisions of Rule 4 of
Order 47 had been contravened.
~

(ll I.L.R. 42 Cal. :i30. [2J 4.5 Cal. p. 60.

168 BURMA LAW REPORTS. [1957

B.C. In the case of Bai Nematbu v. Bai Ncmatullabu

1957
(1) Batchelor, acting C.J. entirely concurred in the
Q. s~N~IARI- construction which had been placed for these
c. J. ~RANT. provisions by the Calcutta High Court in 42 Calcutta

U AUNG
page 830.
KHJNE, .J That the words "strict proof " refers to formal
correctness of the evidence offered and not to its
effect or result as held by the Calc;utta High Court is
also followed by other High Courts. [See Ali Akbar
and others v. Khurshed Ali and another (2), Rajah
of Bobbili v. Marandana Venk.u Naidu (3) and
Narain Das and others v. Chiranji La! (4)].
A contrary view, however, was takelJ in the case
of Pattan Ahmad Khan v . Pyda Venkatachelamayya
and another (5). In that case Burn, J. 0bserved-
" Learned counsel for the petitioner has drawn my
attention to the case in 42 Cal. 830 in which it bas been held
that on appeal under 0. 47, R. 7, Civil Procedure Code, the
appellate Court is powerless to interfere with a decision on a
point of fact falling under R. 4. Order 47, R. 7 says that an
order granting an application for review may be objected to on
the ground that the application was (a) in contravention of the
provisions of R. 2, (b) in contravention of the prov~sions of~
R. 4 or (c) after the expiration of the period of limitation
prescribed therefor and without sufficient cause. Such
objection, may be taken at once by an appeal from the order
granting the application or in any appeal from the final decree
or order passed or made in the suit. In 42 Calcutta 830 in
dealing with the phrase ' strict proof' in 0. 47, R. 4 (2)
proviso (b) it was held that this merely meant formal
proof, or evidence admissible in accordance with. the strict
provisions of law. This case was followed by the Calcutta
High Court in two later cases reported in 45 Cal. 60 and 47
Cal. 568 and also by the Bombay High Court in 42 Born. 295.
With due respect to these learned Judges who have pronounced
these judgments, it appears to me that they have no t given
(1) 42 Bom. 295. {3) A.J.R. (1948) Mad. 340.
(2} I.L.R. 27 .411. p. 615. (41 I.L.R. 47 A 11. p. 361.
(5) A. I.R. (l942) Mad. 511.
 .
1957] BURMA LAW REPORTS. 169
.
~,

sufficient w;.ight to the word 'proof' in Rule 4 U) proviso (b). H. C.

19"57
There is a difference between 'proof ' and 'evidence '.
'Proof' is the effect produced upon the mind of the Judge l::ly Q. S. M,\RI-
ANO
the evidence or evidence sufficient to satisfy the Judge to whom v.
it is presented. A fact is said to be proved when the Court C ,J. GRANT.

after considering all the matters before it comes to the conclu U AUr!IG
sian that it exists or that a reasonable man ought to act upon KHINE, J.
the assumption that it does exist."
With respect we l\).USt point out that it is not quite
true as stated by Burn, J. that the Judges who dealt
with the cases in 42 Calcutta page 830 and 45
Calcutta page 60 had not given sufficient weight to
the word "proof" in Rule 4 (2) proviso (b). The
passage appearing in the judgment of Jenkins, C.J.
and quoted by us earlier clearly shows that he had
exercised his mind in the interpretation of the word
"proof". Jenkins, C.J. began by saying that the
~ord " proof " .. ordinarily has one of two meanings :
~either the conviction of the judicial mind on a certain
fact or the means wbich may help towards arriving
at that conviction. He was of the opinion that the
use of the word " strict " should apply to the second
err the 'two meanings.
The view entertained by Burn, J. was dissented
from in a later Madras decision. [See Rajah of
Bobbili v. Marandana Venku Naidu (1)]. However,
Nagpur High Court, in the case of Sonaji v. Motiram
(2}, accepted the view ~aken by Burn, J.
The learned counsel for the appellant has not
been able to bring to our notice any other rulings in
support of the contention made by hlm. Thus there
is plainly a preponderance of the view in the Indian
High Courts that the phrase " strict proof" refers to
the formal correctness of the evidence offered, and
not to its effect or result and so far as the sufficiency
--L--~--------------------------------------
(I) A I.f~. (194fl) l\latl. 340. (2) I.L. R. (19-19J Nag . p. 5G2 .
170 BURMA LAW, REPORTS. [1957
H.C.
1957
of evidence is concerned it is purely a matt.er to be
taken care of by the original Court. After carefully
Q. s~N~IARI- wading through the mass of case law presented to
v.
C. J. GRANT.
us, we find ourselves respectfully agreeing with the
principles laid down in 42 Calcutta page 830 for the
U AUXG
I ,~HINF, 1. following reasons.
If the appellate Court is allowed to set aside the
original Court's order on the ground of insufficiency
of evidence, it would create an unjustifiable situation
in that the party in whose favour the review applica-
tion was granted would be deprived of his precious
right of appeal against the original order.
Again, Order 47 appears to be a discretio.nary
order and as such the legislature must have intended
to invest the original Court with wide discretionary
powers.
This view appears to be in consonance with tne
construction placed on the words " strict proof " in,.
42 Calcutta case. We find ourselves in entire
agreement with the following observation made by
Jenkins, C.J. in that case-
" And section 626. so far as it relates to thts topic,
requires that there should be strict proof of the allegation.
That appears to me to mean that there must be proof adduced
before the Court that has to deal originally with the question
of granting a revie\\:', Where there has been placed before
that Court such evidence or other mode of proof as the law
requires and permits, I cannot think that it was intended that
on appeal under section 629 it was to be opened to the Appeal
Court to say though there has been legal evidence, and in that
sense strict proof, that proof did not convince it though it
convinced the Judge who heard the witnesses, and therefore
the application and the order granting the review were ultra
vires and beyond the competence of the Court. That would
bring into litigation fresh elements of chances and speculation.
I think that the whole scheme of the Act recognises that with
proper safeguards the Court of first instance is the proper
Court to determine whether or not there should be a review,
1957] B.URMA' LAW REPORTS. 171
but that before a review is granted those safeguards must be H.C.
observed " 195/'

In these circumstances we must therefore confine Q. s~!\"~ARr-

ourselves to the consideration of the question whether C. J. v.GRANT.
there was strict proof, in the sense that proof U AUNG
according to the formalities of law, of the allegation KHINE,J.
that new evidence was not within the knowledge of
the respondent and could not have been adduced by
him at the first enquiry. The formalities having
been fully observed, that is, all procedural rules
having been strictly followed in the conduct of the
second enquiry, we must confirm the lower Court's
order. Accordingly the appeal is dismissed with
costs.
172 BURMA LAW REPORTS. [1957

APPELLATE CIVIL.
Before U Clran Trm Armg, Cllief Justice aud U San Marmg, J.

H.C.
1956 S. SABIR HUSSAIN (APPELLANT)
Od. 3. v.
R.M.L. RAMANATHA CHETTIAR (RESPONDENT).*
U11ion JudiciarY Act, s. 20-S. 3 Tra11sjer of Iwmor:cablc Property( Rcsfl"iction)
Act, 1947-Act 17 of 1952-" Fore:gmr," whether entitled to a simPle
money decree wizen !tis suit is essentially a simple mortgage srtit but f!IC
claim wasjo1 repayment of tire loan on personal covel/ant 01Jly and not
against the sccurity-Ss. 2-/, 57 and 58, Coutmct Act.
A mortgage deed contained-
(i) a personal col enant to repay the loan, and
(ii) an offer of immoveable property as security for the loan.
The Responden~, a foreigner waived the seCl!rity given and ch'med the
repayment of the loan by enforcement of appellant's personal covenant.
The appellant contended that the mortgage need contained two indivisible
covenants and the transaction was void from its inception under s. 3 of the
Transfer Of Immoveable Property (Restriction} Act, 1947.
Held: The first part to repay the loan on personal covenant is l~gal.
The second pat t is illegal under s. 3 c"!' the Transfer of Immoveable
Froperty (RestridionJ Act, 1947.
To consider whether a contract is 1oid in its entirely or not und er s. 24 of
the Contract Act, one mt.st also look into the severability or otherwise of the
illegal part from le.~al part in the light of the provisions of ~s. ji and :>8 of
the Contract Act, tbe three sections being suppl~m!ntary.
The rule as regards enforceability of contract jg that Where a contract is
indivi ~i ble, i.e., when iHegal part cannot be severed from the legal
part of the covenant the contrad is altogether void. lf a contract contains
distinct covenants, some of which :re legal and others illegal. the Court can
enforce the legal one;. If several distinct promises are made for c11e and the
same lawful consideration and one or more of such promises are fonnd to be
illegal, the Court will enforce the legal ones. Even where a person promises
firstly to do certain th1ngs which are legal, and secondly, under certain
ci cl.ms tances to do other things which are illegal, the first part of his
prom\se is a good contract and binding on hitn ; bnt the second part of his
promise to perform under certain circun:stancts, which is illegal, is void.
Similarly in the case of alternative promise, if one part which is f,Jund to be
kgal and the other illegal, !he 1e1a1 p.ut can be enforced.
Appeal dismis sed.

* Special Civil Appeal No. 3 of 1955, against the decree of the Hig h Conrt
of Rangoon {U A_u:-;G KHINE, J.) in Civil 2nd Appeal No. 14 of 195~. dated
the 1st 1\I;uch, 19~5.
1957] ~URMA LAW REPORTS. 173
A.P.' Joseph v. E. !f. Joseph, A.LI~. (1926)' I~an., p. 186, distinguished. H.C,
Jlfn Kyin Hilue and ethers v. Oug Boo11 Hock a11d otlzcrs, A.I.R, (1937) Ran. 195D
47; V.R.M. Ramaswamy C!attyar and miot/;cr v. C,T.ili.N. Nachiappa S.SABIH
Chet!Ynr, RL.R. (19~9), p. 711, referred to. ' HUSSAI\1
v.
R.M.L RA-
Leong and Thein, Advocates, for the appellant. MANATHA
CHETTIA!l.

Basu and Venkatram, Advocates, for the respondent.

The judgment of the
.,
Court was delivered by

U CHAN TUN AUNG, C.J.-This special appeal

under section 20 of the Union_Judiciary Act is against
the judgment of the learned Judge of this Court
passed in second appeaC and it raises quite an
interesting question, whether the respondent Chettyar
(a foreigner) is entitled to a simple money decree on
personal covenant when his claim as against the
appellant is essentially based upon a simple mortgage
bond under which certain immoveable property
'belonging to the appellant has been offered as
security, in contra veiition of section 3 of Transfer of
Immoveable Property (Restriction) Act, 1947 (Act
1.\{p. L)}XXVI of 1947) before its amendment by Act
17 of 1952.
'It appears that' at the time of filing his suit the
respondent was fully a ware of the prohibition of
transfer of immoveable property either by way of
sale, gift, mortgage or otherwise in favour of
foreigners laid down in section 3 of the Act
No. LXXXVI of 1947; and that is made plain by
his plaint filed before the trial Court namely the
Court of Assistant Superintendent f9r Civil Justice,
Taunggyi, wherein he specifically asked judgment
and decree for a specified sum of Rs. 5,000 with
interest thereon against the appellant, based upon
personal covenant of the appellant, and not upon
the (,mortgage bond although a reference was made.
174 BURMA LAW REPORT~. [1957

H.C. to it in paragraph 2 of his plaint. The mortgage

1956
bond (Exhibit A) has been filed in the original suit
s. S,\BIR and we reproduce the tesratum which reads : -
HussAIN
v. " Witnesseth that in consideration of a sum of Rs. 5,000
R.~f.L. RA-
:MANA"l"HA (Rupees five thousand only) loaned by the mortgagee to the
CHETTIAR.
mortgagor the receipt of \Vhich the mortgagor hereby acknow-
U CHAN TUN ledges the said mortgagor does by these presents agree to and
AUNG, C.J. undertake to repay the said sum of Rs. 5,000 (Rupees five
thousand only) with interest thereon at the rate of Rs. 1-80
(Rupees one and annas eight only) per cent per mensem and
as security therefor the mortgagor does hereby mortgage his
house lease for Lot Nos. 186 and 186A situated in Kyaung
Road, Alebaing Quarter, Taunggyi Town with all buildings
standing thereon."
It seems therefore clear that although the
appellant had effected a simple mortgage of his
leasehold property as security for the loan of
Rs. 5,000 obtained from the respondent Chettyar,
he had also given a personal covenant to repay the
loan and that the respondent's claim as against the
appellant was for repayment of' the loan on personal
covenant and not for realization of the loan as
against the security offered. In other words, the
respondent had waived the security given altogether,
and had claimed the repayment of the loan by
enforcement of appellant's personal covenant in his
favour. The appellant in resisting the claim
contended that the transaction was void from its
inception having contravened section 3 of the
Transfer of Immoveable Property (Restriction) Act,
1947, and that the money advanced was not recover-
able from hin{. Both the trial Court and the first
appellate Court on reasonings which are not quite
intelligible to us rejected appellant's contention.
The learned appellate Judge in Second Appeal has
nghtly pointed out the curious reasoning given in
the judgments of both the trial Court and the first
1 957] BURM!>\ LAW REPORTS.
.I
175

appellate Court and we entirely agree with his H.C.

l9Su
observatidns therein. The appellant took up the
same ground before the Second Appellate Court and ~u~~~::
also before us. He contended that the transaction l{.M.L. v.
RA-
as evidenced by Exhibit A was void being in direct ~rANATHA
CHETTIAR.
contravention of the provisions of the Transfer of
Immoveable Property (Restriction) Act, and that the uA~::,~?.r.N
respondent could not enforce the personal covenant
clause, inasmuch a$ the same could not be separated
from the other covenant with respect to the property
offered as security. In other words the appellant
contended that the mortgage deeq Exhibit A
containep two indivisible covenants, namely the
personal cuvenant to repay the loan, and the
covenant entitling the mortgagee to proceed against
the proper-ty offered as security and the latter
covenant being illegal, the whole transaction was
void. In supp9rt of his contention the appellant
:r.elied upon certain Indian decisions as well as a
decision of single Jl?tdge of the late High Court of
Judicature at Rangoon in A . P. Joseph v. E. H . Joseph
( l) wher~ in it was held that a money decree cannot
be passed against a mortgagor who has mortgaged
his life-interest as a beneficiary under a certain gift
made by his father in which there was a restriction
against alienation. With due respect, on careful
perusal of the judgment in the said case, we find
that the decision was made solely based upon the
interpretation of section 24 of the Contract Act,
holding .. that the mortgagor's promise in offering his
life-interest for the loan taken is a single considera-
tion, and- it being inalienable in view bf section 6 (d)
of the Transfer of Property Act the entire transaction
was illegal and void. It appears that the learned
Judge's at~ention was never drawn to the provisions
(1) A.I.R. (1926) Rlll . p. 186.
176 BURMA LAW REPORTS;) [1957

I.i.C. of sections 57 and 58 of the Contract Act which' are

195~
supplementary to section 24 in prescribing the
S. SAUIR e;nforceability of certain contract when illegal part
HusSAIN
v. and the legal part of it are severable. It also
R.M.L. RA-
MAN.'\THA appears that, on behalf of the respondent, certain
CHETTIAR.
decisions of the Indian High Court were cited before
U CHANTUN the learned Judge in Second Appeal, but we do not
AUNG C.J.
1
propose to discuss the applicability or otherwise of
those cases to the case now under appeal inasmuch
as the facts obtaining in those cases were not similar
to those obtaining in the present case. The Indian
cases referred to are mostly cases involving actual
transfer of property under possessory or usufructuary
mortgages, the mortgagee being in possession of the
mortgaged property enjoying the usufruct, thus
passing from domain of contract into ane of actual
conveyance. It is curious that in none of thgse
decisions the effect or applicability of sections 57 and
58 of the Contract Act to the transaction in question
was ever considered. Section 7 reads as follows:
"Where persons reciprocally promise, firstly, to do
certain things which are legal, and secondly, under specified
circumstances, to do certain other things which are iHegal, 1he
first set of promise is a contract, but the"second is a void
agreement. "
Section 58 :
"In the case of an alternative promise, one branch of
which is legal and the other illegal, the legal branch alone can
be enforced. "
It appears therefore that :when we ' have to
consider whether a contract is vqid in its entirety or
not under section 24 of the Contract Ad we must
also look into the severability or otherwise of the
illegal part from legal part of the Contract in the
light of the provisions of sections 57 and 58 of the
Contract Act, the three sections being supplementary.
1957] 'BURMA LAW REPORT~. 177
See Ma Kyin Hone and others v. Ong Boon Hock H.\.:.
1956
and others {1). See also V.R..M. Ramaswamy
Chettyar and another v. C.T.A1.N. Nac!ziapp~ S.SAI3!R
HUSSAIN
Clzettyar (2). When we read those sections together v.
R.l\f L. RA-
the rule as regards enforceability of contracts appears MANATf!A
CHETTIAR,
to be that where a contract is indivisible and when
U CHAN TUN
you cannot sever the illegal part from the legal part AUNG, C.J.
of a covenant the , contract is altogether void. If a
contract contains distinct covenants, some of which
are legal and others illegal, the Court can enforce
the legal ones. If several distinct promises are made
for one ...and the same lawful consideration and one
or more of ~uch promises are found to be illegal, the
Court will enforce the legal ones. Even where a
person promises firstly to do certain things which
are legal, and secondly, under certain circumstances
to" do other things which are illegal, the first part of
a
ijis promise is good contract and binding on him ;
but the second part of his promise to perform under
certain circumstances, which is illegal, is void.
Similarly, in the case of alternative promise, if one
pasrt wbicl1 is found to be legal and the other ill~gal,
the legal part can be enforced.
Now, if we examine the contract of mortgage
upon which the respondent has based his claim
against the appellant, we find that the appellant has
made two promises, namely, (1) the promise to repay
the sum of K 5,000 with interest thereon at the rate
of Rs. 1..8-0 per cent per mensem, and (2) the promise
by which his leasehold property in Taunggyi Town
with a building thereon has been mortgaged in favour
of the respondent for the loan he has taken from ttie
respondent. The second part of the mortgage is
definitely an agreement to do certain things under
spec~tfied circumstances within the meaning of second
(l) A.I.R. (1937) Rtn. p. 47. (2) R.L.R. (1939) p. 711.

12
178 BURMA LAW REPORTS. [1957
H.C.
1956
part of section 57 of the Contract Act. It is only
on failure to repay the loan on personal covenant
~u~-~~~~ can the mortgagee-respondent proceed against the
v.
R.:\LL. RA-
ni.ortgaged property. The first part to repay the
MANATHA loan on personal covenant is certainly a lecral part.
CHEl"l'lAR. , b
- The second part enabling the mortgagee (the respon-
uA~::,NJ.r dent) to proceed against the property only under
specified circumstances) i.e., on mortgagor)s
(appellant's) failure to repay the loan on personal
covenant, is illegal, being contrary to section 3 of
the Transfer of Immoveable Property (Restriction)
Act, 1947. This is exactly what the respondent has
done in preferring the claim for recovery of 'K 5,000
with interest thereon as against the appellant.
Therefore, in view of the specific. provisions
containing in the Contract Act, namely, section 57,
we do not see any substance in this appeal, and it
is dismissed with costs.

U SAN MAUNG, J.-l agree.

 '
1957.] BURMA LAW'REPORTS. 179

APPELLATE CRIMINAL.

SAw THA 00 (APPLICANT) H.C.

1957
V. Oct. 17.
MA AYE
. THI (RESPONDENT).*

Quashing of criminal j>rocccdiu{!s-S. :;O(), Pc11al Code-Precise crimittal

respcusibil-ii.Y of a part ncr iu ,e!at i011 to PartnershiP ProP(Jrly-Whellzel'
a parl11Cr could be Prosecuted for Crimmal breach of trust dud11g tile
exislcucc of tfzc Parl11ersMp.
Held: If"it be establishe:l t11at a partner l1aving been entrusted with
partnership properties or assets and havi',J_t; dominion over them converts to
h is own use in breach of spe~ific ierms of trust imposed upon him, he can be
prosecuted for criminal breach of tn:st as laid down in s. 405 of the Penal
Code.
In the ab~ence of such special agreem(nt, a partner c:-annvt be said to have
received the property in a fiduciary capacity, and be prosecuted for criminal
breach of trust. A parlner cannot be liable for Criminal breach of trust in
r<!spect of tile partnership property received or held by him on beha lf of the
p;!rtnership in the ordinary COtll"Se of partner.hip.
Blwban Mohan Rana v. Sureudra ilfo/z{w Das, (1952J I.L.I~. Cal. Series,
Vol. (II) p. ?3: Nancy de Silva v. Uuio11 of Burma, followed, Criminal Appeal
No. 99 of 1957.
r:Juecn v~ Okhoy Coomm Shar1.1, IJ874J 13 B.L.R. 307 -1874, 21 Weekly
Reporter, Cr. 59; JT.~V. Reddy\'.!(. C. Reddy, {1940 R.L.R.,p. 547, referred
to.
Hcldfurtltcr: That in o'rder to constitute an offence of criminal breach of
trust the <:Je!llent of trust must be definitely prov<>d.
The \'ery conception of partner~1lip precludes the possibility of entrust-
ment Of pa; tner~hip prol?erty by one partner as against the ether, unless tlte
provisions of the parlnership are subject to anv Special contract.
Held also; Tl1e High Co:.1rt drJes not deal lightly with applilalions lo
quash pending criminal proceedings.
It is only in cases where there is some m.lnifest and patent injustice
apparent on the face of the proceedings, or where the evidenre on record for
the proseclltion dearly does not justify a charge of any offence, Or \Vllere the
trial is on the fa2e of it an abuse of the process of the Court, rare remedy of
quashing pending proceedings are giren.
K!za11 Bahadur Haiee Gu/am Shcr,zzte v. T!te Killg, (1941) RL.R. 599;
U Wa Gyi v. Tfu Uuicm of Burma, {!9~81 B.L. R. 652, referred to.

C;.jminn1 Re\ision No. 112-E Of 1957.

AppUcation to quash the proceedings in the Court of the 8th Additional
Magi$frate (S.P.), Rangoon, namely, Criminal Regular Trial No. 245 of 195?.
180 BURMA LAW REPORTS. [ 1957
(

H.C. V. S. Venkarram, Advocate, for the applicant.

1957
SAW THA Oo G. D. Williams, Advocate, for the respondent.
v.
~lA AYE THJ. U CHAN TuN AUNG, C.J .-This is an application
to quash the proceedings, namely, Criminal Regular
Trial No. 245 of 1957 now pending in the Court of
the 8th . Additional Magistrate, Rangoon, wherein
the petitioner has been prosecut~d on a complaint
made by the respondent Ma Aye Thi for an alleged
offence of criminal breach of trust. The applicant
and the respondent are said to be partners, carrying
on a partnc rship business under .the name ?nd style
of "Nay Set Kya Company" at No. 230, Fraser
Street, Rangoon. Besides the petitioner and the
respondent, there is a third partner, U San Nyunt, a
brother of the petitioner. According to the partner-
ship-deed, dated the 27th September, 1955 which has
heen filed in Civil Miscellaneous Case No. 69 of 195.?
on the Original Side of this Cot1rt, and the existence
of which in terms as set out therein having been
admitted by the respondent, it appears that the
original shares of each partner in the partnership are
as follows:
K
(1) U Saw Tha Oo (Petitioner) 50,000
(2) U San Nyunt 15,000
{3) Ma Aye Thi (Respondent) 15,000
It also appears that by a supplementary deed,:bearing
the date 6th Juae, 1956, the shares of the1.Partners
were re-allotted as follows : -
K
(1) U Saw Tha Oo (Petitioner) 52,000
(2) U San Nyunt 30,000
(3) Ma Aye Thi (Respondent) 3,000
The petitioner is said to be the Managing Partner of
the firm. The respondent alleged in her comolaint
1957] BURM,A LAW REPORTS. 181
befgre the Court below that tpe partners had agreed H.c.
to dissolve the partnership; that in pursuance thereto, ~
a statement of account had been furnished by the SAw ;,HA oo
auditors, and that according to such statement (a !IJA AYE Tm .
.certified copy of which had been filed with her u c~;TuN
cornplaint), it appeared that the applicant had without AuxG, C.J
the knowledge of other partners refunded to himself
a sum of K 26,01045 pyas. This act, on the part of
the applicant, she asserted, constituted an offence of
criminal breach of trust under section 409 of the
Penal Code. She made a similar report to the
Pabedan Police Station, but the Police, after examin-
ing the partnership-deed and also . the relevant
account'!books refused to take action, holding that
the matter was within the purview of the Partnership
Act. The . complaint before the 8th Additional
Magistrate was made on the 27th April, l957 against
both U Saw Tha Oo, the present petitioner, and
.co-partner U San Nyunt. The learned Iv1agistrate ,
after examining the complainant in a rather per-
functory manner, to"ok cognizance of the case and
issued a bailable warrant in the sum of K 30,000 for
the arrest of the petitioner for the offence under
section 406 of the Penal Code. As against U San
Nyunt, however, the learned Magistrate says there
was no case, and he should he discharged. To use
his exact words :-'' (J) mq_J~Q86GoT ~oS~~rbOJ~OJS(JG~
ro~~~E~oS ' ' " Ma Aye Thi 's statements on oath
before the learned 8th Additional Magistrate do not
cover al)ything more than what she has stated in her
complaint. Thus, from the foregoing statement of
facts, the following points are ~found to be
established:-
(1) That there is a partnership between the
applicant and the respondent and that
the terms of the partnership are as
182 BURMA LAW REPORTS. [1957

H.C. incorporated in the deed of partnership

1957
filed in Civil Miscellaneous C~se No. 69
SAW THA Oo
v. of 1957 now pending before the Original
MAAYETHI. Side of this Court;
U CHAN TUN (2) That they have agreed to dissolve the
Amm, C.].
partnership ;
(3) That there has been no final settlement of
accounts as yet ;
(4) That the alleged unauthorised withdrawal
of capital by the petitioner in the sum of
K 26,01025 is also found in the state-
ment of accounts furnished by the
auditors of the Finn as per the balance-
sheet of the partnership business as at
13th March 1957;
(5) That in the said balance-sheet\ the capital
account of each partner is shown as
follows:-
K K
Capital accounts of I

U Saw Tha Oo 34,250 00

Less refund of capital 26,01025
Total
Maung San Nyunt's
capital 29,10500
Add undrawn profits
on K 29,105 at K 25059
pyas on K 1.000 7,29345
Total 36.39845
Ma Aye Thi's capital 3,00000
Add undrawn profits
at K 25059 pyas on
K 1.000 75187
Total 3,751 87

(6) That as against capital account, there is on

the asset side of the balance-sheet,
1957] BURMA LAW REPORTS. 1~3

besides. the cash in Bank and cash in r9f7

hand, stock in trade (as at 13th March
SAW THA Oo
1957) valued at K 61 ,49871. v.
MA AYETHI.
It has been urged on behalf of the applicant, U CHAN TUN
relying upon many authorities including the Ful1 AU~G, C.J.
Bench case of Bhuban Mohan Rana v. Surendra
Mohan Das (1) that on the face of the complaint,
even if it is conceded that the applicant has drawn
out of the capital account of the partnership, a sum
of twenty-six thousand and odd rupees, he being a
partner of the Firm, .:;uch withdrawal, if any, is well
within his capital contribution and that as such, he
has not commltted an offence of criminal breach of
trust within the purview of section 406 of the PenaJ
Code. It i~ asserted that the applicant did not hold
or draw that money in a fiduciary capacity, and that
there is no case as against the applicant to warrant
cognizance beh1g taken by the learned 8th Addi-
tional Magistrate. There is considerable force in
this submission. Re"'c entiy in Criminal Appeal No. 99
of 1957 of this Court (i\1iss Nancy de Silva v. Union
ofi,.Bitrma), a conviction as against a co-partner for
alleged misappropriation of certain partnership funds
belonging to the partnership, recorded by the Western
Subdivisional Magistrate, Rangoon was set aside and
the accused acquitted by a single Judge of this Court
(U Ba Nyunt, J.) and the acquittal order so recorded
was nninly based on the aforesaid authority of the
Calcutta_ Hlgh Court in Bhuban J\1ohan Rana v.
Surendra l'1,1.ohan Das ll). The special leave to
appeal to the Supreme Court as against the said
acquittal entered by the High Court has also since
been dismissed by the Supreme Court in Criminal
Miscellaneous No. 66 of 1957.
'~ 1) i1952) r.L.R. Cal. Series, Voi. II, p. 23.
184 BURMA LAW RE:?ORTS. [ 1957

H.C. The Full Bench decision of the Calcutta f'ligh

1957
Court in Bhuban lvlohan Rana v. Surend1a i"vlohan
SAW THA Oo ( .
v. nas 1) quoted above may be regarded as the latest
MA AY~THI contribution to judicial thoughts ; and also as having
u CHAN TuN great persuasive value, so far as our Courts are con-
Amw, C.J. .
cerned; in determinmg precise criminal responsibility
of a partner in relation to partnership properties,
which come under his charge or authority during the
subsistence of the partnership. In view of wide
provisions of section 406 of the Indian Penal Code,
which is the same as ours, and on the basis of several
old authorities, specially an earlier Full Bench case
of the Calcutta High Court in Queen v. OkhoyCoomar
Shaw (2), Courts in India were assailerl by doubts
for a numoer of years whether a partner, during the
existence of the partnership could at all be prosecuted
for an offence of criminal breach of trust. N o,w,
such doubt has, it seems, been set at rest by the
decision of the Full Bench in the aforesaid case.
Exhaustive review was made of previous cases,
especially the Full Bench case of Queen v. Okhoy
Coomar Shaw (2), wherein the possibility of a part-
ner being prosecuted for breach of trust -'of
partnership funds was voiced. Several aspects under
which a partner can criminally be responsible were
considered. But I do not propose to enter into those
detailed discussions. Suffice it to say th!it the follow-
ing observations of Harries, C.J., at page 29 are
most apposite~ and I feel persuaded to quote with
approval and also respectfully adopt as my own in
considering the present application before me. After
quoting certain passages of Lord Lindley on Partner-
ship ~ the learned Chief Justice observed :

1) (1952) I,L.R. Cal. Series, \' ol. II. p 23.

(2) (1874) 13 B.L.R. 307 = [1S74) 21 \Vce~dy U,p)r!cr, Cr 59 .
 1957] BURMA LA\V REPORTS. 185
()

'' From these observat!Oi1S it. is clear that the share of H.C.
19,57
a partner :.n the partnership assets cannot be predicated until
an account has been taken and all the debts have been SAw THA Oo
~
discharged. Unti1 that has b een done it cannot be said that MA AYE Tu.
a partnership asset belongs to any particular partner or that
any p:~rticular share of it belongs to an'y particular partner. uAUI>G,
CHAN TUN
C J.
That being so, if one partner retains a p:lrtnership asset, can
it be said that property belonging to somebody else has been
entrusted to him. or atleast the s'hare of his co-partners has been
entrusted to him ? It may be that two persons each owns a
half share in a partnership and at first sight it might appear
as if each would own a half of every asset of the partnership.
However, that by no means follows, because if at any given
moment the partnership account was taken and the debts
dischargsd it might be that the assets belonged wholly to one
of the partner or indeed after payment of debts there might
be no assets ".:t all for any of them. It is, therefore, impos-
sible to say, at any given moment, before acco unts have been
taken, what' s hare. if any, a partner has in the property.
Until dissolution and acco unts each partner must be regarded
as having a right.to the property and he does not hold it in
,. a fiduciary capacity.
It seems to me tlnt. if a p.:trtner is to be charged under
s. 406 of the Indian Penal Code, it must be held that property
belonging to somebody else w::ts entrusted to him. A partner-
s3ip firm has no existence apart from the partners and is not
an entity like a. limited company which can own property. If
.a partner holds partnership property, it cannot be said that he
has been entrusted with his own share in the property, if he
l1ad any share in it. But can it be said that the partner has
been entrusted with the other partner's share? The question
immediately arises what is the other partner's share, and, as
pointed out by Lord Lindley, he has no definite share until
ihe accounts pave been taken and the debts discharged and the
assets dhided according to the partnership agreement. That
being so, it appears to me that it cannot be said that a partner,
who receives partnership property, is entrmted with his co-
partner's share of that property to bring the case within s. 406
of the Indian Penal Code".
However, on behalf of the respondent, it has been
urged that the present application for quashing the
186 BURMA LAW RE-PORTS. [1957
H.C.
1957 trial is too premature; that prima facie, the applicant's
withdrawal of the sum of twenty-six thousand and
SAWTHA Oo
v. odd Kyats out of his capital account constitutes
1\f..\ AYE THI.
breach of trust of the partnership funds, and that on
U CHA)I TuN the authority of V. V. Reddy v. K.C. Reddy (l) he is,
AU:\G, C.J.
in any event, liable to be tried for criminal breach of
trust of the partnership property. I am afraid I can-
not assent to these submissions. V. V. Reddy's case
(I) decided by a single Judge of the late High Court~
(Mosley, J.), makes a reference to Okhoy Coomar
Shaw's case (2) which lays down that section 405 of
the Penal Code is wide enough to include the case of
a partner, if it be proved that he was in fact etitrusted
with the partnership property or with do!.n inion over
it, and had dishonestly misappropriated or converted
to his own use the property so entrusted. That single
Judge decision, with due respect, merely reiterated
what was laid down by Sir Richard Couch, C.J., in
the case of Okhoy Coomar Shaw (2). \Vhat was"
observed by Sir Richard Couch, C.J. , delivering
judgment was as follows :

"We think the words o,f section 405. of the Penal Code '
are large enough to include the case of a partner, if it be proved
that he was in fact entrusted with the partnership property, or
with a dominion over it, and has dishonestly misappropria-
ted it, or converted it to his own use. There is no reason
that the case of a partner should be excepted from the
operation of the section. Indeed there is every reason that
it should be included in it. If it be made out by the
evidence that one partner was entrusted by his co~partners
with prop:::rty, or with a dominion over it, and that he had
dishonestly mis::tppropriated it, or dishonestly used it in viola-
tion of the mode in which his trust was to be discharged, or

- - - -- - - - - - - - - -- - - - - - - - - - - -
(11 (1941) RL.R. p. 547.
\2) (1874) 13 B,f ..R. 307 ~(H74) 21 Weekly Heporter, Cr. 59.
1957] BUR:tvfA LAW REPORTS. 187

of t!1e agreement between the partjes as to the use he was to H.C.
make of tiH~ property, he ought to be tried for that offence." .
1957
SAW THA Oo
I respectfully agree with the above statements. If it v.
11IAAYgTlfr.
could be established that a partner having beei;
entrusted with partnership assets or with dominion U CHAN ToN
AUNG, C.J.
over them converts to his own use in breach of
specific terms of trust imposed upon him or does
anything with the properties or assets of the partner-
ship, there can be }10 doubt that he can under certain
circumstances be prosecuted for criminal breach
of trust as laid down in section 405 of the Penal
Code; but the question to be considered in such a
case is" whether or not the partner' receives the
partnership" property under special agreement
concerning as to how he should dispose of or deal
with the sald property. If there is no special agree-
ment in that regard, a partner cam1ot be said to have
re'ceived the property in a fiduciary capacity, and be
,,nrosecuted for criminal breach of trust. There is
thus no merit in ,, the submission made by the
respondent's Counsel. V. V. Reddy's case (1) is.
certainly not an authority which lays down that a
pa.Ttner can, under any circumstance be liable to be
tried for criminal breach of trust in respect of the
partnership property received or held by him on
behalf of the partnership in the ordinary course of
partnership.
On the very face of the statement made by the
complainant in her complaint as well as on oath,
what tl;e appliGant is alleged to have drawn out of
the partnership funds was a portion of his capital ;
and that the value of the stock of the partner-
ship on 13th March 1957 is well over K 60,000, and
how can it therefore be heid that the applicant has
misappropriated the partnership funds ? The amount
ilJ (1941) l?.L.f?. p. 547.
188 BURMA LAW Rf?ORTS. [1957

i~s~ he has refunded to himself does not exceed ,the

-- capital share he has contribut~d, namely,.. K 34,250.
SAW THA Oo
~. Furthermore, u San Nyunt, w h ose cap1tal . accoum~
MA~T>n. shows on 13th March 1957 K 36,39845 has not even
u CHA~ TuN made the slightest objection against such refund. It
Au~w, c J. is therefore highly questionable as to the bona fides of
the respondent's compiaint as against the petitioner ;
and also the justification of the learned ~th Addi-
tional Magistrate's readiness in taking cognizance of
the case and issuing the process of the Court of the
arrest of the applicant under a bailable warrant fixed
at K 30,000. It is elementary that in order to
constitute an offence of criminal breach of trust, the
element of trust must be definitely proved~ Here,
under the Partnership Act, partners are ..regarded in
law as joint owners or co-owners of partnership
property. The very conception of partnership
precludes the possibility of entn!stment of partner-
ship property by one partner as against the other..
though it might be conceded that the provisions of
the Partnership Act are subject to any special ccntract
between the partners, and that by such svecial
contract, there may be entrustment of any specific
property by one particular partner, in which case, in
appropriate circumstances, an offence of criminal
breach of trust can be said to have been committed
by one of the partners. But, in the instant case
before me, the existence of special agreement or con*
tract regarding specific entrustment has not been
alleged by the complainant in her complaint, nor such
a term finds its place in the deed of partnership
filed in Civll .Miscellaneous Case No. 69 of 1957 of
the Original Side of this Court.
The application to quash pending criminal
proceedings are not lightly dealt with by this Court;
and I am not unmindful of the principle laid down in
19sn BURMA LAVv..,. REPORTS. 189
.
Khan Bal1adur Hajee Gu!am Sherazee v. The King H.C.
1957
(1) and in U Wa Gyi v. The Union of Burma(2),
It is only in cases where there is some manifest S.tw ~~A. oo.
and patent injustice apparent on the face of the :'1-fA.AYE THr.
proceedings, or where the evidence on record for the ucrrA:-< Tu~
prosecution clearly does not justify a charge of any AtNG, c.J.
offence, or where the trial is on the face of it an
abuse of the proc~s of the Court, rare remedy of
quashing pending proceedings are given. Here, in
the present case, I am fully convinced that from the
facts appearing on the complaint, a,nd from the
circums~ances under which the present prosecution is
launched, aud also having regard to the latest judicial
authorities available on the question in issue, it would
clearly amount to abuse of the process of the Court
to. prosecute the applicant under section 406 of the
Penal Code.
'' In the result therefore, the petition is allowed and
the proceedings now pending in the Court of the
learned 8th Additional Magistrate, Rangoon, namely,
Criminal Regular Trial No. 245 of 1957 are hereby
qu.ashed. Bail bond given by the applicant shall
be cancelled.

(l) (1911; RL.R. p. 599. (2) (1948! B . L.f~ . p. 652.

190 BURMA LAW REPORTS. Crl-957
"
APPELLATE CRIMINAL.
Before U San Mazmg a11d U Ba Tfzonug, JJ.

H.C. SITARAM (APPLICANT)

1957

.Feb. 15
v.
THE SUPERINTENDENT, RANGOON CEN-
TRAL JAIL AND ANOTHER (RESPONDENTS).*
APflicaliau under s . .f91 of tlze Cl'imiual Procedure Code for direction ill tlw
uatrm; of habeas corpus-Forciguers Act, s. 3 (b} a1ld 4 (2!-Bttrma
Extradition Act, s. 3 (2}-PreamUe of au Act, when to be cousztl/cd.
The applicant was arrested ;:ncler s. 3 (2) of the Burma Extradition Act.
He applied under s. 491 of the Criminal Procedure Code for a direction in
the nature of lzabc:as corPus and ti1e High Court ordered his release.
But a few days before the order of release was passed, he was served With
an order under ~- 3 (b) of the Foreigners Act to remO\ e himsel! from the Union
of Burma.
The a pJ)lic ant then applied for a writ of habeas ;orpus in the Supre me
Court and while the application was pending, the order wasca r.celled and hir.
rekase was ordered by the Supreme Court.
Upon his rt-lease, a fr~sh order was issut:d by the l resident of the l.'nion of
Burma under s. 3 (bJ of the Foreigners .-\ct in Foreign Office .Memorandum
No. 431 Ng-a Kha 55, dated 8th September 1956.
Thereupon, the a pplicant filed an applh;ation under s. ~91, Crinrlnal
Procedure Code.
Held: That the fact that nclion had been taken agninst the applicant
unsuc~essfully under the Bt~nna Extradition Act cannot preclude an order
being passed against him under s. 3 (b) of the Foreigners Act.
Ham Muller of Nnrenburg v. Supcrinteudellt, Presidc11cy Jail, Calcutta
a11d others, A.I.R. (1952; (S .C.), p. 367, referred to,
Hdd also: S. 3 {b) of the foreign e rs Act is couched in a language which
IS not bee n open to doubt and therefore the preamble of the Act need not be
consulted for the purposes of interpreting the Section.
Maxwell 011 luterprctafioJL of Stafzttcs, Ninth Edition, rp. '46 and 48,
referred to.
Held furtl:er: So long as tile person conce rned is a foreigner it is not for
the Courts of law to q ~:estion the desirability or otherwise of his deportation
under s. 3 {b) of the Foreigners Act. This rr!atler is entirely within the
_prodnce of the execnthe authorities.
K}i Clttlllg Yo1k v. Tile Coutrollcr of lmmig ratio11, Burma, (1951) B.L.H.,
p. 197 {S.C.); Tlte King v. Secretary of Stat e for Home Affairs, (1917) K.B.D.,
p. 922, relied on.

Criminall\lisc, Application No. 69. of 1956.

1957] .rlURMA LAW, REPORTS. 19l

Dr. Ba 111,1.~?w for the applicant. H.e.

