BURMA LAW R-E PORTS

SUPR.EM E COURT

1952

Cont"aining cas.e s determined by. the ~t.tpre~ ,

Cou.rt -of the Union of aprm~~

:MR. B;. W:~~ TUN, ,M._A., LL.B., Bar.-at-Law, E~r~Ol{. .

U TUN ON, B.A., ;s.L. (A.dvoca'te), R EPORTER.

lpdex prepared by-U T UN MAUNG,B.A., B.L., Bar.-at-Law.

. ' . .
DR. MAUNG MAUNG, B.L., LL.D., Bar.-al-Law.

t>ublish ~d u nder the aut hority. of the .

. . President. of the Union
S urma by the Supe rintendent, Union Gove rnp1ent Printi-ng ..:
. . of
a nd
Stati one~y; Burma, Rangoon :

.fAll rights
.
1'esei-vedJ
. .
 NAMES OF THE JUDGES AND LAW
OFFICERS OF THE UNION

SUPREME COURT
CHIEF JUST:rtE OF THE UNION
The Hon'b1e Agga Maha Thray Sithu SIR BA. U, Kt. ,
M.A. (C~mtab.) , Barrister-at-Law, Chief Justice
of the Union from 1st J anuary 1952 to 12th
March 19.52.
The . Hon'l;>l~ Thado Thiri Thudhamma U THEIN
MAUNG, ;M.A., LL.B. (Cantab.), Bairister-:at-
Law, Chief Justice . of. the Union fro:m 22nd
M ~rcl} ) -952.
..... . , . . ' .
:P..U ISNE .. IUDGES .
The Hori.'bl~ Ju~tld~ ':~;fhpdo. ../i:hiri .T hiidhamma
U THEIN MAUNG, M:A. , LL.B. (Cantab.h
Barrister-at-Law, from 1st January 1952 to 21st
March 1952.
The Hon~ble . .Justice Thado ;T hiri Thudhamma
U E MAUNG, M.A.,.. ... LLM. . .(Cantab.),.
: Barrister~ai-..taw:
The Hori'ble.:...' J ustice T hado ' Maha 1'hr.ay Sithu
. U MYINT THEIN, M .A., LL.B., Barris'ier-:at-Law,
~r.om 22nd March 1952.
...

: "LAW, OFFICERS OF THE UNION :

. . .. ;":ATTORNEY-GENERAL . . ..
. .
Thado Maha Thray Sithu uCHAN HTOON, "LL.B.,.:
' . . Barrister-at-Law.
. .
ASSISTANT
. .
ATTORNEY~GENERAL
. . . . ...
'

'Thray Sithir u .CHAN .. Ti:J~ AUNG, B.~: /B ..L.,.

.
Barri-sier~at-Law.
 2

GOVERNMENT ADVOCATES
U CROON FOUNG, B.A., B.L.
u TIN MAUNG, B.A., B.L. .
U MYA THEIN, B.A., Barrister-at-Law.
U BA SEIN, B.Sc., B.L.-
U KYAW 0), B.A., B.L.
U KYAW THAUNG, Barrister-at-Law.
u CHIT, B.A., B.L.

ASSISTA~T GOVERNMENT ADVOCATE
U 'B A KYINE, B.Sc ., B.L.

LEGAL DRAFTSMEN
U CHTT T UN , B.A. , Barrister-at-Law.
u .BA THAU NG, B.A., B.L.

ASSISTANT LEGAL DRAFTSMEN

U B.A. , B.L.
TUN SHEIN,
u HLA BAw B.A., B:L.
' .
 LIST OF CASES REPORTED

SUI"REME COURT
PAG!':

A. C. Akboon and one v. A. Habib .~. 236

Ah Kam v. U Ba Shwe Pho~.e and one 222
B. S. Mohamed Eusoof v. Bakridi and others 248-
Bo Kyi Myint and others v. Controller of Rents.
Rangoon and one ... 185

Cassim Ebrahim Malam v. Mariam Bi Bi (a) .Haji

Bibi and others 4
Dalbir v. The Secretary, -Ministry o~ Health a~d
Local
. Government and. two others
.
. .. 20
Daw . Kywe v. The Deputy
. Com!jlission~r.
.. Pegu
. and
others ... 92
. _Dr. Gordon S. Seagrave v. The Union of Burma 44
Hussein Buksh .~han v. MudaJia ~nd others 1'46
..
Isaxail Molia~~d (!A.hrried) Bodi. Bros. and others. v .
Chief Judge, City Civil Cou:rt,.' Rangoon and .
others ~.: ... 1,82
. , . I

J. Kimatrai & Co. v .. Ministet: for Finance a:~.d .

Revenue and . ot~ers.. .. , ' .
..
. ..
cp1: (~Oln C)~:T.l())?~i~~ b~:Ol~t o3:0?.:~o:n=~'ln:g~ Bffi
. OOG&JI~~t:~~OJ~: . ,. ~ ... . : . . ooo
.o
K. K. Dever v. The Chairman, :Oist~ict Tenancy Dis~ ..
posal Committee, Hanthaw~9y an,d two others. : 255
s.
.K. J(. K~der. v. The Cont;oller of R~nts. Rangoon .
: and others ... ... .. 64 ~
-ghadiza Bibi v. The:R~sfd~~t. Southe~~ .~~~ St:ate :-.~:, ._. .
. and anqther ., . .-. :. 210
. . : .. ; . . .. . .. .. . : . : . . . .....
. \'.

'Lim Pv.a :I:itin v . The ClJ:airman, Public .J>roperty .....

}>rot.~~tion_ CoXU:qi.it~ee. and ~Jhers .. .. ... 55
Vlll LIST OF CASES REPORTED

PAGE
M. E. Bhayet & Sons. v. The Chief Judge of the
Rangoon City Civil Court
and others . . .
:- """ .. ..
40
----(Burma) Ltd. v. The Chief
Judge, Rangoon City Civil Court 69
Ma Ain Yu- v. Dr, Miss A. G. D. Netto and others 65
Maung Ko"Lan v. Ma Ngwe Lwai and others 179
Maurice Bower Padgett and othlrs v. Collector of
Rangoon 126
Mohamed Haniff and others v. The financiaf
Commissioner, Burma and othe{'s 11
M/S. .Ramchhodas Jethabhai & Co .. v. The Hon'ble
Minister for Judicial Affairs ~nd others 22.7'
Ponoya and .
. two others v. The Secr~tary.
. District
Agricultural Board, Pyapon. and others. . .. 200
@f~oS<:if?:~~ @f.~oo?C~~:,yJ~~oo59'a~:t ... .. . O?~
~m$1~~ c~o.2o:~S ~:c?g<l!oo?:~q: ~m~d3o1 13' ~: ) G_o
S. Huie ~- The Collector of Rango~n and others . . . '131
. .Bros.' & Co.
Steel . . . Coll~_to~.. .o fR.a.ngo6n.
Ltd. l':. The t'ss
T. N. Ahuja & Co: v.. ~bdul Latiff' iainal & Co: 197
Thakin Hla Kyw~y y. lJ Nyj Nyi . . .,.. t9l'
~a~ Ken$ we.s v.
tJ Yin and Otbe~t .. ,. ,.. . ... ,: 37'
-~e_ Rangoon .illectric Tr~tnw.~y ;!.~ Supply & Co. .
Ltd.,
.
v...The-Court
on"'
.
.. ..
..
::_; oH.iidt,Jstrial:Ar]Jitra
.,..
. . . . ..'. ; ' .
.....
. ... ..
.. 75 ..
. eoni'niissioner. Shw~b:q and :
x' .. : .. ..:.: ~: . . : .
;.: .. . . ': .:-. :. ... . . 33
.'
., Win
r. and
: . others
. ..15.
..a-.-n- .- 6f:R.ents1 Rangoon
:~::-.: < . ~/: ::/. , ': :.~.. .:,: . . ,.>~ t:&'
n~~turriing -:dffi~e.t;' 'Las~ib ari(_J
i.j:.?.' <~~- . . 1,:.. ... .. - ..
,,_. . ...':- .. > .: :~ :- .. .,~. . .
:.V..U Po:. Thi(and two others ... :. . 257
~:. The Hort'l;ll~: : Miii~tei: fo~. : ..
:
''"'~'".U'~"'
. .. .... ::i ~::.>
- .. .. :'.
:;, > ' 1.94
 LIST OF CASES REPORTED ix
PAGE

U Ko Ko Gyi v. Engineer-in-charge, Rangoon

Corporation and others 266
_ Kyaw U (a) Myo Chit Kyaw U and others v.
Bureau of Special "Investigation and others 96
_ Kyone Myaing v. The Financial Commissioner,
Burma, and others 214
_ Ohn Khin v. The Union of Burma t58
_Po Mya v. The District A-gricultural Committee,
Insein and one 96
_Po Nge v. V , R.. A. Veerappa Chettyar 108
_ Po Thin v. District Agricultural Board, Maubin
and others 202
~~~~ ~~&6 . . ...
~~~!G-:>c~:51~ ~:o:>~:cE51~ ~ ~: ...
0