1957
Kyaw Thaung (Government Advocate) for t~ SITAR,DI
v.
respondent. TFiE
SUPERl~
Judgment of the Court was delivered by 'rENl ENT1
nA~GOON
CF.:-'1TAL
U SAN MAGNG, J.-By this application for a ].-\lL A~D
ANOTHER.
direction in the nature of habeas corpus under section
491 of the Crimil'ial Procedure Code, the applicant
Sitaram, who is at present a detenue in the Rangoon
Central Jail, seeks to question the validity of his
detention under section 4 (2) of the Foreigners Act, in
pursuance of an order under section 3 (b) of the Act
that he be 'deported forthwith from the Union of
Burma. The facts which have been fully set out in
the affidavit of the applicant Sitaram are briefly these:
In July 1955 Sitaram was arrested by the
Jhingangyun police and thereafter proceedings were
opened ag.ainst him up.der the Burma Extradition Act,
on the ground that he was a fugitive criminal from
India. Thereafter, while he was being held in custody
in Rangoon Central Jail, Sitaram applied to this Court
under section 49l of the Criminal Procedure Code for
a direction in the nature of habeas corpus on the
ground that his arrest and detention were illegal.
This Court by an order dated the 25th of March 1956
in Criminal Miscellaneous Case No. 40 of 1955
directed that he be set at liberty on the ground that
the warrant for his arrest. issued. by the District
Magistrate under section 3 (2) of the Burma Extradi-
tion Act was invalid in law. On the 29th of February
1956 a few days before the order for his release was
passed by this Court, the applicant while still in
custody in pursuance of a warrant under section 3
(2) of the Burma Extradition Act, was served with
an o"rder under section 3 (b) of the Foreigners Act to
192 BURMA LAW REPORTS. [1957

H. C. remove himself from the Union of Buima. The

1957
applicant Sitaram then filed an application for a writ
SxTARA~I
v. in the form of habeas corpus for his release. While
TliE
SuPERIN
that application was pending before the Supreme
TE~DYN'', Court, the learned Attorney-General informed the
RAl'GOON
CENTRAL Court that the order sought to be impugned had been
}AIL 1\ND
ANOTHER.
cancelled. Accordingly the Supreme Court issued
an order for his release. However, immediately
U SAN
MAUNC, J. upon his release on the 8th of September 1956, a
fresh order which is now sought to be impugned was
issued by the President of the Union of Burma under
section 3 (b) of the Foreigners Act. This order is
contajned in Foreign Office Memorandum No. 431
Nga Kha 55, dated 8th September 1956 which has
been filed in these proceedings. The applicant
contends that the aforesaid order under section 3 (b)
of the Foreigners Act is illegal, ultra vires and not
in accordance with the law or the C~nstitution of th~
Union of Burma, and that it was an attempt to
utilize the Foreigners Act, to cure a defect in the
operation of the Burma Extradition Act, in so far as
it concerned India which was not a "foreign state "
within the purview of the Burma Extradition Act.
The applicant further says that he cannot be an
undesirable alien, as throughout his long residence i~1
this country he had been completely law-abiding and
there was no allegation or charge against him of a
criminal nature. Nor had he ever been accused or
suspected of doing anything detrimental to the Union
of Burma or its Govemment and interests.
In the counter-affidavit filed on behalf of the
Government, all the facts stated above are either
admitted or not specifically denied. It' is however
contended on behalf of the Government that the
order issued by the President under section 3 (h) of
the Foreigners Act against the applicant Sitar am is
,1957] BURMA LA\V REPORTS. 193
.I
..
perfectly valid and that the fact alleged in the H.C.
19S7
applicant''$ affidavit that h~ had throughout .his long
SrfARAM
residence in this country been law-abiding, etc., is v.
THE
not of any relevance in so far as the proceedings SuPEHIN-
are concerned. T!.NDEl\T
RANGOON
Now, the fact that action had been taken against CENTRAL
]AlL AND
the applicant Sitaram unsuccessfully und-=.r the Burma ANOTHER,
Extradition Act on the ground that he was a fugitive u SAN
criminal from Ind~a, cannot, in our opinion, preclude MAUN<", J,
an order being passed against him under section 3 (b)
of the Foreigners Act. This section reads :
" The President of the Union may by \Y,riting order that
any foreigner be deported forthwith from the Union of Burma."
SectiorP 4 (2) which provides the machinery for
the deportation of a foreigner, enacts that any
foreigner who has been ordered to be deported under
s~ction 3 (b) may be apprehended without warrant
by any police ,officer not below the rank of Sub-
'inspector and brought before the District Magistrate
who shall, by an order in writing, cause the said
foreigner to be detained in safe custody pending the
co.mpletion of arrangement for his removal out of the
Union of Burn1a.
In regard to the provisions of section 3 ~f the
F~reigners Act, Dr. Ba Maw for the applicant contends
that from the preamble of the Act it is evident that
the Act is designed to enable the President to prevent
the subjects of foreign states from residing or
sojourning in Burma, and that therefore it is not
within the spirit of the Jaw so to use sect: on 3 of the
Act as to arbitrarily remove from Burma a foreigner
who has been residing peacefully therein for many
years and not in any way an undesirable resident of
the country. However,
" The preamble cannot either restrict or extend the
enaeting part. when the language and the object and scope of

13
 BURMA LAW REPORTS. [195?
H.C.
"
the Act are not open to doubt." (Page 48 of ninth e~ition
195i Maxwell on Interpretation of Statutes).
SITARA~l But
'Q.
THE
"It may legitimately be consulted to solve any ambiguity.
SUPERIN- or to fix the meaning of words which may have more than one.
TENDENT,
or to keep the effect of the Act within its real scope. whc>never
RA:-<GCO"'
CENTRAL the enacting part is in any of these respects open to doubt."
}AIL AND (Page 46 ibid).
ANOnlEI<.

u SAN
Section 3 (b) of the Foreigners Act is, in our
MAt:l\G, J. opinion, couched in a language which is not open to
doubt and therefore the preamble of the Act need
not be consulted for the purpose of interpreting the
section. However, even assuming that the preamble
of the Foreigners Act is relevant for the p:1rpose in
hand, the words " to prevent the subjec-ts of foreign
states residing or sojourning in Burma " appearing
therein are wide enough to cover the action of the
President in directing a foreigner, many years resident
in Burma, to be deported from the c:ountry.
In our opinion, so lo ng as the person concerned
is a foreigner it is not for t~1e Courts of law to
question the desirability or otherwise of his deporta-
tion under section 3 (b) of the Foreigners Act. This
matter is entirely within the province ofthe executive
authorities. vVe are fortified in the view which vve
take in this matter by the observation of the Supreme
Court in Kyi Chung York v. The Controller of
Immigration, Burma (l). There it was held that-
" Every country which extends its hospitaiity to an alien
can withdraw it and send him back to his own country and
that every power has the right to refnse to permit an alien to
enter the State and if it permits an alien to enter. to annex
what conditions it pleases to such permission and expel or
deport him from the State at pleasure, and that this principle
is to be found embodied in section 3 of the Foreigners Act
whereby the President may order any foreigner to remove
himself from the Union of Burma."
(1) (1931) B.L. R. p. 197 (S.C .).
.i957J I BURMA LAW REPORTS. 195

In The King v. Secretary of State for Home H 6.

1\IS7
Affairs. Ex-parte Duke of Chateau Thierry {1)~
SITA!1AM
Swinfen Eady, L.J. observed at page 930- 4-'.
THE
" A Secretary of State is not required to justify in a SuPERIN-
Court of law his reasons for making a deportation order in the T:-."DENT,
R,\NGt)ON
case of an alien." CENTRAL
]AlL AND
This observation applies with full force to the ANOTHF.R,

President of the Union of Burma acting under the U SAN

llfAt!NG, J.
powers conferred upon him by section 3 of the
Foreigners Act.
In Hans .Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta and others (2) it was
pointed out by the Supreme Court of India that the
Foreigners Act is not governed by the provisions of
the Extradition Act, and the fact that a request has
bes:n made to the Government under the Extradition
Act does not fetter the discretion of Government to
choose a less cumbrous procedure of the Foreigners
Act when a foreigner> is concerned, provided always,
that in that event the person concerned leaves the
country, a free man.
'For these r~asons we hold that the detention of the
applicant Sitaram under section 4 (2) of the Foreigners
Act in pursuance of the order for his deportation
under section 3 (b) of the Act is legal and proper,
and that his application for a direction in the nature
of habeas corpus must fail. His application is
dismissed.

U BA TROUNG J.-I agree.

'

(1) (1917) K.B.D., p. 922. (2) A.I.P. (1 9: 3) (S.C.), p. 367.

1Q6 BURMA LAW REPORTS. [,1957

APPELLATE CRIMINAL.
Before U c: au Ta11 Auug, Chief htsfice.
B.C.
1957 u BA CHIT TIN (APPELLANT)

}all. 8. v.
THE UNION OF BURMA (RESPONDENT).*

Suppression of Corruption Act-S. 4 [lj (d}f4 (2)-Memzing of tltc e.~pr(ssiorr.

"iu respect of public Properly cut ru sted to him"-S. 405 Pcrzal Code-
Ti. e words "cut rusted", '= a11d "c1zlrustmcnt" their m~ning-S. 5ll \ (c).
Preveutioll of Corrupt iou Act, (111dia Act 11 of 1947).
Held: The e xpression "in respect of public prop~rty entrnst~d t o hi:n"
ins, 4 (1) {d), ::>uppressio:t of Cxruption Act, 1918 means public property
which is in the possession or under Ute control of the public sen ant \in
question. "'
lt has the S1me connotation but much more restricted worjing> tha!l
tll' se ?.ppearing in s . 405 Penal Code. I L is an essential ingredient of the
offence that the public property either immovsable or mo1 eatle or cash \vbich
is the subject matter of the offence must have been entrusted to the public
servan 1.
The word entrusted" with reference to cash or money means that s:~clt
cash or money has been transferred to the acc.!Sed and remains 'm the
possession or control of the accused as a bailee i1z trust lor !h! complainant
who holds the ro>ition of bailor .
N. 'N. Burjorjee v. EmPerJr, A. l. R. [1935) Han. p. 453; Lake v. Simmms,
(1927) A.C.p. 487 at p. 499; Th.lkarst v. King-Emperor, I.L.I~. N'ag. (1949),
p. 620, referred to.
To make an accused person liable \\ ithin the pun iew of s. 4 (I) (d}
Suppression of Corruption Act, 1948, li1<: act:used person concerned mt.st bave
rcss ~ ssion or control of the property, be it cash or be it oth~r moveable
r roperty.

Ba Swe, Advocate, for the appellant.

Tin Maung (Government Advocate) for the

respondent.

Crilni:lal Appeal No. 387 of 1956, ap;Jeal from the order of !he S >eciai
Tuctge (2) (SlAB & BSIA) Act of Rt1g-oJn, cl.\tecl the 7th day 0C Se;)t ~!nber
1956 pa>sed in Crimin~ l 1~egu la r Tri;,l ?\a. 26 o'f 19.55.
1057] BURMA LAW REPORTS. 197

,U CHAN TUN AuNG, . C.J. -The appellant H.C.

1957
U Ba Ch~t Tin was at the material time the Superin-
tendent, Botataung Traffic Office (Inland Water u BATrN cmr
Transport Board). He has been found guilty of the THEv.UNION
offence under section 4 (1) (d) of the Suppression of oF BUimA.
Corruption Act by the Special Judge (2), (SlAB &
BSI Act), Rangoon, and has been sentenced to
undergo concurrently four months' rigorous impri-
sonment on three heads of charge which read:
( l) That you as a public servant, to wit, as
Superintendent of Botataung (I.W.T.)
were enjoined by Circular Order Ex. 8
to receive the cash collected by the
Inward Freight Clerk (Cashier) and that
you failed to do so regarding Trip No.
304 of the Steamer " Maha " which
arrived at Botataung on 19th June 1954
and thereby there was a delay of 14 to
15 days in depositing the freight charges,
K 6,53495, as shown in Ex. 2-00 wi1ich
is an act of misconduct in respect of
the said public property which is deemed
to be entrusted to you as defined in S. 4
(1) (d) and proviso thereto of the
Suppression of Corruption Act.
(2) That you as a public servant, to wit, as
Superintendent, Botataung (LW.T.) were
enjoined by Circular Order Ex. 8 to
receive the cash collected by the Inward
Freight Clerk (Cashier) and that you
failed to do so regarding Trip No. 306
of the Steamer, ., Mingyi "which arrived
on 26th June 1954 at Botataung and
thereby there was a delay . of 10 to 14
days in depositing the freight charges
K 6 73220, as shown in Ex. 2-0 which
'
198 BURMA LAW REPOUTS. [195~

H.C. is an act (1 misconduct in respect ofthe

1957
said public property which i:::. deemed
U BA CHIT
Tn~
to be entrusted to you as defined in S.
v. 4 {1) (d) and the proviso thereto of the
THF- U:\lON
OF BUR~IA. Suppression of Corruption Act.
U CHANTUN (3) That you as a public servant, to wit, as
AU~G, C.J. Superintendent, Botataung (LW.T.)
were enjoined by the Circular Order
Ex. 8 to receive the cash collected by
the Inward Freight Clerk (Cashier) and
that you failed to do so regarding Trip
No. 329 of the Steamer'' Mindone "
which arrived at Botataung . qn 14th
Septe~nber 1954 and thereby there was
a delay of 7 to 8 days in depositing the
freight charges K 4,15715 as shown in
Ex. 2 which is an act of misconduct in
respect of the said public property
which is deemed to be entrusted to you,.
as defined in S.4 (1} (d) and the proviso
thereto of the Suppression of Corrup-
tion Act.
The facts and circumstances leading to fhe
appellant's prosecution are briefly, as follows :
The appellant was the _Superintendent of BJta-
taung Traffic Ofrice from 29th December 1949 to
13th March 1955, and in his charge there was the
" Inward Section " dealing with freight receipts from
big steamers that ply between Rangoon and Mandalay.
Under him, there were a cashier and two freight
clerks. The cashier's post was held by one
U Maung Maung Tin who died on or about the lOth
of May 1955 after a short illness. For some time
the Botataung Traffic Office was entirely in charge
of the appellant. It was not until the Ist February
1951 that a cashier's post was sanctioned by the
 ''
1957] BDRMA LAW. REPORTS. 1S9

Head Offic~, and one U Ba Tu was appointed to hold H.c:

1957
the said post on a salary of K 330-25-450. The
cashier has to deposit K 5,000 cash security and a1so u n.1\;H!T
furnish immoveable property security to the value of TuE J~roN
K 10,000. U Ba Tu held the post of cashier up to oF uunMA,
the year 1952 when he was succeeded by U Maung u CHAN TuN
Maung Tin. From the Botataung Traffic Office, the AuNo, C.J.
appellant was next transferred to the Labour Super-
vision Department at the Main I. \V.T. Otnce on or
about the 14th of March 1955. The fact there was
no r:;ost of cashier in the Botataung Traffic Otnce
prior to 1st February 1951 was conceded by the
General Manager U Hmyin (P\ 2) of the Main I.W.T.
Office, who s'tates that it was only on his recommen-
dation that the post of cashier on a salary of
K 330-15-450 was created in Botataung Traffic
Ol'fice and that the first cashier was U Ba Tu who
had to furnish K' 5,000 cash deposit and a security to
the value qf K lO,ODQ in immoveable property. On
appellant's transfer to the Main Office, he was
succeeded by U Nyun (PW 6).
'"On the death of U Maung Maung Tin, the
account books maintained by him were checked up
as against freight collections relating to the three
steamers, "Mintha", "~1:ingyi" and ' Mingale ",
and it was found that there was a shortage of K
39,14'>70. The matter was reported to the Trafilc
Manager U Hla Ba w (P\V 3) who directed his
assistant U Ba Yin (PW .11) to inquire into the
matter and also to go into the accounts thoroughly.
U Hmyin (PW 2) General Manager, was also
informed about the shortage, and he directed the
Chief Accountant U Ba Thu (PW 5) to investigate
into the matter. After examining all the relevant
accounts and entries relating to the freight receipts,
U Ba Thu, the Chief Accountant, found a shortage
200 BURMA LAW REPORTS. [195r
~c.
1957
of K 39,14970. The shortages in freight rollections
were as shown hereunder in relation to trip number
U BA CHIT
TIN of each steamer :
v.
THE UNIO~ (1) "Mingale " .. Trip No. 392 ... 1.40745
0!' BUR.\!A. (2) "Mintha " ... Trip No. 393 ... 19,12870
U CHAN TUN (3) "Mingyi " ... Trip No. 394 ... 18.413'55
Al'NG, C.J.
Besides these shortages, the check also revealed
that freight collections were not promptly remitted
to the authorities concerned. There were delays for
several days. In particular, it was found that though
in trip No. 388 '' Mingyi '' was shown to have
arrived on 12th April 1955, her earnings of cargo
freights w~re found to have been remitted to the
Main Office 4 to 7 days later. Mr. M3.nickham
(PW 7), Superintendent of the Freight Section in the
Main I.W.T. Office, who at the instance of the Chief
Accountant, checked the accounts found that the
account books for the year 1953 showed invariable
delays in the remittance of the freight collections,
and the delays were in some cases up to 7 days.
During 1954 the delays extended to about two weeks.
Such delays were also detected for the year 1955.
But in the year 1953, one Mr. Gastin (P\V 4) took
upon the duties of Traffic Manager and he issued
instructions for the guidance of the Superintendent
of Botataung Depot and these instructions were
embodied in Exhibit 8.
Captioned "Botataung Depot, Inland \Vater
Transport Board (Irrawaddy Section)", Exhibit 8
contains some six pages of closely typewritten matters
divided into four sections. The first section '' A "
deals with the scope and responsibility of the staff
concerned. Section '' B " lays down detailed proce-
dure for checking books and cargo discharged, and
also collection and disposal of discharged cargo
receipts. Section ' ' C " sets out maintenadce of
!.957] BURMA LAW REPORTS, 201

registers, :ecords and return:s concerning freight, H.c.

1957
c::tsh receipts and cargo weight, etc. Section '' D"
U l3A -:::ruT
prescribes the duties of the staff, whereby the TtK

Superintendent of Botataung Traffic Office is v.

TUF. UNION
entrusted with overall responsibility of running the OF BURMA.

office. He is also enjoined to receive cash in the U CHA!-1 Tu~

AuKG, C.J.
following terms:-
" He will receive the cash collected by the Inward
Freight Clerk (Cashit'.r) and check it in the manner laid down
in para, 6. Section A. He is prohibited from delegating this
particular duty to anyone without authority from the
Mana gemen t."
Thi~ instruction Exhibit 8 is sa:id to be an
approved o,ne, that is, approved by the Accounts
Department, duly signed by the Traffic Manager Mr.
Gastin. But curiously enough, in section '' D " the
f91lowing passage appears :-
" You will therefore endeavour to achieve that when
,possible. It is co"nsidered that at pr~sent, with small upward
cargo offerJng at least ~ne Flat on be turned round."
This passage strikes one as if the instructions in
question are addressed to a particular person.
Tnough it is suggested that the instructions are meant
for all those concerned in the Botataung Depot, yet
the wordings of this clause militate against such
suggestion, Be that as it may, the significant point
to be noted is that, although the instructions require
the Superintendent of the office to receive the cash
collection of the Inward Freight Clerk (Cashier), yet
nothing is mentioned about the disposal of the cash
collected. In that connection I would set down
here the very words deposed to by U Hmyin (PW 2),
General Manager and U Ba Thu (PW 5), Chief
Accountant of the I.W.T. Office.
G~cB~~Q~OJ'J~Em~8m ~~m4:~occm G~~'J~o:;5m G~~j'J~
~~G;;o<~g ~~~=~~o1:niu G~c2~;d~~G;;'JoS ~8:n~~o:;tm
202 BURMA LAW REPORTS, [1 {)57"
H.C.
1957 ~g~g~g~Go:l?0111 G~~g~:~Gcp~ Gc8~w)~ ~rt~M~~:D)[O1
u BA CHIT
o:>tu (Vide U Hmyin's evidence).
TIN
u. G~(:ij'Jg~ ~~GOJS ~'J::JS~gGO)'J~Q 11 G~c8~:ooy ~d)~d)
THE T..:NION
OF RUR~!A. d)S:co'Jo10Je;u omG~5iJ~SJOJQO~ oo~1ll:ld3~:~w1u * * *
U CHA~ Tu~
AU:\l", C J.
g}1~5?@0JtGtc8 GS"!J'::g~G 9c8~~l ~oS~d)&: S:Oi(o b.)~ II *
* * gacxG@5QtmG"!J'=>g~mo5 ( 1) ().)'JcO~ ~d)~MGO~G~O1
o:>Eu ~g:Y.l9]~0Jcyoo;;o~ L2J~GooS qJQ15lGS~'Jg GG}~w1u
~o)~ G~~CgG<j>G@'JC:~ or~rOJI(SI ~g~~m~~~: o3@o10Jtfrr
(Vide U Ba Thu's evidence).
It will therefore appear that since the appoint-
ment of a cashier, that is with effect from the 1st of
February 1953, despite th~ instruction datea 18th May
1953 vide Exhibit 8 issued by the Traffic Manager,
the Superintendent of Botataung Traffic Office
had not received any cash collected by the Inwartl
Freight Clerk-that is to say either from U Ba Tu or
his successor U Maung Maung ,Tin. The. (I.W.T.)
Head Office was, apparently, quite satisfied with this
procedure of collecting the cash direct from the
cashier. In other words, for nearly two years eith~r
the Chief Accountant or the Traffic Manager or
persons reponsible for checking the daily freight
receipts from the main office never questioned the
procedure adopted by the BotataungTraffic Office, nor
did anybody inquire into whether tl1e Traffic Manager's
instructions, if they were at all in force, had been
complied with or not. It appears that the instruc-
tions were not followed, and the appellant as a
Superintendent of the Botataung Traffic Office never
received cash collected by the Inward Freight Clerk.
It may also be noted that although responsible
persons, namely the General Manager, U
Hmyin, and the Chief Accountant U Ba Tlm,
were aware of the infringement of the so-called
1,957] BURMA'LAW REPORTS. 203

instructions issued by the Traffic Manager, yet it is H.C.

195/
an admitted fact that they never took any action
u BA CIJIT
whatsoever either as against the appellant, or as T1:-<

against the cashier U Maung Maung Tin at any time THE ~:Niox
prior to the actual institution of the present case. oF nun~;,\.
Only on the death of U Maung Maung Tin, as u CHAN Tux
observed above, did the authority wake up and try AuNo, C.J.
to enforce the instructions (Exhibit 8) drafted by the
Traffic Manager. Even after the appellant's transfer
and later when he was succeeded by U Nyun (P\V 6)
on the 21st March 1955, U Nyun never received cash
freight receipts from the cashier. In th~t connection
U Nyun.deposes:

m~<Xl')~G99J')g~~ooSo) 1J 021~GOJ SOJ :J~GotOEqo1u 021~
GooSD-:l6)C~0&iE~r Gg~axEQC~r Gg~GGlOGu:3t% oo~m spgQ
ot6.qo1u
''
, Thus, during the relevant period, cash collections
by the casfuier were kept in cashier's hand who dealt
directly with the Head Office by remitting them
straight to the Head Office, and that the Head
o:nt~ was satisfb:l c8llecting CJ.:J:1 from the hands
of the cashier alone.
It is a s) observed that althoug:1 according to
the First Information Report the appellant was
responsible for the shortage ~of K 39,14970 pyas,
yet the three heads of charge under which he was
tried and convicted set out that the appellant was
responsible for cashier's delay in the surrendering of
freights collected by him in respect of specific earnings
from trips made by respective steamers and that the
total sum so collected with consequential delay was
said to amount to K 17,42430 pyas although it is
conceded that the same has been remitted to the Head
Offic0.
201- BURMA LAW REPORTS. [1957
H.C. The facts set out above are not seriously dispJted
1957
by the appellant, except that he maintained that the
-U BA CHIT
TIN instructions (Exhibit 8) said to have been issued by
v.
'THF: UNION
the Traffic Manager were not in force at the relevant
-oF BuRMA time and that they were merely tentative. He further
!1J CHAN TUN asserted that even if they were in force the Traffic
AuNG, C.J.
Department in Botataung had never followed them
since the appointment of a cashier and that therefore
there was no entrustment of cash with him.
The trial Judge, however, did not accept these
contentions. The trial Judge's view was to the effect
that owing to appellant's non-observance of the
instructions (Exhibit 8) cashier's daily collections had
not been paid in regularly since 1953 thereby enabling
the latter to temporarily misappropriate the said
collections. For these laches on the part of the
appellant, the trial Judge holds that the appellant was
'' vicariously " responsible. Here, I propose to quote
the very words appearing in the lower Court's jud!!;.-
ment:
" As things stand the accused cannot be held directly
responsible for the loss of K 39, 149.70, for it is not proved
that the lo ss~s occurred actually while he was Superintelr-ient
of Botataung. From a U showing th~ losses s~em to have
occurred after he had demitted the office and during the time
of his successor. But he may be vicariously held responsible
for the losses in as mu::h as it might be s:1id th1t he did not
collect the cash from the cashier or that he did not check the
register as laid down in the Circular Ins:ruction Ex. 8. In
these circumstances, it appears to me that the accused is more
concerned with that part of the complaint where it is alleged
that on account of laches on th~ part of the accused, there
had be.!n no regularity in making over the daily collections
since July 1953."

From these observations it seems clear that offence

of "misconduct" with which the appellant stands
C;)nvicted is one for laches in not collecting the ca~h
1957] BURMA LAW REPORTS. 20$

from the cashier in contravention of the so-called H,C.

1937
circular instructions containing in Exhibit 8. Having
u llA CH!T'
found so, the trial Judge next proceeded to consider 'flN

at a later state of his judgment : ~.

THE UN!O.'Il'
OF BUH~IA.
"Whether the failure on the part of the accused to
observe the instructions falls within the definition of mis~ u CHAN TeN
AUNG, C.J.
conduct as given in the proviso to section 4 (1) (d) of the
Suppression of Corru,Ption Act. "

To this question, notwithstanding clear admissions

of U Hmyin (General Manager) and U Ba Thu
(Chief Accountant) that cash freight rec;:eipts were not
collecte'd from the appellant but from the cashier, the
trial Judge" readily answered that appellant's failure
to follow the instructions (Exhibit 8) constitutes con-
nivance with the cashier in the commission of "mis-
c'bnduct '' within the meaning of section 4 (I) (d) of
the Suppressi011 of Corruption Act read with the
'explanation. As regards the question whether there
was entr'ustment of money with the appellant the
trial Judge found in these terms :
" It has b~en urged for the accused by his learned
counsel that there was no entrustment of money with the
accused. But by virtue of the duties cast on the accused in
the circular instruction, it must be held that the accused had
been entrusted with the money by the department::tl
instructions and consequently in law. "

Therefore, so far as I can comprehend the judg-

ment of the learned trial Judge, the appellant has
been convicted of the offence of misconduct under
section 4 (I) (d) of the Suppression of Corruption Act
in respect of cash (public property) which he never
collected by which was " deemed to have been entrus-
ted to him " (vide three heads of charge) because
he .failed to collect them from the cashier as enjoined
by' the . departmental instructions containing in
206 BURMA LAW REPORTS. '[1951
. ~

H.C. Exhibit 8. In fact, the trial Judge himself, probably

1957
assailed by some doubts, conceded at the conclusion
U BA CHIT
TIN of his judgment that the offence committed by the
v.
THE UNION
appellant " seems to be a technical one. " '
OF BURMA. In appeal, it is contended, firstly, that there was
U CHAN TUN no proper sanction accorded in the prosecution of
AUNG, C.J.
the appellant. Secondly, it is urged that an offence
of misconduct has been made out against the appellant
within the purview of section 4 (1) (d) of the
Suppression of Corruption Act. A sustained argu-
ment has been advanced in this connection that no
public property had been entrusted to the appellant
with respect to which he could be held in law to
have committed the offence of misconduct within the
purview of that sub-section read with the explanation
thereto. Thirdly, it is urged that the circular instruc-
tions Exhibit 8 were merely tentative and had nut
been brought into force. Now, the 1elevant portion
of section 4 (l) (d) of the Suppression of Corruption'
Act reads-
" 4 (J) A public servant !s sad. to commit the offence
of criminal misconduct in the discharge of his duties : - n

(d) If he commits any fraud to the detriment of

public interest or commits in respect of public
property entrusted to him, either an act of
misappropriation or mis:::onduct. "

Added to this sub-section is an explanation which

is in Burmese. I have had occasion to point out as a
member of the Bench in Criminal Reference No. 16
of 1956 that there are three classes of cases where an
act or omission of a public servant can be said to
come within the purview of sub-section 4 (1) (d) of
the Suppression of Corruption Act, naniely:
(a) If he commits fraud to the detriment of
public interest;
.,
1957] BURMA LAW REPORTS. 207

(b) If he commits in respect of public property H.r:.

19S7
entrusted to him an act of misappropria-
U BA CHIT
tion; and TIN
(c) If he commits in respect of public property THE v.CNION
entrusted to him, an act of misconduct, OF I:s U Rlt.~.
i.e. mismanagement, wrongful act or U CH\N TUN
omission or for doing something which A'.'NU, C.J-
ought not to b~ done or not doing some-
thing . which ought to be done in the
given circumstances (vide Amendment
Act No. XVI of 1951).
With regard to sanction it is contended that the
sanctioE? does not specifically set out the facts of the
offence alle&ed against the appellant and that as such
it was defective. Reliance was placed upon the
Supreme Court in Miscellaneous Application No. 108
of- 1956. (Union of Burma v. U Kyaw Nu). It was
urged that inasmuch as the sanction Exhibit-c b eing
aefective in that there being no evidence as t 0
whether t:i:le sanctioning authority was fully appri3ed
of the entire aspect of the case, the prosecution of the
case, the prosecution of the appellant on that ground
alone is illegal. I am not disposed to accept this
contention. I hav~ carefully examined the sanction
Exhibit-c and I am fully satisfied that the sanctioning
authority was fully aware of the facts and the nature
of the offence with which the appellant has been
charged. The sanction itself contains all the neces-
sary par-ticulars. I must hold that there is no sub-
stance in this submission, and I cannot a1low it to
prevail.
Now, I propose to deal with the third conten-
tion rather than the second contention. T he third
contention relates to the enforcement of instructions
contained in Exhibit 8. There is, I am afraid, very
uns:1 tisfactory evidence in that regard. Mr. Gastin
~08 BURMA LAW REPORTS. [1Y57

1l..C. maintains the instructions are already in force,

1957
whereas the Chief Accountant conceded that he was
U RA CHIT
not a ware of the existence of these instructions or
TIN their enforcement prior to the case. He was made
Tt-:E '\NJON aware of it only after the case and he did not know

oFBut<~lA. from which date it came into force. No wonder

u,,, CHAN TuN therefore, he deposed to the fact that all cash collec-
U:-\G, C.J.
tions from Botataung Traffic Office were not receh ed
from the appellant U Ba Chit Tin, but froni the cashier
all along. I have set out above the salient parts of
the instructions and it is most surprising that although
the Traffic Manager and the responsible heads of the
Department in the Head Office are aware of the fact
that freight collections f~om Botataung are received
or otherwise collected by the Head Office directly from
the cashier and not from U Ba Chit Tin (the appellant)
no step of any kind was taken against anybody at, all
for enforcement of the instructions. Under these
circumstances it is very difficult to conclude th-at
these rules have become effective from a certai.n date.
Moreover, the peculiar wordings in some parts of the
rules indicate that they are being addressed to a
particular person tentatively, and to me they do not
give the impression that they have been finally approv-
ed and made effective from a certain date. Even
assuming that they are effective, the most important
question for determination is whether in the circum-
stances set out above, the appellant can be said to
have been entrusted with the cash collections, namely,
the cash freight. This brings me to the sheet-anchor
of the appellant's contention. The relevant portion
of the instruction merely says that Superintendent
of Botataung Traffic Office has overall responsibility
for running In ward Section of the Depot; that he will
receive the cash collected by the Inward Freight
Clerk and check in the manner laid doun in
.,1957 J BURl\ifA LAW REPORTS. 209

paragraph 6. But the instructions are completely H.C.

1257
silent as to what the Superintendent should do after
U BA CIHT
the receipt of the cash from the cashier. Neither do TIN
they contain what the cashier should do with the cash v.
THE UNION
he has collected. The Head Office (I.W.T.), for nearly OF BURMA,

two years, coliected the cash not from the appellant U CHAN TUN
but from the cashier direct, and can it therefore be AU~G, C.J.
said that the appellant has been entrusted at all
material times with the cash in question ?
I am of the view that under the circumstances the
appellant cannot be said to have been entrusted with
the cash collected by the cashier. In my view, the
expression " in respect of public property entrusted to
him" appe;aring in section 4 U) (d), Suppression of
Corruption Act means public property which is in the
possession or under the control of the public servant
itt question. It has the same connotation as is to be
found in section ,, 405 of the Penal Code without the
,.qualifying words " in any manner. " Thus to bring
home an offence under this sub-section, it is an
essential condition that the public property either
immoveable or moveable property or cash which is the
subject matter of the off:'ence must have been entrus-
ted to the public servant. The word " entrusted ''
with reference to cash or money means that such cash
or money has .been transferred to the accused and
remains in the possession or control of the accused
as a bailee in trust for the complainant too holds the
position of bailor. In N. N. Burjorjee v. Emperor
(1), it was pointed out (Mya Bu and Baguley, JJ.)
that the term" entrustment" with reference to section
405 of the Penal Code is not necessarily a term o
law. It may have different implications in different
contexts. In its most general signification, all it
impons is the handling over of the possession for
------------------------~--------------
(1) A.I.F.. (i935) H;-,n. p. ~53.
210 BURMA LAW REPORTS. f195/'

H.C. some purpose which m&.y not imply the conferrinc; of

1957
any proprietary right at all. This decisio:tl makes a
U BA CHIT
TlN reference to the House of Lords' case in Lake v.
v.
TilE UNtO~
Simmons 0), wherein Viscount Haldane in consider-
OF BUR~tA. ing the import of the word 'entrusted': with reference
U CHAN TUN to a Lloyds' insurance policy containing a clause
AUNG, C.J.
exempting the insurer from liability in the case of
" loss by theft or dishonesty committed by any custo-
mer or broker's customer in respect of goods entrusted
to them by the assured '' observed :
"It may have different implic:ttions and different contexts.
In its most general significance all it imports is a handing over
the po~session of some purpose which may not imply the con-
ferring of any proprietary right at all. I hand my umbrella to
a servant to enable me to be free of it while I am taking off
my coat. In a very general sense I entrust him with the
umbrella. * * Entrusting may, of course, introduce
a bailment, conferring some definite but restricted proprietary
right. It is a question, then, of the contract entered into. And
whether there is such a contract depends on' more than a bare
parting with possession."
In Thakarsi v. King-Emperor (2) the connotation
of the word " entrusted " in section 405, Penal Code,
was considered and it was pointed out that-
" In order that money is 'entrusted' to the accused per-
son within the meaning of section 405, Indbn Penal Code, it
should be transferred to him in circumstances which show that,
notwithstanding its delivery. the property in it continues to vest
in the prosecutor and the money remains in the possession and
control of. the accused as a bailee, and in trust for the prosecu-
tor as a bailor, to be restored to him or applied in accordance
with his instructions. "
Having regard to the meaning of the word
" entrusted " as given in the aforesaid decisions> I am
of the view that in order to make an accused person
liable within the purview of section 4 (1) (d), Suppres-
sion of Corruption Act, the wordings of which are much
(I) (1927) A.C. 487 at 499. (2] I.L.R. Nag. i1949J p. 620
1
1957] DURMA' LA\V REPORTS. 211
.)
,,
more restricted than those appearing in section 405 H.~.
1957
of the Pe~al Code of those appearing in section 5
U BA CHIT
{1) (c) of the Prevention of Corruption Act (India TIN
Act II) of 1957, there must be actual entrustment of v.
THE UNION
the public property with the accused person, or in OF BUHMA.

other words, the accused person concerned must have U CHAN TUN
AUNG,C.J.
possession or control of the property, be it cash or be
it other moveable property.
Now, from the facts and circumstances obtaining
in the present case, it is abundantly clear that the
appellant has never, at all material times, since the
appointment of a cashier, received the cash, nor did
he at all,. handle the same, though such failure on his
part might be contrary to the instructions contained
in Exhibit 8. How can he therefore be said to have
committed the offence of misconduct with respect to
the property which never came into his possession or
control or which. he had never received them ? There
was thus, to my mind, no entrustment of cash as far
as the appellant wa's concerned. Apparently, the
trial Judge himself realized this difficult aspect and no
WOf!der therefore, he has strained the relevant law by
charging the appellant, not with offence of misconduct
in respect of property entrusted with the appellant,
but with the offence of " misconduct " in respect of
property deemed to have been entrusted to him.
This is clearly not within the contemplation of section
4 (I) (d) of the Suppression of Corruption Act. There
is thus considerable force in submission made by the
appellant's counsel in that regard, and it must be
allowed to prevail. Moreover, if a comparison is made
with the relevant provision of the India Suppression
of Corruption Act, 1947, above referred to, it would
be seen that the scope and meaning of the word
"entrusted " appearing in sectiol) 5 (I) (c) of the said
Indian Act in its proper context is much wider than
212 BURMA LAW REPORTS. [195.7
H.C. that appearing in section 4 (1) (d) of our Suppression
1957
of Corruption Act. We cannot widen the scope of
U BA CHIT
TIN a penal statute ; an d.1t IS
' elementary ru1e of construe-
TuB vUNtoN tion that a penal statute must always be construed
oF BuRI!A. strictly. Therefore, I must hold that under the facts
u CHA;-TuN and circumstances obtaining in the case no offence
AuNG, c.T. under section 4 (}) (d) of the Suppression of Corrup-
tion Act has been made out against the appellant,
and I must set aside the lower Cemrt's conviction and
sentence and acquit appellant so far as this case is
concerned.
1957] BURMA -LAW_REPORTS. 213

APPELLATE CRIMINAL.
Before CJ Cltalt Tun Aung, Chief Justice.

U KHIN MAUNG GYI (APPELLANT) H.C.

v.
THE UNION OF BURMA (RESPONDENT).*
-
1956
Feb. 6.

S~tPPI'essioJ of Corruption Act, 1948, s. 4 ( 1) (cl/4 (2)-''0btains for h~mself or

for any otlzcr person "-Tile Cltief i11gredie11l of s. 4 ( 1) (c).
The appellant was convicted and sentenced to four months rigorous
imprisonment under s. 4 (1)(2}/ 4 {2), Suppression of Corrvption Act, 1948 for
obtaining fo10 his wife and his father-in-bw two shares in the Win \Vin
Cinema Hall business .

Held : The facts in the cases are just the reverse.
The obt~i ning is by t!le wife of the appellant, who is a public servant.
The ca~e is one of a non-public serv.in!, namely, a public se rvanl' s wife,
accepting or obtaining either for herself or fo r her husband a va luable thing
or p'ecuni:lry a~lva1tage. S.1ch acceptiag or obtining do n ot come within
the puniew of the abO\'C Section.
, \Vhat s. 4 (1) lc) of the Suppression of Corrup tion Act as it stands penalises
is.)'te obtainin,g by a p tblic se,.rvant for hims~lf or for another persotl any
valttab le thi .1g or pec.miary ad;:antagc in the dis:ilarge of his duties.
Appeal allowed,

Kyczw l\llyint and Ba Swe for the appellant.

Tin il1.aung (Government Advocate) for the respond-

ent.

U CHAN TuN AuNG, C.J._The appellant U Khin

Maung Gyi was a Senior Investigator of the Bureau
of Special Investigation and he was sent up for trial
under section 4 (1) (C) read with section 4 (2) of the
Suppression of Corruption Act, 1948, on the allega-
tion, that here I propose to use the very words of
Mr. Jardine, the Assistant Director of the Bureau of
~ Cdmi:tal Appeal No. 432 of 1955. Appeal f rom the order of
UP.: Tn.m, S;:>ec~ial J tdge (2) (SIAB an.! BSlA) of Rlng;-Jn, d:~ted the 16th
d 1y at Octob::! 19 35 p~m <!d in Grimitul Regular Tri:\1 No. ll of 195 6.
214 BURMA LAW REPO:'lTS. (1957

H.c. Special Investigation, contained in his first informa-

1956 tion report, Exhibit a. which he lodged at the
M~NI~HigYr Kyauktada Police Station-'' ~tc'J:~ d3~:~:GO::f?~m@~
'rHE ~NION ~:CXjlro1 G2)G~'JC:"lj'J:GOJSf?~~::::ldt:G<j>:::D~OjfG:::D'J:::DO?C:~ Gj~X@~
OF BUR~!A. ~0) ~g~Sf?~t gj)~?<j>O COJ~g@~~l ffi<Xld)OJ~g ~0~g~~G~~GG[:~Sf?~
uA~~~~cVN ~:~tG;,'Jt~:mt m~o1~5c~'J~~ Gmsr:~B~:~w:toS: ~5C:C25~~
GOJSf?~G2\G~Jpt:"jj')~ ~::::ldC~OJ~ <j'>'Jd~i~:C(~!cS"lJ?:~~ ~c:::ldc{)'Jg
GO15:@~ SSsr~:qcSo? m~:~ SS3'~:~~:J,{ G3T@~:i~Go:>'JoS~G
@~~ @:G0?~m82oS ~:JS~~oo~ o5w5:'i18~5~o oSOj(m~ d3gs~t
m~~:mg?:m~D';lJ GGmb]::i~n m~~~~~~:::Dt~:::S~b]o1:::Dtu ~~s
GG'JC~~:::D~ 88~~~:i~Gm?J3~g @:G0'J~8<JC2d) ~~ ac~:O?~
o~t: I~GatoS G~GEJ:~ci:m~roO?~O?Sf?~ g~gQJ')~8dO J3~d)O)')g
G:::D?<j>~:[g~@5GIDI ~GatoS OJS[?~20G8i9d:)~01JCGX'J ~~~@9@~G0
[9t~.0 ~<Xl~:~.3@f>@9 S8mG@80G<j>~ nac~:0'):~~ 88mCJ2oSGOJS
qt:1 ~ooo1: 8d:JJcbG::>JSqS: <>)Oj(~::D~~ q5::<;l5G~?E~:mGuT
o @90 ~it 8docB~rf.io:J'J:~oo'Jg@~G6)~8dcft;oGsC(EG9 ( :J) ( o) / <:;
(J )mb]~tm~w1::ntu ..
From the above information laid against the appellan_t,
it is clear that the offence alleged against him was for
obtaining for his wife Daw Mya On and his father-
in-law U Saw two shares in the Win Win Cinema
Hall business without making any payment within
the purview of section 4 (J) (c) of the Suppression of
Corruption Act. The trial Court has found the
appellant guilty under the said section and directed
him to suffer four months' rigorous imprisonment.
The appellant has already served the sentence during
the pendency of the appeal and he is now out from
the jail.
As a background of the appellant's connection
wHh smugglers of gold and opium, Mr. Jardine, the
Assistant Director, r~lied upon the information
received by the Special Investigation Administration
'1957] 3
BURMA LAW REPORTS. 215

Board to uthe effect that persons by the names of

.
H.C.
1956
Nawkhum, Zaw Saing and Khunnaw from Kachin
u
KH!N
State would be smuggling 90 bars of gold from Siam MAUNG GYI
via Taunggyi to Mandalay in a truck belonging to v.
THE ON.ON
Nawkhum between 28th and 30th October 1955 and OF BURMA.

that this information should not be divulged to U Khin U CHAK TUN

Maung Gyi, the appellant, as the appellant was said AC:\G, C.J.
to be a friend of t~ese people. Mr. Jardine took up
the investigation into this matter, and he proceeded
to Mandalay ; but it re~I~ in nothing except in
the seizure of certain documents from a shop in ''B"
Road, andalay, in fr011t of which .tvfr. Jardine, by
chance, foupd Nawkhum~s truck referred to in the
information. Mr. J ard]ue then returned to Rangoon
after seizing some documents from the said shop and
he later learnt that one the men referred to in the
information, namely, Nawkhum was in the appellant's
]louse in Rangoon where on 14th November 1955 a
search \\~as made and certain properties, cash,
dopuments, etc., said .,to belong to Nawkhum were
seized. Among the doGuments seized from U Khin
Mfiung Gyi's house, .Mr. Jardine found a document
relating to an agreement for the hire of Win Win
Cinema Hall a_nd also a partnership deed for running
the dnema Hall.
Further investigation by the Bureau of Special
Investigation resulted in obtaining a copy of the sale
deed of the Win Vlin Cinerna Hall filed as Exhibit 0 in
.~ l; .,: tr1aT. Co1frt's proceedingf;_ Thr.:. >!-called sale
deed h ~:;_: ;;ribed as assi_;mr~ent of business and its
goodwill with tt1e. Icas~d premises. So far as I can
comprehend, it is the sale of an unexpired lease or
assignment of the unexpired terms of a lease by
lessees to 10 persons, including the goodwill of the
leased premises, at a price d'f Kyats three lakhs.
The"' deed is in the form of a conveyance, dated 3rd
216 BURMA LAW REPORTS~ [1957

H.C. November 1955. The assignors of the lease (describ-

1956
ed as sellers ) were (1) U Kyaw Win (2J Daw Kway
U KHIN
MAUNG Gn
(3) U Aye Khine (4) Daw Khin Phon (5) U Par Sein
1!.
THE UNION
(6) Daw Myint Myint (7) Daw Khin Sein (8)" Ma Yi
OF BUR}1A. Yi (9) Ma Thein Yi (10) U Mya Thein (11) Daw
U CHAN TUN Khin Khin Gyi and (12) U Too Too Rahman. The
AUNG, C.J.
buyers or the assignees are found to be (1) U Naw
Kam (2) Zau Saing (3) U Yee Yaung (4) U Saw (5) U
Kyi Thein (6) U Khin Maung Swe (7) Daw Tin (E) U
Shwe Sein (9) Ma Zau Aung and (10) Daw Mya On.
One of the buyers, namely, Daw Mya On, is no other
than the appellant's wife. From the several documents
seized from the shop in ''B" Road, Mandalay, and
also from U Khin Maung Gyi's house in "48th Street,
Rangoon, exhibited in the trial proceedings as Exhibit
0 series. most of which are from the personal effects
of U Nawkhum_the prosecution trled to build up
its case that the appellant and the alleged smugglers
of gold and opium had some sort of link or connec-"
tion. The trial Court, however, found that the link
could not be definitely established. How eyer, as
regards the purchase of the lease of the Win Win
Cinema Hall, particularly Daw Mya On's participa-
tion as a purchaser thereof, as evidenced in the sale
deed, Exhibit 0, and also in view of the circumstances
referred to hereafter, the lower Court found that a
case under section 4 (1) (c) of the Suppression of
Corruption Act, 1948 has been made out against the
appellant. Documentary evidence vide Exhibit~ was
produced by the prosecution to show that the
appellant had somehow or other taken an undue
interest in the matter of purchase of the particular
cinema hall by U Nawkhum. In that connection
several parts played by the appellant either before or
after the purchase of the Win Win Cinema Hall by
Nawkhum along with his (appellant's) wife and
 1'957]
.
SURMA LAW REPORTS. 217
,. '
father-in-lnw and others were adduced in evidence- H.Q.
1956
Emphasis was laid upon the appellant's presence in
U KHI~
Daw Khin Phon's and U Kyaw Win's house before MAuxa Gn
the actual purchase of the cinema hall by Nawkhum THE t~Nio~>:
and others, and also on the appellant having placed oF BuRMA.
an order with one S. A. Raman (PW 20) of the u c;;;TuN
Oriental Furniture Mart to polish up the chairs in AUNG, C.J.
the Win \Vin Cinema Hall.
The agreement 'for the hire of the cinema hall to
stage a P.yazat sponsored by the Rangoon Town
Police for raising welfare funds for the Rangoon
Police Force was also relied upon by the prosecution
to prove tha~t the agreement for the hire of the said
cinema hall had to be made between the appellant
representing the Win Win Cinema Hall on the one
part and Superintendent of Police U Ba Han on the
other part. The agreement has been filed in the
trial Court as 'Exhibit c-o and it was signed by
U Zau Saing as the 9wner of the hall.
In November 1955 the Special Investigation
Administration Board questioned the appellant
specifically dwelling upon what he had to say about
his wife Daw Mya On being found to be one of the
purchasers of the Win Win Cinema Hull and also as
a shareholder in the said business along with
N a wkhum and others. The appellant was said to
have told before the Board that as U Nawkhum was
a friend who was putting up at that time at his
house and that as he was a very close friend to him
and his wife, she had been included in the sale deed
as one of the buyers. U On Pe (PW 15), one of the
Directors of the Special Investigation Administration
Board, was directed to take down the appellant's
statement in writing which he duly did and the
s.tatement, Exhibit ~' is duly sig-ned by the appellant.
There, the appellant stated specfi.cally that Daw Mya
218 BURMA LAW REPORTS. [1957
R.C.
1956
On's name had been inserted without hi.s consent.
He said he went to the lawyer, U Choung Po at once,.
M~vN~mgYr and asked him to delete his wife's name. U Choung
v.
THE UNrON
Po was said to have told him that since the sale deed
o..- BuRMA. had reached the Registration Office, the appellant's
u c;;;; TuN wife's name could not be deleted, but that he would
AuNG, C.J. not include her name in the partnership deed.
U Choung Po himself followed to the appellant's
house that evening and enquired whether . the
appellant's wife did not approve the inclusion of
her name in the purchase deed as a purchaser of
the cinema halL There is U Choung Po's testimony
that the appellant told him that he dared not take
the risk and that he would stay aloof from such
affair and that his wife's name should also be deleted
and not included in the partnership deed. To satisfy
the appellant's wish U Choung Po drew up an amend-
ed partnership deed excluding the appellant's wife'B.
name.
On these evidence the appellant had been charged
and convicted under section 4 (1) (c) of the Suppres-
sion of Corruption Act.
Section 4 (1) (c) of the Suppression of Corruption
Act, 1948 reads :
,, 4. (1) A publ ic servant is said to commit the offence
of criminal misconduct in the discharge of his duties_
~) * * * *
(b) * * * * *
(c) if he, by corrupt or iJlegal means or otherwise by
abuse of his office as a public servant, obtains
for himself or for any other person any valuable
thing or pecuniary advantage."
(The under-lines are mine.)
On behalf of the appellant it is strenuously con-
tended that even if aU the facts and circumstances
adduced by the prosecution are found to 'have been
 1957]
.
:BURMA LAW REPORTS. 219
'

establishetJ, the appellant, though a public servant, has H :-c.

1956
not committed the offence under section 4 (1) (c) of
tl1e Suppresswn . of c orruptwn . A ct, masmuc . h as he l\IAt:NG
u KH!N Gn
has not, as a public Servant, Obtained by COrrupt Or THE ~UNION
illegal means, any valuable thing or pecuniary oF B_~R~!A.
advan~tage for himself or for any other person. u c;;;:; TuN
There is considerable force in this submission. From Au~('. C.J.
the mass of evidence adduced by the prosecution,
even accepting that they are true, they only disclose
that the appellant's wife has, by h~r participation as
a purchaser of the shares in the Win Win Cinema
Hall business along with Nawkhum and others who
are said' to be concerned in smuggling of gold and
opium, obtained a valuable thing or a pecuniary
advantage. What section 4 (1) (c) of the Suppression
of Corruption Act penalises is the obtaining by a
public servant for himself or for another person any
valuable thing or pecuniary advantage in the discharge
of his dutjes. Here:. the position is just the reverse.
The obtaining is by the wife of the appellant, a publie
servant. Even, i1_!h~-~~~~b!e____!_~~!?:K.2!.JJ.~-~-Ul).iary
advantage_ ha..~12~~A. OQ~~in_e._g_ _g_y_~he .. ?.-.PJ2~1L~p._!:_' ...Fif~
for her husband, it does not come within the purvie'w
of the abov-e~secfian.~:---ln.. ofhei____words;-"U)--aTieg-ed
obtaining or-Ta'kiiig .by a.puGT1c~~e.~~vaqt. 9f a _va~uable
thing or pecun!arY.advar1tage s<?._ ~~- tg__ Q.~ within the
scope-or-~e~fiQ~~-1_.('l}_j_q[~~%_ ...!~e_ ~EP~~ss~~n_ of
~_orruption Act_ m!:!_~t_beJQ~ __Qims~lf_g_I._jQr__another
2._ersol!.:.. The learned Government Advocate U Tin
.Maung appearing for the respondent has very properly
conceded that the appellant could not have been
convicted under the aforesaid section on the facts
and circumstances adduced at the trial by the prosecu-
tion. The facts that have been established by the
prosecution are just the reverse of what is contem-
platt!d in section 4 (1) (c) of the Act. The case is
220 BURMA LAW REJ?ORTS.
H.C.
195tJ
one of a non-public servant, namely, a public ~ervant's
wife, accepting or obtaining either for herself or for
M~u~~" ~n her husband a valuable thing or pecuniary advantage.
1

TH E
"uNl0 N Therefore , the conviction of the appellant under
.
the
oF BuHMA. aforesaid section was clearly based upon misconcep-
u c~TuN tion of the provisions of section 4 (I) (c) qf the Act
Au~G. c.J. and I must hold that it is not sustainable.
The appeal is allowed. The conviction and
sentence passed upon the appellan~ under ~ection 4
(1) (c) read with section 4 (2) of the Suppression of
Corruption Act which directed the appellant to
suffer four months rigorous imprisonment" must be
set aside and the appellant will be acquitted si:> far as
this case is concerned. ~
However, before I finish with this I would
like to point out that it is for careful consideration
by the authority concerned whether, from the facts
obtaining in the present case, namely, the putting in
of the appellant's wife (Daw Mya On's) name in spite"'
-of protestation said to have been made by the
appellant, and having regard to the peculiar relation-
ship that was said to have been existing. between
the appellant and Nawkhum, Nawkhum has not
.committed an offence of abetment of bribery
punishable under section 161 read with section 116
.of the Penal Code ; or whether the appellant's wife
herself, subject, of course, to whatever defence she
may be able 'to put forward in that regard, has
not committed an offence of taking gratification as
a motive or reward for inducing, by exercise of her
personal influence over her husband, a public
.s ervant, to forbear to do any official act, etc.,
within the mischief of section 163 of the Penal Code;
-or whether the appellant and his wife have not
jointly committed off~nces under sections 163 and 164
.of the Penal Code.
.1957] ..BURMA LAW REPORTS. 221:

APPELLATE CIVIL.
Before U Azwg [{/:inc,],

u SAw
ONE (APPELLANT)
AND H.C.
1957
v.
Jan.3.
LOKE MANI (alias) LO MANI (RESPONDENT).*
Limrlation Act, Article 149--Trallsfer of lmniovcable ProPerty (Rcstl"icficm)
\Ameudmwl) Act, 1949.
Article 149 Limitation A~t has no application to suits broug!l( by assignees
and other persons deridn_g or claiming through or under Government.
Governor-Gcucral-it1-Council v. Pandit Awadlzoot ,' I.L.R. ( 1946) Nag, 246
referred to. - '
In CMlcting the Transfc~ of Immo\'eable f'roperly [Restrictioni
(Amendment) ~ct, the I~gislature could not have intended to deprive rfor-
eigners of immoveable property wl1ich had been acquired ot11er tllan by
transfer.

San C. Po for the appellant.

H. Subramanypn for the respondent.

U A.UNG KI-IINF.:, J._The facts of this appeal are

very similar to the facts of the case I have dealt with
in Civil Second Appeal No. 88 of 1954. The
appellants in that case, U Saw and Daw Gun. Nu are
also the appellants here in this appeal.
On the 12th day of June 1950, the appellants
purchased from Messrs. Ellerman's Arracan Rice
and Trading Co., Ltd., certain piece of land which
included the occupancy right in Holding No. 27 of
1952-53, obtained under lease from the Government
and afree-hold land known as Holding No. 24 of
1948-49 measuring 7266 acres in Kalagon Block No.
53, Thinbay.rgyin Oksu. After the purchase of these
pieces of land the appellants found that the respon-
dent Loke-Mani (a) Lo-Mani was in possession of a
----------------~~-~--------------------~
* Chil 2nd Ap,Jeal )io, 22 of 1955, against the decree of the Addi1ional
Distdct Gourl of Bassein in Civil Appeal ~o. 8 r:-f 1954, dated the 27th
De~ember 1954.
 BURMA LAW REPORTS. [1954
H.C.
1957
portion each of both the lease-hold and the free-hold
lands. He had turned that area into ~a plantain
U SAW
AND ONE grove. He had also been living on that area. The
v. appellants requested him to vacate but he refused
LOKE MANI
(alias) to do so and hence Civil Regular Suit No. 74 of 1953
LO MANl.
of the Township Court of Bassein West. In his
U AUNG
KH I NE, J.
defence the respondent pleaded that he had been
staying on that land for over 24 years and set up the
plea that the suit \Yas barred by limitation. The fact
that the respondent had been in continuous possession
of the land for over 24 years has been accepted by
both the loy.rer Courts. The plea of adverse
possession was also accepted by the trial Conrt and
the appellants' suit was dismissed.
The appellants failed to get the judgment and
decree of the trial Court set aside in their appeal to
the District Court also and hence this appeal. One
of the grounds taken up here is that hoth the lower
Courts erred in law in accepting and upholding the.,
plea of adverse possession in respect of a lease-hold
land. I have pointed out in Civil Second Appeal
No. 88 of 1954 that as the Government was not a
party in the suit and as the dispute is between private
parties, the provisions of Article 149 of the Limita-
tion Act cannot be applied. In Governor-General-in-
Council v . Pandit Awadhoot (1), it was held that
Article 149 has no application to suits brought by
assignees and other persons deriving or claiming
through or under Government.
As stated above, the respondent was in possession
of a small fraction of the free-hold land and in
respect of it the appellants claimed that the respon-
dent being a foreigner, he was incapable.of possessing
any land and to allow him to do so would be
.
contravening the provisions of the Transfer of
(1) J.L.R. (1946) Nag. 246.
1957] BURMA . LAW REPORTS. 223

Immoveable Property (Restriction) (Amendment) H.C.
1951
Act, 1949: To this contention, an effective answer
U SAW ANO
has been given by the Advocate for the respondent ONl;;
to the effect that no transfer of the land was ever v.
LoKE i'liANI
made to the respondent but that he had simply been (alias)
LoMAN!.
in continuous possession of the land for over 24
U AUNG
years. He was not a permissive occupant nor a KHJNE,J.
lessee of Messrs. Ellerman's Arracan Rice and
Trading Co. Ltd ... and it was submitted that by his
long occupation of the land he had become an owner
thereof by reason of adverse possession. In enacting
the Transfer of Immoveable Property (Restriction)
(Amend;rnent) Act, the legislature could not have
intended to q,eprive foreigners of immoveable property
which had been acquired other than by transfer.
Therefore, I am of the opinion that the contention
put forward on this ground cannot also be sustained.
" For all these reasons this appeal also fails and
i~ dismissed with costs.
224 BURMA LAW REPORTS. [1957
"

ORIGINAL CIVIL.
Before U Shu Mau~tg, J.

H.C. U THA HLA (PETITIONER)

1957
Aug. 31.
v.
THE MUNICIPAL CORPORATION OF
RANGOON (RESPONDENTS).~
APPlicatioa to sue in forma p~uperis--Rc jcc{IO/t under o;dcr 33, Rule 4 14),
Code of Civil Proced t~r e-Appcal m;dcr Rule 7, Oriillal Side Rules
(Civil)-S. '20:/ (J) City of Ra11goon MuniciPal Act.
Held; If the Range on Corporat:on or its Office; s are !ned for ac:s C:one
in their cfficial capacity it must be deetr.ed that they \\Cre dping them in
pursuance c r execution or intended execution under the p: ovisions of the
Rangoon Municipal Act. Cons~quenlly under s. 204 (1) (b) of the Rangoon
Municipal Act a suit against the Corporation or il s officers should be
commenced within six months after the accrual of the cause Of action. A
suit filed after that date is therefore barred by limih ion.
Civil First Appeal No. 61 of 1955, referred to.
Heldfurtfler: There is nothing in l~ule 4 or i:1 ~ny oth~r rnle in Oder
33 whir,h expressly prohibits the tonsideralion ;u:d cldermin: lion by \!le
Court cf those circumstances under clauSe3 (a) or (b) or (c) af~er i ~sue of
notice and hearing of the case under Order 33~ Rde 4 .
Dr. A. Karim andauotlzer v. Pandit Laiq Ran :and oli:ers, (1939) R.L.R.
p. 263. fallowed.
H. Pascal v. The Secretary of Stale iJ~ lu.jja iJJ CvullcJ!, U l~an, r-. 12-i,
referred to.

Dr. U E lYlaung for the petitioner.

C. C. Khoo for the respondents.

U SHU MAUNG, J .--This is an appeal under Rule

7, Original Side Rules (Civil) from the order of the
learned Deputy Registrar dated the 31st January 1957.
in which he rejected the application of the petitioner
who had filed an application to sue in forma
pauperis and after an enquiry as to the question of
pauperism the application was rejected under Order
Civill\ii oc. No. 35 cf 1956.
,1957] BURMA LAW REPORTS. 225

33, 'Rule 4 (4) of the Code o( Civil Procedure on the H.C.

lt/57
ground that there was no subsisting cause of action u THA HtA
against the respondents. ~~.

THE
The application was one to obtain the leave of i'IIUl'.'JCll'AL
the Court to sue as a pauper and the subject-matter CORPORA OF T!O~

of the suit was one for compensation or damages for RANGOON.

wrongful and malicious dismantling of the restaurant :u Srru
building known as " Mahabandoola Restaurant " and MAUNG, f.
for wrongful seizu-re of the property and the amount
claimed was for a sum of K 50,000. In this applica-
tion the proposed plaint is also attached and the cause
of action according to paragraph 26 o~ the attached
plaint will show that the plaintiff had served the notice
of intention, to sue the defendant Corporation vide
copy of notice dated 18th April 1955 and the
defendants' reply dated lOth May 1955. The gist of
that notice is to the effect that he was addressing the
Commissioner of the Rangoon Corporation applying
for compensation in Tespect of his restaurant which
he claimed was wrongfully dismantled and the
amount mentioned is K 50,000 and the reply dated
1Oth May 1955 on behalf of the Rangoon Corpora-
tion is to the effect that the Corporation was unable
to accede to his request and this is in fact a denial
of the claim. Therefore the case of action according
to this claim filed by the petitioner arose on the 18th
of April 1955 and under section 204 (f) of the City
of Rangoon Municipal Act there is this provision
which is as follows :
" No suit shall be instituted against the Corporation or
against the Commissioner or any other municipal officer or
servant in respect of any act done in pursuance or execution
or intended execution of this Act, or in respect of any alleged
neglect or default in the execution of this Act-
(a) until the expiration of one month next after
notice in writing has ,.been, in the case of the
Corporation, lett at the chief municipal office

15
226 BURMA LAW REPORTS .. [195.7
H.C. and, in the case of the Commissioner orof a
1957 municipal officer or servant, delivered to him
U THA HLA or left at his office or place of abode. stating
v. with reasonable particularity the cause of
THE
MuNiciPAL action and the name and place of abode of the
CORPORA
TlON OF
intending plaintiff and of his advocate, pleader
RANGOON. or agent, if any, for the purpose of such
U SHU
suit; nor
MAUNG, J. (b) unless it is commenced within six months next
after the accrual of the cause of action."
In view of this provision of law 2 the learned
Deputy Registrar held that when the petition was
filed on the .15th March 1956 by the petitioner, it
was more than six months from the date of
accrual of the cause of action and that therefore it
was barred and he rejected the application.
Two points have been raised by the learned
Advocate for the petitioner in challenging the
correctness of this order. One w.as to the effect
that this petition to sue the Rangoon Corporation
represented by the Municipal Commissioner and the
Building Engineer was against the action of these
people for wrongfully ousting the petitioner out of
possession in respect of his restaurant and that they
had wrongly exercised their powers and that there-
fore this suit against them could not be said to be a
suit against the Rangoon Municipal Corporation
and its officers for acts done in pursuance of
execution or intended execution of the Act as
defined in section 204 of the Rangoon Municipal
Act.
The next point urged was that the learned
Deputy Registrar in dismissing this application
under Order 33, R'lle 4 (4) erred in law in view
of the fact that he had already issued notice to the
respondent when he passed this order and according
to the learned Advocate, if the learned Deruty
1957] ,BURMA LAW REPORTS. 227
'
Registrar, deemed that there was no cause of action I-i.C.
1957
the proper step which he should have taken was
U T!-IA HL'\
one under Order 33, Rule 3 (b) and (c) of the Code "-
of Civil Procedure and that therefore this action on THE
MUNICIPAL
his part in dismissing this application under Order CORPOUA-
TION OF
33, Rule 4 was bad in law. As against, that the RANGOON.

learned Advocate appearing for the respondents has u SHU

jnvited my attention to a decision in Civil First MAUNG, J.
Appeal No. 61 ofI955 (a certified copy is herewith
filed) by a Bench of this Court. There in the course
of the judgment their Lordships had discussed this
question whether the actions of the Rangoon
Corporation or its officers or employees acting under
section 204 of the Rangoon Municipal Act were
acts. done in pursuance or execution or intended
execution of the Act and their Lordships had also
quoted decisions from the Indian High Courts in
respect of this point and they came to the conclusion
that if the Rangoon Corporation or its officers are
sued for acts done In their official capacity, it must
be deemed that they were doing it in pursuance or
ex~cutiofl or intended execution of the Act. In
view of this decision it was submitted that there
cannot be any doubt on the allegations in the
proposed plaint filed by the petitioner that his plaint
against the two respondents was in respect of action
done by them in the official capacity and that there-
fore the provisions of section 204 of the Rangoon
Municipal Act would come into play. I think there
is a great deal of force in this contention and I am
of the view that the action of the respondents must
be deemed to be done in their official capacity under
the provisions of the Rangoon Municipal Act.
Then in respect of the other contention of the
learned Advocate for the petitioner that the action
of :-.the learned Deputy Registrar was not in
228 BURMA LAW REPORTS.
H.C. accordance with law as he had rejected th\- applica-
1957
tion under Order 33, Rule 4, the learned Advocate
u TH:. HLA for the respondents has invited my attention to the
THE
MusTCIPAL
case of Dr. A. Karim and another v. Pm1dit Laiq
CoRPoR.-~.- Ran and others (1). The very same poipt which is
TION OF
HANGoo=-<. now being raise d b y the learne d Advocate for tu t..,
.e
u SHu petitioner was discussed in that decision and their
i\IAuNG, J. Lordships held that such an action in an application
to sue in forma pauperis could be dealt with under
Order 33, Rule 4 of the Code of Civil Procedure as
amended by the High Court and if the Court comes
to the conclusion that if the petition does not
disclose a cause of action or whether the' suit is
barred by limitation under Rule 3 (b) and (c), then
without considering any other extraneous evidence,
the Court comes to the conclusion that no cause of
action is disclosed, the petition could be dismissed.
The observations of their Lordships at page 264 are
apposite for the purpose in hand and it would be"'
relevant for me just to quote that portion which is
as follows:
" But there is nothing to warrant the reading of tl:ese
rules in such a way as to show that the Court not having
rejected the petition on any of the grounds mentioned in rule
3, before the issue of notices and the holding of enquiry under
rule 4. has no further jurisdiction to consider and determine
whether it is liable to be rejected under clause (a) or (b) or
(c) of that rule. There is nothing in rule 4 or in any other
rule in Order 33 which expressly prohibits the consideration
and determination by the Court of these circumstances 1after
issue of notice and hearing of the case under rule 4."
The next point urged by the learned Advocate
for the respondents is in respect of the question of
what is a good and subsisting cause of action and he
has invited my attention to the case of H. Pascal v.
The Secretary of State for India in Council (2).
(1) (1939) RL.R. p.263. (2) 12 Han. P. 1:24. .,
 BURl\tlA LAW REPORTS. 229

That was. also a petition for' leave to sue in forma H.C.

1957
pauperis and when the cause of action was found to
U THA HLA
be barred by limitation the application was dismissed v.
THE
on the ground that there was no good and subsisting 1\!UNICIPAL
cause of action and the order of the Deputy CORPO!?A
TION OF
Registrar dismissing the application was confirmed RANGOON

by the learned Judge when the matter came up on u s~iu

1\JAt;KG,
.appeal to him.
In view of these circumstances there cannot be
.any doubt that in the present case as I have stated
in the earlier part of my order, the cause of action
.according to the proposed plaint . filed by the
petitioner was 18th April, 1955 and the petition came
to be filed only on the 15th of March 1956 and under
section 204 (1) (b) of the City of Rangoon Municipal
Act there is this clause that the suit should be
cdmmenced within six munths next after the accrual
of the cause 0f action and as this application was
filed very much after this period of six months, I am
of the opinion thaf'the learned Deputy Registrar was
correct in dismis$ing this application. For the
above reasons, the order of the learned Deputy
Registrar is hereby confirmed and this appeal
against that order must stand dismissed.
230 BURMA LAW REPORTS .. [1957

APPELLATE CIVIL.
Before U Sar~ Marmg, J.

H.C.
1957
u u NYUNT (APPELLANT)
v.
hme 21.
DAW KYIN SIN (RESPONDENT).*

Urbar~ Rent Control Act, s. 11, sub-s. (1) Clause (d)-Certificate tmder s. 14-A
-U'hether a Civil Court has JUrisdiction to decide tlze questior1 of bona fide
requiremmt, whiclt had already teen decided by tlte Rent Controller-
Order 23, Rule 1, sub--rule (:?) Cif'il Proudure Code, jlt:rmUstOil lo
witltd1aw suit wilf1 liberty to in~trfufe a fresh onc-Fresft mit filed-
Res judicata-Order 41, Rule 23, Civill'roccdttre Code. n

The Respondent filed a suit for ejectment against the appellant under s.
11, sub-s. (1), Clause (d) of the Urban Rent Contr(Jl Act, 1CJ4S, after obtair.in~
t he requisite Certificate under s. 14-A that the land was required boua fide
for erection of a building.
The defence, inter alia, was that the land was not required bona fide by
the Respondent.
The Respondent replied that the Controller Of :Rents had already decided <
the question of lona fides, and that the Court has no jurisdiction to go inlo
the same matter. Titis contention was accepted by the Court on a' preliminary
issue.
The Respondent however withdrew the suit under Order. 23, Ru le 1,
subrule (1) of the Ci vil Procedure Code with liberty to file a fresh ot.e,
because a notice to quit under the Transfer of Property Act had not been
given.
Subsequently, after ghing a fresh and valid notice, she f1led a:second suit.
The appellant agailt rais~d the same plea that the land was not required
boua fide. The Respondent contended that the matter was 1es judicat<l in
view of the decision on the preliminary issue in the fi rst suit.
The Trial Judge held that (i) the matter was 1es judicata and that (ii) he
had no jurisdiction to go into the question of bona fides and decreed the
Respondent's suit.
The District Court, on appeal. held that the Trial Comt was wrong in
holcliug that Civil Court had no jurisdiction to decide the question of bona
fides, but held that the matter was "s judicata in view of the decision in the
first suit.
The High Court, on Second Appeal, held that:
(i) Civil Courts have jurisdiction to go into the q uestion whether or not
the land was ba11a fide required for erection of a building thereon, though the

* Cil'il 2nd Appeal No. 57 of 195:', against the decree of the District
Court of Tavoy in Civil Appeal No.1 of 1955. ,.
1957] ~URMA LAW REPORTS. 231
'
Iandl~rd had been granted a certificate to file a s::it under s. 11 (1) (d) of the H.C.
Urhan Rent C~ntrol Act, 1948. 19.57
S. iV. Altmcd and one v. B.Jkridi, (1951) B.L.R. 156 (H.C.}, relied on.
UU l':YUNT
(ii) The question was not res jud1ca!a by reason of the decision in the v.
first suit, which could not have been upon the ~tame cause of action as in the DAW KYIN
second suit, inasmuch as in the first suit the cause of a~tion did not el(ist at all, SIN.
a notice to quit under the Transfer of Property Act not having been given by
the landlord to the tenant.
Ramasami Redrii v. Thalawasal Marud<li Rcddi, I.L.R. 47 Mad. 453;
Ramireddiv. Subbarcddi, I.L.R. Mad. 500; Sltazadee Beg am (a} Khi11 Kl;ill
Nyuul a11d onev. P. C. Dutt, (1954) B.L.R. 34 (S.C.), referred to.

Ba Than for the appellant.

C. C. Khoo for the respondent.

U SAN MAUNG, J.-In Civil Regular Suit No. 23

of 1954 of the Township Court of Tavoy the plaintiff
Daw Kyin Sin who is the respondent in the present
appeal sued the defendant-appellant U U Nyunt for
his ejectment fr-om the piece of land in suit. The
suit was one under clause (d) of sub-section (]) of
section 1I' of the Urban Rent Control Act, on the
ground that the land was required bona fide by the
lan.dlord for the erection of a building thereon, the
necessary certificate therefor under section 14-A of
the Urban Rent Control Act having been obtained
from the Controller. The defendant by his written
statement pleaded, inter alia, that the suit land was
not required bona fide by the plaintiff for the purpose
of erecting a building thereon. To this contention
the plaintiff replied that the Controller of Rents,
having already decided that the land was bona fide
required for the aforesaid purpose civil courts had
no jurisdiction to go into the same matter. This
contention was accepted by the learned trial Judge in
his answer to a preliminary issue regarding the
jurisdiction of a civil court to qecide a matter which
had. already been decided by the Rent Controller.
232 BURMA LAW REl>ORTS [1957~

H.C.
1957
However, it was subsequently discovere(l. by. the
plaintiff that her suit was bad because a notice under
U U NYU~T
v. the provisions of the Transfer of Property Act
DAW KYIN
SIN.
terminating the lease of the land had not been served
upon the defendant. She therefore filed an applica-
U SAN
l\1AU!'G, J. tion purporting to be under Order 23, Rule 1,
sub-rule 2 of the Civil Procedure Code, for permission
to withdraw the suit with liberty to institute a fresh
one on the same cause of action and this application
was granted by the learned Township Judge witli
costs in favour of the defendant. Subseq-uently, the
plaintiff Daw Kyin Sin filed a fresh suit, being Civil
Regular Suit No. 41 of 1954 under the provisions of
clause (d) of sub-section (1) of section II of the
Urban Rent Control Act, the notice terminating the
lease of the land having been duly given. The defen-
dant by his written statement again raised the plea
that the land was not required by hi~ landlord bona
fide for the purpose of erecting a building thereon:
To this plea the plaintiff replied that the matter was
res judicata in view of the answer given by the
learned Township Judge to the preliminary iss.ue
raised in Civil Regular Suit No. 23 of 1954. The
learned Township Judge accepted this plea of
res judicata and again holding that he had no
jurisdiction to go into the question whether or not
the land was required bona fide as stated by the
plaintiff, decreed the respondent's suit with costs.
On appeal by the defendant appellant to the
District Court of Tavoy, the learned District Judge
by his judgment in Civil Appeal No. 1 of 1955 held
relying upon a decision of this Court in S. 1\1.. A !zrned
and one v. Bakridi (1) that the learned Township
Judge was wrong in holding that the civii Court had
no jurisdiction to go i'ltO the question relating to the
(I) (l')51) B.L.I~. 156 (H.C.)
'1957] . BURMA LAW REPORTS 233
'
bona fide-.nature of a landlord's requirements once a R.C
1957
permit to sue had been issued to him under section
U U XYL:NT
14-A of the Urban Rent Control Act by the Controller. v.
rhe learned District Judge, however, concurred with DAW KY!N
SIN.
the Township Judge that the matter was res judicata
U SAN
in view of the decision of the Township Judge in the MAUNG, J,
former suit, namely, Civil Regular Suit No. 23 of
1954. He accordingly dismissed the appeal with
costs. Hence this second appeal by the defendant
U U Nyunt.
At the very outset I must say that the learned
Township Judge was in error when he held that
merely" because a landlord had been granted a
certificate under section 14-A of the Urban Rent
Control Act to file a suit under section 11 (1) (d),
civil Courts have no jurisdiction to go into the
question whether. or not the land was bona fide
required for the erection of a building thereon.
As n;gards the guestion whether the defendant-
appellant's defence was barred as res judicata in view
of the answer given by the learned Township Judge
toa preliminary issue in a former suit which had
subsequently been allowed to be withdrawn under
Order 23, Rule 1, sub-rule 2 of the Civil Procedure
Code, there is ample authority to the contrary.
In Ramasami Reddi v. Thalawasal lVJarudai
Reddi (1) in answer to a suit for ejectment the
defendants pleaded that they were entitled to occu-
pancy rights in the land and that in any event the
suit for ejectment was not maintainable as they
were tenants from year to year, and no notice to quit
had been given to them as required by law. The
District 1Vlwzsi[ held that the defendants had no
occupancy rights but that the suit was not maintain-
able as the defendants were tenants from year to year
(1) I.L.R. 47 i\Jacl. 453.
234 BURMA LAvV REPORTS. [ 1957
H.~. and no notice to quit had been given to tr.em. He
1957
accordingly dismissed the suit. On appeal the lower
U U NYUl\T
v. appellate Court affirmed the decree of the trial Court
DAW KYIN
SIN.
on the ground of want of notice to quit. On second
u SA'N
appeal the High Court affirmed the decree on the
l\!AUNG, J. same ground. The plaintiff having subsequently
given a proper notice to quit, instituted a. fresh suit
for ejectment wherein the defendants again set up
occupancy rights. On the plaintiff pleading that the
question of occupancy rights was res judicata it was
held by a Bench of the Madras High Court that this
question was not res judicata by reason of the
decision in the previous suit. .
In the case quoted above the previous suit was
dismissed on the ground that it was not majritainable
in law for want of a notice to quit. In the suit under
appeal the pr"evious suit was withdrawn because the
plaintiff knew that it was bound to be dismissed for
want of a notice to quit. However, the same
principle would apply as in both cases the matter in
issue was not finally decided within the meaning of
that phrase in section 11 of the Civil Procedure
Code.
Ramireddi v. Subbareddi (1) is another case in
point. There, a suit by the assignee of a mortgage
bond against a mortgagor was dismissed. on the
ground that the plaintiff was not entitled to sue for
want of notice to the defendant under section 132 of
the Transfer of Property Act. The plaintiff then
gave express notice of the assignment to the mort-
gagor and sued on the bond again. It was held by
a Bench of the Madras High Court that the claim
was not res judicata and the second suit was accor-
dingly not precluded by section 13 of the Code of
Civil Procedure, 1882, .(correspondin g to section 11
- - - - -- -- - -
(1) I.L.R. 12 Mad . 500.
- - - - - -- -
!.957] BURMA
. LAW REPORTS.
. .
of Jthe P,resent Code). In this connection the H.(:.
1957
following observation of the Bench is apposite:-
U UNYONT
" In our judgment the decree of the Courts below is 'll,
DAW KYIN
right. To conclude a plaintiff on the ground of res judicata SIN.
it is necessary to show not only that there was a former suit
U S<~.N
between the same parties, for the same matter, and upon the ;\fAUNG, J-
same cause of action, but also that the matter directly and
substantially in issue has been heard and finally decided by the
Court which tried the former suit. In original suit No. ll02
of 1885, the Court of First Instance decided, no doubt errone
ously, that the plaintiff had no cause of action. The merits
of the case were not gone into, the suit being dismissed because
the plaintiff's assignor had not given the notice which, in the
opinion qf the Court, he was bound to give before his assignee
could seek to wake the defendant liable. The matter directly
and substantially in issue, viz., the liability of the defendant.
was not heard and decided in the former suit. "
In this connection, a decision of our own
Supreme Court in Shazadee Begam (a) Khin I<.hin
Nvunt and one v. P. C. Dutt (l) will be of interest
J

although pot directly in point. There, a suit for

ejectment under section 11 (1) (f) of the Urban Rent
Control Act was instituted with a permit issued by
the' Rent Controller was subsequently withdrawn
because of an invalid notice to quit. A subsequent
suit was filed based upon a fresh and valid notice and
one of the points raised was that the new suit was
barred because.of Order 23, Rule 1 (3) of the Civil
Procedure Code. It was held that Rule 1, sub-rule
(3) was no bar to a fresh ejectment suit where an
initial suit had failed because the subject-matter in
the two suits were not the same. The Supreme Court
observed as follows :
" Basil Scott, C.J . in discussing the provisions of Order
23, Rule 1(3) defined the term 'subjecLmatter' as the series
of acts or transactions alleged to exist giving rise to the relief
claimed. It is apparent that in thfi first suit. Civil Regular
(1) (l9~4) B.L R. 34 (S.C.).
236 BURMA LAW REPORTS. .[195?
H.C. No. 694 (of 1951) the series of acts or transactionse was incom-
1957
plete . in that there was no valid notice and therefore there
:U U KYUNT could have been no relief. But in the second suit, Civil Regu-
v.
DAW KYIN
lar No. 1086, a complete series of acts or transactions culmina_
SIN. ting with a valid notice to quit gave rise to a claim for relief,
USAN and thus the subject-matter in the latter suit was an entirely
"MAUNG, J. new one."
In the light of these remarks it is clear that Civil
Regular Suit No. 41 of 1954 could not have been
upon the same cause of action as Civil Regular Suit
No. 23 of 1954 inasmuch as in the foniler suit the
cause of action did not exist at all, a notice to quit
under the Tra'nsfer of Property Act not having been
given by the landlord to the tenant.
For these reasons I would allow t~he appeal and
set aside the decree for ejectment passed against the
defendant-appellant U U N yunt in Civil Regular Suit
No. 41 of 1954 and under Order 41, Rule 23 of the
Civil Procedure Code, remand the suit to the TOWf4'
ship Court to be retried according to law i:r1 the light
of the remarks made above. The Township Court
will re-admit the suit under its original number in
the Register of Civil Suits and proceed to determine
it. Costs so far incurred will abide the final result
of the suit on its merits, Advocate's fees m this
Court being assessed at three gold mohurs.
1957] BURMA LAW REPORTS.

APPELLATE CRIMINAL.
lJejore U St~tl Mmmg, f.

U ZA TI'LA (APPLICANT) H.C.

1957
v. Apl. 10.
UNION OFHURMA (RESPONDENT).*

Criminal Procedure Code, s.Ii/'5--Jf>ruccedings cmmot be re1zcwed after termilra-

tion-A new.,Jroueding 'Yifl'lifillff.fftc~~eru:d, if tfterc is a fresh dispute-s.
556 Criminal Procedure ,Code applicable to s. U-5 C riminal Procedu1e
Code ,.
'Held: A settlom' !nt between the parties in a vroceeding under s. 145
Criminal P.-ocedurc Code ~s .,,an end to the proceedings. It cannot be
renewed. If there is a fresh .dilkPJJ.te likely t;) cause a breach of the peace, a
new proceeding ~ undcr - s. ~5~1<iminal Procedure Corle must be opened.
Ta'rir1i xc haratt ~cltcnifdlfry v. Amulya Rat au Roy, I.L. R 20 Cal. 867.
Glmlam Mtlflarrrmad a ltd others v. The Crown, tltro11g h Musammat Alta/;
Wasai, (1933) I.e. 512,"referred to.
Heldf"llrtfler: The principle uaderlying s. 556 Criminal Procedure Code-
is applicable to a proceeding under s. 145 Criminal Procedure Code.

Hla Sein, "'A dvocate, for the applicant.

Ba Gyaw (Government Advocate) for the respondent..

U SAN MAUNG, J.-This is a recommendation

by the Sessions Judge of Henzada that the orders,_
dated the 15th of June 1956, 18th of June 1956 and
20th . of June 1956, recorded by the Subdivisional
Magistrate, Myanaung, in his Criminal Miscellaneous
Case No. 36 of 1955 be set aside on the ground that
the learned Subdivisional Magistrate had no jurisdic-
tion to pass them. The facts of the case which have
- - -..------
Crimin;:l Revision No. 31 !B) of 1937.
Review of the orders of tb.c Sabdivisiona! Magistrate of Myanaung ..
dtted the 15th, 18th and! 20th .d-ay> of June'I956, passed in his Criminal.
Mi$C-1 No. 36 of 1955 as recommended by the Sessions Judge, Henzada ..
238 BURMA LAW REPORTS.
H.C. been fully set out by the learned Sessions Judge in
1957
his order dated the 28th January 1957 are briefly
\.) ZA TILA
11.
these:
1
l'11E UNJON
OF BURMA.
At Myanaung there is a pagoda named Shv,t.e-
bontha which was managed by a Board of Trustees,
u SAN
MAUl>lG, J. including U Myint the a;:>plicant in Criminal
Miscellaneous Case No. 36 of 1955. On the 21st
October 1955 U Myint filed an application before the
Subdivisional Magistrate, Myanau:;Jg, that a dispute
likely to cause a breach of the peace existed because
U Za Til a, the respondent in the case, was about to
dispose of an electric lighting plant, which had been
purchased with the money received by public sa.bscrip-
tion for the purpose of lighting the aforesaid pagoda.
When examined on oath, U Myint stated that the
respondent U Za Tila, who was responsibie for
collecting the money, had after the purchase of the
electric lighting plant kept it within ~he precinct of
his kyaung and was managing it as if it was his owtY
personal property. On notice being issued to
U Za Tila, the latter by a written statement contended
that the electric lighting plant was in fact being used
for the purpose of lighting the pagoda and that he
had no. intention whatsoever of misappropriating the
Bame to his own use. U Za Til a, however, admitted
that because of a dispute between him and the
members of the Board of Trusteees some stones
were thrown at his monastery, thus compelling
him to seek asylum elsewhere. Subsequently, on the
lOth of January 1956 both the parties to the di.spute,
namely, U Myint and U Za Tila filed a" joint written
.statement to the effect that the dispute had been
compromised on the basis that the electric plant
should be handed over to the custody of U Tezawunta,
Sayadaw of Zeyaaungmye monastery. Accordingly,
the attachment order which had been issued on the
,1957] BURM~A LAW REPORTS.