V. Ramaswamy Iyeng~r and others v. ~. V: K. V.

Velayudhan Chettyar and o~e .. . 25

Vrajlal Naranda and one v. The Collector of Rangoon 118

Yaya Pat~l v. The District Judge, Bassein and others 58
 TABLE OF CASES CITED

I' AGE

Allcard v. Skinn~r. (1887) :36 Ch. D . 145 8

Ambala North Sikh Rural Constitution, 1937. (S:!n
& Pod dar's Indian Election Cases, 1935_51)... 84
Attorney-General for Canada ~ Attorney-General for
British Coturnbia and others, (1930)
A.C.lllat118 ... 143
- - - - - - o f Ontario v. Attorney-General for
Dominion, (1894) A.C. 189; (1896) A.C. ~48
and 349 \A . . 14~-144
Babu Sagarmal .Tibriwala v. G. M. Latimoux:. (19~8)
B.L.R. ll3, referred to 2s3
Carlona Ltd. v. Commissioner of Worh and others,
. .:. (.1948) All Eng. L.R. Vol. It P.. ~6p 157
Carltona Ltd. v. Commissioners of Works and others.
(1943) All Eng. L.R. Vol.' II, 560 . 123
Charles R. Manasseh v . T.Qe Collector of Rangoon
and Dr. Kun Lwin. B.L.R. (t951)(S.C.) 201 122
___ Russel v. The Queen, (1881-82) L.B.. 7 A.C.
829 at 839-840 ...
... . . 142
Cp. Re. Rippon Ho~sing Order; (1939)' 2 K.B, .838 161'
Daily Parbhat. ~ahore v. Empe~~~. (1947)~L~h.
A:I.R. "
366 at 371 ... 167
Dattatraya Sitaram v .. ~mper.or, A.I.~. (1948) Boin.
. . .239 at 24.3.- .,. .. :.: . . . .. . .. .. .'.
'
.... 169
Daw KhinTee ~. U .Chan Tha and one. 0 .949) B.L.R .
.(s.c.). 193~-ret~rred to ... . ::. .. .:. 9i
. . .~;: -:
I;>ice~'s. Conflict::Of Laws (6th E~~.) ; , 710-711 32
Dutt v. D~~t. :9.Luck. 178 at (8~ . . 8; 9
_Emperor, v-.- )la~oinali Ma.h~apa, (1.943) J.L.R. 22
. . Pat. 48 .. . .. . ~ .. :.. . . 162
. -~::
---:-__; v: Miss Maniben.L. Kara, 57 Born. 53 .. : -161~164
Ertell Biepet Cas~: (i9'1s) A.c. 260 ~t 274. referr~d. :. ~ .
to ... . .. . . , . .. . .. . . ~.'- 30 .
 Xll TABLE OF CASES CITED

Gallagher v. Lynn, ( !937) AC- 863 at 870

Grand Trunk Ry. of Cabada v. Attorney-General of
Canada, (1907) A.C. 65 . . . " .. . . .. 143 .
Gwan Kee v. The Union of Burma, B.L.R. (1949)
(S.C.) 151, followed 196- 433 .
Habib' Sahib v. Sheik Budboo, A.I.R. (1939) Ran.
143, approved .. . .99''
H oe Moe v. Set::lat, 2 Ran. 349: applied 246:
Hup Fot ~ - Tlfe Deputy Commissioner, Insein and
others, . (S:C.)
. B.L .R. (1950) . 86 -13
_ _ _ _ v The Deputy Commissioner. Insein,
B.L.R. (1950) (S.C.) 86 ... . 2.f6
In the matter of." Daily Zamindar" (Urdu), L ahore,
A.I.R. (19.47) Lah . 340 ...
- - - - - " Nawai Wafqt Daily" Labore, (1947)
. . . ~.L.R, 28 Lab. 497 . . 164.1'69
_ _ ___.- _~be " Partap '' (Urdv) Daily, Labore,
(1947) I.L-R. 28 Lah. 795 . . .. . 164~165
. "'' ......,,.
the " Sun Press. 'L td. '? A.I.R.
(1938) Ran: 41.7 . 162
.iowala. Das Govind Ram v. . Thakar Das~. A~I.R.
. .. (1936). L:ah. 251 ... foilowed
I

-K.L.C.T. Chidabaram Firm v: Aziz Meah. ( 1~ 38)

,., '. R.L.R. 316, distinguished . . . , ... 113;(15 r

~a,mal Sarkar v. :Em.peror, (193&) 'I,.LR. 1 Cal: 455 1,q2

;.. .. # :_ : :!
,..gin 'Ma Ma_. ~, The ~hairnian, . Public ' Property
. _ Protection'Bo.a rd and two .o~hers; 0 948) B.L.R.
. .
-.. 574 . .. . : . . . . - .
. : . .... .. .. ... :..
'Krisb.tia Prosad Lal Singha'. Deo . v. Biraboni Coal
. .:.: . . . ... .

... Concern, 64 I .A..; j 11. followed .....

. K~rri.~r: BadJ:i -~a~ain Sin~h. v:Chief s~~r~tary to the
: Gov~~ent. . .
of Biha:t'.:.A.I.R:
. ':
'(t~4t)
0
.Pat. 132
.Kunw~ v. Si.ngh. -=14..~ A- :-~49~ referreq to . . ' . ...
M~.-. Aye t,yi'; ..~. . c~~issi~~~t. ..:Of Polie, . '(1948) :
B.L.R: .77,2. (S.C.), . fblloW~d . . ?J 1
..:_Khin Ky~~ v. R.: C. D~~~ _I.I,.,,IL4 Ra~. '96. 'itt
 TA!TL OF CASES CITED .. Xii i
PAGE

Ma Khin Th'an v. The Commissioner of Police,

Rangoon. ..
..a:D.d. one, ( 1949) B.L.R. t3 at. 16 ...
~

- Kyin Hnin v. The Commissioner of Police, Rangoon

170

and another, ( 1948) B.L.R. 777 . 93 .

-:-1oo Teanand qther~ v. Ma Thein Nyun and others,
10 Ran_, '103.' ; 112,ll6
-Shwe Mya v. Mattng f{mo Hn~ung. U~B~R. p. 30
at 33, disting1,1ishe.d .... . 238,241
Maung .~hit v. Ro~an N. M . A. 'Kareem Oomer &
Co . 12 Ran. 500 ... 198 ~ 199
- - - Khin Lay v. Maung. Tun Thaing, 5 Ran: 679 . 114
- - Lu Gale v. Maun,g Kyaw .Yail? P.J.I;.B. is8 :. 114
- - Shwe Lone v. Maung Shwe An. P.J.L.B. 68 1,13
Mafar Chandra Pal v. Shuk1,1r and ot4e.rs, 45 I.A.
183, referred to and f'Ollo.w~d . 6()
Mitchell v .. fiomfray, (1881) 8 Q.B.D. 587 8
Mohamed Ebrahim Moolla v. S. R. Jandass, 11
L.B.R. 387 72
----Hanif and one. v. The Financial Commis-
sioner, B.L.R. ( 1952) (S.C.) 11, followed 216
Nakhuda Ali v. M. F. DeS. Jayaraine,(19Sl) A.C. 6~.
referred to and appli~d :. . . . .. ~; . 13
Nokes v. Doncaster A~alga~at~d .C.o.llieries, (1~40)
A.C. 1014 at 1022 .. . . . . . .. 160
. .:.
Oppenh~ims Internationa) Law, Vol. J 1 (5th. Edn.),
?.63. referred to :.,: . . . . .:. 31
Province of Boinbay..:;: Kulsald~s S. Advani and
others. (195.9) :s.c:R. 621, referred. to 124 .
Punjab Anglo-In,!iian Constituency (Case. No.' 1)
Daobia~~ Indian Election Cases.- Vol. 1, z41 85
_ ___:Sind Bank v. Oanesh Das Nathu Rane. I.L.R.
16 Lab. 1113 . . . ; ~ = .- .. ... 1 H>
R. v. Peters; (1886) ~6 Q._B ..p." 636 at 641 . :. . 161
. ~aj Pal v. The.Crown;
. . . :(l922f
.:
I.L.R.
. 3 .Lah.
. 405 161
. Raila Ram v. Tpe .Province of. East Punjab, A.I.R.
(1949) F.c.. .81 .;. ... . 160
 xiv TABLE OF CASES CITED

PA(iF.
Ram Prasad Narayan Sahi and others v. The State
of Bihar and others, A. I.R. (1952) Pat. 194 at
199 and"200. followed 129
_._ Gopal and another v. Shamskhatoon and others.
19 I.A. 228 66
Ranchhoddas Jetbabhai and Co. v. The Secretary of
the Union Government, Ministry. of Judicial
Affairs and two others . B.L.R. (1950) (S.C) 68
~avula " Haripfassada Rao v. The .State, A.I.R.
(1951) S ..C.R. 322, followed 49 .
Re. The Delhi Laws Act, 1912, (1951) ..S.C.R. 747
a.t 907, referred to and followed 223
-The Initiative and Referendum Act, (1919) A.C.
935 at 945 223 ;
.
R.e.x v. Steane. L.R. (1~47) 1 K.B. 997 at lOOS
Robert f<i~cher .v. The Secr~tary of State.for India in
Coundl, (1899) I.L.R. 22 Mad. 270 (P.C.)',
referred to , ,.. .;353
S.T.K. Chetty.Firm y,., Balasundram. 10 L.B,R. 199.
.. referred to ... . . . .
s atgur Prasad v. Ma.hant Har Narain Das. 59 I.A.. ..
.1.1.
distinguished . 66
..Saw
0
Benson
:
v. . T-he. C~mmissioner
.
of. Poltce. Rangoon
. .
.. ; . . and o~her$. B.L.R. ( 1950) (S.C.) 196. followed
:r singer M~nufilct~ri~ co, v. L'o.~g. O.S8Q) 18 Ch.J?.
.;>: :.' .
.
39_5: at'4t2'
.
:.. : _. . . _: ..
.
:./
' ' ~IJ;l . Bhaigapta Bewali V. HiiiiniM Bl\dyakar, 20 c.w.~..
' ' "
. :. ....
. ,.

. '1335, referred to :..

.. . .~ . . . .:. .. . .'
....
. : .

:T<:n.~rit v~-: Union .Bank of - ~an~da, (1.894) J\.c.~1. j~3
:.r.It,~ Mt1nia.pal Corpor:~ti~n . of Rang<;>on -~.. M A.: ;. .
'..: ~ , Sh:~ur-. 3 Ran. s~o. refeti~d tbancfdi$.tinguisl;tttd :. . :.59;1.'?
: =_ _provibce -'o f B~~1.b~y ~-- Kusai~as S;. Adva.P.i -~Iid ,
. : .. .ot-hers,. (19!50) S.C.R. 621
.. , \
: ... .. ' ..:::. :..:, 1!!;7
0

. ::i.:.Sed-eta~y.'.'o~ state..f~r .):ndfl;l .in C<?q~cii- ~- :~~/

.. . Jitiiidr~ Nath (:howqury ana ot})er,s:_. A:.t.R:
.: ft-924) (P.C) 175 at ' i79',.. foil6wed :: ..:. ~: ,: . 250~i5J,.
....... .. . . . ... . . .. .:. . .. . . ~~:.
 TABLE OF CAS ES CITED

The Secretary of State for India in Council v.

Maharadhiraja Kameshwar Singh Bahadur,
I .L.R. (1936) 15 Pat. 446, distinguished 25 1
Thomas Bear & Sons "(India) Ltd. v. Prayag Narain.
( 1940) 67 J.A. 212 iH 216, followed 205
T inza Maw Naing v. The Commissioner of Police,
Rangoon and one. (1950) B.L.R. (S.C.) 17 89
U Ba Pe and others v. U Ba Shwe and others, l 1
R an. 1
.

.
_Ba Yi and others v. The Officer in-charge of Jail.

59

Yamethin, B.L.R. ( 1950) (S.C.) 130, referred to 56

_ . Htwe v. U Tun Ohn, (1948) B.L.R. 541, followed 268
_Kyu v. The Commissioner of Police. Rangoon,
(1949) B.L.R. (S.C.) 18, distinguished 93
_Sein Lin v. The Controller of Rents. Rangoon.
B.L.R. (.1950) (S.C.) 156, referred to 220
.V.E.R.M.A.R. Firm v. Ma Joo Tean, I.L.R. 11 Ran .
239 ... 113.116
V.P.R.V. Chokalingam Chetty v. Sethai Acha and
others, I .L.R. 6 R~n. 29 111
Vimlabai Deshpande, A.I.R. (1945) Nag_. 9, distingui-
shed... ... 88
 .

: J .

..'I;

.-
;.. :,
'~1~t~~ .;;.
~.'~
..;........... ..,.
~

1. t:~

.... ~. ;.: rr

..._.,.
 GENERAL INDEX
OF
CASES REPORTED IN THIS VOLCME
(SUPREME COURT).
ACTS:
BURMA ACT No. 1 OF 1898.
---CUsTOMS AND TARIFFS 'ACT. '
--LAws...\cT.
Bt:REAU OP Si'ECJAJ;. INVESTIGATION ACT, 1951.
cnv oF RANGOON .M uNiCIPAL AcT.
CiViL PROCED URE CODE.
CONSTl~liTION OF ':(HE .U NION OF BURMA.
CON1 RACT ACT.
CoNTROL oF hi PORTS AND ExPORTs - (TE~iP9RARY) ACT.
CooPERATIV:E sociETIEs AcT.
COURT FEEs Ac.T.
DEFE!'<.:E .O F Bt:RMA ACT. :' .
DrsPOSALOF TENANCY AcT AND RULEs.
ELECTION OF TH PHE~IOEN'l' OF' THE tiNiON OF BURMA ACT, 1949.
EVIDF.NCF. ACT.
GOVERN~JENT OF BURMA ACT, 1935.
- HAGUE REGULATIONS.
HIGH CouRT HULES Al:ID ORDERS,,
- - TREASo.:-: ACT.
LAND NATIONAI,JZATJON ACT.
LHIITATION ACT.
LOCkL AUTHORiTIES (SUSPENSION) AcT., 1946.
LOWER B.U_RMA TOWN AND VILLAGE LANDS ACT AND RUI:ES.
MUN.ICIPAL ln;T ANI? RUX.ES.
- -- --- ELE.CTJON RULE$.
PARllAMENTARY ~-~ECTJON RULES.
P:ENAL cooE. .
PRESS (EMERGENC~ PoWE~S} ACT.
PUBLIC ORDER (PRESERVATION) ACT.
--
-PROPERTY .(PROTECTION}. AcT. :

REQUISITION_ING (CLAIMS AND COMPENSATION} 0RDER,1949.

--- - - - --(EMERGENC"'i
. . PROVISIONS)
. ACT, 1947.
~

SEA CUSTOl\JS ACT. .

SHAN S~ATES MANUAL.:.
SP.ECll<'l C RELli!F ' A~T :_
. SUPREM~'COURT.l<UI.ES, ~948 ...
 XVIII GENERAL I NDEX

ACTs :- \COilcld.)
TY.:<AxCY DtsPOSAL HULt:s, 1951
TRANSFER OF PROPERTY AcT,
.,
TRvST ACT.
l;NIO" jUDI.CJARY ACT,
UPPER BURMA L(\ND Al"D REVENUE ReGULATIO~, 1$99.
{;!;BAN R~.N'f CO:>!TROL ACT.

AIISI:O~UJ'G OF COACCOSEU NO GRo;;NO F O]J CONTINUED DETEN

T I0!-1 OF APPLICANT UNDER P UBLIC PR;>PERTY PROTECTIO~!
A~T. s. 7 o .. 55
Al:ISENCE' Ol' cANDJOATE o :~ His AGENT-WHETHER NOWNKrioN
PAPEfl CAN 13E RE1ECTEP 1
A CCORD ANI) SATISFACTION 197
A OMINISTRATIVE OR EXEC UTI VE ACT-ORDER OIRECTlNG DEMOI.ITION
OR RIDIOVAL OF UNAUTHOlllSEn Sl"RUCTURE
- - - - - - - A C f AND ISSUE OJ' CERTIORARI .... ..
AGENT IN ENF-'.!Y t ccuPIED TERRITORY, PRINCIPAl, IN INDIA, Wli AT
LA\\' APPLICAULE 2S
ALTERNATI\''E GROUND OF Sl.X;PICION WHETHER VITIATE ORDER OF
DE"IENTION 87 . .
AMENDMENT Olo'PLAINT 2:'6
~- --s. 7 (2) OF PUULIC PJJOPERTY PP.OTECTION Acr AND
HEARREST 5:0 . :
API'"L ANU l~J::VISI0:-1, CONT ISUAT!ON AND NOT l\EW . PROCEED1NG i27
APPLICATION FOR WRIT OF Clo:RTIORARI TO QUASH ORJ>EROF DISTRICT
j UDGE A~J"ING UNDER MUXICIPAL I~ULES ... S!l . _
API:I.ICA"I'IO~ FOR SPECIAl. LEAV E--S, 6, U11i011 ]ttdicit~ry Act, 1948-
A t/V QII Ce w lu.tler loa11 or fo r f>t~rclur~e of 11 lmudi by way o f
tltSCOIIIJt-Fiurliugs of fn ct -Ca usr. of actiott Otl origi11al consi-
der11 h on wlreu e.~tiugui.~lled-Ac ord aud .~11lt11jact,on.
"The
Lower Cuurlsfound th:~t the original tr;~nsnction belween the
pa lic:s was not one o f lnaol but of discounting a hundi. i.e .,
purchas" of a hnndi for le:-s tha n its face v:~luc On an applica
1ion fr special leave : Heltl: That the finding of fact that the
origin<1l transaction was ~ot one of Joan but of discounting of
hundi r.anno.t be challenged on <~ppeal. Held fur/he r: :TJ1at Ute
cause o f action in the ori~nal consideration i~ extinguished if the
1e:1der by negotiating a negotiable instr.u..,cnt has made the .HiU
hi$ own and thereby accepted Uie iriJ>lrumeuf as aceor"a and
satisfadion .of the original con ideration. viz., l.iabllitY of the
bor ower . . Maung Chit v. Ros/t,, N. /ol. A. Karuw Qomer &
Co. 12 Ran 5120 '
T N. ABOJA 1'- Co. t/. i\ llUOL LA T IFF ]AllAL & Co . 197.~
ARTICLE 9 1 OF :rHE L IMITM "ION AcT . Deed o!Jlaiued by .ntldue
iuftueuc~.;_Knf/IQledge of I h.~ couteuts <'f tll'c doc~ments i!xeC!.l tcd
by ager~ts-Suil fi.led ttft er 4 years ,whether barred. Arpellant,
father of the J:~es'l>oudents , obtained Probate oi the tstate o f hi s
dc::niased wife w.!Jo was the mother o{ the Heponden.ts. , :Respon-
dents t and 2 executed a IOw ero-atto:-nev in :ravour of their
uncle to execute a deed Of rtlea<e in ta;ou r Of tl:le appellanf~,:lheir'
father, on the ground that they have. obtai.ned Rs .. 2f,OQO. o~t
 GENER.At; INDEX xix
PAGE