22itd of October 1955 was withdrawn and the case was i

1
kept penning merely for the purpose of receiving a
report to the elfect that this subsequent order, u ZA . . '
v.
withdrawing the attachment had been carried TilE UN!
OF f:Hil{~IA
out. Subsequently, on the 16th of March 1956
V SAN
both U Tezawunta and U Za Tila appeared MAUNC, J.
before the Subdivisional Magistrate and from them
the Magistrate learnt that there were sti11 difference of
opinion regarding the management of the electric
lighting plant. The. Magistrate, therefore, made an
.attempt to mediate between them and upon failure of
his mediation, the Subdivisional Magis~rate took upon
himself; the task of formulating a scheme, after
consulting wch of the persons whom he considered
to be intere~ted in the management of the electric
lighting plant. By his order, dated 15th of June
1956, he proposed that U Kaweinda, President of the
Yahanpyo Assq,ciation, should be the chairman of a
board of mana~ment, consisting of the Subdivisional
01ficer, the Subdivisional Judge and the Subdivisional
.Police Officer. This scheme was communicated to
U Za Tila who appeared on the 18th of June 1956 to
express his dissent. On the 19th of June 1956
U Za Tila assented to the scheme by which the
.Subdivisioual Officer would be the sole manager of
the electric lighting plant and on the next day a
Jetter was received from the Board of Trustees of
.Shwebontha Pagoda ' also agreeing to this .
.Subsequently, however, U Za Tila filed an application
before the Sessions Judge of Henzada questioning the
validity of the orders, dated the 15th of June 1956,
18th of June 1956 and 20th of June 1956 on the
_ground that the Subdivisional Magistrate ' had no
jurisdiction to pass these orders assuming that in
doing so he was acting in his capacity as a Magistrate.
The learned Sessions Judge agreed with the contention
!I
240 BURMA LAW REPORTS. [195Z
H.C. of U Za Tila and has accordingly subn11tted to this
1957
Court a recommendation as mentioned above.
u ZA TlLA
v. Now, it is clear that on a compromise being
THU UNION
OF BUR~IJ\..
effected between the parties as recorded in the Diary
Order, dated lOth January 1956, and an order being
lT S.-\N
MAUNG, ]. passed for the withdrawal of the attachment under
section 145 of the Criminal Procedure Code the
proceedings in Criminal Miscellaneous Case No. 36
of 1955 came to an end. "
In Tarini Charan Chowdhry v. Amulya Ratan
Roy (1) it was held by a Bench of the Calcutta High
Court that prpceedings under section 145 of the Code
of Criminal Procedure cannot be renewed af.ter the
dispute has been settled and an order hao been made
that the case be struck off. The same view was held
by Sir Shadi Lal, C.J. in Ghulam lvluhammad and
others v. The Crown, through Musammat Allah
Wasai (2).
The proceedings subsequent to t.Q.e lOth January
1956 in Criminal Miscellaneous Case No. 36 of 1955
were irregular assuming that the Subdivisional
Magistrate was acting qua Magistrate. What _the
Subdivisional Magistrate should have done, if a fresh
dispute likely to cause a breach of the peace had
arisen, was to have opened a new proceeding under
section 145 of the Criminal Procedure Code.
Instead, he had in the same proceedings acted as a self-
appointed arbitrator to the ''dispute and subsequently
identified himself with it, firstly, by proposing a
scheme in which he as a Subdivisional Officer should
be one of the members of a management committee
and, secondly, by appointing himself as Subdivisional
Officer the sole manager of the electric lighting plant.
Accordingly, he had deprived himself from adjudica-
ting the matter in his capacity as a Magistrate.
(I} I.L. R . 20 Cal. 867. (2) (1933) I.C. 512. .J
!957] -.BURMA LAW
.. REPORTS. 241
")

Secti011, 556 of the Criminal Procedure Code enacts H.C.

1957
that no Judge or Magistrate shall, except with the
U ZA Trr.A
permission of the Court to which an appeal lies from v.
THE U NION
his Court, try to permit for trial any case to or in which OF l>URMA .
he is a party,or personally interested. The principle
u SAN
underlying this section is applicable to a proceeding liiAU NG, J,
under section 145 of the Criminal Procedure Code as
the law in laying down the rule had regard not so
much to the moti-ves which might supposed to bias
the Judge as to the susceptibilities of litigating parties;
the important object being to promote the feeling of
confidence on the administration of justice.
For 'these reasons, I would, on the assumption
that the ordirs dated the 15th June 1956, 18th June
1956 and 20th June 1956, were made by the Subdivisi-
onal Magistrate in his capacity as a Magistrate,
direct that these orders be set aside.

16
242 BURMA LAW REPORTS. [195.7

APPELLATE CIVIL.
Before U Cl!au Tun Amrg, C!Iiej lt~stice and USatL Maung, J.

H.C. DAW HLA SHIN AND SEVEN OTHERS (APPELLANTS)

1957
Scj>t. 25. v.
DAW AYE KHIN (RESPONDENT).*

Burmese Buddhist La:c:-Clamz by children of a st ep-fallrer by a subseBueut

marri<Tge to the estate of t{Jc decms:d step-child of a former marrtage-
Atic1ldance in illness and Performazct of funeral obscqui~s-" llltcr-
lllfddliug" witlzin the Purview .f s. 2 (11) of tile Chil Procedure Code.
U Me+ Daw Toke-
Manng BaHan iKeitiillra S)n)-Daw Aye Khin natural &ister of Ba
{d. 1'.152} Han (i{~Spnndent).
Daw T(ke + Tun Yin-
No issue.
Tun Yin + Daw Hla Shin-
Seven children (Appellants).
1. U .Me and Daw Tob adopted B:t f-la:~ :.s th~ir Keitti 11<1 son. His
natural sister was Daw A\e Khin.
2. tJ .\fedir::din(d. 1911) DawTokeremarried Tun Yin in (1929}. Tllere
was no issue.
3. Daw Toke died in (d. 1933) Ttlll Y:n remarried Daw Eb Shi:. attd had
seven child ren .
On Ba Han's death who are his heirs and legal representatives, Daw
Kllin or D,1w Hla Shin and her seven children i Or, in other words, can
children Of as tep-fa.lher by a subs~quent marriage s:.cceed to the estate vf the
dece?.S<Od step-child of a farm er marriage ?
Held : A step-child of a r.tep-father's former marriage, once he Se\ers
his connection with tbc step-rather on the 1,\tter's re-marriage, is no more a
member of the step-fathe, 's new famil)i .i},nd as s.tch he is -a $lrarig'er so far as
that new f.un:ly is concerned in matters ~'f s.tc,ession and inbe~itance, and
therefore the wife and be children or U Tu:l Yin's subseq.tent marriage are
co~nplete str-angers for p\trposes ofsucc~ssion to 1\Iatmg BaHan's esta~e. Ma
Gun Bo11 Y. Mamr.~ Po f{yw: and auot!rcr, (lS97-!90!) U.B.I~.l B:Iddhist L:l\\"
Inheritance}, p. 66, distingnished.
lofa Thein v. Jlia My a and one, 7 Wm. p. 193 at p. 199, rderrcd to.
Held fttrther: That persons nabrally entitled to inherit cJn be exchtd~d
from inl'eritance by the person who s:tpports the deceased and performs the
funer:~J ceremonies.

" Ch!l:iiiisc. App~al No. 14 of 195t\ a;.:ainst the order of the Original Side
High Court of Rangoon, 10 AUNG THA '-Y,\\V 1 J} in Cil:il ExectJtion Case
No. 20 of 1952, dated the 19th ilfarch, 1956.
'1957] BURMA LAW REPORTS. 243
..
Ma /Jlya v~ Mam1g Kywct, B .L.R. Agabeg, \'ol. II, 1905, I' 22t: ; D-w Toke v. H.C.
Ma Tin Olm, 12 Ran. p. 703; U Gaung's "A Digest of the B.!Tmf::se Buddhist 1957
Law" (\'ol, I, Inheritance, p. 388), s. 816 at p. 387 ; Dhammathatkyaw,
DAW HLA
referred to. SHIN AND
, Held also: That the ve1y word "Intermeddling" conno~es interference by SEVEN
a person either acting by himself orthrou_gh some one with the properties of a OTHERS
deceased person which do not really concern him. v.
DAW AYE
To justify acceptance of a person as legal representative in the sense of an KHIN.
intermeddler with reference to certa.in property, it must clearleY he shown that
he has taken possession of such property as an intermeddler.
That unless one has in F,act taken possession of the deceased person's estate
one cannot be hel:l lo be an intermeddler and be accepted as his legal
repres~ntative within the purview of s. 2 (11] of the Ci\il ProceriJre Code.
Mussammat Darofdi v. Mussamn.Jat Sada Ka11r, 115 Punj. R :cord, (1913)
p. 436=22 I.C. 242 ; Wvomesh C/1a11dra Datta Clzowdlmry v. !abed Ali arul
others, A.I.R. (1944] Cal, 42:;:211 I.C. 381!, approved.
Appea1 di~rnissed.

J. R. Chowdhury, Advocate, for the appellants.

S. T. Leong, Advocate, for the respondent.

U CHAN T'i.JN AUNG, C.J._This appeal is fram

an order. in an exe~ution proceeding arising out of
Civil Regular Suit No. 20 of 1950 of the Original Side
of this Court whereby the respondent was allowed to
proceed with the execution as legal representative of
one Maung Ba Han (deceased), the decree-holder in
the said suit. The execution sought for was for
ejectment of U Tun Yin (since deceased) and his
wife Da w Hla Shin, the present first-appellant from
the premises known as No. 15, Lloyds Road, Rangoon
and for possession of the same by the decree-holder
Maung Ba Han. During the pendency of the said
execution proceedings, U Tun Yin died leaving
behind Daw Hla Shin and her children who are now
being impleaded as appellants. It appears that when
Civil Regular Suit No. 20 of 1950 was filed, Maung
Ba Han was insane and.he was then represented by
his next-friend U Tun U, husband of Daw Aye Khin,
the~ present respondent. However, on 6th December
244 BURMA LAW REPORTS. [1957
H.C. 1952 Maung Ba Han died, while the execution
1957
proceedings were in progress ; and Daw .Aye Khin
DAW HLA
SHIN AND who is the natural sister of Maung Ba Han, asserting
~~:~~s that, although Ivlaung Ba Han was an adopted child
v. of Daw Toke, thereby severing relationship with his
DAW AYE
KHrN. natural family, yet in view of her (Daw Aye Khin)
u CHAN TuN having maintained and looked after him during his
AuNG, c.J. long illness for about 12 years, a:1d also of having
performed the funeral obsequies . on his death,
bearing all expenses, Maung Ba Han'sestate should
devolve upo11 her, there being no other person
entitled to inherit his estate, claimed that she. should
be brought on the execution proceedings as Maung
Ba Han's legal representative. It is common ground
that Maung Ba Han was taken in Keittima adoption
by Daw Toke and U Me in May, 1911 ~that U Me
died in the same year ; that in s~ptember, 1929~
Daw Toke remarried U Tun Yin with whom she had-
no issues ; that Daw Toke died in 1933 and that
thereafter, U Tun Yin remarried the present first-
appellant with whom he had seven children, who
have been impleaded in this present appeal as
co-appellants. It is also common ground that by
virtue of a gift made in favour of Mam:ig Ba Han
during the lifetime of Daw Toke and U Tun Yin~
the premises and the site from which the appellants
are being sought to be evicted was Maung Ba Han's
exclusive property_a fact which became established
after some lengthy litigations between the parties.
The appellants objected to the right of respon-
dent's representation, and they claimed that they
should be made the legal representatives of deceased
Maung Ba Han, as Maung Ba Han's adoptive
step-mother and as his half-brothers.. An enquiry
was made in that regard by the Deputy RegistraJ; (1)
Original Side, full opportnnity heing accorded to the
 1957l BURMA LAW REPORTS.
)
245
1

pa.rties to adduce neces'sary evidence. But the H.C.

1957
appellant-s did not choose to give any evidence except
DAW HLA
making a bare assertion that they were entitled to SHIN AND
represent the deceased Maung Ba Han. We may SEVEN
OTHERS
nere observe that the present appellants are in v.
DAW AYE
occupation of, either by themselves or through their KHIN.

tenants, the premises in question from which they U CH.~N TUN

are being sought to be evicted. After quite a careful AUNG 1 C.J.
enquiry, in which the respondent Daw Aye Khin
cited some witne'sses, the learned Deputy Registrar
allowed Daw Aye Khin's application. The appellants
then moved the learned Judge on the Original Side
under Rule 7 of the Original Side Rules to set aside
the Deputy Registrar's order ; but the learned Judge
refused to "do so. Hence, this appeal.
A perusal of the order of the learned Deputy
Registrar and that of the learned Judge, confirming
the order of the Deputy Registrar shows that Daw
,. Aye Khin 's appJication has been allowed mainly on
the strepgth of Dfw Aye Khin having established
the fact that after the death of his adoptive parents,
{U Me and Daw Toke) Maung BaHan came and
liYed with Daw Aye Khin till his death in 1952.
Apparently, this circumstance was found to be quite
sufficient entitling Daw Aye Khin, though a stranger
in law so Jar as Maung BaHan's estate is concerned,
to act as Maung Ba Han's le_gal representative in the
execution proceedings. Another circumstance that
was also found to hav~ been established was that
when Maung Ba Han became insane in or about the
year 1945 and onwards, Daw Aye Khin's husband U
Tun U became the guardian of the person and
properly of Maung Ba Han and managed the same
until Maung BaHan's death. However, besides the
above stated facts and circumstances, the learned
Judge on the Original~ Side gave an added reason
246 BURMA LAW REP,ORTS. [1957

H.C. why Daw Aye Khin wase~titled to be brought on t'!J.e

1957
record as legal representative. He held tl1at Daw
DAW HLA
SHIN AND Aye Khin was an "intermeddler " of Maung Ba
SEVEN
OTHERS
Han's estate, and that as such, she was qualified to
v. be his legal representative within the meaning of
DAW ~Y5
KHIN. section 2, clause 11 of the Civil Procedure Code.
U CHA~ TUN It is now contended that acceptance of Daw Aye
1\UNG, C.J. Khin's right of representation on the ground that she
is an intermeddler is wrong in view of the fact that
Da w Aye Khin never came into p'ossession of any
of Maung Ba Han's properties,_especially the
subject-matter of the execution proceedings. There
is considerable' force in this contention. There . are
authorities which lay down that to justify fi.Cceptance
of a person as legal representative in the sense of an
intermeddler with reference to certain property, it
must clearly be shown that he has taken possession
of such property as an intermeddler. We are
inclined to find favour with these dedsions. In our ,
view, the very word "intermeddling" connotes inter-
ference by a person either acting by himself or
through someone with the properties of a deceased
person which do not really concern him. Thus, in
Mussammat Daropdi v. 1Vlussammat Sada Kaur (1)
and Woomesh Chandra Datta Chowdhury v. ]abed
Ali and others (2), it was held that one who
intermeddles with the estate of a deceased person
even though it may be with part thereof, he is a legal
representative within the meaning of section 2, clause
11 of the Civil Procedure Code and is liable as such
'
to the extent of the property taken possession of by
him. It seems therefore clear that unless one has in
fact taken possession of the deceased person's estate,
one cannot be held to be an intermeddler and be
(0 115 Punj. Record (1913), p. 436 = 22 'i.C. 242.
(2) A.l.R. (19H) Cal. 42=211'I.C. 388.
1957] B,URMA' LAW REPORTS. 247
4

accepted :;ts his legal representative within the H.C~

1957
purview of section 2 (11) of the Civil Procedure Code.
DAW HLA
Here, it is an admitted fact that Daw Aye Khin had SHIN: AND
at~ no time been in possession of the deceased's SEVEN
OTHERS
estate including the subject-matter of the present ";/.
DAW AYE
execution proceedings, and we find it difiicult to KHIII.
appreciate the added reason given by the learned U CHAN TUN
Ju9ge on the Original Side that Daw Aye Khin being AUXG, C.J.
an intermeddler of Maung Ba Han's estate, she is
qualified to be a legal representative of Maung Ba
Han (deceased).
The second ground urged relates .. to the rule
under the Burmese Buddhist Law which entitles a
stranger who supports and gives all necessary aids
during rhe illness of a person to succeed to his estate
on his death. It is contended that the aforesaid
principle applies only when there are no heirs to
succeed, but that in the present case the appellants 2
tO 7 being the children of Maung Ba Han's step-father
U Tun Yin by a subsequent marriage with the
first-appellant Daw Hla Shin, they are entitled to
succeed to Maung Ba Han's estate in preference to
Da w Aye Khin who must be treated as a stranger.
In other words, it is urged that the children of a
step-father by a subsequent marriage should succeed
to the estate of an atet step-chitd of step-father's
former marriage. As observed above, it is common
ground that deceased Maung Ba Han was adopted by
Daw Toke before her marriage with U Tun Yin.
But ' on Daw Toke's remarriage with U Tun Yin , it is
very doubtful whether Maung Ba Han to all intents
~nd purposes an adop ted aret child of Daw Toke also
became an adopted son of U Tun Yin. There is
::lear evidence to show that when Daw Toke died, and
when U Tun Yin -remarried D&w Hla Shin, Maung
Ba !jan seve1ed all connection with U Tun Yin and
248 BURMA LAW REPORTS. [195/
H,C.
1957
that thereafter remairied with Daw Aye K.hin Elntil
his death. The learned Counsel appearfng for the
DAW HLA
\SHIN ;~.No appellants could not cite any authority whatsoever
~;~~~~s in support of his submission_ that the children oL a
v.
DAW AYE
step-father by a subsequent marriage can succeed to
KHIN. the estate of the deceased step-child of a former
UCHANTuN marriage. !via Gun Bon v. Maung Po Kywe and
AUNG, C.J. another (1) was cited to show that the step-children
are treated as entitling to the share of inheritance
like descendants by blood, and that in the absence of
natural descendants, the step-children are classed as
heirs. How~ver, in looking through the facts of the
said case, we find that they are entirely diiierent from
those obtaining in the present case. There, the suit
is for recovery of certain property by the plaintiff
who claims to be an heir in her right as adopted
daughter of one Ma Mi Gyi, the property being in the
hands of Ma Mi Gyi's step grand-children (the
defendants). It appears that the defendants wer-e
the grand-children of Ma Mi: Gyi's 4th husband
Maung On Gaing begotten of his first wife Ma Thaw
Ka. Therefore, the defendants in the said suit were
the issues of atet children of Maung On Gaing with his
previous wife Ma Thaw Ka before his marriage with
Ma Mi Gyi. Thus, the facts presented in the said
case do not at all support the appellants' Counsel's
contention that on that authority the appellants are
entitled to succeed to Maung Ba Han's estate. We
have given sufficient time to enable the learned
Counsel to find any other authority in support of his
submission, but he was unable to do so.. We are not
at all surprised that there is no authority to support
his submission. In our view, a step-child of a
. step-father's former marriage, once he severs his
connection with the step-father on the latter's
(1) (ld97-190L) U.B.R. (Buddhist L aw, Inl'.eritance), p. 6(.
,1957] BURMA LAW REPORTS. 249

re111arriage, is no more a merhber of the step-father's H.C.

J957
new famlly, and as such he is a stranger so far as that
DAW HLA
new family is concerned in matters of succession and SHIN AND

inheritance. In Ma Theirrv. J11.a Mya and one 0), SEVEN

OTHERS
while considering the question whether Keittima DAW AYE
v.
children are entitled to partition on re-marriage of sur- KIHN.

viving parents, Sir Guy Rutledge, C.J. and Brown. J. UCHAN TUN
observed : AUNG, C.J.
"But, if a natural born child can claim his rights and the
keittima child cannot, it does not seem to us that the rights of
partition are equal. The ordinary children are given the right
of sev-ering themselves from the family of their natural parent
on his or her remarriage and claiming their r,hare in the family
property. They are not bound to make that claim, and, if they
do not do so, they can then claim a different share on the
death of the surviving parent."

Therefore, there being clear evidence that Maung

Ba Han had never, since his litigation with U Tun Yin
on the death of his adoptive mother Daw Toke, chosen
to live w.ith his step.-father U Tun Yin on U TunYin's
marriage with Daw Hla Shin, it must be held that
Maung Ba Han had severed his family tie with U Tun
Yin and that the present appellants, the wife and the
children of U Tun Yin's subsequent marriage are
complete strangers for purposes of succession to
Maung Ba Han's estate. Now, the next question is
whether, under the Burmese Buddhist Law in the
absence of any other person, Daw Aye Khin, who
admittedly looked after Maung Ba Han in every way
not only before he was insane, but also after he
became insane, until his death for a period of 12 years,
is entitled to succeed to Maung BaHan's estate. The
answer to this must be definitely in the affirmative.
We must hold that the Lower Court's finding in that
regard is fully justified both on facts and on
Cl) 7 Ran. p. 193 at p. 199.
250 BURMA LAW REPORTS. [1957 ~
H.C. authorities available on the question. In U Gaung's:
1957
"A Digest of the Burmese Buddhist Law" (Volume I,
DAw HLA
SHIN AND Inheritance, page 388), section 316, at page 387 1ays
~it~:~s down that anyone who supports and looks after
v.
DAWAYE
another both in health and sickness and also performs
KaJN. the burial rites on the latter's death is entitled to
u CHAN- ruN inherit the estate of the deceased. Dhammathat-
AuNG, C.J. kyaw in particular, provides that in the absence of
children, natural or adopted, those who live together
and support the deceased shall succeed to his estate
and also liquidate his debts, if any and that there
shall be no escheat in such a case. Similarly, in i11a
Mya v. lVlaung Kywet (1) it was held by having
reference to many previous cases that persons.
naturally entitled to inherit can be excluded from
inheritance by the person who supports the deceased
and performs the funeral ceremonies. Dmv Toke v.
i'vla Tin Ohn (2) is also an authority wherein the rule
among the Burman Buddhists that a relative who tends:
a deceased person during his lifetime and support'i him
is entitled to succeed to his property is recognized.
In view of the reasons set out above, both on facts:
and on legal principles involved, we see no good
reason to interfere with the order of the learned Judge
on the Original Side and this appeal is therefore
dismissed with costs. Advocate fee five gold mohurs.

U SAN MAUNG, J.-I agree.

(ll B.L R Agab~g, Voi. 11, 1905, p. 228. (2 12 !~an. p, i03 .

1957
. I' BURl\tiA LAW REPORTS.

APPELLATE CIVIL.
B<forc U Ea Tl:oimg, J.

H.C.
MA THAN SEIN AND THREE (APPLICANTS) 1957
V. i'lorr. 15.
DA w YI (RESPONDENT).*

Cou11sel"s authority to comj>r~misc sutfs ou bclralf of /tis c;lic11t-Lawyers'

tower of allor11cy.
Held Counsel has no vower to compromise a s:tit on behalf of his client,
wilhout the knowledge, consent or instruction of his client.
Though his l:twycr'$ power of attvrney empowered hi;n1o do so, he should
not execise {1nt pow~r without first obtaining the consent of his client and
without his knowledge !o a settlement.
ftfoltamcd Idri~ Haidel' v. llfo!Inmcd f/a(;ibur Ra'nnan, A.I.R. (35) (1948),
Pat. 9i, referred to .
Sheplterd \", Robinson, L.l~. {19 19) I.K.f-1 D. 474, ~.ppro\'Cd.
Dawsons Bauk , Ltd. v. C. Eitz Shazm f!,, 11')51) B.L.R. 303 ::t 311, distin-
gcisl1ed .
. Applicatidi allowed .

Dr. E Mau'ng and Wdn Hock for the applicants.

S. T .. L eon.g for the respondent.

U BA THOUNGr J.-In Civil Regular Suit No. 1

of 1952 of the Subdivisional Court of Zigon, the
plaintiff-respondent Daw Yi sued the first three
defendants-applicants Ma Than Sein, Maung Tu and
Ma Tun for enforcemel)t of a right to pre-emption in
respect of the suit house and site, Daw Yi and
Ma Than Sein's father U Kyu Wa, since deceased,
h.ad jointly bought the suit house and site for
K 2,300 about 15 years ago, each contributing equally
:owards the purchase money; and Daw Yi has been
n occupation of half of the building since her
Civil Rev:s1:J:1 N.J. 53 of 1955, a~ainst the orders of the District c, urt of
fharrawaddy in Ci l' il l\'lisc. Appeal No. 1 Of 1955, dated the 6th Apri11955.
252 BURMA LAW REPORTS. [1957
4

H.C. purchase. It is alle5ed that at the time of their

1957
purchase, Daw Yi and Ma Than Sein's fa~her U Kyu
IvfA THAN
SE!N AND Wa, had mutually agreed with each other to give a
THREE
v. preferential dght to the other in case if any one of
DAWYI. them desires to sell his or her share in the house and
u BA site ~ that after the death of U Kyu Wa and when
Tllor:l.::G, J.
Ma Than Sein inherited the former's share in the suit
house and site, Ma Than Sein sold that portion of
the property to the 2nd and 3rd defendants-applicants
Maung Tu and his wife Mac Tun for K 4,000
under registered deed of sale without the knowledge
and consent of Daw Yi and without giving her the
preferential tight of buying. Daw Yi therefore filed
this suit for enforcement of her right to pre:emption
in respect of the portion of the property, sold by
Ma Than Sein to Maung Tu and Ma Tun. Then
after the suit was filed and before written state-
ments were filed in the case, it appears that
Maung Tu and Ma Tun reconveyed lo IvJa Than Seip,
the property which they had bought from her. When
the written statements were filed, Ma Than Sein, in
her written statement, denied that there was any
mutual agreement between her father U Kyu \Va'and
Daw Yi to give one of them a preferential right to
purchase his or her share in the house and site if one
of them wishes to sell the same. She had also stated
that Maung Tu and Ma Tun had reconveyed the
property sold to them as it was found that
Maung Tu, being a foreigner and had not yet
registered as a citizen of the Union of Burma, could
not legally buy an immoveable property in Burma.
The 2nd and 3rd defendants-applicants Maung Tu
and Ma Tun also filed a joint written statement
stating that inasmuch as they had reconveyed the
property to the 1st defendant-applicant Ma Than
Sein, they bad no more interest in the suit and
 ...
t BURMA LAYV REPORTS. 253-

therefore ti\.ere was no cause of action against them.

The 4th defendant-applicant Maung Htike San, as a
MA THAN
hqsband of the 1st defendant-applicant Ma Than SEIN AND
THREE
Sein, was brought on record as one of the defenda_nts v.
and he had also filed a written statement on the DAW YI.

same line as his wife. Now, after the framing of the U 13A
THOUNG, J.
issues in the case and before the witnesses were
examined, the parti~s asked for several adjournments
on the ground that .they were negotiating for settle-
ment of the case out of Court. The suit was finally
adjourned from 15th August 1953 to 19th August
1953 at,Jhe request of the Counsel fof both parties
for a settlement. On the 19th August 1953, Counsel
for the parties appeared in Court along with
the 4th defendant-applicant Maung Htike San and
mentioned to the Court that the suit had been
settled out of Court. The Subdivisional Judge asked
the Counsels appearing in the case to file an applica-
tion in writing for thtt passing of a compromise decree
in terms of the settlement arrived at ; and on the same
day, viz., 19th August 1953. U Po Shin, Counsel for
plaintiff-respondent Daw Yi filed the application for
compromise signed by himself, and by U Tha Ngai,
Counsel for the 1st and 4th defendants-applicants
Ma Than Sein and Maung Htike San, apd by U Ba
Thin, Counsel for the 2nd and 3rd defendants-appli-
cants Maung Tu and Ma Tun. The learned
Subdivisional Judge then recorded the compromise
and a preliminary decree in terms set out in the
compromise application followed, directing the
defendants-applicants Ma Than Sein and her husband
Maung Htike San to sell their share in the suit house
and site to the plaintiff-resvondent Daw Yi for
K 5,200 and .directing tqe latter to deposit the said
amount in Court within one month and on doing so,
the:.. defendani.s-applicants Ma Than Sein and
254 BURMA LAW REPORTE'. [1957
1-I.C. Maung Htike San to execute a sale deed in favour of
1957
the plaintiff-respondent Daw Yi, and that if the
MA THAN
.SE!N AND
amount of K 5,200 was. not deposited in Court within
TH~EE
v.
the stipulated period of one month the suit would
D,nv Yt. stand dismissed with costs.
0 f'A Then on the 5th September 1953 the defendants-
'Tl:OUNG, J.
applicants Ma Than Sein, Maung Tu and Ma Tun
filed applications, supported by affidavits, to set aside
the compromise decree on the ground that they had
never agreed to the suit being compromised, and that
they had not given an authority to their Counsels to
compromise the suit without their knowledge and
consent. Their applications were opposed by the
plaintiff-respondent. The learned Subdivi'sional Judge,
.after hearing counsel on both sides, on the applica-
tions to set aside the compromise decree,_ dismissed the
applications. On appea) to the District Court of
Tharrawaddy the order of the Subdivisional Court was
.set aside and an enquiry was directed to be held into
the validity or otherwise of the compromise. After
holding an enquiry, the learned Subdivisional Judge
dismissed the defendants-applicants' applications to
set aside the compromise decree. The first three
applicants Ma Than Sein, Maung Tu and Ma Tun
then filed an appeal against that order to the District
Court of Tharrawaddy, and the learned District Judge
also confirmed the order of the lower Court and
dismissed the appeal. The applicants have therefore
filed this revision application against the order of the
Subdivisional Judge, dated the 7th December 1954,
refusing to set aside the compromise decree and
against the order of the District Judge, dated the 6th
April 1955, dismissing the appeal.
The learned Counsel for the plaintiff-respondent
contends that unde~ section 96 (3) of the Civil
Procedure Code on appeal lies against a coment
.1957] ,. BURMA LAW REPORTS. 255
.
.
.deCree ; and in support of his contention he has cited
J

the case of Mohamed ldris Haider v. it1ohamed

MA THAN
Habibur Rahman (1) where it has held that: SEIN AND
THREE
" Section 96 (3) clearly bars any appeal from a decree 'V.
DAW Yr.
passed on consent. There is a difference between an appeal
against an order recording a compromise and an appeal against U BA
the decree passed thereon. The right of appeal provided by THOUNG, J.
Order 43, Rule 1 (m) is not lost by reason of a decree having
been prepared."
That case can, however, be distinguished from
the present case in that in the present case the appeal
filed by Ma Than Sein, Maung Tu and Ma Tun in
the lower appellate Court was not an appeal against
the decree, 'but an appeal under Order 43, Rule 1 (m)
against the order dated the 7th December 1954 of
the Subdivisional Court rejecting the application of the
applicants. for setting aside the compromise ; and the
present application in Revision is to revise the order
<lated the 6th April 1955 of the District Court
dismissing that appe'al ; whereas in the other case it
was an appeal against the decree and not an appeal
against the order recording the compromise. I would
therefore held that the contention made by the learned
Counsel for the respondent has no application to the
present case. The question to be considered in this
case is whether the two lower Courts had acted
illegally in confirming the order recording the
compromise on the 19th August 1953 without
considering the validity or otherwise of the compro-
mise. Dr. E Maung, who appears for the applicants,
had nothing to say against the findings of fact by the
lower Courts that the consent given by U Tha N gai
on behalf of his clients Ma Than Sein and
Maung Htike San, to the passing of the compromise
decree, was not due to mis-representation of facts by
'
(1) A.I.R. (35) (194$) Pat. p. 97.
256 BURMA LAW REPORTS.

H.c. U Po Shin. But Dr. E Maung conten 'lis that if

1957
Counsels consented on behalf of their clients to a
MA THAN
SEIN AND
compromise without obtaining the consent of their
THREE
v.
clients and without their clients' knowledge, as in thts
DAW YJ. case, the compromise effected under such circum-
U BA stances could not be set aside. He contends that in
THOU~G, J.
this case, U Ba Thin, for the 2nd and 3rd
defendants Maung Tu and Ma Tun, had consented
to the compromise without the consent of
his clients
and without first verifying. from them whether they
have agreed to the compromise; it is contended that
he should hav-e verified about it before he puts his
signature on the application for compromise, since
there have been several instances of disagreement
between Maung Tu and Ma Tun on one side and
Daw Yi on the other side ; and that under these
circumstances the compromise could be set aside.
In support of his contention he has relied on the case
of Shepherd v. Robinson (1) where in an action for"
a debt being called upon for hearing, Counsel for the
defendant compromised the suit without knowledge
of the fact that the defendant had given instructiGJns
that the case was not to be settled, and the compro-
mise was ac(:ordingly set aside by the Court. The
case of Shepherd v. Robinson (1) was referred to in
the case of Dawsons Bank: Ltd. v. C. Ein Shaung
and three others (2) and the decision in Shepherd v.
Robinson was not dissented in the case of Dawsons
Bank Ltd. v. C. Ein Shaung. The former case was
only distinguished from the latter case in that in the
former case it was a compromise by Counsel without
knowledge or instructions of the client and that it
stands on a different footing from the latter case
where an admission of fact by Counsel was held to be
binding on the client In the present case it is quite
(1) L.R. (1919) 1 E:.B.D. 4i4. (Zi (1951) B.L.R. 300 at 311. (t
195,?] BURMA LAW'R.EPORTS. 257
,.
apparent from the explanation of U Ba Thin, who H.C.
1957
appeared for the 2nd and 3rd defendants in the trial
l\1A THAN
Court, that his clients had not instructed him to SE!N AND
THREE
compromise the suit and that they had no knowledge 'V.
that the suit was to be compromised, but that he DAw Yr.

signed on the appiication on seeing in it the signature U BA

of U Tha N gai who had occasionally appeared on his THOUNG, J.
behalf in Court, and who had watched his clients'
interest. He had stated that his clients came to
know about the compromise only about two or three
days later. The 2nd and 3rd defenda.nts Maung Tu
and Ma Tun had also filed affidavits that they had
never instructed their lawyer U Ba Thin to effect a
compromise and that they never agreed to the
compromise application filed by the lawyers. Under
these circumstances and in view of the decision in
the case of Shepherd v. Robinson (1) with which I
respectfully agree, I am of the opinion that the
conwromise recorded on 19th August 1953 could not
be valid. The learned Counsel for the defendant-
re~.pondent contends that in the case of Shepherd v.
Robinson the compromise was set aside before the
decree was drawn, whereas in the present case the
compromise decree had already been passed when
the application to set aside the compromise was
made ; but the main reason why the compromise was
set aside in Shepherd's case is because the Counsel
had compromised the case without the knowledge or
instructions of the client and not because the
compromise was made before the decree was drawn ;
and I think the same principle should apply to the
present case where the Counsel had compromised the
case without the knowledge or instruction of the
clients and without the latter's consent. The learned
Counsel for the respondent contends also that the
J

(1) L.R (1919) 1 K.B.D. 474 .

1/
258 BURMA LAW REPORTS. [1957
H.C.
1957
power of attorney given to U Ba Thin, by "his clients
the 2nd and 3rd defendants, gives him power to
MA THAN
S!!:IN AND compromise the suit, and that his act is binding on
TfiREE
'II.
his clients. It is true that he has the lawyers' power
DAw Yz. of attorney to compromise the suit on behalf of his
U BA clients ; but I do not think he should exercise that
TBOUl\G, J.
power without first obtaining the consent of his
clients and without their knowledge to a settlement.
In this case both the Counsel for the 1st and 4th
defendants and the Counsel for the 2nd and 3rd
defendants knew that the 2nd and 3rd defendants
were adverse to a settlement; and that is all the
more reason why they should act with the knowledge
and consent of their clients.
For the reasons stated I consider that the
compromise effected on 19th August 1953 between
the plaintiff-respondent and the defendants-applic~nts
is not a valid compromise, and that the lower CourC'
had acted illegally in the exercise of their jurisidiction
in confirming the order recording the compromise.
I therefore allow this application in Revision, and I
accordingly set aside the orders of the two lower
Courts and direct that the proceedings be sent back
to the Subdivisional Court of Zigon to proceed with
the case on its merits. Advocates fees fixed at
K 51.
1957-j BURMA LAW REPORTS. -259

APPELLATE CIVIL.
Bej,re U Aung Khinc cmd U C/&~011 Fozwg, II.

MA THAUNG (APPELLANT) H.C.

' 1957
v. Aug. 29.
MAUN G PE TIN (RESPONDENT).*

Redcw-Apj>licaiiotlfor-S.114, Order 47, Rule 1, Civil P1:ocedure Code-Tile

p.'rrase ~anY -other sufficie11t reason "-IJccisiotzs of llUO Be11chcs of equal
sta11diu g- Duty of Lower Court.
Held: It is settled law that the words "any other sufficient reason" are
ejusdem gcncris having reference to grounds analogous to thuse other two
mentioned in the rule.
K. K. S.A. R. Firm v . Mazmg Kya N:)'zm anrl 011e, I.L.R. 5 R;tn. 675;
Eisheshwar Pratnp Salzi cmrl another v. Par at h Nat1: mrd a11otlrcr, 61 I. C. 37(!,
referred to. "
'
Hc/df~trlher: His settled law that a wrong or incorrect exposition of law
is no ground for review. L11.h11an A11a1zdroa and others v. Ramclraudra
Wasudco Ajnsty, A. I.R (1938) Nag. 145, ref~rrecl to.
Held further : \Vhen there are fwo rulings by two Uencbes of equal
standiJJg, it is not for the lower Court to s;~y which rule is right and which
n:le is wrong. He should follow tl1e rule whicl1 appeals to his reason.
,;.llanoo Aliv. Hawabi, A.I.It (1936) Ran. 63; i'l'!aung Zaw v. Jllaztng Hla
Din,'I.L.R. 12 Ran. 163; Kill~-E mfcror v. Nga Lmt Maxmg, I.L.I~ . 13 Ran.
570; The Union of Burma v. Matmg Maul/g a11d two, B.L.R. (1 949), (H .C.) 1 at
l 2, referred to.

Ba Shun, Advocate, for the appellant.

Tun Aung (1), Advocate, for the respondent.

U CHOON FouNG, J.-This is an appeal against

the order dated the 19th February 1954 of the District
Court of Shwebo in its Civil Miscellaneous case No.2
of 1953.

Gvil Misc. Appeal No. 22 of 1954, again~t the order of the District Conrt
of Shwebo ~Mr. J.D. GHosH} in Civil Misc. Case No.2 uf 1953, dated the 19lh
February 1954.
260 BURMA 'LA\V REPORTS.

'1-J.~~- The appellant and the respondent are husband

~ and wife, having beeu married according to the
M '~ THAUNG
v_ Burmese Bu ddh'1st custom on or a bout th e 4t h l\l,r''
r 1ay
MA~~~- PE 1944. After the birth of the infant son Maung
Myint Swe, the parties fell out; and in July 1947,
U CH00:-1
Fomw, J- after a quarrel they lived separately, the custody of
the minor child remaining with the appellant.
Subsequently, there was a divorce by mutual consent,
and the minor child continued to live with the
appellant. The respondent having neglected to
maintain her, the appellant filed an application
against him under section 488 of tfle Code of
Criminal Procedure and, in Criminal Miscellaneous
No. 7 of 1952 of the Court of the Township
Magistrate of Shwebo, obtained an order directing
the respondent to pay Kyats 18 per month for the
maintenance of the said minor ~hild. It would
appear from the connected proceeding . that the
respondent failed to pay the monthly maintenance
allowance regularly and was in arrears for a con-
siderable period. After the passing of the said order
for maintenance, the respondent filed a suit (i.e.,
Civil Regular Suit No. 1 of 1952 of the Subdivisional
Court of Kanbalu) for the custody of the minor child
Maung Myint Swe, but the suit was dismissed.
Thereupon, in Civil Miscellaneous Case No. 2 of
1953 of the District Court of Shwebo the respondent
filed an application against the appellant-apparently
under section 25 of the Guardians and Wards Act-
for restoration of custody of the said minor child.
The application was dismissed with costs on 30th
November 1953; and on 18th February 1954 the
respondents filed an applkation for review under
Order 47, Rule 1 read with section 114 of the Code
of Civil Procedure. On 19th February 1954,' the
District Judge granted the respondent's application
J./J/ J ' D U .KlVlfi. Lft VV K.h.t"U.K 1 ~. 261

:t'or review a'nd passed an ,order directing that the H.C.

1957
"minor Maung Myint Swe be' returned to his natural -.,
father and guardian, Maung Pe Tin." MA THA.UNG
Lt.

The points raised by the learned Advocate for MAUNGPE

TIN.
tl}e appellant in this Court aTe :
U CHOON
(1) That the review application should not FOUt-;G, J.
have been entertained in view of the
plain provisions of Order 47, Rule 1 of
the Code of Civil Procedure.
(2) That the. order passed on review was wrong
and was not in accordance with Ia w.
The main point for consideration is whether the
District Judge, Shwebo, was competent to entertain
the application for review of his order dated the 30th
November 1953.
The learned District Judge's main reason for
entertaining the review application and passing his
order now under appeal is that the case of Manoo
Ali v. Hawabi (1) on which he relied when he passed
:his previous order was, at the time of entertaining the
review application, round by him to be " not good
law" and that another ruling of a Bench of the High
Court, i.e., Maung Zaw v. Maung Hla Din (2) to
which his attention was drawn by the learned
Advocate for the applicant-respondent was apposite
and ought to have been applied and followed.
Under Order 47, Rule 1 of the Code of Civil
Procedure, review is permissible in any of the
following cases:-
0) On the ground of the discovery of new and
important matter or evidence which,
after the exercise of due diligence, was
not within the knowledge of the party
or could not be produced by him at the
{1) .4 .LR. (1936) Ran. 63. (2) I.L.R. 12 Ran, 163.
'
262 BURMA LAW REPORTS. [1957
H.C.

1957
time when the decree wu.s passed or
order made.
MA 1 HAUNG
'11. (2) On account of some mistake or error
MAUNG PE
TIN.
apparent on the face of the record.
U CHOON
(3) For any other sufficient reason.
}<'OUNG 1 J. None of these three conditions would seem to
exist in the present case to justify a review of the
learned Judge's order passed on the 30th November
1953. There was in fact no discovery of new and
important matter or evidence which was not within
the knowledge of the respondent or could not be
produced by him at the time when the previous order
was made. Neither was there any mistake or error
apparent on the face of the record. And the grounds
for review put forth by the respondent'did nqt fall
within the category of " any other sufficient reason ",
for it is settled law that these words are ejusdem
gen.eris having reference to grounds analogous to
those other two mentioned in the rule. See
K. K. S. A. R. Firm v. Maung Kya Nyun and one Or
and Bisheshwar Pratap Sahi arld another ;v. Parath
Nath and another (2).
A perusal of the learned District Judge 's order
dated the 30th November 1953 shows that he was
aware of both the Bench rulings referred to above and
had in fact followed the rule laid dow1i jn JM.anoo
Ali v. Hawabi (4) after considering both the cases.
This is what he stated in his order dated the 30th
November 1953:
"The Rangoon High Court in Matmg Zaw v. Maung
Hla Din (3) at first adhered to the view expressed by the
Calcutta and Madras High Courts but in a later case of Manoo
Ali v. Hawabi (4) dissented from the Madras and Calcutta
High Courts' views and followed the view of the Bombay High
Court. In that case our High Court has observed that it is
{1) '.L.R. 5 Ibn. 675. (3) I.L.R. 12 Ran. 163.
(21 6J r.c. 378. (4) A.I.R. (1936) Ran. 63.
1 ';/.)/ J .tiUKMA LAW REPORTS. 263
very dangerou~ for Courts to try apd find out the intention of H.C.
the ~Legislature and then strain the language used in the statute 1957
to carry oul the intention. If the Legislature has failed to MA ThAUNG
express its intention in the statute, that will have to be !!.

remedied by legislative action. So if a father has not had the MAUNGTIN.