of the estate. Accoclingly u .e deed o f rel ease was execul<d by

the uncle and he stated th a t he informe:l the 1st : n :l 2nd
Responden ts about the execu1ion Of th:: deeds of relea: c:s ~nd
there was no cr?~s ex.::nin :n ion on the poin.t. The trial fudge
held that the cl . .im t o set '!\ ~ ide the rele~ se \\'<IS .ba:ored t y
limitation. The Appellate Court set it aside. Hdtl: TJ1at w!Kn
the igent Of the 1st and 2nd Hes;ondents "in'ormed them
abo:tt t he execution Of the deeds of releases , if thev did not
beco:\ie aware o'('thei r rig!Wto impeach the releases it O)ltld only
have bt:en be,;ause they chose not to be en)ightened. Both the
Courts held that t:u:y l<new the true nature of the powers-of-
attorney. Tlle d :-.im to ha ve the deeds set aside was barred by
limitation. Dult v. Dutt, 9 Luck. 178 al189 ; Mitchell v. Homfray,
t1881i 8 Q.B.D. 587; Allcard ~. Skim~e1, (l887) 36 Ch. D. 145 ;
Knnwar v. Singls, 14 I A. 149, referred to.
CASSTM EBRAH1M :v!ALI~l 11. MAR I AM BIB! (a) HAJJ B I BI-
0

AND OTHERS ~ ~!it - 4

AUCTION PURCHASER, SUIT l!Y- 'W HETHE!t ORIGINAL ~tORTGAGOilS ARE
NECESSARY PARTIES . 108
BENEFIT OF D OUBT MUST BE GIVEN TO Accti~ED 44
BuREAU oF SPECIAL INVESTmATION AcT, 1951. s. 21 (2)-AMEND-
ME!\T OF SCR. 1 BY S. 24 WHETHER ultra t.'"es 222
BURMA CUSTOMS TAR-IF~ ACT, SCHEDULE I, ITE~"1 1 9 105
- 1 OF 1898, s. 3
-AcT No. 135
- -LAws Acr, s. 13 (3) 25
BuRMESE BUDDHIST LAw-step-son claiming the estate of step-
mother-Law relatiug to cilildreu of divorced pnreut;- Maiu-
'twanceof filial relationshipwilhfatheraj!er tlte divorceofthe
morher-S. 145 of Evidwce Act- Prct:ious st11temeut us.-d f or the
f>utP.bse of impeachittg credit of n witness wltelher s u_l;stantive
evidence. U Mya! Nyein and Daw Thet were husband and
wife and.-!lppellant was a s.o n of the union and afterwards they
divorced 9Y:mutual consent, U Myat Nyein married Daw Sein
hut had no c;hildreil by her. After the death of U Myat Nyein,
Daw Sein ."married U San Dur . U San Dun by his first wife
Daw Thein Hla had children who are the R.:spondenn> in the
appeal. Al'pepant maintained filial relations w1th his {ather
U Myat N)'ti n andstep-motller Daw Se'n. Held: That App~llant
is an heir .to the est::.te of Daw Sein when she died without
natural issi:e. The law. relaliHg to chldrenoof dhorced parents
is greatly misunderstood. As a consequence o incorrect
rendering .;,f M.miugy.t by Hicha~ds on at p. J19 (4th Edition; it
has b~ea held that wl1ere parents effected a divorce with partition
.of properties and. a~rangements by mutual consent were made
for :he custody: or disposal Of children after the divorce. the ,
children who. went with the father di d not retain any right to a '
share in the moth 'S ~state and tice versa. The Manugye
translation in spcci{yihg " children for whom compensation has
bee'1 p:\fd .an.d children of parents, separated '' clearly referred
not to children of parents divorcing in normal course but to those
Secial classes dealt with ins~ , ~3. 54 and 55 Of Volume X of.
M,,,,rgy:. The deductions fr~m the right of the par&nts .to "ive
aw~y children in adoption can be val ~ only in respect Of m~or.
children, for whatever the law miglit have been in early days ;
b y the time !he Ma!mgye came to .be compleea it ~s s~ttled

z
XX GENERAL INDEX

PAGE
law that only minor children could be given away in adoption
withoqt their wishes being cor:su!ted. The right of the children
so given away in infancy to return to its natural family on
attaining majority was recognised at pages 235 and 236 of
Ma11ugye (Rr:fereoce to 4th Edi tion).
U AUNG K YWE v, MAUNG Po H LA W I N AND OTHERS

C ANCELLATION OF PKRMI'l" 6,2'

CAUSE OF ACTION ON ORIGINALCONSIDE RATION WHEN EXTINGUIS HE D 197
C E RTIORARI, DtRBCTION IN THE NATIH<E OF-AllolmeJ~ t by District
Tetwncy DisposaJ Committee seUi"g asit!e Vii/age committee's
order- Rule 13 (1) (f) of DisPosal R'IAJes-District Committee not
aP1>l~ng mind to real questi01,- Findings of f act-Practice, how
fa r ca11 be Pro~ed by affidavits iu writ of certiorari. The Village
Committee allotted a 1)iece of land to applicant the owner in the
preious year. ~n appeal-the District Committee set it aside.
For the current agricultural.sezson parties again applied. T he
Village Committee found that the 1st Respondent defaulted in
payment of rent and allotted t3e land to the owner tO cultivate
his own land. On appeal it was simpJy stated that the dispute
was exactly the same as in the previous year and tha the appeal
must be allowed as in the previous year. Upon an application
for a writ of certiorari. Held: That the District Committe-e had
not applied its mind to the real question at issue whether rent
was paid in the previous year by 1st respondent or not. Where
facts are at issue before Inferior Tribunals they should have been
thorcughly thrashed out there, and nellO'facts cannot be allowed
to be proved by affidavits on: the application for a writ. The
Supreme Court will not normally go beyond the record. The
fmding by the Village Committee, in the absenr:P. nf l'.nntr;iry
finding on appeal is binding on the Supreme Court and there was
nothing in that finding whereby the Village Committee acted
illeg~lly or otherwise.than in due course of law.
MAUNG KHO L AN fl. MA NGWE L WAI AND oNe ... 179
CBRTIORAlll, DIRECTION !N THR ~A1'URE OF-ProceedillgS Utlder
Urbau Re11t Cotllrol Act, s. 16cBB (2)-Allotiut; premises to ou~t~er
for occujlali~tl-Assumptioll bv Controller t hat npptiumt is the
ow11er-S. 16-AA (4) Ia) ilow f ar aj>p/icnblc- W/1en tfoere is
dispute as t o ow11ership-f;tateme11ls,in affidtltil~, loose at1d
irresjxmsible-Condemncd. U Ra Yi agreed to purchase House
No. 11, South Race Coorse Road from Mrs .. Malkhoo in 1939.
The purchaser was put in possession befqre the payment of full
purchase price. The p~mises were rented by U Ba Yi's widow
'Daw Kha and the previous owner sold U1e premises iri 19~9 to
U Aung Thein who attempted to establish.title by applkation fqr
fixing Standard Rent. No notice was issued lo Daw Kha, the
Controller holding that U .Aung Thein was t.he landlord as
defined in the Act U A.mg T hein Jatt:r issued notice to 1st and
2nd Applicants, the occupants, to vacate the premises .. They
applied to the Controller for t9ntinued oc.:cupation. The
Controller dismis~ed the application holding that they were
tenants of Daw Kha. Finally U ;\ung Thein applied to the
Conb"oller for ~anction to prosec1,1te t~ 1st and 2~g 'apP.licants for
vacating the premises. The Controller held that. U Aung 'DJein
was owner b); reason of bis title deed arid that tbe occupier~ were
liable to summary eviction onder s. 15-ss(2) of-the. Urban Rent
Control Act. Later the Controller proceeded to allot~be premise~
.as President of_the Advisory Board, ~o. tJ Aung Thein al! ow_net for:
 GENERAL INDEX XXI

PAGE

his occupation. Upon an application for a \vdl to quash the

pr oceedings. Held: That the dispute as to ownership between
U Aung Tht:in and Daw Kha 1S a matter to be settled in a
compete.nt .Civil Court. The _applicants 1 and 2 came ~nto the
premises as Daw Kha's tenant~. The or.d er by the Control-ler
that it was imm<tterial as to w~ose ten;lnts the applicants were
so long as they are tenants of the premises is illegal and
unsustainable. In the present case t11e Controller's :~ction in
Proceedings under s. 16-AA, (4J (al of the Urban Rent Control
Act whereby the Controller could direct tile landlord to occupy
the premises when they become vacant is wholly irregular as
Daw Kha was landlord and no notice was issued to her. All that
the Co~troller could have done ~naer (he section was to direct
Daw Kha to let the !?remises to a specified person and wait for
compliance of the order. Statements in affidavits shou~d not b~
made loosely o, irresponsibly. An affidiwil is made on oath and
as such is a solemn state1nent and care should be taken that loose
statements are not made.
80 KYI MY.INT AND OTHERS 11. CONTROLLER OF RENTS,
RANGOON AND OTHERS 185
CERTIOR.lRJ-QUJ;;STION OF FACT HOW FAR CAN BE DECIDED 194
- - - - -,WRIT OF 40
, APPLICATION FOR 69
- -- - -,ISSUE OF-WHEN T HERE IS ALTERNATIVE RRMEDY 1

- - A N D PROHUllTION ... 266

CERTIORARI-Grant of-Regarding trade dispute-Mistake in
deciding question of fact bY Court of Ind1tsfrial Arbitration
whether ground for writ. On 25thApril19.5J, R.E.T.&,S. Co .
.Ltd., transferred 16 of the workmen from the Boiler House
Department to .lhe underground department. On the 26th April
1951, ' 16 workmen were dismi~ed im account of their refusal to
serve in the undergound department. The Court oi the Industrial
Arbitration, Burma in C'\Se No. 5 of 1951 made <~n award for
r einstaten.ent of 16 of. the discharged workers and granted other
reliefs. Upon an application for a writ of certiorari to qtash the
said aware!, Held :That the question w.hether ther.:: is a decision
or agreen~ent r~gardlng inter-departmenta l transfers was one of
{act which the Court of Industrial Arbitration was competent .to
decide. The mere fact that it made a rnista~e in decidinR such
question ca1mot ordinarily be a ground for a . writ gf certiorari.
\Vhere there was already a d.ispute between tlie Company lm!l
th e Wo.Tkers' Association regarding the terms and conditions of
service rela ling to inter-departmental transfers and such dispute
had not been settled there was a case to gv before U1e Co:;r{ of !'
Industrial Arbitration and worktr.en could not be dismissed
because they . refused' to obey orders of transfer without the
decision of tbe S<)id question of transfer.
THE R~NGOON ELRCTRIC TRAMWAY & SUPPLY Co LTD.,
RANGOON v. THE COURT OF INDUSTRIAl. ARBI'TRA-
0
. TION, BURMA AND ONE 75

. CHIEF JUDGE OF CITY CIVIL . COUll~' :ACTS IN QUAS'lJ(/DICIAL

CAPACITY UNDE~ THE URBAN RENT,CONTRdL ACT . : 69
CHILDREN OF DIVO~CED PARENTS . 1.
 XXll GE"lSERAL INDEX

PAGE .

CIT.Y OF RANGOON -MUNICIPAL ACT 266

CiviL PRocEDURE ConE, ORDER 47. Rur.Es 1 AND 2 62
--COURT WHE:-1 VESTED \\"!Tli JURISDICpON TO DECLARE ORDER OF
RENT CoNTJWLLER NUf.L A :-.-D VOID ... . .. 24'8
CLASS OR sECTION OF PERsONS RESIDENT IN BURMA, MEANING OF 158 ..
COERCION 65
COMFORT, MEANING OF ... 44 .
-coNFLiCT OF LAWS 25 .
. CONSTITUTION OF BUR"t.tA- Direction in tlte 11a.ture . of certiorari
against J,. rauting of a lease or licen$C to work a quarry-:-$. 219 of
til fonstitutio1~ I.flri.' OJ certiorari against at~ a.imillistratrvc
act. Heltl !'That granting and cancellation Of a licer:ce o.r a
lease is an administrative ac~ anJ as st.:c~J the offic::r granting the
licenc~ or lease is net amenable to a direction in the nature of
certiorari in r.espcc'. of his action. Under s. 219 of the Conslitu
tion of Burma, minerals c11n be exploited by the Univn or Union
may . grant .the right to citizens of the Union o~ to Con~pat1ie"s
or Assoc!ation at least 60 per cen~ of . the capital of which is
owned by such citizens. As the 2nd Applicant was undoubted ly
not a citizen at the time wr.en the. lease wa~ granted to the
2nd . h~espondent and he obtained his certificlte Of citizenship
during the pendency 0 o( his revision to the Financial Commis
sioner, the subs~quent event cannot affec: the Validity of the
Deputy .commissioner's Order granting the lease to the 2nd
Respondent in p reference to that .of the 2nd AppEcant who w.as
ineligible: for the leas e at the time Of its _grant under the
Constitution. H"p For v. Tht . Deputy Can:missioner, Insein
and others. Ch~il Mi~c. Application No. 3 of 1950 (S,upreme
Conrt) ; Nakhuda Ali v .. M. F. PeS. Jayaratne, {1951) A.C. 66.
referred to "and applied.

MoHAMED. HANIF AND ANOTHER v. THE FINANCIAL COMIII!S

StONER, BURMA AND OTHERS : 11
.CONSTITUTJ0:-1 OF UNION OF .BURMA, S. 24 2i7
,;- - -~ Aoo:, s. 219 ": ~:1. .
. - .- --
, - - - s. 23 (4), s. 222 (1) : i18
. ----...:.....-~ ss. 30.{2), 92 {1) ANri (2), THIRD ScHEDULE, ss. 151 liL
- . - ____ . _ ._.s. 224.!
ss. 23 AND ~6
iss
COi-{!RACT AcT; ..,J 5 :
__
. ._ . - - s. 15 '65
:/.
-coNTRACT o .F AGENCY-Atcnt in
e1temy occupied territory, frrinci_pal
iu 'liutia__;Effcct-Law aPtl,cdble-J)uYma Lqws Act, s. 13 (3J-
WJ~cther -f1dernat~o11al . Law ,or laws. of Bu.rma applicaNe-
Defence "oj Burma Act-Contr,tct Act..::.Ss 23 and S6~Cot~ftict of
laws-Contract of agency if go:erned by lite law where the
Prini;ipal res:ides or carries on business-lntenfion:-Mixed.
ques~ionof law aud fact-New case 011 appeal- Wlretlter perniiS
.sible. The !\ppellants (Receives$ in l11dia) appointed
Aru!ladlalamoas ' agtmt to contin.u e to carry on money tending .
&usiiless in '" Rang"oon. War broke out and Burma was oect~pied
by -th~ Japl.fllese. During occupation the Respondent paid in
.. .Japan!':se cu:rrency his .debt to the agent Arunachalam .. The."
. . .Appellants . ~-:-n'ended that..tb.e .-contract of Agency ca.!ne_to an
 GENERAL INDEX xxiii
PAGE

end hy operat ion Of law and the agent had no authority to accept
the amottnt. Held : Under s. 13 (3) Of the Burma Laws Act in
c,tses not provided lor by sub-s. l, vs;., successio11, inher-itance,
marriage, etc., the orc'iuary law of the l:tud, if any, shoald apply
and if there is no such law. the case should be d<:cidcd according
to justice, equity and' good conscience. lntern;llional law deals
w:th the question of r~latiot:s between stnt(S a1: d not between
individuals. The laws of Burma applicable to the case a;e to be
found in. the Dcf.ence of Burma A:t and its Rul,s and the
Ccntract Act. The 'Dde ce of 'Burn:a Act is designed <r
intended for protecti ng Burma during the W'ar. With this
object it was prvvi<!ed that no~e son resident in Burma sh<:u'd
trade or ha,e intercourse with the subject of aYenemy s ta~
or with any perspn resi:ling in enemy occupied cou~try. ThE
prohibition qid not apply to intercourse between 1 e S?ns lidng
.in Burma <.nd those living in othu patts of th e British Empire.
The A~t never contemplated that Burma would be occ; pied or,
if occupied, there should be no intercourse between persons in
Burma and in other parts of the British Cmrirc T ile Defence
of Burma Act is therefore not applicable The pcvisi<JJ!S 01
the Contr<tct Act that arc applicable are ~s 2J and 56 S. 56
deals with' s uperven ing illegalit,. As intercourse be~ween
people living in enemy CCC. pied Burma avd people in India
was not prohibited under the Defence of c.! urma Act, the c ontract
of agency did not b<come illegal under this section when Bu.ma
fell <!nder the ~ccupation of the enemv. S. 23 provides if the
Court regards t he C) nsideration or object of an agreement as
opposed to public policy. the agreement is \'Oid. Pub!ic poi:cy
is n~Jt defined in the ,\ct. It is used in such a way as to serve thE
interest of one's own country. Different policies .ha\ e been
adopted by England and other countries ful!owiog the Britsh
system and by continental countries on the efft ct of \var. on
. contracts. In England the givin)! of opr-ortnnily for the convty-
ance of information wh:ch n1ay hurt the conduct Qf war, or may
tend to inc~ease t he resot!l ces of the enemy or c :ipples the
reSOU!C~s of. the King's .subj.'cts, . is prohi bited t:nder the Act
Ertell Bieber Case, (1918) A.C. 260 at 274, referred to. T he
p!'inciple followed by German)', A'. stria-Hlinga.~:.y, H(.lland <. nd
Italy wa:; to allow inte:course and tade between persons
residing in those countries and persons re~iding in enemy
co.mtries even alter the outbreak of war udess it was prohibited
by special. en(\c".Jnent, the reason being that ~t wot:ld be in fheir
interest. OPPenhcims Iutfrnatiot,al Latv, Vol. II (S!h .Etln.)
263, refe:-red to. By allowing trade and i~crcourse as in this
case, the inte:Es(s of Burma woald not only be r.ot injured
but be promoted- L:>oking on the question from the in:erestof
~.!!is country (and that alone must be taken into account) such
intercourse can net- be ht ld to be opposed to P~:blic Polley under
s . 23 of the Cpn_tract Act. I": rther, where the pril!Cipal
and ageut live in different count i.:S there is no presumption that
the contract \\'il.l be snbjtct t >the law where the principal res! des
and not where he carries on business. The c-.mc1usion inay
some:irr:es be justified that they intended their contracts to be
govern-:d by the law of Hie country in which th~ a.e;ent i~
inteilded to .act. Dicey's Conflict of Laws (Mil Elf11.), 710--7-11
The intentic:.n of 'the parties being a mixed question of la\17.3!ld
f~.ct' and the point' not'having~been pleaded and r,.oevidence
taken cannot be raised for the. first tim~ in appeal. .. . .....'
V. RAMASW:AMY J YENGAR ANQ OTHERS ' tl. S.V, K.V: ~ELA
. YUD~ CHETTIAR AND ONE ... .. 2
xxiv GENERAL INDEX