PE

c'ustody of his infant child this section cannot aprlj although

he desires to act as a natural guardian when the custody of the u CH00:-1
FOt:I'W, J.
child had all along been with its mother.
In view of the express words used in section 25, I am
inclined to think that the decision in Manoa Ali v. Hawabi is
the correct interpretation of the law. The application must
therefore be rejected.''
And yet in his order now under appeal, the learned
District Judge states, "I think that JYlanoo Ali v.
Hawahi (l) cannot be taken to be good law."
We are'not here concerned with the reason or the
motive that led to the leaTned District Judge changing
his mind within so short a period and reversing his
previous order on such a flimsy and unacceptable
ground as stated above. Even assuming for the sake
'Of argument that he did not know of the existence of
the rule Jaid down'' in lvlaung Zaw v. Aiaung Hla
Din (2) at the time he passed his previous order and
th~t the said rule was the proper one to have been
followed but that he had followed another ruling
through ignorance or by mistake, the learned District
Judge would not be justified in reviewing his previous
order ; for his mistake would just be a case of
incorrect exposition of law. It is settled law that a
wrong or incorrect exposition of law is no ground for
review. In this respect, the observation made by a
Bench of the N agpur High Court in Luxman
Anandroa and others v. Ramchandra Wasudeo
Ajasty (3) is apposite and is reproduced herein
below:
{1) A.I.R. (1936) Han. 6~ . (2) I.L.R. Ran. 163.
(3) ,\.J.R.'(l938) N~g.I45.
264 BURMA LAW REPORTS. [1957

H.C. " In our opinion the view that review lies if the Judge
1957 overlooks the apposite law is wrong. A Judge is supposed to
MATHAU~G know the law. There is only one correct view of the law
v. though there may be many opinions as to what that view is.
MAUNG PE
TrN. A Judge is assisted in arriving at the correct opinion by the
U CHOON
argument of counsel. Whether counsel is helpful or not
FOUNG, J. whether the Judge has in mind or not a particular point, the
Judge is supposed to have it in mind. If he makes a mistake,
his judgment proceeds on 'an incorrect exposition of the law.'
It makes no difference whether that mistake is due to
inadvertence, forgetfulness, ignorance '" ~:t
We are constrained to observe that the Bench of
the High Court which laid down the rule in 1\d aung
Zaw v. 111aung Hla Din (1) and that which laid down
the rule in lvfanoo Alj v. Hawabi (2) are coippetent
Benches of equal standing. It is not for _the learned
District Judge to say which rule is right and which
rule is wrong. So far as he is concerned, all that he
needs do is to follow the rule which appeals to his
reason. Even in the High Court, if a Bench finds
itself unable to accept a decision made by another ..
Bench of equal standing, the proper and only
available course open to the later Bench is to refer
the question upon which there is a difference of
opinion for determination by a Full Bench of fhe
High Court [See King-Emperor v. Nga Lun Maung.
(3) and The Union of Burma v. !vlaung Maung and
two (4)].
In the circumstances, the most charitable view
that we can take of the learned District Judge's
action is, that he had proceeded on an incorrect
exposition of the law and it is settled law that the
mere fact that the Judge has gone wrong in law is no
ground for a review.
We therefore hold that the learned District
Judge was not competent to entertain the application
(1) I.L.H.l2 Ran.!63. 131 I. L .R. I 3 Rzn. 510.
{2) A.l.l?. (1 936) Ran. 63. (41 B.L.R. (1~~9) IH. C.) J ai !2.
1957] BURMA LAW ,REPORTS. 265-

for review Of his previous order dated the 30th H.C

1957
November. 1953.
MA THAUNG
Accordingly, this appeal will be accepted and the v.
order of the learned District Judge, Shwebo, dated ii'JAUNG PE
TJN.
the 19th February 1954 will be set aside with costs.
U CHOON
FOUNG, .J.
U AUNG KHINE, J.-1 agree.
266 BURMA LAW REPORTS. c [1957

APPELLATE CIVIL.
Before,U Po Ou, J.

H.C. MAUNG KYAW NYEIN AND TWO OTHERS

1?57
(APPELLANTS)
Oct. 16
V.
MAUNG KYAW KYAW AND ONE
(RESPONDENTS).:;

Fmstratioll-Tile doctrine of-S. 51', Conlrac/ .4ct-S, 4 aud s. 10.'', clause (e)
Trausjer of rroperty Act-A i'Plic tbilily of dcct1 ii1e to l;ascs.
Held: The dcctrinc of frustration comes into play when t'l. con!rad
bcccmcs impossible of performar.cc ~ftcr it is made, on account of circum-
stances bcyond the control cf the parties . \\'lu:n su.:;b an d~ent or ch;tnge of
circun stanc.:s occ11rs \\'llich is so cund;tmental as to be regarded ~s s triking at
the root of the c.llltract ~sa whole, a Court should pronounce !be contract
to be fn strated and at an end.
The doctrine of frmtr:tt ion applies to leases under special circums!<1.nces.
Cricklcwood Property aud lnvcstmcut Trztd v. Leiglttou's luvcsl111C!!l
Trmt, (!945) A. C. 221; Saklmoua Da si v. Gaur Hari, A I.R. (1952i Cal. 567~
Taraluri Ji<omllt~l P,trekll v. ~air. Padamclraud, A.I.R. (1950) Born. 89;
h1der Pe1s!tad Silt& It v. Cc.mplcll . 7 C; 1. 474, referr~d to. '
K . M. Modi v. ;lJo!tamed Siddiqtte, (1947) R.L.R. 423, ro!lowej,
Appeal dis.ni~sed.

Ba Thaw for the appellants.

Ba Swe for the respondents.

U Po ON, J._The plaintiffs, Maung Kyaw Kyaw

and his sister, Ma Hla Hla were the owners of a
house known as No. 269, U Ba Aye Road, Henzada.
They let out the ground floor of it to the defendant
and the upper floor to another person as monthly

""Civil 2nd App~al No. 73 of 1956, aga inst the decree Of the District
Court of Henzada in Civil Appe:ll No. 7 of 1955, dated 28th May 1955
arising out oi the Subdivisioral Court of Hen :ada in Civil Regul~r Suit
No. 6 of 19~4, dated Sth Janu ~ ry 1955. J

'
1YS7j HUKMA LAW REPORTS. 267

tenants. Ori the 28th Janvary 1954 the house was H.C.
1957
c01i1pletely destroyed by fire which broke out at
Henzada. It is, therefore, alleged by the plaintiffs KY~\~~\?ElN
that the doctrine of frustration has come into play TWOAND o:HEHS
apd that the lease had come 'to an end by destruction v.
MAU~G
by fire. KYAW KYAW

When the fire was over, the defendants left the A No oNE
place without telling the plaintiffs anything. So, it u Po ON, I
is contended by the plaintiffs that there was au
implied surrender 0f the lease by the defendants.
However, a few weeks later, the defendants re-
entered upon the land and built a house thereon in
spite of the plaintiffs' protest. .
So,, the plaintif-fs brought a suit in the Sub-
divisional Court of Henzada, for a declaration that
they were the owners o the land in suit, (2) that the
defendants have no right to build the house on the
land without their consent, (3) for recovery of vacant
possession of lapd after removing the house built by
ihe defendants thereon and (4) for mesne profit or
damages .for use and occcupation of the land.
The defendants contend that the suit for declar-
ation is not maintainable as they never denied the
"
plaintiffs' ' site. They further. aver
title to the house
that there was no implied surrender of the lease by
then1, that the d"octrine of frustration could not be
applied to th~ present case, that as they have built
a house on the land, the plaintiffs could not be
entitled to get possession of the house site and that
the suit for eviction and for mesne profit is not
maintainable without a certificate from the Assistant
Controller of Rents at Henzada.
Both the Courts below decreed the suit in
favour of the plaintiffs.
I will go straight into the question of frustration,
as it is the vital matter ~-n the whole case. Clause
268 BURMA LAW REPORTS. [ 1957

~~i (e) of section 108 of th~ Transfer of :Property Act

reads:
MAUNG
KYAW NYEJN " In the absence of a contract or local usage to the

TW O
AONTDH
ERS
contrary, the lessor and the lessee of immoveable property,
v. as against one another, respectively, possess the rights and are
:r.L<\UNG
KYAW KYAW
subJect to the liabilities mentioned in the rules next following-,
A:-:o ONE. or such of them as are applicable to the property leased : __
U Po ON, J. * * *
(P) if by fire, tempest or flood. or violence of an army
or of a mob or other irresistible for~e. any
material part of the property be wholly
destroyed or rendered substantially and perma-
nently unfit for the purposes for which it was
let, the lease shall, at the option of the lessee,
be void."
It ls now argued by, the learned Cour1sel for the
defendants (appellants) that as the defendants-
tenants still elect to continue . the tenancy, the
plaintiffs-lessors are not entitled to compel the
tenants to walk out in view of clause. (e) of section
108 of the Transfer of Property Act.
Another ground advanced by the dtfendants'
counsel is that the doctrine of frustration cannot
come into play, as the lease of immoveable property
can be determined only on any of the ground specified
in section Ill of the Transfer of Property Act.
The plaintiffs-lessors, on the other hand, have
placed reliance on section 56 of the Contract Act
which is in the following terms : -
"A contract to do an act v.hich, after the contract is
made, becomes impossible, or, by reason of some event which
the promisor could not prevent, unlawfuL becomes void when
the act becomes impossible or unlawful."
It is clear from section 4 o f the Transfer of
Property Act that the Contract Act is the comple-
mentary to the Transfer of Property Act. Section
56 of the Contract Act does n,ot conflict with section
1957] BURMA LAW REPORTS. 269

108 of the Transfer of Property Act on the facts of H.C.

1957
the case. Besides, the doctrine of frustration comes
, ~u~
ii1to play when a contract becomes impossible of KYAw NYr.lN
performance after it is made, on account of circum- ;.;-;0 ,\~~L~;s
stances beyond the control of the parties. When . v.
l\IAUXG
such an event or change of circumstances occurs which KYA\\' KYAw
is so fundamental as to be regarded as striking at the ANn mm.
root of the contract as a whole, a Court should u Po ON, J.
pronounce the contract to be frustrated and at an
end. So, I have to see whether section 56 of the
Contract Act is attracted at all.
In-'the ~ase of Cricklewood Property and Invest-
ment Trust v. Leighton's Investment Trust (1)
Lord Russel and Lord Goddend expressed the view
that the doctrine of frustration could never apply to
put an end to a lease, while Viscount Simon, L.C.,
and Lord Wrig"ht thought it might in certain circum-
stances apply to a le,ase and Lord Porter did not think
it necessary to express any opinion on the point in
the circumstances of that case. It will tli.us be seen
that in England the question whether the doctrine
.of frustration applies to a lease has been left in
some doubt.
In India too it is a moot point whether the
doctrine of frustration can be applied to a lease.
Sakhisona Dasi v. Gour Hari (2), Tarahai Jivanlal
Parekh v. Lala Padamchand (3) and Satyabrata v.
Mugreeram (4) have arisen in India in which demised
premises have been requisitioned by Government for
long periods of time. It was held in the circum-
stances .of those cases that the contract of lease had
not been frustrated at all. However in those cases
no reference was made to clause (e) ' of section 108
of the Transfer of Property At;t.
-,.
------- -----------------------~---------

(!) (1945) A.C. 221. (l) A.I.R. (1950) Eom. 89.

(1) A.I I<. !19.'2 ) Cal. :67. (4) A.LR. (1954) (S, C.) 44.
270 BURMA LAW REPORTS. [1?57

H.C, On the other hand, it was held in lnder Pershad

1957
Singh v. Campbell (1) that the doctrine of frustration
IIIAUNG
KYAW NYEIN
may be applied to leases. ~
AND
TWO OTHERS
The facts in Kshitish Chandra Monda! v. Shiba
v. Rani Debi and others (2) are somewhat parallel to
MAUNG
KYAW KYAW the facts of the present case. They are shortly
AND ONE.
these.
.U Po ON,J. A erected a thatched shed on a plot and let the
shed to B as a monthly tenant. During the tenancy
the shed was burnt by fire. Thereafter B raised
another structure on the land in spite of A's protest.
It was held therein that-
(1) that section 108 (d) did not in terms apply as B
neither elected to walk out even after total des-
truction nor was willing to suspend payment of
rent and give up possession;
(2) that the doctrine of frustration applied to leases.
The contract between A and B became impos-"'
sible of p erformance through no negligence on
the part of A and he was entitled to claim that
the lease had come to an end by destruction by
fire~
(3} that under the tenancy B had no right to rais~.
structures of his own, treating the lease as the
lease of the land only.

There is also the case of K. M. Modi v.

Mohamed Siddique (3), a Burma case, in which
U Thein Maung, J., (till lately the Chief Justice of
the Union of Burma) held that the doctrine of
frustration applies to leases under special circum-
stances.
As I respectfully agree with the view of U Thein
Maung, J ., I will now examine whether special
circumstances exist in this C(\Se to attract section 56
of the Contract Act. .
(1) 7 Cal. 474. (2) A,I.R. (1950) Cal. 441.
(3) (1947) R.L.R. 4 23.
1957] BURMA LAW 'REPORTS. . 271

There is no dispute that the defendants occupied H.C.

1957
only the ground floor and .another person (who is
JIJAUI\G
not a party to this case) the upper floor of the house KY""' NYE!N
of the plaintiffs as monthly tenants. The defendants rwo A~~HERs
paid K 75 per month for the ground floor and the v.
'd 3IAUNG
other tenant par K 40 per month for the upper KYAw KYAw
floor. These two families were living separately and AND ONE.
paying rents separately. In the circumstances it. u Fo ON, J.
cannot be taken that the plaintiffs let out one and
same house site to the ground floor and upper floor
tenants. What had been let out must- therefore be
only the ground floor and the upper floor of the
house. As the house was completely destroyed by
fire, the subject matter of the lease is now non-
existent. The contract which had been entered into
between the plaintiffs and the defendants has now
become impossible of performance through no
Iiegligence on the part of the plaintiffs. The plaintiffs
are, therefore, entitled to claim that the lease of the
ground floor of the house had come to an end by
:its destruction by fire.
Under the lease the defendants were entitled to
o~cupy only the ground floor of the house as monthly
tenants. As this house was destroyed by fire, it will
lead to various complications in future, if the
defendants were allowed to stay on the house site
with their o~n building and not with the plaintiffs'
building. It will further lead to an anomalous
position that the defendants who were paying rent
for the ground floor of the house on the land would
pay such rent for the building which belonged to
them.
So, the defendants must be held as trespassers
and consequently no certificate. from the Assistant
Co.utroller of Rents is necessary to institute the
present suit.
272 BURMA,LA\V REPORTS. [1957

H.C.
1957
Another ground raised in the memorandum of
appeal is that the plaintiffs' suit. for declaration is
KY!~~~~E!N not maintainable, as the defendants never denied the
AND
TWO OTHERS
plaintiffs' title to the land. But the plail1tiffs' suit
~~- is not a bare declaration suit. It is one with
KY~\~ui~~Aw consequential reliefs. It is further obvious that
AND oNe. when a declaration is to be refused, it should be
u Po o~. J. refused at a preliminary stage of litigation and not
by a Court of appeal especially after the issues or
facts and laws have been decided.
The last. ground of appeal is regarding the
award of mesne profits or damages for use and
occupation of the land in question by the defendants.
As the defendants are held to be trespassers and as
they built a house of their own on the land in spite
of plaintiffs' protest, they should obviously pay
damages. The lower Appellate Court gave sound
reasons why the damages awarded by it were fai't
and reasonable. It is true thaf though the plaintiffs
claimed damages up to the date of suit (i.e. up to
end of July 1954) and further damages till the
defendants gave up pos~ession of the land, the lower
Appellate Court gave the damages up to 30fh
November 1954. But as I agree with the lower
Appellate Court that the damages should be K 115
per month and as the plaintiffs have paid Court fees
for damages up to the end of November 1954,
I should not interfere in this small matter.
The appeal stands dismissed with costs.
1957] B U R~1A LA\V. REPORTS. 273

APPELLATE CIVIL.
Before U Aung /{/Jiue, J. and U fla Tl101111g, J.

H.C.
MESSRS. ARAKAN CARRIERS SYNDICATE 1957
(APPELLANT) Dec. 12.
v.
CHAND MAL BIRLA AND TWO OTHERS
(RESPONDENTS).*
Civill'ro~edure Code-Order 41, Rule 20 read wil It Rult: 33-0rder 1, Ride 10
" read -.oil lz s. 107, Crvil Procedure Code.
The finn of Chandmal Nathmal claimed a snm of l~s . 5,005-14-9 ~nd tt0 t
knowing exactly from which o the f our defendants. namely: -
(i) British Indh Steam Na\igation Company,
(ii) The Araltan Carriers Syndicate,
(iii) The Port Ofti.cer, Akyab and
(iv) The .U nion of Burma,
filed a suit against a ll of them, leaving: to the Court to determine which
defendant is liable.
The trial C )'~rtrltcreed the ~uitagainst the Ar<Jkan Carriers Syndicate alone.
dis.missing the sui t against the r est.
"The Arakan Carriers Syndicate filed an appeal against the firm alone,
without 1m pleading the co-defendants as co-Responde,...ts.
T.be Firm also did not appeal a~a inst lhe judgment and decree dismissing
the suit a)!ain:t the other co-defendants.
T he High Court, on appeal directed under Order 41, I<ule 20 r e<..d with
R,11e 33 , Civi l Procedur e Code to implead the 3rd clefcncl~.nt, the Port Officer,
Aky;tb, as a co-Respondent in the appeal.
It 11 ~s contended lh;tt the Port Officer should not be impleaclell since no
appeal was filed agaii1st him and that the period of limitation had e xpired.
Held: An :tppeal is but a continuation of the suit :1.nd the powers of the
appellate Cot1rt cannot be limited by CJrcler 41, Hule 20 ; the aprellatc Cot1rt
still has the power to act und er Order I, Rule 10 read with s . !Oi of the Code
Of Civil Procendre
Held also: Th~ powers conferre:l upon the appellate Court by Order 41,
Hule 33, Civil Procedure Code are very wide and the question of limitation
cannot be urged ?.sa gro:md against the exercise of the Court's discretion
under this Rule.

" C idll~t Appeal No. 116 of 1952, agains t the decree of the Adclitionat
Distrid Court of Akyab in Civil Regular Suit No. 5 of 1951. dated 11th Jun e
19S'.J.

18
274 HURMA LAW REPORTS [1957
H.c. V.P.R.V. C' oknliugaw Clzctty v. Seetfrai .rl.cl!a arui otlurs, I.L.I\. 6 Ra!l.
1957 ~9 (P.C.), clistingui~hed.
Giri>h Clra11der Lalriri v. Sasi Scklrareswar Roy, I.L.H. 33 Cal. 329,
MESSRS.
ARAKAN referred to.
CARRIERS Baluswami A;yar v. Lnkshmawr Atyar and tltree otlrers, J.L.R 44 M;t,:l.
SYNDICATE 605 at 608, relied on.
v. Subramamall Clrcltiar v. Simwmmal, 59 .Mad. L.J. 634 at p. 640
CHAND)JAL
BIRLA approved.
AND T\\"0
OTHERS.
Kyaw Min for the appellant.

A ung J\1i"n (2) for respondents Nos. 1 and 2.

Hla Tun Pru for respondent No. 3.

U AUNG KHINE J._Chandmal Birla and N-athmal

'
Kabra, plaintiff-respondents are partners of a firm
known as Chandmal Nathmal carrying on business as
cloth merchants in Akyab. During Ivfarch 1951 three
cases containing various assortment of goods, mostly
textiles , consigned to them from Rangoon as per S.S.,
" Bandra '' of the British India. Steam Navigation
Company reached Akyab on 24th March 1951. This
three cases marked " CMB " were unloaded from the
ship, taken ashore 1.nd delivered at the Port
Warehouse Jetty by lighterage brokers. Araka11
Carriers Syndicate. On 29th March 1951 when
delivery was taken one box was found broken with
some of the contents removed. The plaintiffs fixed
the value of the missing goods at Rs. 5,006-14-9 and
not knowing exactly from which of the four
defendants, namely, (i) British India Steam Navigation
Company, (ii) The Arakan Carriers Syndicate, (iii)
The Port Officer, Akyab and (iv) the Union of Burma,
they were to receive compensation, filed a suit
against all of them and left it to the . Court to
determine the liability of each of the defendants.
The suit proceeded to trial and ultimately the plaintiff
was given a decree for the amount clairr.ed
1957J BURMA LA.'V REPORTS.
. H.C.
Rs. 5,194-10-9 together with costs as against the 1957
Arakan Carriers Syndicate o.nly.
MESSRS.
The Arakan Carriers Syndicate filed an appeal ARAKAN
against the judgment and decree of the trial Court CARRIERS
SYNDICATE
and in doing so impleaded the plaintiffs as the sole v.
CHA~DMAL
respondents. The co-defendants in the trial Court BIRLA
AND T\\'0
were not made party-respondents. The plaintiffs OTHERS.
also did not file any appeal against the judgment and U AUNG
decree dismissing the suit against the other defendants. KHI~E, J.

When the appeal was heard, with the reading of

the evidence recorded in the lower Court it became
doubtflll whether the finding entered by the lower
Court on facts was correct and before forming a
definite opinion in the matter, we gave a direction,
acting under Order 41, Rule 20 read with Rule 33 of
the Code of Civil Procedure that the Port Officer,
Akyab, be added as a party-respondent.
It is now contended on behalf of the Port Olfi.cer
that he shbuld not be made a party in appeal at this
late stage especially after he had acquired a very
val1;able right under the law of limitation, in that no
appeal was filed against him in time. The case of
v.P.R. V. Chokalingam Chetty v. Seethai Acha and
others (I) was cited in support of this contention.
After a careful reading of this ruling we find the
facts as obtained in that case are not at all similar
to the facts of this case. Here, the appellant was a
defendant and not a plaintiff, as in the other case
and he filed.his appeal against the plaintiff who had
obtained a decree against him. It is true, however,
that he did not add the Port Officer, Akyab, as a
party-respondent.
The learned Advocate for the appellant, on the
other hand~ submitted that a person
.. who was a party

(I) J,l .. R. 6 Ran. 29 (P.C.).

 '
276 BURMA LAY/ REPORTS. [1957
1
H.C. in the proceedings in the trial Court can be added as.
1957
a respondent at a later stage even though the time
M~SSRS.
ARAKAN to prefer an appeal against him had long expired.
CARRIERS
SYNDJCATE
The decision in the case of Girish Chander Lahiri v.
v. .Sa~i Sekhareswar Roy (1) was quoted in support of
CHANmiAL
BWLA this counter-claim.
AND TWO
OTHERS. It is further submitted on behalf of the Port
U Amm
Officer that a party who is no lo11ger interested in
KHINE, J. the result of an appeal should not be added as a
respondent under Order 41, Rule 20, Civil Procedure
Code. As the time for filing an appeal against him
has long since expired, he is no longer intere"'ted in
the resu]t of the appeal and as such he should
no be impleaded.
It must, however, be remembered that an appeal
is but a continuation of the suit and the powers of
the appellate Court cannot be limited by Order 41,
Rule 20; the appellate Court still has the power ta
act under Order 1, Rule 10 readwith secticn 107 of
the Code of Civil Procedure. We are fortified m
this view by the decision in the Full Bench case of
Baluswami Aiyar v. Lakshmana Aiyar and thoree
others (2). The relevant portion of the judgment oo
page 608 of the Report is as follows :
" It was contended that we had no power to add him as
a party to the appeal. as he was not interested in the result of
the appeal and that Order XLI, Rule 20, did not apply to this
case. The words of that rule are. however, wide enough to
cover the present case ; but, even if they were not, our powers
to add parties in appeal are not exhausted by that rule, as
Order I. Rule 10, also applies to appeals by force of section
107 of the Code of Civil Procedure. In the present case, it is
manifestly desirable to have the second defendant before us to
enable us properly and effectually to settle the question whether
the plaint agreement is binding on him or not, a question
which we have to decide in any case for the disposal of the
( 1) I. L.R. 33 Cal. 329. (2) I.L.R. 44 Mad. 605 at 608.
1957] BURMA LAW REPORTS. 277
'
fir~t defenda~t's appeal. \\o'e .must now consider that H.C.
qu.estion."~t
t9S7
MEssRs.
Moreover, in our considered opinion the powers ARAKAN
conferred upon the appelfate Court by Order 41, CARRIERS
SYNDICATE
Rule 33, Civil Procedure Code are very wide and v.
CH,\ND~[AL
the question of limitation cannot be urged as a Blf<LA
AND TWO
ground against the exercise of the Court's discretion OTHERS.
under this rule. Even in the Privy Council case of U AUN(i
Chokalingam Chetty v. Seetlzai Aclza and others (l) KHINE, J.
cited earlier there appears to be a suggestion that in
a fitting case a party against whom time has run out
for appeal may be added as a respondent under this
rule.
Iii. this connection we would quote with respect
and approval the words of Madhavan Nair, J. in
the Full Bench case of Subramanian Chettiar v.
Sinnammal (2) _
Order 41, Rule 33, reads as follows:
"The Appellate Court shall have power to pass
apy decree an,~ make any order which ought to have
been passed or made and to pass or make such furthet
or other decree or order as the case may require, and
this power may be exercised by the Court notwith-
standing that the appeal is as to part only of the decree
and may be exercised in favour of all or any of the
respondents or parties, although such respondents or
parties may not have filec.l any appeal or objection.
Illustration.
A claims a sum of money as due to him from X or
Y, and in a suit against both obtains a decree
against X. X appeals and A and Y are respondents.
The Appellate Court decides in favour of X . It has
power to pass a decree against Y.
The rule has been newly introduced in the Code of
1908. Its object is clearly to enable the Court to do
complete justice between the parties. Its terms are
,Yery wide and in a proper case it gives the Appellate
'1) l.L.R. 6 Ran. 29 (P.C.}. (.2) 59 }\lad. LJ. 634 at p. 640.
278 BURMA LAW REPORTS. [1957

H.C. Court ample discretion 1to pass any decree or make

1957 any order to prev~nt ends of justice from betng
MESSRS. defeated. By the very terms of the order, involving as
ARAKAN it does an exercise of judicial discretion, the question
CARRIERS
SYNDJCA'!'E whether the Appellate Court should exercise the
7'. powers conferred by them in a particular case would
CHANDMAL
B!RLA no doubt depend upon the special facts and circum~
AND TWO stances of that case. The illustration to the rule is a
OTHERS.
type of one class of cases, which calls for the exercise
U AUNG of the powers conferred by Rule 33 ; but it does not
KinNe:: J.
by any means exhaust the class of cases in which the
powers of the Appellate Court under this rule may
be invoked. Having regard to the wide language of
the rule it is inexpedient to lay down any hard and
fast rule .regarding the true scope of this provision.
In a proper case the Courts should not hesitate.to use
the powers conferred upon it by this rule. "
Now, what are the set of facts and circumstances
obtaining in this case so as to warrant our adding
the Port Officer, Akyab, as a party-respondent?
The correctness of the trial Court's finding is in
doubt and if as a result of the appeal the suit as
against the appellant were to be disnl.issed,the plaintiff-
respondents stand to lose everything as they had not
filed an appeal against the Port Officer. On facts
as made out by the evidence on record, . they are
certainly entitled to a decree against either the
defendant-appellants, the Arakan Carriers Syndicate
or the Port Officer, Akyab. Therefore, in the interest
of justice, equity and good conscience, . the Court
cannot stay its hand to help out the plaintiff-
respondents. In this appeal we are to determine as
to who is the party liable to compensate the plaintiff-
respondents and therefore it is highly desirable to
have the Port Officer, Akyab, before the Court to
enable us effectually to decide the issue in question.
In the light of these circumstances we hold that
the Port Officer, Akyab must be added ~s a
~95/' J BURMA LAW REPORTS. 279
'
par!!y-respondent and therefore we reject all the H.C.
1957
objections' raised against this order by the learned
MESSRS,
Advocate appearing in his behalf. ARAKAN
CARRIEkS
Earlv in the proceedings before the Port Officer, SYNDICATE
Akyab, was brought on the record, quoting the case v.
CHANmfAL
of lvla Than. May v. Mohamed Eusoof (1) as an BIHLA
AND TWO
authority, the plaintiff-respondents submitted that OTHERS.
the appeal of the Arakan Carriers Syndicate was U AUNG
incompetent inasn1_uch as the most necessary party in KHU.;E, J.
appeal, that is, the Port Officer, Akyab, was not
impleaded. The reason furnished is that in the event
of the appeal being accepted there would be an
undesir.able existence of two contradictory judgments,
one_of the.trial Court, and the other, of the High
Court_in respect of the same case. Here again, we
say that the facts obtainable in the two cases are not
the same. In this case there are no shares to be
determined or adjusted inter-parties as in the case
\;ited ; the liability has to be fixed one way or
the other. Furthe?!more, we doubt whether the
appellate Court in that case was moved to exercise
its discretion to implead the third party as a
patty-respondent under Order 41, Rule 20 read with
Rule 33 of the Code of Civil Procedure. The
plaintiff-respondents. have now submitted to us that
they do not wish to press this point raised by them
earlier, if the Port Officer is added as a party-respon-
dent and since we have decided to make the Port
Officer a party-respondent, we need not dwell any
longer on this point.
Proceeding now to the facts of the case, there is
no dispute that three cases marked " CMB " were
consigned to the firm of the plaintiff-respondents
from Rangoon. The Arakan Carriers Syndicate has
admitted that they receiyed these three cases in good
(J) I.L.R. 9 Ran~ 624.
280 BURMA LAW REPORTS. [1957..
(

H.C. condition from S.S. '' Bandra. '' It is their case ~hat
1957
they in turn delivered these three cases to the Port
~;~~~~ authorities in good condition and that the coolies
CARlnERs e1nployed by the Port authorities removed them fro!n
SYNDICATE
v. the T head of the jetty into their godown. It is a
CHANDMAL
BIRLA Axo standing custom that the da mage d goods are never
rwo~ERs. accepted to be kept in the Port warehouse and on
u AuNG landing, these goods invariably are directed to be
KHINE, J. carried straight into the damaged goods room provided
by the Port authorities in the warehouse itself. The
key of the damaged goods room is always held by the
Arakan Carriers Syndicate and that their employees
who were present at the jetty at the time when the
goods were unloaded from S.S. : Ba.:1dra" were
never told to remove any of the "CMB '' marked
cases into the damaged goods room. In other words,
they say that one ' CMB '' marked case subsequently
found damaged was landed in good ~ondition and it
was while in the custody of the Port authorities that
the pilferage of goods from that- case took place.
On the other hand, the Port Officer claimed that
one of the ... CMB " marked cases was delivered at
their jetty in a damaged condition and this fact was
shown in the remarks colnmn of . the. taHy
sheet prepared by a clerk of the Port Office. In the
copy of the Cargo Receipt furnished to the Arakan
Carriers Syndicate, the same remark was entered so
that the Arakan Carriers Syndicate knew from the
very outset that one of the " CMB "'marked cases
was delivered damaged at their jetty.
Thus the primary question to be decided IS
whether the case in question was delivered intact or
in a damaged condition.
Somma Maizee (DW 2) for defendant No. 2 a
head cooly, stated that he was the person who carried
these "CMB " marked cases into the Port godown.
 1957] BURJ\-1.A LAW REPORTS. 281

Tl:ey were in good condition when delivered to the H.C.

1957
Port authorities and he kept them at a
place about 40 cubits away from the damaged goods i\IE~sRs.
~ ARAKA~
room. There cannot be any doubt that this witness CAHRmns
is a cooly who works in the Port Yard. It is not SYN~~c\TF.
disputed that he was the man who brought out the ~~~A~~o:r:~
disputed case from the damaged goods ro~nn on the Two oTHERs.
29th March 1951. Sarkar (P\V 1) and Shwe Maung u ~"G
(DW 1) for defel);dant No. 2 also knew him as a KmNE, J.
cooly who works in the Port Yard. Mr. Chapman
(DW 1) for defendant No. 1, Port Superintendent,
stated that his (Somma Maizee's) face was familiar
to hiw.
: The unloading of the goods started from the
evening of 24th March 1951 and the work was
carried on throughout the night to be fully completed
by about ~030 a.m. on 25th March 1951 which
happened to ~e a Sunday. On 26th Marc:h 1951
Sarkar (PW 1), a clerk employed by the plaintiffs,
went to .the Port godown to make enquiries about
the goods consigned to his principal. He saw the
three cases inside the godown apparently in good
condition. He also noticed that the damaged goods
room was not full although there were some packages
inside it. He is. corroborated by P. C. Das (P W 2), P. C.
Das would have it that he saw only about 10 packages
in. the damaged goods room. Shwe Maung (DW 1)
for defendant No. 2 deposed that he delivered the
three " CMB " marked cases in good condition to
the Port authorities and they were kept in the godown.
According to him, S.S. " Bandra " on that trip
brought 10 damaged cases and he put them all in the
damaged goods room.
Sarkar (PW 1} who has been working as shipping
clerk for quite a numb.er of years stated that the Port
authorities would never accept any damaged cases to
282 BURMA LAW REPORTS. [1957
H.C. be kept in their godown. He is supported in this
1957
version by P. C. Das (PW 2) who has been working
MESSRs.
ARAKA:-1 for the British India Steam Navigation Company for
cAnimns
S1"ND1CATE
the last 30 years or so. There is no reason to doubt
v.
CHAI"m!AL
their statements. Mr. Spencer, defendant No. 3,~
Bmr.A AND himself stated that according to the Port Manual, the

-rwo oTHEns. moment a case is landed on the Port jetty the Port
U AUNG takes charge of it. He further stated that the Port
l{HINE,J.
accepts damaged cases but they are to be in the
damaged goods room in the Port godown itself.
Mr. Chapman (DW 1) also deposed in a similar
strain. This is what he stated in his cross-examina-
tion-
"Our Tally Clerk would accept the br<;ken cases of
packages under protest from Carriers Syndicate and these cases
would be entered in the tally sheet broken. If a case is de-
clared as broken every party must know about it. Then the
goods will be taken into the godown by wharf's coolies at Port
responsibility. The broken packages will then be delivered to
the Carriers Syndicate clerk at the door of the damaged goods
room . "

According to Shwe Maung about two or three

days after he had delivered the " CMB " cases to the
Port authorities, Port Clerk U Tha Tun asked him to
put one damaged " CMB '' case in the damaged
goods room. He noticed then that this case was
broken on one side. He refused to do so and this
resulted in the dispute between him and U Tha Tun.
However, in the end he agreed to put the case inside
the damaged goods room and in fact he did so.
Apparently he made a report about this to U Tha
Aung Pru, l\1anaging Partner of the Arakan Carriers
Syndicate and U Tha Aung Pru wrote Exhibit E letter
in protest against the keeping of the same in the
damaged goods room. This letter was dated 28th
March 1951 and accor.ding to the contents of the
1957] . BURMA LAW REPORTS. Z83

letter it would' appear that the damaged case was taken H.C.
1957
to the daq1aged goods room only at 3 p.m. on
MESSRS.
that day. ARAK~N

A different version is g_iven by U Tha Tun CARRIERS

SYNDICATE
(DW 3) for defendant No. 3 as to what took place v.
CHAJWMAL
between him and Shwe Maung. According to BIR LA AND
TWO OTJil'llS
him one day before the plaintiffs came to take
delivery of the cases, he saw one of them in a U AUNG
Krtr:"E, J.
broken condition. Shwe Maung came and informed
him on that day that he wanted to remove it to the
damaged goods room and he informed him that he
could do what he liked and that he had no con8ern
in the matter. If U Tha Tun is to be believed, the
Port authorities have nothing to do whatsoever with
the damaged"' goods even if they are found inside the
godo\vn. This version of U Tha Tun cannot be
accepted in view of what Tun Aung Gyaw (D\V 5)
for defendant No. 3 has stated in his cross-examina-
tion. This is what he said-
" Chapman was pr.esent whole night when the goods
were unioaded. He inspected the damaged goods. He gave
general instructions to move the damaged case.
U Tha Tun's duty was to arrange the storage of the cases.
He :tiso had to separate the d1magcd cases from undamaged
cases."
Versions ma:y differ as to under what
circumstances the disputed case got into the damaged
goods room, but it has been established that this
case was put into the damaged goods room only on
28th March 1951 , that is three days after it had been
kept lying in the open godown.
On the day the unloading of the cargo was done,
U Tha Tun and Tun Aung Gya w were the two clerks
present at the T head of the jetty and it is
inconceivable that they would accept a damaged case
to be kept in the open godO\yn, as it would mean
284 BURMA LAW REPORTS. [1957
H.C. acceptance by the Port authorities of hQving
1957
received the same in good condition. Ta~dng a cue
MESSRS.
AR.-\KAN from what Mr. Chapman has stated in his evidence.
s~~~~:;::E the learned Advocate .for the Port Officer seems to
v.
C HANmlAL
suggest that ( 1) the damaged goods were received by
BIRLA ANo the Port authorities under protest and (2) these goods
Two ~ERs. could not be put into the damaged goods room as
~Hr~~~J. the same was full. U Tha Tun himself was una ware
of the fact that one of the ,, CMB '' marked cases
was damaged and according to Tun Aung Gyaw it
was U Tha Tun's duty to sort out the damaged cases
from amongst other cases delivered in good condition.
If he did not. know that any of the " CMB " marked
cases was in a damaged condition, he c<;mld not have
received the same under protest. The Port Clerks
themselves did not draw the attention of Shwe Maung
who was looking after the interest of the Arakan
Carriers Syndicate that they had found one " CMB "
marked case in a broken condition." :f\Ar. Chapman
had already stated that if a case is declared as
broken all the parties concerned would be made
known about it and that the case would be taken
into the godown at the responsibility of the Port
authorities and the broken package would then .be
delivered to the Carriers Syndicate clerk at the door
of the damaged goods room. Since no case marked
<c CMB " was delivered at the door of the damaged
goods room to the Carriers Syndicate clerk on the
night in question, it must be assum.ed that all
" CMB " marked cases were delivered intact.
It was clear that on the night in question this
disputed case was not handed over to Shwe Maung
at the door of the damaged goods room nor was he
informed that as the damaged goods room was ful.l the
case would be accepted under protest and kept outside
the damaged goods JOom.
 '
1957] BURI\1A LAW. REPORTS. :?8$

The Port Officer seems to rely much on the fact H.C.

1?57
that in the tally sheet prepared by them (Exhibit 9),
MESSRs.
iQ the remarks column, the word" broken " was shown ARAKAN
as against a " CMB " marked case. We have 8~:~R~~~~sE
examined this exhibit and as stated, in the remarks CHA~DMAL v.
column as against the ite111 in question there is the Bmr.A A:->o
word '' broken ". It is however not denied thaf this mo~ERs.
word ''broken" is written with a different pencil KH!NE, u AuNG,j.
after some other entry underneath had been erased
.out. Tun Aung Gyaw (DW 5) who prepared this
tally sheet stated that he had at first misspelt the word
'' brok~n " using the word '' a " instead of ,, e "
between '' k " and " n ". He erased out the entire
word and re-wrote the word "broken''. He admitted
that he did not tell any of the Arakan Carriers
Syndicate clerks about the correction he had made.
We notice that the word '' broken " had been
,,correctly writte1; two lines above this item and there-
fore we .have grav~ doubts about the truth of the
exp1anation given by this witness. The original entry
has undoubtedly been tampered with.
" Another piece of evidence relied upon by the Port
Officer is Exhibit 8, the original Cargo Receipt pre-
pared in their o.ffice. It is submitted that the word
''broken" appears against the 14th item shown as
" CMB " from the bottom of this exhibit. With re-
gard to this item, Maung Maung Tin (DW 4) for defen-
dant No. 3, who prepared this receipt, admitted that
the word " broken "in the last column in Exhibit 8 is
in same line with the initials NKS in the first column.
The initials NKS are the initials appearing directly
belovv the initials H Ctv1B " in that exhibit. Maung
Maung Tin explained that this word " broken " is
really meant to be shown against the initials '' CMB "
but as the typewriter roller was at fault it inadvertent-
ly" was shown as against the initials NKS. We have.
286 BURMA LAW REPORTS.
'
H.C.
19~7
grave doubts here also as to the truth of the state-
ment of Maung Maung Tin, especially when we see
MESSRS
ARAKA~ in Exhibit 9 tally sheet that one case marked NKS is
CARRIERS
SYNDlC.-\TE
also shown as '' broken" It could be that Maung
v. Maung Tin really was showing in Cargo Receipt
CHAN!.HJAL
BIRLA AND (Exhibit 8) that one of the NKS cases was broken.
.rwo OTHERS.
The Port Officer relied on these two documentary
U AUNG
l<HrNE, J.
Exhibits 8 and 9 and in both tte cases there are
unsatisfactory features to throw a doubt as to the
genuineness of the entries. The lower Court was
quite alive to the possibility that the entries in these
exhibits were tampered with by the Port cle1ks but
he was not sure whether they were so dune with a
view to protect themselves. The learned Judge of the
lower Court, however, refused to see that these
susprcwus circumstances attached to these two
documents are enough to cast a doubt on the truth of
the version they presented in Court. As a matter of'
fact, the learned Judge appears to have been making
a special pleading for the Port authorities throughout.
He said in his judgment that it was quite possiole
that the case in question was tampered with by the
Arakan Carriers Syndicate coolies and that as aU the
cases were landed at the Port Jetty about the time
when most people were feeling sleepy, the fact that
this particular case was damaged could have escaped
the attention of the clerks concerned. These are
mere conjectures and we are surprised that they should
be made grounds to support the case of the Port
authorities.
The promptness in which U Tha Aung Pru,
Managing Partner of the Arakan Carriers Syndicate,
sent in Exhibit E letter to protest against the storage
of the disputed case in the damaged goods room on
the 28th March 1951 s'hows that prior to that date
neither the Arakan Carriers Syndicate nor the Port
i957] BURMA LA~r REPORTS. 287

authoritieS knew that this case had been tampered H.C.