I'AGE

C ONTROL OF IM PORTS ANI> EXPORTS (TEMPORARY) AcT, 1947 227

COOPERA'CIVE SOCIETIES' ACT, S. 44A~Registrar dissolvi~Jg a
Committee of a Co-operatite Society a1&d declaring some
members to be dtsqtwlified for electio?' for 2 years- APPl icatiot'
for writ of rerl1orari-APPlicanl who 'leaS the Presirlwt of the
Society iu t ':e previous t erm also disqualified. Power of tlte
Registrar t1ndc r s. 44-A 11Jhetlzcr exlett.<ls to members of a Committee
whose term hasu pire&-Whether order judicial or administrative.
Hc/.d: Unc!er s. 4~-A of the Co-ope alive Societies Act t he
Registrar may dissolve the Committee and also direct that all or
any Of it:; m~mbe1 s shall be disquali~d from bein)! elected for a
p criog spedficd in the order. The Committee that can be
dissolved is tl~ Cotrmittee wh:ch has misu~anagcd the affairs of
the Society :~nd t!u: disqualiii.c;:.tion is "~gainst its members". 1'he
test in such ..:.tst:s must be whether applicant W OJS a tr.em ber of
the Commitltee which is d issolved. Since the applicant had
ceased to be a member of the Committe~ long before the proceed-
ings were iitialed against tile S:>dety s . 44 -A C.1'' have n o
application to hi on. Fm ther !he section cannot be invoked to
cover the case of past membe: of the Committee e\en if the
mismanagement b :gan at the time the applicant was President.
Held jurtlle~: That the order in the case was cne expressly 1:nd er
s. 4-t-A of the Act and that is the only p~ovisio, under whi ch
an order of dissolution and disq",;tlification can be made-hence
it is not an admintstrative act b:tt liable to be quashe:d if in
excess of jurisdiction.
THAK:IN HLA K't'WAY fl. u NYI NYI 19J..
COURT OF INDUSTRIA L ARBITRA1'IO~, M~STAKE 'OF 75
COURTFEES, PAYMENT OF, REGULATED BY HIGH COURT RULES AND
ORDERS, NOT BX COURT FEES ACT 236

DECREE ON INCONSISTENT SET OF FACTS RAISED BY DEFENOANl'

WHETHER CAN llE GIVEN TO PLAINTIFF 236
DEFAULTER .. ,
-
DELEGATION OF POWERS OF DETENTION AND ATTENDANT DANGERS
100
33
- -- -- - POWER BY PRESIDENT TO BUREAU OF SPECIAL
INVESTIGATION WHETHER ~itra vires . ... 22~
0
... ...
DEPUTY Co~IMISSIONER'S AC~JON. IN GRANTING LEASE WHETHER
JUDICIAL, QUASI JUDJCIAL OR ADMiNiSTRATIVE... 214.
"-----DIKECTOR OF SUPPUES....-POWER TO GRANT Ill PORT LICENSE... 22~(

DIRBCTION IN THE NATURB OF C&RTIORARI-Burma Customs Tariff Act,

Scltedu/e I, Item 119-Prefirellfial rate for goo is from U11iterl
Kingdom, Briti~h Col61Jiis, India or Pakistan-Goods imPorted
from Singapare. Held : That under s. 3 .of .the Burma C<~stoms
Tariff Act cotton fabrics mariufachlT~d in the Uni:ed Kingdom,
British Colonie, , I~dia or Pakistan; at:e to be pxed at a pre-
fer ential rate, Rule 3 provide!! that ~oods manufactured in the
Uni~ed Kingoom or ' Britis~ Colonies:. will be taxed at pre-
ferential rates only _wh'en import~~- direct from the United
Kingdom or: Colonies.. The rul e was made w'hen Bu: rna was
pad Qf. the Irirlian l';mgire: 'Aftet: separation and/or indepep.'
dence of Surr_na no rule similar to _Rule 3 was made rega,rdin~
 GENERAL INDEX XXV

!'AGE
goods' of Indian uri~in, A..:cordinl! to ss. 2 and 3 of Burma
Customs Tariff Act when good; are shown to have been the
produce vr manufacture of In.dia, the importer becomes entitled
to avail him~elf of the preferential rate ot duty even though it be
not imported dirt>ctly from India.
J. Knr'A'I'RI & Co. 11. ~llNISTER FOR F I NANCE AND REVENUF.
A~D .ANOTHER 105
D l ftECTlO NS l:-; THE NAl'URE OFCERTIOilARI AND PROHI81TION-Cily of
Rangoon Municipa l Ar.t-CutzS/rucl ion a net lmp!icntion 1f tTze
phrMc "ll<l:.~iug th~ duty to <Jet accortli"'g to lm11.'' Held: There
is no pro\i$iOn in the Corpor;~tion of Hangoon Municipal Act
which requires the Engineer-in-charj!e, iu issninj.! a.n order
directing the demolition or remo\al of :m unauthorisedstni<.:tur~,
to act in anything but an achnini~trati \'e or executhe capacity.
Held further: The test of "ha\'i11g the duty to act according
to l.aw" taken by itself is not suffic:<:nt. Everyone is under:a duty
to act according to law but lail.1:e to act accordinf.! to law will
not in every case gi\e rise to a right in the injured p:uty to seek
directions in the'nature of certir.u ari and prohibition. U Hft;e v.
U Tu11 o:w, {l94S) Jj.L.R. 541, followeci.
U Ko Ko GYI 11. ENGDII:.RDICIIARGE, RANGOON CORPORA-
TION AND A.-.,OTRER ... 266
D!RBCTIO:-IS !:S THE NATURE OF MANDAllOS-Requistio ning
{Emerge:tcy Pri)'IJisiotu/ Act ,l':J./7, :<. 2-Govrrnmeutof Burmn Act,
s. 145 tZ C<mstJtt,fiotJ of the Uuiv" of Burma, s ..222 (1 1, -
E.,;isting law- W!Jetller RcqtliSttionitlg Act ultra \ires of s. 23 (4)
of tile Collslitutiot~-Requi~itioni11g whetfler ;u,!icia/, quasi-
judicial act -Rule 2 Cg), l?cqt~isitiming (Claims nud Comj>wsa-
tion} Order, 1949-"0wt~er" me<Tning of-Temwt how far
mom:r. The Co1lector of Rangoon hy order u1 der s. 2 of the
(Provisions) Act, t9n rcquisitionr::d a portion of lh<?, 4th floor of
Requisitioning (Emergency) No. 545-.547, Merchant .Street,
Rangoon, then intile occupatiO!! of the 2nd applic;ant as tenant and
employee under th~ ls~applicant . Requisition was challenged on
the !(round that the Reqaisitionin)! Ad, 19~7 was ultra v'ires in
view of the GoYernmcnt of Burma Act and of thr:: ConstUution .of
Bl!nna as no ,provision had heei1 made for payment of compensa-
tion in the rules fr:Jmed under the Act to tenants \\'ho. had
substantial interest in U1e lan-:ls. Held : Thlt the Reqdsition-
ing Act, was not ultra vi1ts on accoun~ of s. 145 (2) oi the
Government uf Burma Act, 1935. It is not also ultra vires on
account of s. 23 (4) of th.e C ons~itution of Btlrma. The question
whether compensation is payable to any tenant in occupation
is covered by the decision in Charles R . Mmzasseh v. Tile
Collector. of Rangoo11, aud Dr. Kun Lt11i11, B.L.R.(1951) l?.C. :?01.
The tenant is included within the definition of owner of property.
to whom compensation is payable. That the ~mount of compen-
sation and the principlt>s on which and the manner in which .the
comptnsation is to be dt:termined are sufficiently specijied'in s. 6''
(1) a~d (2) of the Requisitioning Act. These principles are-:
(a) The owner must be compensated for any loss Sllstained'.
by h.im as a res:~lt ol requisitioning ; . : . ..
. {b) The amount of compensati(ln mus t be fixed by agree~~nt
. . if possible : . . ...
(ci In default to s ;cb,agreem~!lt a~ount of compensation is ,
to be by arbitration by an arbitrator to be !IPP0jt;~l~d :
by the President, who by ll general or 6pecial ordertray
prescri~ the conditions t.o which such .?rbitrator
XX:Vi GE~RAI1 INDEX