!957
with. On these facts, we must take the view that the
MESS liS.
same was delivered intact' and that the pilferage AllAKIN
CaRRIERs
of the contents of this case must have occurred while Sn..DICATE
it was in the custody of the Port authorities. It is v.
CHANDMAL
claimed that the Port godown was well guarded and BIRLA AND
TWO OTHERS,
that it was well-nigh impossible that the goods could
have been stolen while in the custody of the Port U AUNG
Kunu:, J.
authorities. There is evidence, however to show that
on the day S.S. "Islamia " arrived in Port on the
27th March 1951, the Port godown was kept open
through,out that day. It is suggested that the goods
from the disputed case could have been stolen on that
day. When all the circumstances obtainable in the
case are studied caref.ully, we are of the opinion that
the Port authorities by their action did accept these
' CMB" marked cases, and as the contents were
P,ilfered from the damaged case whilst in their custody,
we hold that the PortOfficer is liable to compensate the
plaintiffs and not the Arakan Carriers Syndicate.
There is not much dispute as to the value of the goods
losr to the plaintiffs and we are of the opinion
that the lower Court was right in assessing the
value of the good according to the value mentioned
in the invoice maintained by the plaintiffs in the
ordinary course of their business.
In the result the appeal is allowed and the
plaintiff-respondents suit against the appellant
Arakan Carriers Syndicate is dismissed with costs
throughout and instea::l there will be a decree for the
plaintifi-respondentst for Rs. 5,194-10-9 with costs
throughout against the 3rd respondent, the Port
Officer, Akyab.

U BA THOUNG, 1.-( agree ..

288 BURMA LA_W REPORTS A [1957

APPELLATE CIVIL
Before U Chan Tun Au11g, Cnief Justice, and U S1111 Matmg,.J.

H.C.
1957
MESSRS. THE ASIATIC CORPORATION
(APPELLANT)
July 24.
v.
MESSRS. MERCANTILE BANK OF INDIA
LIMITED (RESPONDENT).*
Lctlc1 s of Cn:dil-lrre"Vocable ldtcrs of credit or ''documentary or co11(ii-
lioual let fcrs '"! credit" -Basi> of 1'/airrt iff's claim ou collfitmcd
irrer ocaNc /etters of credit nlouc-Balllw's duty i11 tesjJect of lett crs Of
crcdil-Cousl J'uction of "dowmc11lary letter of crcdiJ'' -Examination
ofwitncsse; 011 commi~szou.
The appellant rurcha,;ed irom the Asiatic General Tradinv; Company d
Hongkong Cigarettes and Toilet requisites and opened two irrevocable
letters of credit with the Rc~pondent in famur of the Hongkong Firm, who
however shipped useless odds and ends.
The Respondent Bank claimed reimbursement :'.rom the appellant wlio
re~istecl the claim alleging negligence on the part of the l~e~pondent in nq):
ascertaining whether the packages contained genuine goods in conformity
with the Bills of lading, invoices, etc.
Held: That as between the buyer and the bank<::r, it is on!y on bank's
departure from t11e exact tern.1s of letters of cred'it can the bank be held
responsible, and the buyer cannot resist any claim for reimbursement bj the
bank, on the strength of the letter of crejit opened at his (buyer's) instan:e.
Bra , ;lia11 and Porlugcsc Bank v. Brilis!t a11d ;Jmericml Bankiu{f. Cortorfl-
ttoH, (1868), 18 L.T. 823; Union Ba11k vfCmzatla v. Cole, 118-77) 47 L.J.C.P
!OJ; Du11ald H. Scott & Co. Ltd. v. Barclays Bank, Ltd., (1921),2 K.B. l;
Bortlw:'c/1 v. Bank of NC7U Zealand, (1900) 6 Com. Cas . 1; Hart's Law of
Dauki11g (4th Edition, Vol. 11), pp, 650, 651, 652 ancl65'l, referred to.
Held also: That if the terms of the letter of credit are f~1lly complied with
any p;~yment made or bills n~gotiatecl by the Bank in accord~nce therewith
cannot ghe rise to a complaint either by the seller or the buyer.
That the relationship betwcen_the Banker and the buyer at,.whose instance
a Jetter of credit is opened, is determined by the precise terms;of the letter of
credit. The Banker must rigidly comply with these terms. In such a
deal, the Banker only m:~.kes the credit available .for the be.nefit of his client
The banker lis neither an agent of the buyer, nor of the seller; and "on the
credit b eing issued, the transaction is purtl y a trust between the seller and
the buyer".

Ci\il 1st Appeal Nu. 35 of 1956 ag~inst the decree of the High Court of
Rangoon, {Original Side) in Chi! l~egdar Sllil No. ~3 of 1953, dated the 27th
February, 1956.
 ~ ...., -4'\.LY.I..,_
<
..IJ.,_ YY J.'\..C.LV.l\.1. .::>. 289
The b:mke:-'s duty is to pay ag.lin;t d\'1-!mnents and not against goods, and H.C.
that. 'f the docu.nents are in orde:, it is not open to th~ banker, or has he any 1957
right to enquii'c into the question of q:Hllity or quantity.
11fESSilS. TH!!
1'h~ de:tl being b:tsed up.:m cl:>ctnnents, the que ;tion of" actual conformity AsrA1IC
of the goods to the description on the chcuments was inunateri~l". CoR'PORA-
Frey v. Sherbume a1d the Nalio1u<'l City Bank of Nc:o York, (1920) 193 TION
'l/'.
App. Div. 849; 184=N.Y, Supp. 661 i O'Mecra Co. v. NatiJn.lParll Ba11k oj
l\:ESSRS.
New York,(1925) 239 N.Y. 386; 146 N.E. 636 i Conti11e1z/al National Ba11k v. 1\IF. RCANT!LE
National Cit_~ Bank of Nero York, (1934), 69 F. (2,1) 312 ''The Law rdating to BANK)F
Ccmmtrcial letters of Credit" by Professor A. G. Da\is, referred to. IN OJA
Held further: That in the matter of issue of comp1issioa to exam.'n' LrMr7Eo.
certain witnesses in a distant country, especiall y where his examination
would cause delay, the Court must be fully condnced that the evider.ce o
s:~ch :1 witness i s really relevant an1 ne;:essary for the proper deci~ion 0{
the case.
Ram Sew.1k Koeri Mosadi Ko.:ri \'. Rai Balnrlr" Harihar PrasadSing/1
a11cl oue, A.I.R. (L927) R.ln.175=5 B.L.J. 242 i Jlf. Palu,iafp,l Cl;ettiar v.
NarayatiGtJ Clletlyar, 226 I. C. J 11 =A .I.R. (1946) Mad. Jill, referred to.
Hcld:"'Per U SAN ;\LWNG, J.-That a b ~1yer',; remedy when goods of the
ri!;!ht quality and q uan!ity had not been shipp~d is as against the seller {or
damages.

N . R. Burjorjee, Advocate, for the appellant.

C. A. Soorma, Advocate, for the respondent.

u CHAN TuN ' AuNG, C.J.~This is the defen-

. dants' appeal against the judgment and decree of
the Original Side of this Court, arising out of a
suit in which the respondents-bank (The Mercantile
Bank of India) sought for the recovery of K 33,03372
pyas, being the total equivalent sum of Hongkong
dollars 12,240 and 36,000 paid for and on behalf of
the appellants by having negotiated two drafts, at
Hongkong on two irrevocable letters of credit in
favour of one Asiatic General Trading Company of
Hongkong. The claim being founded upon docu-
ments, which in banking circle, are called " docu-
mentary 6r conditional letters of credit " raises a
question of some importance not only to the bankers
and their clients, but also to the commercial cJm-
munity at large. It appears that at the written

19
290 BURMA LAW REPORTS. [1957
0

H.C. request of the appellants, the respondents opened

1957
two irrevocable letters of credit at their. branch in
MEssRS. THE
ASIATIC
Hongkong. The two letters of request (Exhibits
CORtORA-
TION
A and J) are both dated 20th February, 1953. The
v. Bank accordingly cabled instructions to their branGh
MESSRS.
MERCANTILE at Hongkong and the credits were made available
BANK OF
INOlA
to the Asiatic General Trading Company of Hong-
LD!l'I'Eo. kong. Now, the respondents' case at the trial being
U CHAN,TUN tbat they have in strict compliance with the very
AUNG, C.J.
terms of the relevant letters of- credit completely
discharged their obligation, we deem it to be very
essential that some salient terms incorporated in one
of them shovld be set out hereunder. They are
duly signed by the appellants' proprietor adLlressed
to the respondents-bank. Both are in identical
terms:_
"Irrevocable without recourse credit.
THE MANAGER,
The Mercantile Bank of India, Ltd.

DEAR SIR,

Please instruct your Hongkong Office by wire to negotiate

the draft or drafts of M/S. Asiatic I
General Trading Co.,
No. 22, Connought Road, 1st Floor,'Hongkong on us to th~
extent of Hongkong dollars twelve thousand two hundred
and forty only, for full or invoice cost oi merchandise, viz.,
Toilet Requisites of Hongkong origin on C.I.F. terms from
Hongkong to be shipped to Rangoon port, not later than
30th March, 1953. . Drafts to be drawn at
sight accompanied by documents purporting to be :_
1. Invoice, Certificate of Origin;
2. Full set Clean on board Bills of Lading ; evidenc-
ing despatch to the Mercantile Bank of India,
Ltd. Rangoon A/c. Openers The ..Asiatic Cor-
poration;
3. Insurance Policyjies or Certificate (s) of a First Class
British and/or domii:don Insurance Co., covering
1957] BURMA LAW REPORTS. 291
War, Marine (combined Marine surcharge condi H. c.
' ditions) : W.P.A., theft, pilferage, non-delivery,
riots, strikes, civil commotion, malicious damage, -.-
llJ57

MESSRS. THl~
damage by fresh w&ter mud, hooks oil and/ or ASIATIC
CORPORA
other cargo from warehouse to warehouse irre- TJON
spective of percentage for at least - %over v.
MESSI<S.
invoice value. 1\I ERCANT !!.E
Claims payable in Rangoon but for the regularity or BAN:K OF
INDIA
genuiness of which documents you are not to be LmiTED.
responsib!e if apparently in order.
U CHAN TUN
And further we agree that the negotiation of such draft or AUNG, C.J.
drafts above referred to shall be optional on the part of your
Bank.
We further agree that we open this credit entirely at our
own risk~ and will honour all drafts presented even should the
goods not arrive or be refused landing through any act of
War or restrictions imposed by Government Ordinance.
Should this credit be extended or amended in any way we
agree to pay all charges in connection thereof.

Yours faithfully,
THE ASIATIC CORPORATION,

(Sd.) I. M. MADHA,
RANC}OON, 20th February, 1953. ProPrietor.

The respondents, obviousiy accepted these terms for

opening the credit.and.in pursuant thereto, they issued
necessary instructions to their branch at Hongkong
for the negotiation of draft or drafts to be drawn on
them. In due course the respondents received all
the necessary documents, through their branch office
in. Hongkong who had negotiated the bills in the
sums of Hoagkong dollars 12,200 and 35,700 against
specified documents set out in the letters of credit.
However, in the meantime, the packages of so-called
goods consigned by the Asiatic General Trading
Company of Hongkong to the" appellants, and also
292 BURMA L-A.W REPORTS!. [ 1957
H.c. said to be covered by the documents set out in
_l957 the letters of credit had arrived at Rangoon Port
MEssRs. THE for delivery. But it was eventually found out
AS!ATJC
coRPORA- that the contents of the packages were useless odds
'I' ION
v. and ends of no value whatsoever. The respondents-
M:!~!~~~LE bank thereafter presented their bills Exhibits B and H
BA:-<KoF
INDIA
to the appellants for payment; but payments were
LIMnED. refused. The appellants resisted the claim, asserting
u CHAN TuN that the respondents-bank had committed the breach
AUNG, c.J. of contract in not having strictly complied with the
terms embodied in the irrevocable letters of credit,
Exhibits A and J. In other words, the appellants
denied their liability to reimburse the :Banking
Company the sums aforesaid on the ground that the
Banking Company had failed to observe the terms
of the contract. When the pleadings were filed
before the Trial Court the appellants were called
upon by the respondents to furnish particulars as to
which terms of the credit the Bank had committed
the breach. Here, we may observe that the appel-
lants took several months to furnish the particulars
asked for. After several evasive replies and objec-
tions, spreading over for nearly eight months, the
appellants furnished the particulars, and even then,
it was on a move by the Bank 'w strike out their
(appellants') defence for failure to comply with
Court's order. The particulars furnished read :
(a) That the country of origin of the goods
shown in the application for a Letter of
Credit and the Letters of Credit is
different to the count~y of origin of the
goods sent to the defendants.
(b) That the goods in respect of which the
application for a Letter of Credit was
made and the.. Letter of Credit issued
are entirely different in description
,1957 J BURMA LAW REPORTS. 293
r
and kind to the goods sent to the H.C.
1957
defendants.
i\HssRS. THE
(c) That the value of the goods shipped was AS',A.T!C
CoRPORA-
very much less than the value of goods no:-<
shown in the application for Letter of v.
ME~SHS.
Credit and the Letter of Credit itself. 1\fJ<;RCANTlLE
BANK Ol'"
(d) That the plaintiffs failed in their obligation INDIA
LrmTED.
to ensure that goods shipped were the
same as those in the application for a CHAN TUN
AUNG, C.J.
Letter of Credit and in the Letter of
Credit Itself.
(e) That the plaintiff failed in their implied
obligation in respect of fhe application
for Letter of Credit and the Letter of
Credit itself to safeguard the interest of
the defendants.
(f) That although the defendant had requested
the plaintiffs to enquire and report on the
financial stability of and commercial re-
putatiQn of the shippers from Hongkong
they neglected and omitted to inform
the defendant of the reply to such.
(g) That although the defendant requested the
plaintiffs to amend the Letter of Credit
in an important particular they omitted
at{d neglected to do so.
(h) That both the Letters of Credit were
opened for a larger amount than that for
which the defendants had applied for.
Thus, the only important issue that fell for deter-
mination at the trial was whether the appellants or
the respondents-bank had committed the breach of
the terms of Contract set out in the exhibit letters of
credit.
The learned Trial Judge held that the appellants
having ordered certain goods from the sellers, the
294 BURMA LAW REPORTS. [ 1e;sr-

~9l7 Asiatic General Trading Company of .Hongkong,

-- and having arranged payment to the said sellers by
M~:::~;~~I!E taking advantage of the banking facilities made
co.~~o~-;RA- available by the respondents by means of irrevo-
v.
MESSRS.
cable letters of credit Exhibits A and J, but
1\IERCANT!LE that in consequence of fraud or deceit practised by
BANKOF
INolA the sel 1ers on the buyers (appellants) t h e goo ds
L!MnF.o. consigned were of no value whatsoever, and that in
u CHAN ToN such a transaction in which both the paying Bank and
AoNG, c.J. the issuing Bank having had to deal mostly as against

documents-the very basis of the letter of credit

made availal:Je under the circumstances of the case
being on documents alone, the respondents-bank
are not liable to share the loss, nor can they be said
to have committed breach of any of the terms of the
letters of credit made available at the request of the
appellants.
It also appears at the trial that rhe respondents ~

by their application, dated the 21st August, 1954

obtained permission to examine on commission, the
Chief Accountant of their bank at Hongkong, and
that the appellants had also taken the fullest oppor-
tunity to administer cross interrogatory on the said,,
witness_ However, on the 27th July, 1954 the appel-
lants also applied for issue of a commission to
examine the following persons in Hongkong :_
(a) Collector of Customs, Hongkong ;
(b) Officer (Custom) in Hongkong, who passed
the goods in suit ;
(c) The President of the Chinese lChamber of
Commerce, Hongkong;
(d) The Secretary of Chinese Chamber of
Commerce, Hongkong ;
(e) The Manager of the Shipping Agents,
(S.S. " Sangola ") at Hongkong ; ..
1957] 'BURMA LAW REPORTS. 295
' 3

(/J The proprietor or partner of Messrs. H.C.

1S'Si'
Asiatic General Trading Company ;
MF.SSRS. THE
(g) The I\1anager of 'Iviessrs. Asiatic General Asunc
Trading Company, Hongkong. CORPuRA-

1'.
This application was resisted by the respondents on l\IESSRS.
MERCANTILE
the ground that their claim as against the appellants BAN[{ OF
INDIA
being based upon. two confirmed irrevocable letters LJMlT!.D.
of credit which entitled them to negotiate drafts U ClL\:-1 TUl\
against documents OT titles to goods, invoices, bills AI;NG, C.J.
of lading etc., the evidence of these witnesses were
not at ~11 'material for the cleterminatio; of the issue
or issues ini'.Olved, namely whether the respondents-
bank had committed the breach of the specified
terms of the letters of credit made in favour of the
said Asiatic General Trading Company, consignors
(sellers). This objection was upheld by the Trial
.t udge, and the appellants' application for issue of
commission to exami-ne the aforesaid witnesses was
rejected on the 31st January, 1955.
In the appeal before us, the appellants' Counsel
has assailed the judgment of the Trial Court basing
mainly upon the following three grounds :
(a) Accepting that the contractual relationship
between the appellants and respondents is based
upon the terms set out in the two applications for
opening irrevocable letters of credit pursuant to
which the respondents had paid out the specified
sums after due canfirmation both by airmail and by
cablegram to their bank in Hongkong-the paying
sector_yet; the respondents should be held to have
committed the breach of the terms under which the
letters of credit were opened, in that they had
through their paying b.1nk acted negligently in not
ascertammg whether the packages consigned
contained genuine goods as described in the bills
296 BURMA LAW REPORTS. [1957

~fi of lading, invoices, insurance policies 'and the

_:.... certificates of the Chamber of Commerce, Hong-
MEssRs. THE
AsrAnc
k ong, Vl'de Exh'b'
1 Its D , E , F an d G .
co~:'o~~<A- (b) Even if the above contention were un-
ME~Rs. acceptable, then due consideration should be given
MERcANTILE to the existence of appellants' letter, dated 2nd
BANK OF
"INorA March 1953 (Exhibit 8) the address of the respon-
LruiTEo. dents wherein the following amen(ied clause of terms
u CHAN TuN of credit was inserted :_
AUNG, C.J.
"Goods to be surveyed on the wharf by General
Superintendence Company Hongkong for the
entir ~ co:J.signment of Cigarettes ann Toilet
goods in respect of quality; quaf!tity and value
according to the terms of Letters of Credit."
The respondents-bank had obviously failed to comp1y
with this amended term and thus, should be held to
have committed the breach. ,
(C) Rejection of the appellants' application fot
examination of certain listed wit:llesses on commission
at Hongkong was wholly unjustified.
I shall now deal with the first ground. It may
be observed at the very outset that the appellants'are
not in a position to challenge seriously that the
respondents in fulfilling their oblir;ation under the
exhibit letters of credit, in terms some of which we
have already set out above, cannot be held to have
committed breach of the terms thereof, if they
negotiated the draft or drafts presented to them on
the strength of documents" purporting to be invoices,
clean bills of lading, insurance policies, etc., for the
regularity or genuineness of which they are not to be
held responsible if they are apparently in order."
Submissions were however made by the appellants'
Counsel by stressing that tl}e respondents were not
justified in negotiating the draft drawn upon them on
the mere presentation of the documents ulone. It is
 r BURMA LAW
-, REPORTS. 297

contended that the bankers' duty in respect of the H..C

1957
aforesaid letters of credit does not end by merely
ME&.RS. THE
looking at the documents oresented, but that they ASIATIC
CORPORA-
should, before the negotiation of the bills, examine TION
whether the goods specified in the documents were v.
MEsSHS.
really the goods which the appellants had purchased MERCANTILE
BANK OF
viz. toilet requisites and cigarettes. In other words, 1NDIA
Lf'IITEfl.
the appellants sought to put the respondents-bank in
the role of their 'agent and place responsibility on UCHAN TUN
AUNG, C J.
them for having negligently paid out or otherwise
negotiated the draft to the appellants' detriment by
not ~roperly ascertaining beyond the documents
which wer~ presented to them. I see no merit in
these submissions and I cannot allow them to prevail.
It seems the learned Counsel for the appellants is
under a misconception as to the precise scope and
the specific purpose of the two letters of credit
, (Exhibits A a'"nd J) when read in terms of the
last clau,se wherebY. the appellant had agreed with the
(respondents) that in opening the credit it was done
entirely at their own risk and that they agreed to
r~imburse the bank even if the goods do not'arrive
, or be refused landing through any act of war, or
restrictions imposed by government ordinance.
By referring to Hart's Law of Banking (4th
Edition, Volume II), the appellants' Counsel cited the
following cases appearing at pages 650, 651, 652 and
654:-
Brazilian and Portugese Bank v. British and
American Exchange Banking Corporation (1); Union
Bank of Canada v. Cole (2}; Donald H. Scott & Co.
Ltd. v. Bmclays Bank, Ltd. (3); Borthwick v. Bank
of New Zealand (4). It is urged on those authorities
that the respondents .~ihould be held responsible for
(IJ (1868) 18 L.T. 823. (3} (19~3) 2 K.l3. 1.
(2) (1877) 47 L,J .C,P. 100. (4) 11900 6 Com. C:.s. 1.
298 BURMA LAW REPORTS. [1957

H.C.
1957 the loss sustained by the appellants. I have carefully
MESSRS. TilE
gone through the facts presented in each of the
AsiATic aforesaid ca.ses and I find that none of them really.
CORPORA
TION helps the appellants' case. In Brazilian and Por-
v. tugese Bank v. British and American Exchange
MESSRS.
1\l!,;RCANTI!.l; Banking Corporation (1), the bank was sued upon by
BANR OF
lND!A a third party who had produced or cashed '" bill
LmiTFO.
purporting to be drawn under a let.ter of credit, for
U CH,\N TU:-1 non-performance by the issuitlg Bank of specified
liUNG, C.J.
terms of the letter of credit. Similarly, in the Union
Bank of Canaqa case (2}, a specified condition in the
letter of credit remained unperformed. In tha~ case,
letters of credit were addressed by the defendant-
bank to certain corn merchants authorising them to
draw bills on them agrlinst shipment of grain. There
were certain conditions appended to the letters of
credit. The corn merchants drew 1,-lills upon the
defendant-bank under the credit so opened without
performing the conditions specifieci. It was held that
the appended condition formed part of the contract.
Donald H. Scott & Co. Ltd. v. Batclays Bank Ltc./.
(3) was a case in which the bank was sued upon by
the seller of the goods for alleged non-performance of
one of the specified terms of the Ie.tters of credit.
The said term related to a payment clause, which
enjoined the bank to honour the draft only on pre-
sentation of among other documents, draft and
insurance policy, covering the shipment of goods.
The sellers presented their draft accompanied by a
certificate of insurance which did not contain or did
not offer any means of ascertaining the terms of the
contract. It was held that the bankers were justified
in refusing to honour the draft. Borthwick v. Bank
of New Zealand case (4) is c>Jso of no help to the
(1) {1860!) lS L.T. 823. (3) {! 923) 2 IU~, !.
1~) {187/) 47 L.J. C. P. 100. (-+) (1900) 6 Com. Cas. l.
 '
'195i] 1,3 URMA LAW, REPORTS. 299
'
appellantn. There, the buyer sued the bank ~:~~
(defendants) for having negotiated a draft 2oH<:tching -...-
; t t., h ~JnS!IS. THE
to an msurance po11cy, cont:<.tlmng a tenT! WuiC was AsiAnc
quite contrary to the one usually adopted in the co;~~~r~A-
frozen meat trade, and the bank was held liable for v.
1\!Ess:,s.
having not complied with the terms of the letter of MERcANTILE
credit. Thus, from the very decision, relied upon by 8!\:~~.~F
the appellants' Counsel it appears that as between LI)f!T!W.
the buyer and the banker, it is only upon the bank's u cuAN TuN
AuNG, C.J.
d eparture from the exact terms of letters of credit can
the bank be held responsible, and the buyer resist
any claim for reimbursement by the bank, on the
strengtl1 of the letter of credit opened at his (buyer's)
instance. in my view Exhibits A and J letters of
credit as they stand authorise the respondents to
n egotiate the draft drawn upon them on the strength
of documents set out therein. Nowhere do I find
any term whereby the respondents-bank were obliged
to satisfy themselves. as regards the quality, quantity
and the genuineness of the goods shipped or agreed
to be shipped. In other words the respondents are
authorised to n egotiate or accept only as against
documents
. and not against goods. IL' the documents
are in order, it is not open to the respondents, nor
have they any a authority or right v,;hatwever to
enquire into the question of quality or quantity in
the absence of any specified term in that behalf.
On the other hand, the learned Counsel for the
respondents ' has drawn our attention to certain
observations appearing in the Treatise on "The
Law relating to Commercial Letters of Credit " by
A. G. Davis.. and submits that the issuing bank or any
of its branch, the paying bank, on the basis of
documentary letters of credit is not a buyer's agent
and that the respondents had n.ot committed breach
of ?,ny of the terms of letters of credit (Exhibits A
300 BURMA LAW REPORTS. [1957~

H.C. and J). He relies upon the following American

1957
cases cited in the said treaties : -
lVIESSR!:,. THE
AslATtc Frey v. Sherburne.and the National City Bank
CORPORA-
TION of New York (1); O'J11leara Co. v. National Park
ME~sr~s Bank of New York (2); and Continental National
MERCANTILE
BANK OF
Bank v. National City Bank of New York (3). In
IsnrA all these cases, we find that for failure to embody a
LnmEo. specific term in the letter of credit, an action brought
CHAN Tu~-;
uAUNG, either as against the bank or any ~third party, failed
C.J.
for anything alleged to have been done contrary to
what is not specifically set out in the letter of credit.
If the terms of the letter of credit are fully complied,
any payment m~de or bills negotiated by the Bank
in accordance therewith cannot give rise to a
complaint either by the seller or the buyer. In Frey
v. Sherburne and the National City Bank of New
York (1) , the contract provided that the plaintiff
should furnish irrevocable letters of credit for the full
amount of the seller's invoice, contract being for the
purchase of certain quantity or' Java sugar. There
was a further term added which stipulated that if by
reason of the unforeseen circumstances, the sugar
could not be shipped within the specified time, and
the seller being unable to supply a steamer of eqmil
character and capacity, the buyer htld the option of
cancelling such portion of the contract. as had not
been cleared within the time specified. This new
clause was not embodied in the letter of credit. In
exercise of that right, the buyer ca.ncelled a portion
of the contract and brought action against the bank
restraining it from paying out the draft covering the
shipment of sugar. It was held that tlie plaintiff's
remedy lay against the seller for damages and that he
!1) t1920) 193 Arp. riv. MIJ; 184 N.Y. Sapp. 661.
(2) (!925) 239 N.Y. 3~6 ; 146 N.E. 636.
(3) (1934) 69 F. (2c1) 312.
1957] BURMA LAW REPORTS. 301
0

haa no r~,ght to restrain the banker from paying the H.C.

1CJ57
draft drawn by the seller strictly in accordance with
.
the origmal terms o f the letter of ere d it. Here, we MES!i:~s.
AsrATrc
THE

'Observe that the banker's duty is to pav J

against CoRPoR.-t-
TION
documents and not against goods, and that if the v.
MESSRS.
documents are in order, it is not open to the banker, MERCANnLE
nor has he any right to enquire into the question of Bt~~rAoF
quality or quantity. O'Meara & Co.'s case 0) was LIMITED.
also decided havh1g for its basis the strict interpreta- u CHAN Twr
tion of the terms of the letter of credit. There, the Au~G, C.J.
defendant issued an irrevocable letter of credit in
which it was agreed to pay sight d,rafts covering
shipment of certain tons of newsprint on presentation
of specified documents. The letters of credit
definitely specified the tensile strength of the
newsprint. When the drafts were presented with
the documents required by the letters of credit, the
bank refused to pay on the ground that neither the
beneficiar:y under the letter of credit, nor the plaintiff
(his assignee) had" presented evidence "reasonably
satisfactory " that the newsprint referred to in the
documents accompanying the drafts was of the tensile
strength specified in the letters of credit. If was held
'that the Bank was liable to pay on the drafts. The
documents presented described the paper shipped as
of a certain size, weight and tensile strength and the
Bank was not justified in insisting "evidence" of
tensile strength of the paper. In the Continental
National Bank case (2), the Bank issued a letter of
credit covering a cargo of cement and they were
obliged to call for shipping and consular documents
in additic:Jn to a provision which reads : " Cement to
be of sound merch antable quality and standard of

-:
(I) t1925l 239 N,Y. 386; 146 N.E ..636.
(21 (193~) 69 F. (2d) 312.
302 BURMA LAW REPORTS. [1957

~-g same shall meet with the requirement_s of the

-. American Society for testing materials". Documents
MESSRS. THE
As!A'<~c presented correspon de d to tnose
. . . t he Ietter
spec1'fi1ed m
co:r~~RA- of credit and included in addition a document~
v. _ entitled " Certificate of Quality". The Bank refused
M ESSR~. h onour th e d raf t accompanymg
t hese documents
MERcANTILE to

B~~~~~F and when sued upon, it was contended that there was
Lr~:o. lack of conformity of the goods. specified in the letter
u CHAN TUN of credit. The plaintiffs, on the other hand,
AuNG, c.J. contended that the Bank was bound to accept drafts
drawn under the letter of credit in question when
the documents presented conform to its terms, the
deal being ba~sed upon documents. The plaintiff's
contention was allowed to prevail. It w2s also held
that where the terms of the letter of credit are to
accept drafts on presentation of certain documents,
the question of " actual conformity of the goods to
the description on the documents was immaterial ".
The decisions referred to above are indeed useful
guides to us in the determinaticn of the question
involved in the present case, especially the question
on construction of "documentary letter of credit".
Thus, from the foregoing decisions we may lay down
that the relationship between the Banker and the
buyer at whose instance a letter of czedit is opened,
is determined by the precise terms of the letter of
credit. The Banker must rigidly comply with these
terms. In such a deal, the Banker only makes the
credit available for the benefit of his client. The
banker is neither an agent of the buyer, nor of the
seller, and in the words of Professor Davis "on the
credit being issued, the transaction is pur~ly a trust
between the seller and the buyer".
It may perhaps, from what I have stated above,
imply that the buyer in trans.acting the business on
documents which complied with the terms of letter
1<)57] BURMA LAW REPORTS. 303

of credit, b'ut which do h.ot in fact describe the H.C.

1957
quality and quantity of actual goods shipped puts
MESSRS THE
himself entirely at the mercy of the unscrupulous AS~ ATIC

seller. In that connectjou, the observations of CoHPOHA

TION
Professor Davis at page 76 of his Treatise are most 71.
MESSRS.
apposite and we desire to adopt as our own. They II1E){C,\Nl'ILE
BANK OF
read: INDIA
Lr.\HTED.
" In some cases this may be so, but the remedy lies in
U CHAN TUN
the buyer's hands. If he is unwilling to trust the seller, then AUNG, C.J.
it is an easy matter 'for him to. stipulate in the sales contract
that payment under the letter of credit Will be made only
against (inter alia) certificates of quality provided by his
(the buyer's) agent at the port of embarkaticn; or, again, if
the goo.us are to be carried by sea, he can require the tender
of clean bills <Of lading, describing the goods as of the contract
description, and so throw on the carrier the liability to produce
such goods ".

In the present case, it cannot be seriously urged that

the respondent~-bank had failed to carry out the
ubligations eKpressly provided in Exhibits A and J
letters ofcredit. They have negotiated a draft drawn
upon them . on presentation of documents set out
therein, the genuineness of which, if such documents
are found to be apparently in order, is not to be
questioned by them. How can the Bank, therefore,
be held to have committed breach of the terms
thereof? There is thus no substance whatsoever in
the submisslon made by the appellants' counsel in
that regard.
Dealing with the second point urged, I must at
once say that the appellants had not specifically raised
thi~ point at the trial. They never contended that
the terms df the credit Exhibits A and J were amen-
ded by their Jetter to the respondents dated 2nd
March, 1953 (Exhibit 8) . I cannot give any credence
to letter Exhibit 8. Both from internal evidence,
304 BURMA LA\V RE-PORTS. [1957
..
its~ and on the face of letter (Exhibit 8) itself, , the
-. appellants' assertion of amendment of the letters of
MF.SSRC, fHE
A.sr~nc ered'1t m. t erms se t ou t t h erem . c1ear1y an a f ter-
. IS
co:~~~'~RA- thought, just to bolster up their case, when they found
v. that they had no grounds whatsoever to resist the
d ' 1
MERCANTILE respon ents c ann on
MEssRs.
1 Its A an d J .
E xh'b' I t 1s
most
Bt~:1 ~F surprising that the presence of this important letter
LrmTED. which can completely alter the appellants' case was
u c;;;TuN never disclosed, nor mentioned by them when they
AuNG, C.J. filed their written statements on the 7th day of

September, 1953. They merely contented themselves

by saying in paragraph 6 of their written statement,
" the plaintiffs (respondents) themselves have c~mmit
ted breach of the contract and have faited to carry
out the terms of the contract as . stipulated ".
Strenuous efforts were made by the respondents-bank
to get particulars from the appellants, how they had
failed to carry out the terms of the contract ; but as
already stated above, the appellants gave several
evasive replies and sought to gain tiine ~y cleverly
adopting the delaying tactics spreading well over
nearly eight months. In none of these particulars
furnished, did the appellants disclose specifically the
despatch of Exhibit 8, except in vague terms set Ol:j-t
in clause (g) of the particulars belatedly furnished on
the 25th May, 1954. It is alleged that the letter
Exhibit 8 was personally handed over to the respon-
dents-bank Manager, one Mr. Guthrie. If that is
so, we do not see why the Bank should not promptly
communicate the important term to their paying Bank
at once. What benefit would there be to the Bank to
suppress this letter if it had really been pommunica-
ted to them '? Appellants' case is not founded upon
conspiracy between the respondents-bank and the
Asiatic General Trading Company of Hongkong.
Furthermore, when the respondents' lawyer sent their
1957] -BURMA LAW REPORTS. 305
letter, dated 2nd May 1953 (Exhibit P) calling upon ~_g
the appellants for reimbursement, the appellants rep- -.-
lied through their lawyer by .letter (Exhibit Q), dated M~~~~~~HE
the 5th May, 1953 in which they naively denied their co;~~RA-
liability to pay. Nothing was mentioned about the . v.
. MESSRS.
amend ment o f t he terms o f t he 1etter o f eredIt by MEncANTILE

letter Exhibit 8 in what they, at a late stage, said" an B~~~~~F

impo'ftant particular". This, to my mind, greatly L!~UTEo.
militates against the appellants' case. I have very u CHAN TuN
closely examined the letter Exhibit 8 itself, and I find AuNG: C.J.
that it is not a carbon copy; but an original with no
signatlJ.re or initials of any responsible person ;
whereas in., exhibit letters 3 and 4, admittedly sent
by the appellants to the Manager of the Mercantile
Bank of India, which initiated the opening of the
letters of credit in question, the appellant's have
produced purple colour carbon copies maintained in
_their office. Had the term as set out in Exhibit 8
really co~stituted the basis of the opening of the two
letters of credit, the importance of which cannot at
all be minimised, the appellants or their lawyer when
filing written statement would not have hesitated in
~ettiug out the said term; and would take fullest
advantage of it in resisting the respondent:;' claim.
Strangely enough, they have not done so; and no
reasons have been given for not dolng so. The
appellants' proprietor Mr. tv1adha when cross-
examined on this point by Mr. Soorma states as
follows:
Q. Can you tell us why you did not specifically
, mention in Exhibit Q that you have asked
for amendment of the letter of credit ?
A. Beqmse I have already explained tllis
personally _to the officer of the Bank.
Q. Did you at a1iy time,instruct your advocate
to plead that" fact in your written

20
306 BURMA LAW REPORTS. . [1957"

H:c. statement that you had asked the Bank

1957
to amend the letter of credit ?
liiESSRS. THE
ASIATIC A. I cild.
CORPORA
TION
Q. You did not plead it in the written state:
v. ment?
l\lESSRS.
MERCANTILE A. Not in this manner.
BANK OF
INDIA Q. Nor do you allege in your written state-
LIMITED. ment that the letters of credit had been
UCHANTUN opened without your instructions ?
AUNG, C,J,
A. How can I say?
I am therefore unable to accept the second contention
urged by the appellants' counsel.
As regards the non-issue of commissior1 to examine
some witnesses which the appellants sought to examine
at Hongkong, Mr. Burjorjee conceded that he would
not dispute the principle laid down in that regard in
case of Ram Sewak Koeri Mosadi Koeri v.
Rai Bahadur Harihar Prasad Singh and one (!) :
It was held therein that a Courl has discretion to
grant or refuse a commission under Order 26, Rule
4, Civil Procedure Code but that in refusing, a
commission, the Court would not be justified when
the evidence is material to the case. In other words;
in the matter of issue of commission to examine
certain witnesses in a distant country, especially
where his examination would cause delay, the Court
must be fully convinced that the evidence of such a
witness is really relevant and necessary for the proper
decision of the case, cf. M. Palaniappa Chettiar v.
Narayanan Chettyar (2). We may here note that
when we asked Mr. Burjorjee appearing for the
appellants what evidence the witnesses sought to be
examined by him would really give, he says he does
11ot know; but he expects that some sort of evidence
(1) A.I.R. (1927) Han. 17S=S B.L.J.242.
(2) ?26 I. C. lll "' A.I.fl. (1946) M.\u. 331.
1957] ' BURMA LAW REPORTS. 307
(!

will be given by them. We have scrutinised the list H.C.

1,957
of witnesses whom Mr. Burjorjee wished to call, and
MESSRS. THE
Vje fully agree with the learned trial Judge that AsrATic
witnesses sought to be examined would not give any co:~~%RA
material evidence relevant to the present claim of the v.
respon d ents as agamst . t he appe II ants. The claim
. of MERcANTnE
MESSRs.

the Bank against the appellants, as we have already ~~~~Aor.

observed above, is .a claim for reimbursement of the LBm.tm .
.sums paid on the draft which they have negotiated as u CHA-N 1:uN
.
.a.gamst documents, purportmg . to be mv01ces,
. . b'Ills AUNG,"C.J
.of lading, insurance policies of merchan.9.ise described
as " l'Gilet requisites and cigarettes '' on the strength
of a certifi.c~-te issued by the Chinese General Cham-
ber of Commerce at Hongkong. Since there is no
other term under which the respondent Bank are
obliged to observe the specified terms before they
negotiate the dqtft, we do not see how the evidence
of the witnesses whom the appellants desired to
examine on commissi'On at Hongkong would materially
help or advance their defence in any way.
After a careful survey of the entire evidence and
from the facts and circumstances obtaining in the
case, I do not see how the bankers (respondents)
could be debarr;ed from claiming reimbursement
against the appellants when they have paid out
according_ to the true tenor of the letters of credit
opened at the instance of the appellants. I see no
justification whatsoever to interfere :with the judgment
and decree of the trial Court and this appeal is
therefore dismissed with costs.
U SAN MAUNG, J .-I have had the advantage of
reading the judgment just pronounced by the learned
Chief Justice and I must say that I am in full agree-
ment with him. However, owing to the importance
of the matter now under consideration I would like
to a'dd a few remarks to his judgment.
~08 BURMA LAvV REPORTS. [1957

H.C. Three points have been stressed by the learned

19S::
Advocate for the appellants Messrs. The Asiatic
MESSRS. THE
ASIATIC Corporation. They are as follows :
CoRPORA-
TION (1) That by the terms of the letters of credit
v. the paying Bank viz. the Hongkong
MEssRs.
MERCANTILE Branch of the Marcantile Bank of India~
BANK OF
INDIA Limitesf was under a duty to see that
LIMITED.
the goods of the light quality and
U SAN quantity had been shipped before they
i\lAUNG, J.
made the necessary payments to the
~ellers, viz. The Asiatic General
Trading Co. of Hongkong.
(2) That the respondents, viz. The Mercantile
Bank of India, Limited, Rangoon
Branch, were negligent in not having
communicated to their Branch at
Hongkong the instructi"ns contained in
the letter (Exhibit 8) which reads : ,.
" Please include the following clause in the L-Cs.
and intimate the same accordingly by cable
your Hongkong Office:-
' Goods to be surveyed in the wharf by General
Superintendence Company Hongkong for
the entire consignment of cigarettes and
toilet goods in respect of quality, quantity
and value according to the terms of Letters
of Credit.' "

(3) That in any event the learned trial Judge

was wrong in having decided the case
without examining the persons cited by
the appellants on commission. They
were (a) Collector of Customs,
Hongkong; (b) Custom Officer in
Hongkong who passed the goods in suit;
(c) The President of the Chinese Cham-
ber of Commerce, Hongkong; (d) 'The
1957] BURA LAW REPORTS. 30~

Secretary of 'the Chinese Chamber of H.C.

1957
Commerce, Hongkong; (e) The Manager
MESSRS. THE
of the Shipping Agents, S.S. " Sangola, " A1l)ATIC
CoRPORA-
at Hongkong; (f) The Proprietor TION
or Partner of Messrs. Asiatic General v.
MESSRS.
Trading Co. ; (g) The Manager of l\f ERCA:\TILE
B.~l\K OF
Messrs. Asiatic General Trading Com- INDIA
pany, Hongkong. LIMI1ED.

As regards the first point, the learned Advocate U SA::-1

!VlAUl\G, J.
for the appellants'can cite no authority in support of
the proposition that in the case of irrevocable letters
of credit in terms of Exhibits A and J, the paying
Banks are under a duty to see to it that the goods of
the rlght guality and quantity had been shipped
before making payments to the sellers. On the other
hand, from the very language of the exhibits letters
of credit it is clear that payment was to be made on
drafts to be drawn at sight accompanied by documents
purporting to l:ie invoice, certificate of origin, full set
dean on board bilLs of lading, evidencing despatch
to the Mercantile Bank of India, Limited, Rangoon
Ajc. Openers The Asiatic Corporation and Insur-
ance Policy or Policies, Certificate or Certificates of a
.First Class British andjor Dominioninsurance Co.,
covering war,- marine (combined marine surcharge
conditions) : W.P.A. , theft, pilferage, non-delivery,
riots, strikes, civil commotion, malicious damage, etc.
In the letters of credit there is also a stipulation to
the effect that the )3anks are not to be responsible
for the regularity or genuineness of the aforesaid
documents if they are apparently in order.
From these terms in the letters of credit it is
clear that no duty had been cast upon the paying
Bank to see that the goods of the right quality and
quantity had been shipped before payment was made
to the sellers concerned. In, this connection the
310 BURMA LAW REP,ORTS. [1957

following passage from the Law relating 'to Commer-

cial Letters of Credit by A. G. Davis js apposite.
MESSRS. THE
AS I AT~ The learned author says (at page 72):
CORPORA-
TION " Rowlatt, J. said-
v.
MESSRS. The basis of this form of banking facility (is) that the
MERCANTILE
BANK OF
buyer is taken for the purposes of all questions
INDIA between himself and the seller to be content to
LIMITED.
accept the invoices of the seller as correct
U SAN The buyer having authorised
MAU:\'G, J. his banker to undertake to pay the amount oE:
the invoice as presented, it follows that any
adjustment must be made by way of refund by
the seller, and not by way of retention by the
buyer. ,
The dictum of Rowlatt, J., quoted above, that the
basis of the letter of credit is that the buyer is
taken to be content to accept the invoices of
the seller as correct was in the particular
circumstances of the case a correct exposition
of the law. But the buyer need not rely
wholly on the seller. He can protect himself
against sharp practice, _or, it may b.e. genuine
error, on the part of the seller by including in
the sales contract a term that one of the
documents to be called for by the letter . of
credit is, for example. a certificate by the
buyer's agent, vouching the correctness of the.
invoice, and by ensuring that, in the letter of
credit as issued, this is one of the documents
to be provided. This latter point is of para-
mount importance, for, whatever may be the
terms of the sales contract, unless any particular
provision is incorporated in the letter of credit,
then as between the seller and the banker, that
provision has no application. So far from the
letter of credit being qualified by the contract
of sale, the latter must accommodate itself to
the letter of credit. "
Further, on the learned author after quoting the
case of Frey V. Sherburne and
the National City
1957] BURMA LAW REPORTS. 311
Bank of New York (1) in support of the proposition H.C.
1957
that a buyer's remedy when goods of the right quali-
liiE(1.5Rs. THE
ty and quantity had not been shipped is as against ASIATIC
CoRPoRA~
the seller for damages, goes on to say- TIOX
" Nor can the banke_r refuse to honour his undertaking v.
l\'TESSRS.
if the goods delivered under the sales contract are inferior in MERCANTILE
quality to those contracted for, even though the banker knows BANK OF
INDIA
of this defect. The banker's duty is to pay against documents LIMITED.
and not against goods. If. therefore, the documents are in
u SAN
order, it is not open to the banker, nor has he any right, to l'I"TAUNG, J.
enquire into questions of quality or quantity. "
[n support of this proposition he cited two cases
O'l1-ieara Co. v. National Park Bank 'of New York
(2} and the Continental- National Bank v. National
City Bank ''at New York (3) and concludes as follows:
~Pressed to a logical conclusion, these decisions would
;eem to imply that the buyer must put himself at the mercy of
m unscrupulous seller who delivers documents which comply
.vith the terms of .the letter of credit but which do not. in fact,
jescribe thy goods actually shipped. In some cases this may
Je so, but the remedy lies in the buyer's hands. If he is
mwilling to trust the seller, then it is an easy matter for him
o stipulate in the sales contrac( that payment under the letter
)f credit will be made only against (inter alia} certificates of
1uality pr.ovided by his (the buyer's) agent at the port of
:mbarkation ; or, again, if the goods are to be carried by sea.
te can require the ,tender of clean bills of lading, describing
he goods as of the contract description, and so throw on the
arrier the liability, to produce such goods.''
~hese observations appear to be not only sound
aw but also in conformity with sound commercial
1ractice and they are, ' in my opinion, complete
nswers to the argument of the appellants' Advocate
hat by the terms of the letters of credit (Exhibits
\.. and J). A duty had been cast upon the payi~1g
:ank to ensure that goods of the right description
(l) (1920) 193 App. Div. 8-t-!1. (2) (1925) 239 N.Y. 386.
(~l (1934 69 F. (2dl~ 312.
312 BURMA LAW REPORTS. [1957
H.C.
.
had been shipped before payment was made to the
19i7
seller.
ME;;SRS. THE
AsiAT~
A s regar d s t11e 1etter (E xh'b'
1 1t 8) , 1t
. appears to me
co~~g:A- to be dearly an afterthought. If, in fact, a letter.
v. couched in the same language as Exhibit 8 had been
MEU~
MERcANTIJ.E delivered by the sole propnetor of the defendant-
B1~~~AoF appellant firm, the Asiatic Corporation, _to the then
L!mnn. Manager of the Mercantile Bank of India Limited
u SAN at Rangoon, I see no reason why t~e Manager should
MAuNG, J. not have communicated the new conditions to the
Hongkong Branch especially when the letter was
said to have been delivered a day before the letters
of credit were confirmed by airmail to Hongkong.
Then again, if such a letter as Exhibit. 8 had been
delivered by Mr. Madha to the then Manager of the
Mercantile Bank of India Limited at Rangoon, I see
no reason why Mr. Madha should not have. sent a
notice to the respondents as soon as it was discovered
that instead of cigarettes and toilet goods only old.,
newspapers had been shipped by :3. S. 'Sangola". As
it is even when the respondent Bank sent a notice
(Exhibit P) to the appellants on the 2nd of May 1953
long after the bale of old newspapers instead of
cigarettes and toilet goods had been received in.
Rangoon, the appellants in their reply (Exhibit Q)
dated the 5th of May 1953 did not state specifically
that they were not liable to pay because the respon-
dents had failed to curry out the instructions
contained in the letter (Exhibit 8). Exhibit Q was
drafted not by Mr. Madha but by his Advocate
Mr. Burjorjee. If therefore Mr. Madha had, by the
date of the letter, informed his Advocate of the fact
of a letter in the form of Exhibit 8 had been delive-
red to the respondents' agent on the 2nd of March
1953, it is inconceivable that Mr. Burjorjee would not
have made the utmo~t capital out of this fact. If,
19.3 7] BURMA LAvV REPORTS. 313

H.C,
-on)the other hand, Mr. Madha had not informed i95l
!vir. Burj'orj~e about such an important fact as a
!IIESSI<S. THE
Jetter like Exhibit 8 being delivered to the respondents' A~:< A TIC
COR?ORA
~gent, it only means that no such letter had ever T[O);
been in existence. In any event, the internal v.
MEssRs.
evidence in the case points to the fact that Exhibit 8 MERCA:>;TILE
BANK OF
was the result of an afterthought and this conclusion INDIA
is more than confirmed by the failure to plead LrmTED.

specifically in the written statement filed by the U SAN

1\IAUNG, J.
appellants that the plaintiff-respondents were
negligent in not having carried out the instructions
.contained in Exhibit 8 that the Hongkong Office
:shoulg be instructed to have the goods surveyed on
the wharf l;ly the General Superintendence Company,
Bongkong, to ensure that the entire consignment of
cigarettes and toilet goods of the right quality and
-quantity had been shipped. The existence of a
letter like Exhibit 8 was also not disclosed in the lis t
. of correspondence relied upon by the defendants.
In fact, ,no such list was appended to the written
.statement as it should have been.
As regards the third point, I may observe that
even when the matter was argued before us the
.learned Advocate for the appellants had not the
faintest .idea wl}at the witnesses whom he would like
:to examine on commission at Hongkong were likely
to state in support of his defence. In fact, two of
the witnesses whom he wished to examine, namely,
the Proprietor or Partner of Messrs. Asiatic Genera l
Trading Company and the Manager of the same
Company were fugitives from the law. As regards
the Collector of Customs, Hongkong, the Custom
Officer, Jlongkong, the President and Secretary of the
Chinese Chamber of Commerce, Hongkong and the
Manager of the Shipping Agents at Hongkong, I do
not know what the ~efenda,nt-respondents wished
314 BURMA LAW REPORTS. [195~
<
H.C. them to state. Did he think that they or any of
19_;)7
them would state that they were in conspiracy not
MEssRs. THE
As~ANC only with the seller of the goods but with the paying
CORPORA-
TION
Bank, to cheat the defendants? Nothing short of
"'
MESSRS,
participation in such a conspiracy by the paying
MERCANTILE Bank would absolve the appellants from the liability
BANK OF
lNDIA to pay on the letters of credit as it cannot be denied
LIJIIITEO,
that the documents accompanying the drafts were
U SAN apparently in order. As held by Maung Ba, J. in
MAL'NG, J.
Ram Sewak Koeri Mosadi Koerl v. Rai Bahadur
Haribur Prasad and one (1), a Court had a discre-
tion to grant or refuse a Commission although the
discretion mus't be exercised judicially and the r~asons
given for refusal must be adequate. In the case
under consideration, I am not prepared to say that
the learned trial Judge had wrongly exercised his
discretion in refusing to examine the witnesses cited.
by the defendant-appellants on commission at
Hongkong. '
One point also touched upon by the.. learned
Advocate for the appellants is that the respondent
Bank had failed to inform the appellants about the
cable received from their Hongkong Branch that the:
Asiatic General Trading Company was a newly:
established firm of small means vide Exhibit 7. As:
to this I am not prepared to differ from the learned
trial J ugde that the probabilities are that an informa-
tion of this nature would be passed on by the Bank
to its client as a matter of routine. Besides, it is
clear from the evidence on record that the reason
why the defendant-appellants placed their order for
cigarettes and toilet requisites with th,.e Asiatic
General Trading Company Limited of Hongkong
was because Mr. Madha had met one Mr. Mirani, a
canvasser of that Company several i:imes at Rangoon
(.

(!) A.I.H:(1927) Ran. 175 = 5 B.L.J. 242.

1957] BURMA, LAVv REPORTS. 315

bef.9re he decided to place his orders. In these H.C.

1957
circumstances the fact that the Iirm of Asiatic
MESSRS. THE
General Trading Company of Hongkong was a newly As->\TIC
established firm of small means would not, in my CORPORA-
TION
opinion, have made any difference to the defen- v.
MESSRS.
dants. MERCANTILE
B.\1-;K OF
For these reasons, I concur in the judgment just INDIA
de~iven!d by the learned Chief Justice with order as L1 :>lll:.ED.

to costs as proposed. U SAN

MAUNG, J.
316 BURMA LAW REPORTS. [1937

APPELLATE CIVIL.
Before U C,':n;z Tun Aullf., Chief Justifc agd L' Sau Mautrg, J, a;d
U B,z Thozmg, ].

B.C.
1<)57 THE COMMISSIONER OF INCOME . TAX '
Oct. 17
BURMA (APPLICANT)
v.
THE BURMA OIL COMPANY (BURMA CON-
CESSIONS) LTD. (RESPONDENT).*
Income Ta~: Act, s. do (1)-Reft:rwce to High Courl-Tize ComPany disb111sed
, 3S,'258 to its employees in compl ia11ce with the a ward of tlze'.Court of
Industrial Arbiltaliott in 1952- Whct!tcr such dJsburs'Jmcnl permissible
c.rpwdiltii'Cuu'der s . 10 (2) (ix) of Ute Burma f11come Ta..: Act, or all<>ztablc
commercial loss and is tfzerefore deductible from !ftc ta.\,1ble profits fot
the nssessmml year 1953-54-Dislitzclion between" E~penditure" aud
"Los s iucldeutallo the busitz~ss "-Ettglish luc<Jme Ta:c Act, 191 S-Vital
cousidnafivll for deciding w:zellrer a certait item is dedzzctibl~ or uot -
S. 20 (1} Trad.: Disputes Act -Paymeut wlzct!ter ccrrelated ta the accoun-
ting Y<ar or anY year Prior to that.
ll cld : Til at ror purposes of deductions of certain item3 as los s or
expenditur~:, t:1e \ita! consideration that should be g iven is, whether such loss
or expenditure is laid out, expended or incurred wli<>lly a!td exclusi\ely for
purposes of the said business, or one connected with or arising ott of the
trade or profession, or one which it is necess;1ry to in em for the purpose of
carrying on the assessee's Trade, prc>fession or busin~ss. All~n \". Farqullar,-
son Bras . E.~ Co., (1932) 17 T<lx Cas. 59 at64, referred to.
In the Commissio111;r of In come Tax, Burma v. Hajcc Adul Gatmy Ayoo b,
(1941) l~.L.R . 529; Co1111Jlissioncr of I11come Ta~ Cwtrrzl Proi;;ccs awl
Betar v. SirS, Clzituavis, 5) I.A. 290, approved.
Held further: Thal the payment ca~ only be correlated to the- accounting
year in which the liability to p;~y was incurred by the company, that i s, the
year 1952.
hz rc Cl!outfuualGolapcfraud, (L938) I.T.R. (VI) 733 (1939) A.I.I~. C;~l 559
referred to.
C.l.R. v. Falkilk Iron Co., 17. T.C. 625, approved.
R!todesi.r R1ilways Ltd. v. /11come T<n Colle.:t<Jr, Bcclwan,lalld Prot cc-
toratc, 11933) I.T.R. 227 (P.C.), referred to.
--------- ----------- --
. de~ree
Civil Reference Nv. 8 of 19.:> 6 agat,nst the order of the Income Tax
A ppeliate Tribunal of Rangoon..in Income Tnx Reference. No 1 of 1955.
1957] BURMA LAW REPORTS. 317
Ba Kyine' (Government Advocate) for the applicant. H.c.
1957
_,_
Horrocks for the respondent. THE Cou-
MisSIO~ER
OF lNCO~!E
TAX, BuR~!A
U CHAN TUN AUNG, C.J.-This reference arises 1'.
THE
out of an assessment to income-tax of the respondent BURMA OIL
Company for the year 1953-54. In its trading and CO)fPANY
(Bun~!.\ CoN-
Profit and Loss .{\.ccouut for the year ended 31st e ESS!O~.SI
LTD.
December 1952, the respondent Company claimed as
deduction a sum of 38,258 paid to its employees
who were in its service for not less than 2 years, in
comp!.iance with the award of the Court of Industrial
Arbitration (vide Case No. 4 of 1951). This deduc-
tion was disallowed by the Income-tax Officer,
Companies Circle, on the ground that the payment
was in discharge of au old liability, and that it was
not in any wa)! connected with the business activities
. of the respondent Company during the year 1952.
On appeal to the Appellate Assistant Commissioner
of Income-tax, the order of the Income-tax Officer
was upheld on the same ground as put forth by the
I11come-tax Officer, Companies Circle.
It may here be pertinent to set out briefly how
and under what. circumstances the Court of Industrial
Arbitration made an award for payment of the
aforesaid sum of 38,258 to the employees of the
Company. As a result of the invasion of Burma by
the Japanese forces, the Company had to evacuate to
India, and many of its employees were left behind
in Burma. On or after complete reoccupation of
Burma by the Allied Forces, and on restoration of
civil administration, the Company resumed its
business. In or about the year 1951 diverse disputes
arose between the Conwany and its former employees
over demands for payment 0f their wages for the
period of Japanese occapation of Burma. Such
318 BURMA LA1V REPORTS: [1957

H:c.
1957
disputes being~ in the nature of trade disputes within
___$'.. the meaning of the Trade Disputes Act, they were
~~~~;~~~; referred to the Court o'f Industrial Arbitration on
oF r:-:co~m- the 19th May 1951 whereupon the said Court in one
J'Ax BURMA ' '
' v. of its proceedings (No. 4 of 1951), inter alia, ordered
BuR;!';.E OIL the payment of a sum of money equivalent to two
BC::.~t:~~N- months' wages to the employees of the Company who
cEssioNs)
~~ .
had been in its service at the time of the evacuation
for not less than two years. The Court further
CH.~:.:l C.J,
,uAUNG, TuN ordered that the payment was to be made within two

weeks from the date of their applications by em-

ployees conceined, beginning from 11th August;,.-1952.
Accordingly, the aforesaid sum of 38,258 was paid
to all the employees concerned.
Now, to resume to the facts of the case, the
Respondent Company next preferred an appeal to the
Income-tax Appellate Tribunal, and the ., main ground
raised before the Appellate Tribunal was the same as .
that raised before the Income-tz.x Officer "and the
Appellate Assistant Commissioner. The Company
contended that the sum of 38,258 paid to its
employees in consequence of the award made by the
Court of Industrial Arbitration in the year 1952 was a
permissible charge against the taxabl~ profits of the
-Company for the assessment year 1953-54. The
majority of the Appellate Tribunal was of the view
that the sum paid out was in the nature of a loss
incurred in the account year in question, and that it
should be taken into consideration in the assessment
of profits and gains for that year.
The majority held that the said payment was in
the nature of a loss incidental to the respondent's
business. They concluded further, on some English
authorities, that although tl;le payment was not
strictly within the ambit of section 10 (2) (ix) of the
Burma Income-tax Act, yet it was deductible as 'a
1957] .BURMA LAW REPORTS. 319

~business }bss according to the principles of commercial H.C.

accounting, there being no prohibition by the Act, _,_
1957

THE co~r
expressly or impliedly, agaimt such debit. However, Mrssro~ER

there was a note of dissent by one member who holds OF I:-;CO}!E-

TAX, BumrA
the view that the s~id sum paid by the Company was V,
THE
not a permissible expenditure as it was, according to BuR~IA OIL
COMPA~Y
him, unconnected with the carrying on of the (BuRMA Co:-:-
respondent's business in Burma, the respondent cEsswNs)
LTD.
Company being at the relevant time "practically
UCHA"' TUN
dead." He concluded by saying that the payment AUNG, C.J.
was " neither an act of volition on the part of the
.appell,~nt Company, nor was it made on grounds of
CommerciaL expediency ; " nor did it fall within the
.ambit of section 10 (2), Clause (ix) of the Income-tax
Act. There being thus, a difference of opinion, the
Commissioner of Income-tax, acting under section
66 (1) of the Income-tax Act, moved the Appellate
Tribunal to refer the question hereunder which has
been finaUy approved by the parties concerned, for the
decision of this Court :
" Whether the sum of 38,258 disbursed by the company
in {952 to its employees in compliance with the award of the
<;;ourt of Industrial Arbitration, Burma, made on the 7th July
1952 in case No. 4 of 1951 of the said Court. is legally
deductible from the incomings for the purpose of computing
the profits and gains of the company for the purpose of
income-tax for the assessment year 1953-54 ? "

In answering the above reference, we are to get

over two questions involved. The first question is
whether th:e said payment in consequence of an order
of the Com;,t of Industrial Arbitration falls within the
category of permissible expenditure described in
section 10 (2) (ix) of the Burma lncome-tax Act, or"
even if it is not covered by the aforesaid provisions,
whether it is an allowable commercial loss incurred
by . the company in connection with its business.
320 BURMA LAW .REPORTS. [1957

H.C. The second question involved is, whether the said

1957
payment could be correlated to the Profit and Loss
~~~1 ~~~~ Account for the year ended 31st December 1952. As
oF INcoME
TAX, BURMA
a matter of fact ' when the Income~tax Officer and"
v. the Income-tax Appellate Commissioner rejected the
THE
BuRMA orr. respondent's claim
for de d uction, the rejection was
co~rPANY mainly on the oo-round. that it was a paymePt of old
(HURM.\ CON- "
cEssroNsl debt or old liability incurred long before the accoun-
LTo. ting year, and that the payment could not be taken
~;::."'Zr into consideration in the computation of profits and
gains of the relevant assessment year, inasmuch as,
under the Income-tax laws, each year is a separate
self-contained period of time in regard to which profits
earned or losses sustained before its commencement
or after its close are regarded as irrelevant.
With due respect, we find that there has been
some confusion of thoughts, relying upon certain
observations of Finlay, J. in Allen v. Farquharson.
Bros. & Co. (1) whereby a distinction is sought to be
made between the word " expenditure " and the
word " loss incidental to the business " in the inter-
pretation of section 10 (2) (ix) of the Burma
Income-tax Act. We are of the view that the
distinction sought to be made is of np help to us for
the purposes of the present reference.
Under the English Income-tax Act, 1918, income-
tax is charged in respect of profits or gains arising
out of property, occupation of lands, tenements or
profits arising from interests, annuities, dividends,
shares, business or profession, etc. having regard to
the charging Schedules A, B, C, D, and E contained in
the First Schedule of the Act. Lord Finlay's
observations are with regard to interpretation of the
Rule 3 applicable to Schedule D having reference to

(1; (1932! 17 T.l:t Cas . 59 at 64 .

1957] BURMA LAW REPORTS. 321

the. classes of cases enumerated in Cases I and II H.C.

1957
thereunder.
":'liE
Relevant Rules 3 (a) and (e) read: CoM-
~IISSIOXER
"3. In computing the amount of profits or gains to be OF lNCO> E
;harged, no sum shall be deducted in respect of-- TAx, BURMA
v.
(a) any disbursements or expenses, not being money THE BUR)IA
011.
wholly and exclusively laid out or expended COMPANY
for the purposes of the trade, profession, {BURMA Co:----
CESSIONsl
employment or vocation, LTD.
* '.;< * *
(e) any loss not connected with or arising out of the U CH1,:-; Tt'N
At:NG, C.J.
trade. profession, employment or vocation."
-Iis Lordship in drawing a distinction between Rule
:(a) and (e) observes thus:
"Now these two Rules have been discussed in a great
1any cases (in one very wellkoown case, Strong v. Woodifield.
1 the House of Lords in particular) together and no doubt
1ey do run rather close to ~acb other, but I cannot help
linking that there is a distinction between (a) and (e). Now
case might be put in which it was not yery easy to say
'hether a thing was a -Jisbursement or expense or was a loss.
t is conceivable_.sucb things sometimes happen that there
tay be cases in which a thing might fall alternately-it might
e.either within (a) or within (e), but. none the less. I do
tink that there is a distinction to be drawn between the two.
) relates to disbursements ; that means something or other
hich the trader pays out ; 1 think some sort of volition is
dicated. He chooses to pay out some disbursement; it is
l expense; it is something which comes out of his pocket.
loss is something different. That is not a thing which he
:pends or disburses . That is a thing which. so to speak
1mes upon him 'ab extra' . It is not very easy to
rmulate the thing but it is easy enough to put illustrations
lling on one side or the other of the line which may show
1at is, I ,think, the distinction, and the real distinction,
:tween these things. Take the case of money being stolen
)nl a till : I should say that that quite plainly, was not' a
sbursement or an expense, and, equally plainly, I should say
was a loss. Take. on the other hand, a sum of money
pended, let us say, for legal expenses. I am not, of course.

21
3:L2 BURMA LAW REEJORTS. [1957__
H.C. on the immediate question in this case. A trader thinks .i;hat
1~57
he requires legal advice, or he thinks he wants a conveyance.
THE or something of that sort ; that I should say, could not
111 ~~~~ER possibly and properly be said to be a loss, but obviously was
oF INcOME- a disbursement or expense. "
TAX, BURMA
~. It must however be conceded that the Burma
THE
0~LuRMA Income-tax Act makes no such elaborate provisions
CoMPAc:\Y
(B URMA oN-
as those found in the English Income-tax Act , and
CESSlOKS) we consider that for the purposes of the present
L'll>. reference it is of little moment w!lether we classify
uA~=~;N JJ.N the payment in question as an expenditure voluntarily
incurred within the meaning of section 10 (2)(iX), or
an involuntary disbursement, such as a loss in busi-
ness which, so to speak, comes upon a person
ab extra, not provided for by the Act. However, we
are certain that for purposes of deductions of certain
items as loss or expenditure, the vital consideration
that should be given is, whether such loss or
expenditure is laid out, expended or incurred wholly
and exclusively for purposes of the said business, or
one connected With or arising out of the~ trade or
profession.
In re The Commissioner of 1ncome-tax, Burma
v. Hajee Abdul Ganny Ayoob (1) (Sir Goodman-
Roberts, C.J ., Dunkley and Sharpe, JJ.) following
the judgment of Their Lordshipc of the Privy
Council in Commissioner of Income-tax, Central
Provinces and Berar .v. SirS. Chitnavis (2) held that
although the Income-tax Act nowhere in terms
authorizes the deduction of bad debt of a business,
yet such a deduction was held to be allowable if it
was connected with or arising out of the business of
the assessee. We quote the following obS'ervation of
Sharpe, J. at page 534 with approval :-
"In computing profits for the purpose of assessment to
.___
income-tax any loss connected with or arising out of the trade
....... ---------
(1\ (1941) R.L.R. ~29. (2
---.-.... .
I.A. 290.
1957] BURMA LAW REPORTS. 323

or Profession of the assessee m~y be deducted. That is not to H.C.

be 'expand.ed so as to mean that every loss incurred by an 1957
assessee is deductible. In order to permit of deduction the '\~<E
loss must be in the nature of commercial or professional loss. CoM-
MISSIONER
l think that perhaps as good a way as any of defining a loss OF INCOME
which may be deducted is to say that it must be a loss which TAX, BUHMA
t
it was either reasonable or necessary to incur in carrying on THE BUHMA
the pardcular trade or profession concerned. If any OIL
Co~rP ~:-;y
particular loss falls within that definition, it follows that it is (BUR'.IA CON-
connected with and arises out of the trade or profession of the CESSIONS)
LTD,
assessee ; that it is, Ln other words, a commercial loss. "
U CHAN TUN
AUNG', C.J.
In the aforesaid case, the reference was with
respect to a loss of Rs. 24,213-12-6 sustained by the
assess,~e owing to the insolvency of a certain Chettiar
firm with w,hom the assessee had a banking account
directly connected with his business. It appears that
the daily receipts from the business of the assessee
were paid into and, payments for goods purchased
for ancf on account of assessee's business were drawn
by cheques on 'the said Chetbar firm.
' The principle deducible from the above decision
is that even if a particular payment or disbursement
does not ao'me within any of the items of permissible
payments or disbursements listed under sub-section
.(2) of section 10 of the Income-tax Act, stress is laid
upon the fact whether the amount paid had been
paid wholly and exclusively for the purpose of the
assessee's business or in other words, a payment
which is necessary to incur for the purpose of
,carrying on the assessee's trade, profession or
business.
,,From the facts and circumstances obtaining in
the preseff,t case it can admit of no doubt that the
.assessee company paid out the said sum, be it named
expenditure, or a business loss in order to enable it
to continue its business in Burma; or in other words,
it is a payment which 'is nece~sary to the continued
324 BURMA LAW REP0RTS. [ 1957'
H.C.
195'"7
running of its business in Burma, and that ~he same
is clearly not a capital expenditure. The finding of
THE
Cm.t- the Court of Industrial Arbitration shows that the
MnsroNER
OF JNCO}IE-
amount ordered to be paid is without reference to.
T.!,S, Bl"RVA any particular period of time, though it held that the

THE vBuR}lA claimants were deemed to be the employees of the

Coe~~NY COmpany. It WaS OVer and abOVe the paymentS

(BuRMA coK- already made by the company, namely, one month's
CESSIONS) . f . d h , .
LTD- wages 111 11eu o notice an two mont s ex-gratza
u c;,; TuN payment, that the Court of Industrial Arbitration has
AuNG, c.J. directed the company to make further payments

equivalent to ,two months' wages within two weeks

of the date of their application beginning fron~ 11th
August 1952. It may also be noted' that the
company has, in our view rightly disclaimed any
liability for payment of arrears of wages to the
employees on the ground that thelr claim was time
barred under the Limitation Act. I~, appears to us
also that the employees' claim for wages was prima .
facie time barred. Therefore, the order of t.he Court
of Industrial Arbitration for the additional payment
was not based upon the Company's legal liability
towards its employees, but based purely upon
expediency or public policy. Moreover, under section
20 (1) of the Trade Disputes Act, the: award given by
the Court of Industrial Arbitration is binding on the
parties, and any party failing to carry out the terms
of its award is liable to be punished with fine which
may extend to K 1,000 for every day on which the
terms of ward are not carried out.
Taking into consideration the aforesaid facts and
circumstances, we are unable to fall in liNe with the
note of dissent by one member of the Appellate
Tribunal wherein he says that the payment in ques-
tion was " neither an act of .volition on the part of
the respondent compa:ny, nor was it made on ground
 . BURMA LAW REPORTS. 325

comrhercial expediency. " Would it not be the H.c.

1957
:hest commercial expediency so that the respon- '
1t company may be able to carry on its business c~~~
.hout any Ie.t or hindrance to pay up the aforesaid OFwssroxER
lNCO~rE-
11 awarded by the Industrial Court of Arbitration TAx, BuRMA
its employees and not mulcted in K 1,000 for THE ~t:RMA
~ry day of default in carrying out the terms of the co~~~~NY
ard ? This disposes of the first question involved. (BuR~IA CoN-
., CFSSIONS)
The next questwn IS whether th1s payment should::!> LTo.
correlated to the Profit and Loss Account of the u CHAN TuN
.r.in.
,.
which the actual payment ~ was made ' or AuNG, C.J .
etper it should have been correlated to any year
::>r to that of disbursement. In this regard we
ice that the officers of the income-tax department
1e made reference to certain head-notes In re
out/una! Golapchand (1) which read:-" .
. every year is a self-contained period and
profits earned or the loss sustained either before
t yea.r or after . that year are not at all relevant
the purpose of an assessment relating to a
ticular year. " However, when we examine the
ts of the case we find that the above head-notes
based upon certain observations of Lord Russell
':.ommission~r of Income-tax C. P. and Berar (2)
! at page 296 the following observation appears :-
"Although the Act nowhere in terms authorizes the
uctioo of bad debts of a business, such a deduction is
!ssarily allowable. What are chargeable to income-tax in
ect of a business are the profits and gains of a year ; and
1ssessing the amount of the profits and gains of a year
)Unt must necessarily be taken of all losses incurred.
!rwise 'you would not arrive at the true profits and gains.
the losses must be losses incurred in thc:t year."
would lay special emphasis on his Lordship's
;ervation that the, losses for the purposes of
(!) (193 $) I LR. !VJ) 7.33 = (19J9) A.I.R. Cal. 559.
(2) 59 LA.. 290.
326 BURMA LAW r.R EPORTS. [1957

H.c. deduction in computing the profits and gains of a

1957
'" particular year must be the losses incurred in that year.
~~~~- Now, on the facts and circumstances available in.
~nsswxER the present case, it is obvious that the respondent
OF ll\COME
TAx, RuR~JA company incurred the liability to pay the aforesaid
THE~cR~tA sum of 38,258 to its employees only when the
co~~NY Industrial Court of Arbitration makes its award.
{BuRMA CoN- Moreover, the award made, as obstrved above, was
CE.';SIONS)
LTn. not b ase d upon any ascertama . . Ies of
. ble 1ega1 pnnctp
u CHA; TuN liability founded upon tort or contract, but was
Aurw, c.J. purely ex-grarz:a founded upon what we may call
public policy or state expediency. How can it there-
fore be said that the liability to pay such <an amount
was a liability incurred by the respondent company at
any time prior to the date of tmf'award of the Court
of Industrial Arbitration ? In our view the liability
to pay that sum was incurred by the. company only
on the date when the Industrial Court of Arbitration
made its award, and as such it ca-nnot be correlated
to the Profit and Loss Account of any particular
previous year for the obvious reason that the liability
to pay the amount in question was neither foresee-
able with certainty, nor materialized or crystallized
in that accounting year . ./ It nece&sarily follows,
therefor.e, that the payment can only be correlated
to the accounting year in which "the liability to pay
was incurred by the company, that is, the year 1952.--
Here, we would quote with approval the following
observation per Lord Sands in C.I.R. v. Falkirk Iron
Co. (1) which is cited in V. . Sundaram's The Law
of Income-tax in India at page 540 :-:-
"It would be a fallacious view to tak.e it that each
pnrticular year is to be treated as a water-tight compartment
and each item of expenditure in that year is to be strictly
correlated to the profit of t.Jla t year: Every company carrying
( l) 17T.C.6Z5.
'1957] BURMA LAW REPORTS. 327
'
on business makes future contracts. It may turn out that one H.C.
1957
of these contracts is a source, not of profit, but, of liability.
The company must fulfil its contr,act; fulfilment of its contract THE
CoM
?s a fulfilment of one of the purposes of the business. " ~:zssroNER
OF IN..:OME-
Similarly, the following observations of their Lord- TAX, BURMA
v.
ships of the Privy Council in Rhodesia Railways Ltd. THE BUR~lA

v. lncome~tax Collector, Bechuanaland Protectorate 01!.

COMPANY
( 1) are also apposite to the question as to whether (BuR;.;A Co~
CESS!01\S)
for purposes of computing profit and loss each par- LTD.
ticular year is to be treated as a water-tight TT
v CHAX TUN

compartment for purposes of expenditure in a AuNG, C.J.

partic~lar year :-

"Nor do their Lordships agree that expenditure in

order to form a permissible deduction must have been
inc urred in the production of the actual year's income which
is the subject of the assessment, if by this it is meant that the
benefit of the expenditure must not extend beyond the year of
assessment, for very many repairs have the result of enabling
income to be earned in future years as well as in the year in
which they~ are effected:"
For the foregoing reasons we must therefore
answer the question referred to us in the affirmative.
The assessee company will be entitled to costs of
this reference and we fix the Advocate's fee at 10
gold mohurs.
U SAN MAUNG, J._I have had the opportunity
of reading the order proposed to be passed by the
learned Chief Justice. However owing to the
importance of the matter involved I wouJ.d like to
give very briefly my own reasons for concurring m
the answer . to be given to the question referred to
this Court by the Income-tax Appellate Tribunal,
Rangoon.
I need not recapitulate the facts which have been
fully set out in the orde~ of the learned Chief Justice.
I
(1) {1933) l.T .R. 227 r.P C).
 .
328 BURMA LAW REPORTS.
) ;.
[195/

H.c. The sum of , 38,258 paid by the responden~ Company

1957
-, during the year 1952 to its employees was in com-
THE Co~r-
~usswNr.R pliance with the award. of the Court o In ustna
f d 1
oF INcoME- Arbitration Burma on the 7th July 1952 in Case
TAx, BUR~!A ' '
v. No. 4 of 1951 of the said Court. This award was
THE BuR~lA
O!L th e resuJt o f a tra de d'1spute wh'1ch arose b etween t h e
w~~~~~A~~N- Company and its employees as a result of demands
cEsswNsl
LTD.
made by the latter that they should be paid wages
for the period of Japanese occupation of Burma and
U SAN
lilA ti~G, J. that payment of the sum equivalent to one
month's wage paid to them before the flight of
the executives of the Company from Burma and two
month's wages as gratuity on their retujn to Burma
on the reoccupation of the country by the British
was wholly insufficient. The dispute was referred to
the Court of Industrial Arbitration constituted under
section 8 of the Trade Disputes Act, 1929 by the
President of the Union acting under section 9 of the
Act and the award in questiol! was made by that
Court under the provisions of section 10. The
question involved is whether the payment made by
the Company in pursuance of that award should be
regarded as an expenditure relating to wages payab~e
by them during the Japanese occupation of Burma
and, therefore, not to be brought w1thin the compu-
tation of profits and gains of the Company for the
purpose of income-tax for the assessment year 1953-
54 or whether it was an expenditure for that income-
tax year. The members of the Income-tax Appellate
Tribunal were divided in opinion, the majority
holding that it was deductible expenditure for the
assessment year in question while the Revenue
Member was of the contrary opinion.
Now, in order to determine what was the nature
of the payment made it is i1ecessary to refer briefly
to somf. of the relevant provisiom uf lhe Trade
 1 Y57] -,BURMA LAW REPORTS. 329

Dispute~ Act, 1929. Trade dispute, as defined in f~~

clause (j) of section 2, means any dispute or difference .~
THE CoM-
betWeen employers and employers, or between MrssroNER
employers and workmen , or between workmen and oF. INco~rE-
TAX, BURMA
workmen, which is connected with '
the employment T
HE
v.
BumrA
or non-employment or the terms of employment or OIL
.
service . 1u d'mg pensiOn,
me . gra t UJty,
b onus an d COMP!\NY
(BuRM~ CoN-
allowances ' or with ,
the conditions of labour ' of any cEssioNs)
LTD.
person. This definition seems wide enough to include U '>AN
within its ambit all manner of disputes between M.\imG, J.
employers and employees relating to the working
concl,itions and remuneration of 'the employees.
Where a tmde dispute as defined in the Act arises the
President of the Union may under section 9 of the
Act refer any particular matter at issue to the Court
<>f Industrial Arbitration, if he is satisfied that_
fa) by reason of the continuance of the
dispute-
.. (i) a seribus outbreak of disorder or a breach
of the public peace is likely to occur,
or
(ii) serious or prolonged hardship to a large
section of the community is likely to
be caused, or,
(iii) the industry concerned is likely to be
seriously affected or the prospect and
scope of employment therein curtailed;
or
(b) the dispu.te is not likely to be settled by
other means ; or
(c)' it is necessary in the public interest to do so.
Therefore, it is clear that it is a matter of public
interest that trade disputes should be quickly and
amicably settled. When a trade dispute is referred
to the Court of Industrial Arbitration under section 9
330 BURMA LAW REPORTS. [1957
.
H.C it must make such a ward as it thinks fit (section 10)
1957
_, and the award cannot be called in question in any
THE CO>!
MISSIONER civil or criminal Court (section 14). Section 20
OF lNCO)!E-
TAX, BUR>IA
provides the penalty for failure to carry out the terms
of award by the Industrial Court. Sub-sections (1)
THE B~1 R~fA
OIL and (2) read :
COMPANY
(BURMA CON " ( 1) If any party or person on whom the a ward is bind-
CcSSIO:'\S)
LTD. ing fails to carry out the terms of any aw,llrd of the Industrial
Court he shall, on conviction, be punishable with fine which
U S4.N
MAUNG, ].
may extend to Rs. 1.000 for every day on which the terms of
the award are not carried out.
(2) When the employer is a corporation, company or
other association of persons, any Secretary, Director ot other
officer or person concerned with the management thereof, shall
be punishable for the fa ilure of the corporation, company or
other association of persons, as the case may be, to comply
with the terms of the award made by the Industrial Court
under section 10."
From these provisions it is clear that when the Court
of Industrial Arbitration ordered .payment o.f a sum
of money equivalent to two months' wages to those
employees who had been in the service of the
Company at the time of evacuation for not less tha'n
two years, it was highly expedient on the part of the
Company to have paid a sum of 3,~ , 258 in com-
pliance with the award. Failure to do so would
result (a) in more disputes with its employees, (b)
the probable loss of goodwill with the public as a
Company that fails to carry out the award of a Court
of Industrial Arbitration duly constituted by law and
(c) in incurring the penalty prescribed by section 20
of the Trade Disputes Act, 1929. Claus~ (ix) of
sub-section (2) of section 10 of the Income-tax Act
provides that the profits and gains of a company or
an individual shall be computed after making
allowances for any expenditure (not being in the
11atu1e uf ~;avital ex_I.H:mJilure) incurred solely for the
1SJS7] I BURMA LAw REPORTS. 331
purpose 'of earning such profits or gains. In my H~C.
1957
opinion, this clause is wide enough to cover such a :'l.-.
THE CoM
payment as made by the 'respondent Company in MISSIONER
OF {)~ COME
order to avoid the consequences set out above. TAX. BURMA
These consequences are indeed far reaching in its THE
u.
Bu:~~tA
effect and any expenditure incurred for their OIL
Co~tPANY
avoidance should be considered as being incurred for (BUR)tA CON-
the purpose of en~bling the Company to carry on its CESSIO:-:Sl
LTO.
business and therefore incurred soley for the purpose
U ~ AN
of earning profits or gains. In thls connection, the ,YAU!>IG, J.
commentary in V. S. Sundaram's Law of Income-tax
in India under the caption "Need not be compulsory
expenditure nor directly remunerative" at page 536
of the seventh edition may be usefully quoted. It
reads:
" It was made clear in the above cited case of Usher's
Wiltshire Brewery; Ltd. v. Bruce and Smith v. Incorporated
.Council of Law R eporting that a sum of money expended, not
of necessit;y and with a Nicw to a direct and immediate benefit_
but voluntarily and on the grounds of commercial expediency,
and in order indirectly to facilitate the carrying on the busi-
neas, may yet be expended wholly and exclusively for the
purposes of the trade". (Per Viscount CaYe in Atherton v.
'British Insulated and Helsby Cables, Ltd., 10 T.C. 155.)
" Expenditure in course of the trade, which is unremu-
nerative is none the less a proper deduction if wholly and
exclusively made for the purposes of the trade ; and it does
not require the presence of a receipt on the credit side to
justify the deduction of an expense". [Per Lord Thankerton
in Hughes v. Bank of New Zealand, (1938) I.T.R. 636].

. Although the trade dispute in question related to

the non-payment of wages for the Japanese occupa-
tion period I have no doubt whatsoever in my mind
that the expenditure of 38,258 incurred related to
the assessment year 1953-54. No one could have
envisaged earlier that'' such a, trade dispute would
htve arisen, that it would have been referred to the
332 BURMA Lf\W REPORTS ..- [1957

H.c.
l\i57
Court of Industratial Arbitration and that such an
_, award as that made on 7th July 1952 would have
T!IE CoM-
MlS>lONEfl been the result.
i~:/~~~~~~ Assuming for the sake of argument that th~
v. Company should out of abundance of caution have
THE ~r~RMA made provisions while they were fugitives in England
CouPANY
BVliMA caN- f or t he poss1'bl e c1am1
for wages by th e1r
employees
ci<.ssroNs)
LTD.
who remained in Burma for the >;neriod of Japanese
occupation, the Company would be well within its
M~u~~~ J. right to have considered by the 31st March 1947
that most of the claims would be time barred. The
British re-occupation of Burma took place .on or
about March 1945 and the claim fo:t; wages for
that month also would be time barred by April 1948.
The present payment of 38,258 has, therefore,
no relation to whatever contractual liability that
could conceivably be fastened upon the Company.
It was clearly the result of a dispute which the.
President of the Union had und.er section .9 of the
Trade Disputes Act, 1929, considered it expedient
to refer to the Court of Industrial Arbitration.
Assuming for the sake of argument that the
present payment is not a voluntary expenditure with,
in the ambit of clause (iX) of sub-sect.ion (2) of section
10 of the Income-tax Act, it can be considered as a
loss which fell to the Company during the assessment
year 1953-54. It is also a loss which is necessary to
incur in carrying on the trade. If any authority is
needed, the ruling in the case of the Conzmissioner
of Income-tax, Burma v. Hajee Abdul Canny Ayoob
{1) is clear on the point that such a loss is,deductible.
There it was held following the observations of the
Lordships of the Privy Council in Commissioner of
Income-tax, Central Provinces and Berar v. SirS. M.
Chitnavis (2) that g.lthough the Income-tax Act
(1) [1941J RL. R. 529 .. (2) 59 LA. 290.
1957) BURMA LAW REPORTS. 333

nm~1here in terms authorizes the deduction of bad H.C.

debts of abusiness, such a deduction is necessarilY.
1957

allowable, that what are chargeable to income-tax in ~~~;;,:~~;(

r,espect of a business are the profits and gains of a -f':.~~~'~~~~~~
year and that in assessing the amount of the profits ~'
of a year, account must necessarily be taken .of all THr: c)~~<na

lasses mcurre dm
or der to arnve
al~ a true pro fit
1 s an
d (f:~Ul~-~rA
CmrrA-.:Y
co"-
gains. CENOXSj

The loss incuqed must of course be in the nature LTo.

U SAN
of a commercial or professional loss, namely, a loss :MAUNG, ].
which it was either reasonable or necessary to incur
in carrying on the particular trade _or profession
conce~ned.
For these reasons, I concur in the answer pro-
posed to be given by the learned Chief Justice and
his order regarding the costs awarded to the respon-
dent Company.

U BA THOLTNG, J._l respectfully agree with the

learned Chief Justize and my learned brother U San
Maung, J. that the question referred to us must be
answered in the affirmative. I would only like to
add a few words in emphasis, regarding the two
questions which involved in this reference. On the
question as to \yhether the payment of 38,258 by
the respondent Company in consequence of an order
of the Court of Industrial Arbitration falls within
the category of permissible expenditure described in
section 10 (2) (ix) of the Burma Income-tax Act, or
even if it is not covered by the aforesaid provisions,
whether it is an allowable commercial loss incurred
by the Campany in connection with its business, I
would say that the most essential point to be
considered is whether the payment of the said sum of
: 38,258 by the respondent Company was made
wholly and exclusively for the purpose of carrying on
334 BURMA LAW REPORTS. [1957
H.C.
l ~57
the Company's business. If it was so made, it is,not
~riterion whether the payment amounts to a business
~~~~;if~~ loss or a disbursement, for in any case, it would be
oF INCmlE- a proper deduction from income-tax as it relates to
TAX, BurmA '
v. an amount expended for commercial expediency and
THE BURMA
OIL m or d er to f ac1~I tate t h e carrymg
. on of t h e C ompany ' s
H"i~~~~~A~~N- business. In the present case if the Compa.ny had
cEssJo:-~s> refused payment of the said sum of 38,258 the
LTD. f
Company would have to ace consequences such as
u BA J. the loss of ~good will with the public, more misunder-
THOUNG,
standings and disputes with its employees resulting
in delay and difficuity in carrying on the Company's
business ; and in addition, the Company woul<f even
have to face the penalty prescribed by s~ction 20 of
the Trade Dispute Act, 1929. Under the circum-
stances the Company was bound to expend this
amount for. the purpose of carrying on its business,
and hence I am of the opinion that it would be
proper and justified to make a dec'.tuction of this.
amount for the purpose of income-tax. .
Regarding the other question as to whether the
payment made by the Company in consequence of
the order of the Court of Industrial Arbitration
should be regarded as an expenditure relating tQ
wages payable by the Company to its employees
during the period of the Japanese' occupation of
Burma and therefore not computable for the purpose
of income-tax assessment for the year 1953-54 or
whether it was computable for the purpose of income-
tax assessment for that income-tax year viz. 1953-54
I am of the view that the decision would ' turn on the'
point as to when the liability was incurr~d by the
Company. In the present case it may be true that
the payment relates to the wages payable by the
Company to its employees during the Japanese
occupation period of .Burma, but what amount was
1957l BURMA LAW REPORTS.
. )

!I. C.
payable or whether the Arbitration Court would at 1 ;57
all order' payment, in view of the fact that the claim
THE Cmr-
was time barred under the Limitation Act, could not MISs!ONER
OF INCOME-
be forestalled by the Company with certainty until TAX, Bt:R~IA
the Court of Industrial Arbitration made its award. THE
'it.
BURMA
I therefore consider that the Company incurred that OIL
COMPANY
liability only when the Arbitration Court made its {8 l'RMA CO!>l-
cnsiONs)
award on the 7th July 1952 as it was only then that LTD.
the payment of 38,258 materialized, and therefore u B.~
it was computaole for the purpose of income-tax THorNG, J.
assessment for the assessment year 1953-54.
336 BURMA LAW REPORTS. [19S7,

APPELLATE CRIMINAL.
Before rr Cltan Tun Auug, Chief Justice.