I' AGE
shall have regard in dete: mining the amount of
compensation.
Held al'so. Requisit:oning property under the Requisitioning
Act is not a judicial or quasi-judi..:ial act but a mere administrati\ e
act. No direc.\ion in the nature of certiorari can thertfore be
issued in such case. Carltona Ltd. ,., Commiss_i'ot1ers of Works
and others,. (1943) ' II Er.g. Law Eeport~, Voi. U , 560; Province
of Bombay v. Kulsaldas S. Advani and others, (1950), S.C.R.
621, referred to.
VRAJLAL NARANDAS ANO ONE V. THE CoLLECTOR OF
RANGOON ... 118.
D IRRCTIOINS IN 'ffij': NATUHE OF CERTIO~AR! AND hfANDAMUS - R,quiSi
tioni"g of house under s. 2 of Requisitioning (Emergwcy
ProvisionsI Act, 1947-Allegation I hal building rcquisitiot~ed is a
temPle and plac.: of religious 1oors!tip -S. 25 of the Comtitution
of tile Union of Burn:a--Disputed questions of fact-Pra-ctice.
The Masonic Hall in R:mgwn was requisitioned by the Co) lector
of Raugoo:t under s. 2 of Requisitioning !Emergency Pro\ isinns)
Act, 19~7. An application was filecl in the Sup tme Com t for
issue of appropriate writ on the grounds;-
(a) Tbe Requisitioning Act was ultra vires on account or
s. 145' (2) of Go,-ernment of Burma Act. 1935 and also
of the Constitation of Burma, and
(b) the first Boor of the building is used as a temple and
phce of religious worship and hence could 110t be
requisitioned.
The Collector in reply to the application dirl not specifically
deny that the building was not a place ~.f worship b;.f m~rdy
stated he was not ;o.ware 'of ~he aliegatious about the building
bein~. used as a t emple or that Freem:~sonry was a fo: m l.lf
religtoo s worship.. Held: The ques' ion as to whether tht: Act
was 11Ura. vires on account nf the Go,ernrnent of B:rm ll Act or
Constitution o!f Bunn:~ has been d .;cid.:d in V,ajlal Narayanda$
v. Colleclor of Rangoon, H.L.R. (1932) !S.C.) 118 and judicial
notice can be Ltken of the facts lhat-
(ti) Fre:z.masons have always been rcg;lt'ded as mo:mbers of
a Society the objects of wh:ch are mutual help and
p"Omotion o f brotherly f~eling among its members,
(b) that those, who prof,sg '<ljffe1ent rdfgioris and cannot
therefore haveo a commO!l place ,of wo:ship, ho.ve been:
members of thc;sarne Society, and
(c). lhat tbe Freem:Aon Hall has never ~een regai.d~d by the
public ~a place .o f pu.b,lic worship.
As the activiti:s of FreernaSQns iu this coantry have been.
shrouded in my~tery, the Masonic Hall bas not been )pen to the
public and all Fr~emasons are under strict (laths or secrecy, no
adverse inference could be drawn from the Collector's failure to
deny specifically the allegation that t he Hall . was a place ~f
public wo~ship. Held fr~rtlter : That requisitioning is not a
judicial but an administrative act and therefo~e cannot be chal-
lenged by writ of prohibitioh or eertiorari. Where. lhere are
disputed qnef>(i9.ns of fact . which cannot l:)e satisfactorily
adjudjeatc9 in proceedings, suits. should be.instiluted to obtain
the nece.sar~ relief. Ram r.rasad Narayin Sahi a1tdotlt~rs v.
TlteState .of Bihar andothers, NI.R (1952) Pat. l94.af i99-200,
followed, :i
!>fAORrCE P.OWER.PADGEI'T:A~,;>;AN~;~~R v. COLLE'CTOR OF
RANGOON AND ANOTkER : . ; .. ,, : l:.Z6--
 GENERAL INDEX X~Vll

I' AGE
DIRECTION IN THE NATURE OF habeas ctwpz.t s-.lrre;l under S. 7
12-Al o} tile Public Property Protection Act, 1 ..J.I7-Delenli~n
for six moullts urtdcr s. 7 (6) arul t5l of the Ad-Altcrno/i;c
gro~nd of susPtcion. In the present c;.se th.: a~re-;ling off.cer
has st.1ted in hi; order- Where;::. I have 1:eascn to Su$pect and
do in {act SPsped that....h;rs commit:ed and/or is committig
a prejudicial ad ." Held: T.hat th:.: mer<: fact that the OJdt:r is
couched in al:eruative is not sut'icit-nt to vit'ate it when there is a
sworn l\ffida,itof the officer con.;ernl'd stating that he suspected
the detenu tf having committe<l and of comnittiug prejudicial
acts ;md th ot he merely failed to strik~ off the word" or".
Viml'abai Des!;paude, j\,I.R, ~1945) Nag. 9,distingt:ished. Where
the arre~ting officer bas placs::ct illaterial~ en which he has .:lC!ld
Hn complia11ce with the dec;isions of thP. Supreme Court! a~d
materials so plac~d ~how sufficj, nt grot:nd fnr s aspicion, the
a1 r~st cannot be challeng.:cl. The law doc:s not require that the
arresting officer is !o be sati fied. Su~picicn of the; arresting
officer that the detenu hr s committed or is con~mitling a
prejudicial ad, is sdficient. In an applkation {ordiredion in the
n.lture of habeas corpus the S1preme Court cannot go into the
plt:as of the detenu as a critr:inal court can do when tryirg the
detenu fur prejudkiat acts . The Supren:e Cmrt will not
interfere with the order of detentinn in any wav not even by
granting bail, wi}E:n the arresting c.fficer ha sufficient reason to
suspt>ct the d~tenu d ha\ing commilte.d pr<-judi.ial act. Kin
Ma ilia v: The Chairman, Public Prope,ty . Piotectiot Bo.1rd and
two,' il94Sl B.L.R. Si4; Tim a M11w 1\'aing v. Tlie Commissioner
of Police. Raugoo>i a11d oue, (1950) 13.L.R. (S.C.) 17: Daw Khi~J
Tee v. U Glum Tha and 011! 1 11949) B L.R (S.C.\ 193, referred to.
u KYAW u (<1) MYOCIIIT KYAW u AND OTHERS v. BUth:AU
-OF SPJ;;CIAL. INVESTIGATION AND ANOTHER 87
D I RECTION IN THE NATURE OF habca$ corpus-Order 19, Rule 1,
SuPreme Court .Rules, 1948-Public Order PreservattOII Act-
Dete"liot> llllde.- Coml/lissiotJ nf .o/fc'tl<e of Hig/1 Treasoii-
Held: Th<~l Ord.e: 19, Rde 1 providcslthat :1n applicaticn for
direction in the nalt!re Of a writ {or habeas oorpus s-:1all te m:1de
by the prP.se11taion of a petiti(ln duly \'e,rilled by an affidadt by
the person restra:ned and the appi!cation should contain a state-
ment that it is made at his insta.: ce and th'\t it sho:,Id also $el out
the nabrt: ci the rest! aint; when the ap;>lication is made by $(me
other l' er.S' n it should st:tte thai the personcstra:ned is un.tble
to make the affidavjt znd the a;,plkation is made at his instance.
Offences against the State are prej.clicinl to pubrc saft ty and
maintenance 1( pub:ic order. Whe 1 a p~son is cl.~taincd under
s. S-A (1) (/')Of P .. blic Order Pre~erv ti.~n Act, the re?.l test is
whether the Dep:~ty Commissioner C1ulcl m mat:!ri~h b(flll'e him,
ha\e be_en satisfi,d ~hat it w:ts necess:ry to , etai.n the per~on
concernerl to pr ::\ent him {rom acfng in >~ny tn<!nner. prejudi ~ ial
to the public s~rety <tnd the maintenance of p1;blic Nder. The
meee fac( tbatthe materials also show that th:: person detained
could and might also be p--o~ect:ted for high treason, would 110t
deprhe-the Deputy Comn: ssioner of h;s power to tnke preventive
action tinder s. 5-A (1) (b~ of the Act. A pe rson wh0 has
commi:ted the ,,ffen,;e of j1!gh treason, might b; .:etained' to.
pre'"ent him frqm corin1ittin~ f,1rU1er offences agamst the State:.
Ma Iryin Hnin v: The Commissionlttr of 1:-olice, ~ngro17- and
. another, (19481 B.L.R .. 777; Z' Kyu v, The Commissioner ()!
Police, Ran'foo,,, (1.949) B.L.R. (S.C.).18, distinguished, . " :
.D AW KJ~\"E . tl . TB~ DE~UTY C O!OUSSIONER, PEGU' .AND
ANoTHER . .;. ~ 9Z
.xxvi!ii GE}t{ERAL INPEX