H.C.
195i
u
KAN THA (APPLICANT)
Dec. 5.
v.
THE UNION OF BURMA ,
(U NYI LAY) (RESPONDENT).>i'

Quas!;ing of cl'iminal proceedings-$. o{O.i, Peual Code-Crimiual Brcac/i of

tru~t committed by co-Part Her durmg the subsrste11CC of a fartriCJship.

Held: It is only, when it is established that a partner who has been

entrustC'd with the partnership assets or with any dominion o\'er ,?roperly
converts to his own use Sl'Ch specific r;roperty or assets , in breach of specif.c
terms of the trust imrosccl upon him can he be p:osecute l fa~ crimi nal bre~ch
of trust. In the absence of any special agreerrent cot.cerning :~s to how he
should dispose of, or otherwise deal with speci fic pntnership property
entrusted to him, he c~.nnot be s:tid to have recei\'ed or dealt with the
said prorerty in a liducinry c~pnc:ity and be prose-;utecl for criminal breach
of trust.
Saw Tha Oo v . Ma A)e Thi, Criminal Redsion 'No. 112 (B) of 1957;
B.~ubm: Jllollau Ra11a \.
Sure:rdra llfoilaiJ Das, (1952) I.L.R . C;ll, VoL 11.'
p. 23, followc(1. "'

Ba Swe for the applicant.

U Chit (Government Advocate) for the respondent.

U CHAN TuN AUNG, C.J.-This application in

revision seeks to quash the proceedings, namely~
Criminal Regular Trial No. 3 of 1957 now
pending before the 4th Additional (Special Power)
Magistrate, Magwe, in which the applicant U Kan
Tha has been charged at the instance of U Nyi Lay,
the complainant, for an alleged offence under section
406 of the Penal Code.
Crb illal R.evisiort No. 109 (I3) of l;J57.
Review of the ord<-r Of the 4th Addit ional (S.P .) Magistrate of M~gwe,
tlated lhe 27th day c.f Jnly 1957 passe",! in his Criminal I~egular Trial
No. 3 of 1957.
.1957] BURMA LAW REPORTS. 337

The <;:harge reads :

"That you (U Kan Tha) between the 27th day of July H.C.
1':}57
1954 and 26th July 1955 at Magwe being entrusted with
r,ertain property, to wit, Kyats 60,722 being sums of money U K:N THA
paid by Government on account of supply of stones for THE "uNroN
Natmauk Road. committed criminal breach of trust by oF .BuRMA
dishonestly disposing that money in violation of legal contract (U N_:r__:-AYl.
and thereby committed an offence punishable under section u CHAN TuN
406 of the Penal Code." AUNG, C.J.

On U Nyi Lay's (complainant's) own showing it

appears that the applicant U Kan Tha and himself
entered into a partnership agreement for the supply
of metal (stones) to the Public Highways Department
for the construction of a segment of the Magwe-
N atmauk Road. According to the partnership deed
filed in the proceedings it can admit of no doubt
that the applicant is to be an active, working
partner; whereas the respondent U Nyi Lay is to be
a financier of tne partnership-his role being more
or less that of a .sleeping partner- and that they
were to share the losses and profits equally. It also
appears in evidence that the petitioner U Kan Tha
himself contributed K 30,000 towards the partner-
ship. The partnership deed is filed as Exhibit (en)
in the proceedir~gs, and some of its terms read :
(?) G;>'Jo5ot8c~:oao;:Ff.i otoS~OJt2Gg~:>~~ o oSOilco'J:~OJ'J
GCY.JPo5G-ro?:016JC:~oof:[9~1 :~Gro:o5~ CJ:?oS~EiJGtu
(<7) GCT.lj'Jo5ot8c~:CYdC GCT.lJ'Jcf.iG'CO'J:~?: :3'0~:6'[~ ~6)~CT.lJOC30~:~1
CY.jJOJG~~ci?o5026J~~c:r ~:~Gro:o5~ 0'J6'[C~5i~OO~::raoqsc:::o?~~:
031cc~GOJ'J~<>1~:Xl?cqjCI oaooo5o1~~b(? )CYdE ~~:x>~;>t:S3~t:
OfoS?i(9Gtn
Pursuant to the terms of the partnership metal
stones for road making were supplied from time to
_time to the Highways,. Department and payments
from the Highways Departm.e nt were drawn by

22
338 BURMA LAW REPORTS; [1957
. ~

r~
9, 7 U Kan Tha. For continued and regular (supply' of
the required metal stones, it also appears from the
u KA~ THA
~
THE UNroN
.
evidence, that they had to be purchased from other
suppliers, and then made over to the Highways
OF BURMA . ' h h
<u NYl LAYJ. Department at rates wmcn t e two partners ave
--T
U CllAN UN
a:t:reed
-
to supply. The business of the partnership
AuNG, c.J., thus involved a lot of advance payment of money to
the suppliers of metal stones and also their collection
at various points to be finally~ conveyed to the
Magwe-Natmauk Road between Miles 20 to 31. It
is plain from some of the terms of the partnership
set out above that on his showing a statement of
account of previous purchase of metal stones U Kan
Tha, the petitioner, is entitled to draw upon the
respondent U Nyi Lay further sums required for the
partnership work. He is further allowed to receive
payments from the Highways Department the price
of the stones supplied and also to adjust such
payments received with the outgoings of the partner(.
ship towards the purchase of tbe stones from the
various suppliers.
In or about July 1955, the partners fell out .Q..nd
each demanded from the other for settlement of
accounts. As it usually happened in such case's
the respondent claimed that he had to get a sum
of K 36,000 from the petitioner and eventually
lodged a complaint for cheating and misappropriation
against the petitioner with the Magw:e Police.
The petitioner is being tried in the aforesaid
criminal proceedings and charge has been framed
against him as stated above .
. TheTespondent has clearly stated ort oath that
there was no settlement of accounts . between the
parties as yet and that the work undertaken is a
partnership venture both parties having agreed to
share the losses and profits equally. From these
(
195.7] :BURMA. LAW REPORTS. 339

adinissio;IS .on the part of the respondent and also H:c.

from the terms of the partnership deed, Exhibit (m), -~
I_Teally do not see how a, charge under section 406 u THA KA:
of the PenalCode as set out above is warranted as THE UNroN
tl.~ 1"
ag~n-st lj,i;;/1 app.tca.~t.
< < < Th e 1earne d G overnment (UOFNn
BURMA
L~xl.
Advocate: who_ ,~-:appears for the respondent is also u CHAN
< ' <
- -TGN

o the same; View. . The respondent himself has AuNG, c.J.

filed civil suits for the recovery of certain sums
under the said pa'ttnership and these suits are still
penaitig before .'lhe District Court. Once, the
respondent~,.aflmit~;,lhat the deed executed between
himself and<the petitioner is a partnership deed and
that -no accounts has been settled between them, such
')

admission clearly takes away the criminal liability of

the ~Q.-pa~tn~r .for ap,ything done by him under the
partnership agreement in the absence of any special
terms whereby the co-partner (the petitioner) is put
in a fiduciary oapacity with respect to the partner-
ship assets. This ~ourt had occasion to point out
in Crimina! Revision No . .112 (B) of 1957 (Saw Tha
Oo v. Ma Aye Thi) what special care should be taken
be-fore the processes of a criminal Court are moved-
for allege<! ooenoes -of {4ninal breach of trust com-
mitted by co-partner durin~ the subsistence of a
partnership. Fbllowing upon the Full Bench decision
of the Calcutta High Court in Bhuban Mohan Rana
v. Surendra Jvlohan Das (1) l have pointed out the
special circumstances under wfi.i'Ch a partner can be
pro~ecu-ted for criminal breac11 of trust as laid down
in section 406 oi t :e Penal Cud e. It is only when
it is established that a partner ;.~vho has been entrus-
ted with tne partnership asse.i~ or with any dominion
over property converts to his ow:11 '1Se such specific
property or assets) in breach of spec:tlk:. t.un1s of U1e
trust imposed upon h~m can he be prosecuted for
(1) (1952) I.L.R. Cal. Vol. II, p. 23.
340 BURMA LAW REPbRTS. [1957.

~s~ criminal breach of trust. In the absenc~ of any

-.. special agreement concerning as to how he should
U KAN THA
v. dispose of, or otherwise . d eal with specific partner-.
~~EB~~~~-~ ship property entrusted to him, he cannot be said"
w Nv1 LAY). to have received or dealt witlt the said property
u c~ TuN in a fiduciary capacity and be prosecuted for criminal
A uNa, C.J. breach of trust.
In the present case, I have not the slightest
doubt from the admissions of the respondent himself
that the petitioner, co-partner, is entitled to the
partnership assets as much as the respondent himself,.
and in the absence of any complete rendition of
accounts to be followed by a dissolution, he cam1ot be
said to have dealt with any of the partner"'ship assets
in his fiduciary capacity yvhen he himself is as much.
an owner thereof as the respondent. Therefore,
from the facts appearing in the case, the charge for
criminal breach of trust as against t:he applicant is.
clearly unsustainable and it would be clear abuse of
the process of the Court to continue with 'his triaL.
Accordingly, I quash the criminal proceedings, being
Criminal Regular Trial No. 3 of 1957, now pending
as against the petitioner before the 4th Additional
(Special Power) Magistrate, Magwe, and he is hereby'
discharged. The bailbond given by the petitioner
shall also be cancelled.
. 1957] BURMA LAW REPORTS . 341

APPELLA l'E CIVIL

Before U Chatl Tun Armg, Chief ]ztstice mtd U Sa11 lt!mwg, J.

u TIN ENG (APPELLANT) H.C.

1957
v. Sept. 2.
u BA" YOKE (RESPONDENT).*

Tcnattcy or liCCI!Cc-DislillctioJJ between a bare liceuce aud a licence with

cotztraclu 1l ri~ht-E11jorccabiltty of licemc~s rights agaiust tlrird
~rlw.
;

The Respondent was a tenant of a room of a house belonging to one
rrir. Jarvis, who ~ubsequently ;old the house to the appellant. .
There were two doors leading to the main hall for the purpose of entry
an? exit into the room occupied by the Respondent.
The appellant claimed that the Respondent had no exclusiYe use of tlle
two doors, and that the right, if any, was a mere licence revocal:le at will.
The Resp ::mdent replied that his was a tenant's right u;:;-der ihe tenancy
wilh the previous m~ner.
The question was \Vhetlt~r the Rcst)ondent l1ad acquired any tenancy right
of free access throngh the two doorways or whether his tenancy right was
limited to the room only.
The aprelbnt further contended that a licensee's right, if any, only binds
th~ licensor and not a third p:\rty .
. Held: 0.\ the evid ~ n~e , that the entire room was rented out without any
res ervation whatsoever. The use of the two doorways \Vas not given as a
distinct permission, but as a nec~s3nry incident of the tenant's rig ht accoo1
panyin g the tenancy of th e room in question.
The Respondent has already acquired a tenancy right of using the two
doorways from the very inception of his altxnment of tenancy with the
previous owner.
Heldfurliler: That the licence though revocable a will at Common Law,
notwithstanding a Contract to the Contrary, c.nmct now be re\aked in
Equity. Equita31e rights now p~evail.
'Vhen there is a licence with a contractnal right, Equity would alw2ys
intervene to protect by injunction, the licensee's right oi any re,ocation or
threatening im'e:(ereKe in breach of such contract.
1<he appellant who has Ltll knowledge of the Respond1mt's right of use
of these two doorways, t:Ven as a licensee, and there being an i111plied
--- - - - - - - -- -- - -- - - - - - - - - -
* Ci\'il 1ft Appeal No. 50 "of 1956, ag~inst the decree of the District
C'?urt of Insein in Civil Regular No.1 of 1955, dated the 5th June 1956.
342 BURMA LAW REPORTS. [1957.

H .C:. contractual obligation of the former owner to allow the Respon~ent free'1md
1957 uninterrupted use of th~ two doorways m~st be held to be bound by such
U TIN IfNG obligalion.
v. Therefore, fir~tly, the Respondents right is a tenant's right, and secon.dly
U BA YOKE. it is a co:ltractu:~.llicensee's right created under an implied contract to l:tst as,
long as the tenancy la~ls.
King v. David Allert & Sous, Billposiiug Ltd., (19i61 2 A.C. 54; Clare v.
Theatrical PrJpr:rtics Ltd., [1936! 3 All E.R. 483, fads dis'inguished.
Erriugto1z v. El-rmgton aml Woods, 1 I{, B. 2)0), follow.!d.
Wood v. Lcadbillcr, 13 M & W 83~, r.::ferred to.
Booker v. Palmer, (1942) 2 All E.R. 674; Thon:jJsott v. Park, 11944) K.B.
408 ; Winter Go1rder1 Tlteatrc (Loudon), Ltd. v. lllillermium Productions, Ltd.,
(1946) 1 A'l E R at p. 635 ; Per Viscount Sin;ott, f194~) A. C. at pp. 189-91;
Foster v. Robinson, (1951) 1 K.B. 149.
"Licences and Third Parties" Professor \Vade, 63 L'lw Quarterly Review,
pp. 337-345. .
Gurbaclzan Sing!z Biudra. v. los. E. Fematzd;, B.L R. (J~51) (S.C.) 255;
S. R. Raju v. The Assisla11f Cont rollel'of Rerzts, Rangoon and twootlzers, B L .R.
(1950) (S.C.) 10; The Indi.m Starch Products Limited and artothcr v. The
Cot~froUer of Rents, Rangoon and another, B.L.R. (195)l (S.C.I64, referred
to.
Fairma1z v. Pcrpetu.ll lnvcstmcrd Buildin g Society, (1923) A. C. 74 at 85,
approved.
Appeal dismissed.

U Aye and W. T . Shan for the appellant.

Nyunt Han for the respondent.

U CHAN TUN AuNG, C.J,_This appeal raises

quite an interesting question whether the appellants
predecessor -in-titie, one Henry Jarvis, having accept-
ed the respondent as his monthly tenant, the southern
room of his house known as No. 28, Prome Road,
Kamayut Quarter, Insein, (graphically set out in the
rough plan, Exhibit 1) has given a. tenancy right to
his tenant, the present respondent, the use uf the two
doorways in the main central hall of the house so as
to enable the tenant (Respondent) enter and leave
his tenement from and by th~ front steps leading on
to the main road (Prome Road). That the appellant
'
-1957] BURMA LAV.f REPORTS. 343

is a purchaser of the said entire premises from HIC.

1957
its previous owner Henry Jarvis is not in dispute. ~
U 1IN ENG
The house in question is ..a single storey building 1!.

t,;onsisting of three rooms, one central ro:::>m U BA YOKE.

and two ad joining side-rooms on either side of the U CHA~ TU~

AUNG, C.J.
central room. The side-rooms are separated from
the main central room by wooden partition which
has two doors communicating with the central rooms.
In the front part of the said partition which separates
the two side-rooms from the main central room there is
a collapsible iron door. In each of these side-rooms
there -is also a doorway leading to the backyard on
the west of the
) ,
house ' the entire house facing Prome
road on the east (vide plan Exhibit 1.)
The respondent U Ba Yoke became a monthly
tenant of Mr. Henry Jarvis in or about the year
1949 and he admittedly occupied the southern room,
of the premises, in question.
The appellant-plaintiff's case is that at no time
his prede'cessor-in-ti'tle, Henry Jarvis had given the
respondent the exclusive use of the two doors leading
to othe main hall for the purpose of ingress and egress
into the side-rooms occupied by the respondent. He
Claims that that right, if any, was a mere license and
not a tenant's right and that as such it is revocable at
the will of the licensor. He has since revoked the
same when he purchased the property with the con-
sent and knowledge of its previous owner, and he
sought for a perpetual injunction restraining the
respo~1dent from unlawfully interfering with his
right of exclusive user of the entire hatl with the two
doorways 6n the side of the respondent's room.
The defendant-respondent's case, on the other
hand, is that he has a tenant's right of entry and exit
through the doors in ql'iestion under the tenancy with
the previOus owner Henry 'Jarvis and that the
344 BURMA LAW REPORTS. [ 1957'

~;_g appellant has no right in Jaw to prevent kim frbm

using the said doors.
n:
-t

u Exc The suit went to trjal before the lower Court

u BA YoKE. mainly on the issue whether the defendant-respon.:
u CHAN TuN dent had acquired any tenancy right of free access
AuNc, c.J. through the said doorways or whether the defendant's
tenancy right was limited to the southern room only
without any right of use of the two doorways. The
appellant merely relied upon what''has been told him
by Henry Jarvis, about the respondent's right of user
of those two doors. According to him, Henry Jarvis
and his wife ~Jrs. Jarvis informed him when he was
about to purchase the house that the ., respondent
could use the two doorways only with their permission.
It appears Mrs. Jarvis predeceased her husband
Mr. Jarvis before the sale of the suit premises in
favour of the appellant. Mr. Jarvis was not called as
a witness in the case though at on~ time attempt
was made by the appellant to examine him de ben-'
esse, as he was about to leave the country for Austra-
lia. The application was too late as Mr. Jarvis had
already left the country, and the appellant withdrew
his application. So we have the bare statement of
the appellant that before he purchased the house iri
question he was assured by Mr. Jarvis that the
respondent's right of use of the two doorways was
only under Jarvis' permission revocable at will or in
legal parlance the respondent was a "bare licensee "
so far as his right of use of the two do orways was
concerned.
The trial Court found on the evidence that the
respondent's right of use of those two doorways for_
entry into his room from the front steps leading on
to the road on the east side is a tenant's right
acquired by him as a tena:nt from the previous
owner. It follows as a corollary that once it. is
 0
. 1957] BURMA LAW REPORTS . 345
.
found as of fact on the evidence that the respondent H.c.
1957
had acquired the tenancy right of using the two
U 'TIN ENG
doorways in question, the( issue as to whether his v.
'right to use was a bare license or not, revocable at u BA YoKE.
the will of the licensor does not, in our opinion, u CHAN TuN
rea11y anse. at a}} . AUJ~W, C.].

Strenuous argument was advanced on appeal

before us by the appellant's Counsel that on the
evidence it shoultl be held that the respondent's right
of user of the two doorways in question was a
licensee's right and that the same having been
.
revoked by Mr. Jarvis or in other- words, the use
of the two) doorways by ' the respondent being depen-
dent upon the permission given by Jarvis as and
when he pleased, the trial Court was not justified
in concluding that such right was a tenancy right
already acquired by the respondent under the
tenancy. We' are. unable to accept this submission
and we do not $.ee any substance in it. There is
preponderance of evidence indicating that as a tenant
-of Jarvis to whom he had to pay a monthly rent of
Rs. 80 (as could be seen from the exhibit rent
receipts filed in the proceedings), many respectable
' friends of the respondent when visiting him used
the front steps and the two doorways in question.
We find no good reason whatsoever to disbelieve the
testimony of these witnesses. rhere is nothing on
record, nor is there any specific agreement concerning
the use of the two doorways to support the
appellant's case. In our opinion, the probabilities
are that a person of the respondent's standing
would not have become a tenant of the room in
-q uestiou, unless he was assured of the usual entrance
to that room from the front side, which, in our
opinion, is the only reasonably use a tenant can have
i~ the circumstances. It is common knowledge that
346 BURMA LAW REP6RTS. [1957
H.C.
1957
in the early part of 1949 housing.accommod~tion v/'as
not so acute and Mr. and Mrs. Jarvis must have, in
U TIN I;;NG
v. all probab ility, rente d out the entire southern room
u BA YoJtE. of the said house with i10 reservation whatsoever;
u CHA~ TuN and that in creating a monthly tenancy with the
AU~G, C.J respond ent m respect th ereo f t h ey must h ave agreed
that the respondent shall have the use of the two
do9rways, not as a distinct separate permission given
by them, but as a necessary incident of the tenant's
right accompanying the tenancy of the room in
question. Our view of the case that the respondent
has already acquired a tenancy right of using the
two doorways in question from the very inception of
his attornment of tenancy with the previous owner
Mr. Jarvis is supported by the fact that previous to
the respondent's application for fixing of standard
rent of the said premises, the respondent had been
freely using those two doorways withOJ.It any restric-
tion whatsoever, until the respondent made a
successful application to the Assistant Rent Control-
ler, Insein, reducing the monthly rent of the room
from Rs. 80 to Rs. 45 thereby incurring the
displeasure of the J arvises who then started locking
up the two doorways in question. The respondent
then sought for sanction to prosecute oMrs. Javis and
in moving the Assistant Controller of Rents he
asserted as follows:
" That on the 25th and 28th October 1951, the door
which is a part of the applicant's occupied area and which is
the only opening for an access to and from the applicant's
tenanted part of the premises was locked and thereby the
applicant, other inmates a nd visitors had no access which they
were enjoying b efore ."
Sanction was accorded to prosecute Mrs. Jarvis.
The case was tried before the 4th Additional Special
Power Magistrate, InsBin, and Mrs. Jarvis pleade}l
.1957 J BURMA LA\V REPORTS. 347

H ..c.
1957

U 1;iN ENG
v.
U BA YOKE.

C' CHAN TUN

At:NG, C.J.

(1) (1 9 16) 2 A C. 54. (2) tl936) 3 All E .R. 4S3.

348 BURMA LAW REPORTS. [1957.
t)

H..C.
1957
under certain circumstances 'be bound ,. up W'ith
contractual obligations, generally called contractual
U TIN 'NG
..,. licences, and becomes irrevocable, either by the
u BA YoKE. licensor or by any one claiming through him, except
u CHANTuN as purchaser for value without notice. Errington v.
AuNG, c.J. E .
rnngton and W ood s (1 ) 1s
. an auth onty
. wh'ICh 1ays
down the contractual licensee's right, and to what
extent such right is binding on a third party. It
appears that the old Common Law rule of a license
being revocable at will notwithstanding a contract
to the contrary, Wood v. Leadbitter (2) has no more
application after the fusion of law and Equity ; and as
a result whereof a licensor will not be permitted to
evict a licensee contrary to contractuaf obligation
which allows a licensee to remain. The facts in
Errington v. Errington (1) were, A, wishing to
provide a home for his son and daughter-in-law
bought a house for 750, paying ~50 in cash, and
borrowing 500 from a building society by
mortgaging the house. The house was then made
over to his son and daughter-in-law, telling them that
the house would be theirs if they pay up the
instalments due on the mortgage. The son and the
daughter-in-law occupied the house and paid the
instalments, but before completion of instalments A
died leaving the house to his wife . (widow) under a
will. A dispute arose between the widow and the
daughter-in law as to the right of'possession of the
said house. In a suit brought by the. .widow as
against the daugh_ter-in-law for eviction, her action
failed in the 1st Court (the County Court) as being
time-barred. On appeal also she failed, the Court of
Appeal holding that the daughter-in-law was a licensee
with an irrevocable right to possession in equity,
and that this right was bind.ing on the widow as
,.
(1) 1 K.B. 290. (2) 13 M. & W. 838.
1957] BURMA LA\V REPORTS. 349

successor~ in title to her husband, A. It appears H.'"C.

1957
that in the Court of Ap.p,eal the precise nature of
the transaction bet'Yveen . :A and his son and u TIN'1>. ENG
Jaughter-in-law was considered, whether it was a U BA YoKE.
contract for sale, a tenancy agreement or a licence. U CHAN TUN
Au~w. C.J.
It was held that it was a licence with a contractual
right in equity or in other words, it was a contract
for a licence enforceable in equity. Denning, L.J.
delivering the judgment, very succinctly lays down
the distinction between 11.7~re licence, and a licence
with contractual right, in the light of several
authoritative decisions since the fusion of law and
EquitY. H~s Lordship -observes :
"They (the daughter~in-law and her husband) were
licensees with a contrac.w al ., right to remain. As such they
have no right at '*nw $tO ~ain, but only in equity, and
equitable rights now prevail. I confess however, that it has
taken the courts some time to reach this position. At
.common law a licence was always revocable at will, notwith-
standing au contract to the contrary: Wood v. Leadbitter (1).
The remedy for a breach of contract was only in damages.
That was the view .generelly held until a few years ago :
ses, for instance, what was said in Booker v. Palmer (2) ;
Thompson v. Park (3). The rule has however, been altered
owing to the interposition of equity. Law and equity have
been fused for nt:;arly eighty years, and since 1948 it has
become clear that, as a result of the fusion, a licensor will
not be permitted to eject a licensee in breach of a contract to
allow him to remain: see Winter Carden Theatre (London),
Ltd. v. Millennium ProducritJtlS, Ltd., pe; Lord Greene, M.R.,
(4) per Viscount Simo,; (5); nor in breach of a promise on
which the licens::!e has acted, even though he gave no value
f"~ .,.:.:: tester v. Robinson (6) where Sir Raymond
.cvershed,, l}:I-R., said that as a result of the oral agreement to
let the man stay, be was entitled as licensee to occupy the
cottage withoutcharge for the rest of his days .
ill 13M. & W. 83il. (4} ( 1946) 1 All E.I~. at p. 685.
(2) (1942) 2 All E. R. 674. '1 (5) (1948) A.C. at pp. 189-91.
(3) (1944} K. B. 408. {6) (l951) 1 K.B. 149.
350 BURMA LA'W REPORTS. [1957
H. C. This infusion of equity means that contractv,al lice~ces
1957 now have a force and validity of their own and cannot be
u TrN 'ENG revoked in breach of the contract. Neither the licensor nor
u 8;'YoKE. anyone who claims through him can disregard the contr<lct
except a purchaser for value \Vithout notice. "
U CHANTUN
AUNG, C,J. The decisions relied upon by the appellant's
Counsel in support of his thesis that a licensee's
right only binds the licensor and not a third party
are found to be somewhat inap~opriate and they
do not at all help us in solving the question involved
in the present case. Those cases are founded upon
specific terms .of licence made between the licensor
and the licensee, and such terms were not binding
on the third parties, because they were"' considered
to be personal rights, never within the contemplation
of parties to go beyond them. In King v. David
Allen and Sons, Bill posting Ltd. (1) the licence agreed
upon was to entitle the plaintiffs to display advertising
posters on the wall of a picture house. The licence
was in the first place for 4 years and thereafter to
continue subject to six months' notice. The licensor,
who owned the land on which the picture house was
to be built, let it for a term of 40 years to a
company. The picture house was built and the
licensor could not persuade the company to honour
the licensee's agreement, which he had entered with
the licensee. The licensee then brought an action
for damages against the licensor asserting that by
granting the lease to the company, the licensor had
put it out of his power to perform the agreement.
The House of Lords affirming the decision of the
Courts below held that the plaintiff, i.e. tlfe licensee,
has a right to claim for damages. Here it will be
noticed that the claim by the Iicehsee was as against
the licensor only and not against the third party.
----------~.~------------------------
([) (1916) 2 A.C . 54.
 1957] BUR'MA LAW REPORTS. 351
Clore v. Theatrical Properties Ltd. (1) was a n.c.
1()57
suit filed by a third party_a lessee of a theatre
U Tr:-< ExG
hall the use of refreshment rooms of which for the V

sole purpose of supplying refreshments, etc., to the u BA Yor-:r.

theatre's patrons had been " leased " out to another UAt:NG,
CHAN T<:N
C.J.
person. Both the theatre and the so called " lease "
for supplying refreshment having been assigned into
other hands, the suit was (as stated above) brought by
the assignee of the "lessor " to prevent the assignee
of the lessee from exercising the "lessee's " rights,
i.e. supplying refreshment. The plaintiff succeeded,
and was granted a declaration and an injunction
agairlst the assignee of the " lessee ''. The Court of
Appeal upheld this decision on the grounds that the
indenture between the parties was not a lease, but a
licence and that being a personal contract had only
to be enforced by the persons between whom there
was privity of. contract. The assignee of the lessee
had therefore no right under the document.
The above two cases are cases decided earlier to
Errington v. Errington and Woods (2); but even
then, it appears to us that the proposition they laid
down relating to the extent of the binding force-so
~to say-of contractual obligation under a licence,
beyond immediate parties largely depended upon the
precise terms of the licence itself expressed or
implied. But Errington v. Errington and Woods (2)
lays down that once there is a contract for a licence,
or when there is licence with a contractual right,
equity would always intervene to protect by injunc-
tion, the licensee's right of any revocation or threat-
ening interference in breach of such contract. It,
therefore, appears to us that even in England the old
common law principle of limited right of a licensee has
been given away. Pwfessor Wade in his article on
(II (1936) 3 AllER. 483. l2) 1 K. B. 290.
352 BURMA LAW REPORTS. [1957.
H,.C. Licences and Third Parties, (vide The Law Quartet:ly
1957
Review, Volume 68, page 337 at page 345), very aptly
U TIN :eNG
v. remarks:
U BA YOKE.
"All the old rules which restricted the rights o(
U CHANTUN
AU~G, C.J. licensees have lost their authority since 1948 ; for then it was
first discovered that equity would intervene to protect (by
injunction) a licensee who was threatened by rev-ocation of his
licence in breach of a contract. This has revolutionised the
status of licensees: for not only have contractual licences
become irrevocable ; they have become ;pecifically protected
interests in land which will bind third parties just like the
other recognised interests. "
.
The above English authorities, though the yo have
no binding force upon us, have great persuasive value
showing what the latest trend of judicial thinking is,
as regards the nature of licensee's right especially
when it is a contractual licence or a licence created
'
under a contract expressed or implied.
Here, in the present case, even ifwe hold that.
the permission given by Henry g-arvis for ~ the use
of the two doorways in question amounted to a
licence, yet inasmuch as the respondent had use of
'
the same uninterruptedly for a number of years, and
.
also inasmuch as Henry Jarvis had not challenged-
the right of use before the Rent Controller, when
the standard rent was fixed, it is a .reasonable
inference that a contractual obligation has been
created in favour of the respondent in the use of
the same as a licensee. Therefore, the appellant,
who has full knowledge of the respondent's right
of use of these two doorways, even as a licensee,
and there being an implied contractual .,obligation
of the former owner to allow the respondent free
and uninterrupted use of the two doorways in
question, must be held to be bound by such obliga-
tion. Lakhmichand Khetse} Punja v. Ratanbai
1957] BURMA LAW REPORTS. 353

rand others (1) was also cited by the appellant's H.C.

1937
Counsel in support of his submission that the
C TIN ENG
respondent's right of the use of the two doorways v.
was that of a licensee~' and as such, only binding U BA YoKE.

between immediate parties. This case affords no U CHAN TUN

AUNG, C.J.
help to the appellant. The widow and the three
minor daughters, (including the mother) of a
deceased tenant of a building having common
privies and bat.hrooms filed a suit against the owners
of the building for damages, alleging negligence
for allowing the entire building to be in a dangerous
condition which resulted in the death of the tenant
bj' the collapse of a part of the said building. The
claim was made under the Indian Fatal Accidents
Act. The trial Court awarded the damage to the
deceased tenant's legal representatives. In the
determination of the question as to whether the
deceased tenant had any tenancy rights or a mere
license for the use of . the common privies
avaihtble in etich flat of the said building, it was
held, in appeal (Martin, C.J. and Kemp, J.), that
the tenants are mere licensees in respect of
the privies not expressly included in the lease, and
that the privies remained under the control of the
landlord, 9oth as regards user and repairs.
However, we notice that though the learned Judges
found that the tenant was licensee as regards
common privies, yet the Indian Easement Act was
invoked and the landlord was held liable by virtue
of sections 57 and 58 of the Indian Easement Act,
whereunder he was under a duty to disclose any
defect in his property likely to be dangerous, to the
licensee, of which he was aware and the licensee
was not. The Easement Act referred to in the above

(1) A.I.R (1927f. Bom. 115.

354 BURMA LAW REPORTS. [1957
~9s:_. case is not in force in our country. Ou~ laws
-~ . regarding easement rights are founded upcm Torts
U TIN E~G"'
v. (Enghsh Common Law) or upon expressed grant, or
u BA YoKE. by prescription or length of user for a number of
u CHAN Tu~ years as provided in the Limitation Act.
AUNG C.J.
1

We may also note that Gurbachan Singh Bindra

v. los. E. Fernando (1), S. R. Raju v. The Assistant
Controller of Rents, Rangoon and two others (2),
The Indian. Starch Products Limited ~nd another v.
The Controller of Rents, Rangoon, and another (3)
cited before us are of no help to the present case
and those cases merely showed the limited interest
of a licensee under different circumstances ., ; but
we may, however, note that in Gurbachan Singh
Bindra v. los. E. Fernando (1) where a person
was allotted a floor space of a certain fiat on payment
of certain consideration, it was held that the space
. allotted to ~im having exclusive right of" occupation
for that area amounts to a lease and .,not a licence . .
Under the facts and circumstances obtaining in
the case we would rate the respondent's right of use
of the two doorways in question first, as a tenant's
right; and secondly as a contractual licensee's right
created under an implied contract to last as long as
the tenancy lasts, since it is reasonably necessary for
the use and enjoyment of the room of which he is
a monthly tenant. His right may, perhaps, be com-
pared with the right of tenants over the use of common
staircase. In this connection we quote with approval
the observation of Lord Atkinson in Fairm:m v.
Perpetual Investment Building Society (4) : ~
" When the owner of a fiat lets it to a tenant for the
purpose of its being resided in by the tenant and his family

(1) B.L.R. (1951) (S.C.) 255. (3) B~L.R. ( 1950) (S.C.) 64.
(2} B.L.R (1950) (S.C.) 10. (4) (1923} A.C. i4 .at SS.
 19&7] BURMA<>LAW REPORTs. 355
. the landlord ~ust, I think, be taken to hav~ given permtsswn H.C. ,
is
for whatever reasonably necessary for the reasonable use 1957

and enjoyment of the flat for that purpose. This would U TIN C:NG
v.
. necessarily include permission to the tenant and his family. U BA YOKE.
0

his servant, the messengers of the tradesmen with whom he

U CHAN TUN
dealt, his visitors and guests and suchlike persons; to have AUNG, C.f.
access to his flat in order to enable hiru and his family to live
. in it with the customary amenities. "

. Lastly, it was urged upon us that there being C;tll

-exit through the bath-room in the back of the room
in question which the respondent can conveniently
use as an alternative to the two doorways in dispute,
the injt:m~tion sought for was quite justified. That,
in our view is .nost unreasonable. There is evidence
to show that the respondent has fixed up his name-
plate .on the verandah in front of the house, and it
would surely amount to forcing the respondent and
his family and even his friends the _unreasonable use
oof eft back door in"the bath-room to enter his room.
Considering the facts and circumstances appear-
ing in the case as a whole, we are satisfied that the
lower Court's judgment is quite correct and we see
no good reason whatsoever to interfere, and this
appeal is therefore dismissed with costs.
0

U SAN MA UNG, J.- I a~ in general agreement with

the learned Chief' Justice whose judgment I have had
the advantage of reading. On the point of law in-
volved, the foundati on on which he based his decision
is tlte judgment in the case of Errington v.
Errington and Woods (1). However, this judgment
bas been sev&rely criticised by Professor Wade in
-his article on Licenses and Third Parties (The Law
Quarterly Reyiew, Vol. 68, p.-337). Referring to the

II) {195211 K.B. 290\

356 BURMA LAW REPORTS. [195
11

H.C. principle laid down by Denning, L.J . ., the learned
1957
v- Professor observed (at p~g~ 340):
U TIN ENG
tl. "The narrower question is whether the existinTi
U BA. YOKE.
authorities permit the Court of Appeal to hold that contrilc1ual
U SAN licences may bind third parties at all. Generalisation about
MAtiNG,].
the effect of equitable remedies will be futile if the path so
opened up turns out to be blocked by adv~rse authority. It
w.11l be seen, first th~t Denning. L.J. cited no direct authority
for his proposition that ' neither the licensor nor anyone wtu
claims through .him can disregard the contract except a
purchaser for value withm~t notice'. In leading up to this
conclusion he mentioned a number of cases ; but in none 9f
them except one was there any' transfer of
the land
affected by the licence, and in that one cas~. Booker
v. Palmer (1) (which the learned Lord Justic~ referred only 'to
as an example of what he considered to be an obsolete ruleH
1
the decision was merely tliat a gratuitous licence was just as
revocable by the licensor's successor in title as by the iicens9r(l
himself. The new proposition . as to third parties is therefore~
founded on inference from cases in w~ich no third parties ~
appeared. "

Further on (at p. 345) he said,

. . ' .~
" One may ask, therefore, whether there is any. escape:
frorn the fact that in twoimodern cases, both binding on thi1
Court of Appeal, it has:been laid down that a licence, .even~
though reinforced by acontract not to revoke it. cannot bind~
a purchaser with notice. There is no hint of corrsciousness~
of this difficulty in the judgrhents delivered in Errington w1
Errington." '
~
With regard to the passage quoted by:the learned)
Chief. Justice in his judgment he had this to s<:ry,
"So sudden an ~apocalypse:" not ,vouchsafed to the
House of Lords in 1916 :or to the Court of ~ppeal in 1936,
would be so~1ewhat remarkable. But authority is cited, and
it must be looked into.''

~ [1) (li~42) 2 All E. R. 6i4.

1957]
.
BURM!\ LAW REPOl{TS.
......
TJie answer to the l~arned Professor is not far to seek. !;1:.(

The
change in the law relating to license by the
l95i
U tJN E~'
interposition of equitj is not more remarkable than v.
.the change in the law relating to real property by the U BA YoKE.

interposition of equitable principles. With the pro- U SAN

MAUNO,J.
gress of time, human affairs become more and more
complex. Accordingly, the law which cannot remain
static must also progress. The change involved may
sometime be impeyceptible. It may sometime appear
to be revolut-ionary.
In regard to licences the clal)sical definition is that
given by Vaughan, C.J., in Thomas v. Sorrel (l) '' that
a licGt1ce properly passeth no interest but only legiti-
mates what4Jyyould otherwise have been a tort." How-
ever, generations of eminent judges have been at pain
to ..find justification for licences which they deem to
be irrevocable. Such notions as '' licence coupled
with a grant ", " contractual licence ", etc., are the
result of theif endeavours. In the case now under
consid_eJOation, it seems clear to me that the right to
en~t through.. the front doorway to the part of the
building leased to the,espondent U Ba Yoke must be
deemed to be irrevocable during the pendency of the
lease. Ignoring the back "door which involves entering
the premises through the bath-room and the lavatory
the only reasonable me&ns of approach is the front door-
way which involves passage through the main central
hall in the occupation of the landlord. Otherwise it
would mean denying to the tenant the necessary con-
comitant of his lease. For instance, take a compound
in ;/hid< is situated a house OGCUpied by the tenant
a..odanother occupied by the landlord, Assume that
the con:rpQtm~! has only one gate through which per-
sons and vehicles may enter, it is only reasonable in
su.ch circumstances to conclude that the entrance
(1) (1673} Vaughan :1.!0.:151 _

24
358 BURMA LAW REPORT&. [1957
H.C.
1957
through the common compound gate being tl:t~
necessary concomitant of the lease must subsisl during
U 'l'JN ~&G
v. the pendency of the lease and that it must also subsist
U BA YOKE.
when the compound containing the two houses has
u SAN bee..n conveyed to another owner, because the lease
MAU!>:G, J.
of the -ltfst house to the tenant must subsist until it
is duly terminated accordiug to law.
In the case of Gurbachan Singh Bindra v. los.
E. Fernando (1) where the parties entered into
an agreemnt whereby the appellant was allotted a
floor space 17' x 5' and agreed to pay a guaranteed
monthly comm~ssion of Rs. 100 as consideration and .
the appellant constructed fixtures and show cases,, on
the space allotted to him with excluslv-.e right of
occupation in that area, it was held by the Supreme
Court that the appellant was a lessee, and not a mere
licensee. In that case, the landlord Fernando was in.
control of the entrance to the premises, (vide the
judgment of the High Court at page., 8 of 1950,
Burma Law Reports). Therefore vit is clear that the
entry of Gurbachan Singh . through . the common
entrance must endure during che subsistefice of the
lease to Gurbachan Singh although it inyolved
passage over the portion occupied by the l~ndlord.
U Ba Yoke in the case now under C;J,ppectl is in a
stronger position than Gurbachan Singh in the case
cited above. For these reasons I hold that the appeal'
must be dismissed with c

(1) (1951) R.L.R'/552.

G.U.B.C.P.O.-No. 17, H.C.R., r:>?-59-1,750-IX .