PAGB
DIRECTIO~ IN THE NATURE OF M,~~DAMUS-Government of Burma
Act ,1935, s.16 (3) and (4)-Rules of executive busmess- Requisi-
tioning of prqperty agait1st such rules -Property in possession of
Hotwrary Magistrate w l1ether c.wt~ot be reqlliS'i tioned-J'ress
Comm%mique Tunu j,tr elP.:Jant.. The Collector of Ran!!oon
requisitioned No. 77, Signal Pagoda Road, Rangoon for the \"lar
Offi.:e. It was cont~nded by the owner that the req lisition was
not made through the Ministry of Public Works and Labour as
required by Rules of Executive Bul;iness made under s. 16 (3)
and (4) ofthe Government of Hurm-1 Act, 1935, that the owner
being an Honorar.v Magistrate the~t his ho-..1se C>u1d not be
requisitivnecl, that Utere was a Press .~c>mmuniqtie i~sue<i b.y the
Government of Burma that requisition w;\s to be res1rteci to only
Wh<:re'the pre~at ten:1.nt w.1s either willing to vacate or leaving
and that was not the c;u::e. Held: That rules relating to
-~ransactioris of .governineilt business have nothing to do with
therequi.;itioning _nf pr011er:y by tlle Coll ~ ctor. The peti ioner
has failed to s:~tisl y the Court that the needs of the War Office
cannot be greater than thai of a mer<:: Honcrary Ma~istrate and
that it was iucu:nbcnt o:t the Colkctor to do or forbear from
a
doing specific act under s. 45 (3) of the Specific l~elief Act
and the petitioner f<~iled to satisfy these conr:itions. Held
furtlter :There is nothinl! in the Requisitioning Act to p;c;vent the
house of an Honoary M ;t~btrate bei ng r(!q:. isitio:1ed. The Court
is concerned w>th adminis tering the Jaw as it is found in the Act
and the I<tt les th_erea nder but not with an y statement-in the
Prefs Cotrmunique,
S~ HCIE .V, THE
. COLLECTOR OF R,\NGvON AND ANOTHER
. . . 131
DISPOSAL OF TENANCY ACT AND RULES-Laiid subject to allol111ent~
Land in possession of a Receiver 11ot exempted. Held ': A
Receiver's ''.PO!?session" of land ca.Imot -in any way curtail the
po\v.er of :t Tenancy Hoard l.o al!<.t tlie same. :rhe " possession.
of a Ro::cdven:annot be on a.f':lo!ing more privileged than that of
an owne whose lands are subject to allotment by a Tenancy Board.
K . I{; DEV-ER v. THE CHAIRMAN, DISTRICT TENANCY DISPOSAL ..
C oMi.UTTEE, H~NTHA,WADDY, A:-;o TWO OTHERS . 255'
-'IXSPOSAL oF TRN~NCY ACT AND RuLES-'-Revocatiot~ of allotmet~t
ResumPt ioll of la11d a111l setzttre qf stamli1~g cr{)Ps without 11ofice
Wegal-Sub~letting-Whether 1L disqzlalifies tenant of . prevt01S
yt{a.r tronz re-allotnzcll:t-Tct;auc)' Dispo,al Rules. /:leld ~ The
ordet:~Of a District Board rgvokingtJ;le allotment and a subsequ~nt
-order. r~suming the land t~ether with the standing ~rops without .
notice totnetenants are not _warrarited either by tM Disposal of.
Teli<!-ncie.s A~t qr by the Tenancy Disi1osal R.tles. Held further:
S~.b-letting i; not a disqn_l)lifitati()n under Rule 10 of .the.:Tenancy
Disposal R~11C_s so as to bar-re-allotment in the next tenancy yeat; .
._ _- : U'E M~t;N~A:-<O O~Ev. UPoTHITAND.T\VOoTHF.RS . 257-\
-~:~_:;,t .Gd1 SSotS~~q~1cqCS <:l~S::n oo~. ~w-:>:oo?:@t:-.
.... . oe~~ ~~:1 ~g4)'):'ljOO?:Gq:q>t:euG~I ~~5- 00- : ll_:)5g4)'j$ ''
_..- ~ ~s81oS~o,e<;o <t~~~- ~:4)o:'lJ<th=GG~:bac-5eoG~i, .ct5_~ . :r .
_ .. (JJ - ' :. ~:~1: ,, ~o)tsn<i~c?.o5~Cri')=~$ct~:~oa~~ :
._ d3:Q)?:~oo.:Glfro~o~~~~ ~~~oS .-,sa~..,..:..:F.~':~?~~-~:;o~.
~t.4)-=>: . otSOil~~s~~ .oooSro~~~f -&9GC.'31?~:
oo-=>~E:_.:._rooo9 d3:4)~~~rf)S:~So:>_~d,l@ . ~~~-
 GENERAL INDEX XXI}

PAGI

Gg.~ oocfi9Sd)~cft.:-~oo:;8:~'Jt~ 83g~83G61:::Dt G~t

'lt~ !T.lG61:83g~ro: g~:g~$~8- oooo~ ::S:~"~ots?ii~'J o3:
Gro:>cfi~G0:6)~1 ~G<J?oS !T.lGGo:>5)G0:0006)~ qj~o)~~ Cjo::J'J
0316 ~oo::8:4>:>:x tG~@~GJ~t::otn
~oon1 ~$ 4>"02~~5 o3:4:>:>:~ro?:~:Gm5~c8o1 ri ~:1
4:>GCJ6~ ... ... ... ... 261

0(!90 ~~ 1 ::8:4:>-:>:~Gb): 83d3 eoGo qfig ? I ~C:Cjjd3 (~)-.-:J:l'):))')

G6):~GOJ5qbot~cSG 61 :~"&l5c,c: :pcfi~c:l)taa::of:oa~~
o:>~~tG@-~~o~t~o5J3m OJG:J:>'J::ocfio CGOJ~ ::o-:Jmq>'JGg~
C);lD1~:0il::otJSSoo~:oo.,S:quSotC11JC :n~:>o3:aaS~ooo~~
ro:>:~c::otu O@~o ~~~ ::8:4:>'J:9jro:>:GE>(: q>t:eoGs o-G ( o) n
. ~oo~t'ltm C};lnW:4>'J@9 C);l~:g~G::o-:>G'JI cra<lJt:SrouS"lp:
::ot\ioo~tlC ~cmuS~:p:83@~s:Gloib~@:J qc:~::ot CJilD1:Q'l:>02c
o1~GOJ'J ::b':>::Dp~6):cf3~;,p:!:ld02cf:xl'JOj!C xw-:>dl~:C)?~:"lp:
m c8~:0S~:G4:>:>Gl'Jo5G)G:xl'J :xl'J:xJt:>.Goo@S~ G@-:>t:~
G6pcfi~Gu@u !Jd~O1X'J::D,J'OG61:J3~'=l!'J:~'Jrot:l ot&p: o:>~
GOO?C~"lj'J:qtGJ~I Go:pc:~d) ~~cfi~@t&)}l Go:pb:~cfi
o:>~~ o5ro:>Go:>5~-:>:!Jd:>:J oilt:Gro:o1:C);lo1:Gro-:>d3o6)~~
o~wgJ::D-:>::Dq>-:>Goo5q oo'):Go:G@-:>cfiE>[~@::otu ~oo02:
~~JP::xltJ~go~t~o5J3m::DG::r:>:>::Do5o CGo::J'J ::D-:>::Dq>-:>G~'j:
@~~Go@u 6!m~:o5ro:>ooo1:u1:ro G6)1i>d39j~C){n1~:~ !:ldC);looro
G@-:>d3@ ::D:>::DpG@So::Jtot Uilroc:rotJ oo&p:eoGn oofi\
~'J:~b:x1tn O'J~')Go:>5c8~: q~:~:p:::Dfl :Jt&p~ OO~GOO'JC:
0002cfiG:).). 5qC:J GCT.lf'JC:~cfi"lj'J:0002 cfiG::D5CjC :1 O~o:l~?J:>::Dq>'J
Goo5ooCJ6cfiG::D5qc:::D'J03JC rouSG@"lf:>:~ cB~::::SS:G$>?G1'Jd3
GJGt@~GOJ:>~;?$1 ~oouSG@"lP~ O{&p:ooj:~G::D?o5ro?
Goo5"lf'J:oo'J: C)ilDW:@:S::Dtu oo&p:eoGDOOGJ C);ls1~~:xJtJ.
SSoo:oot:quSo5031t:n~:>CB~:oo@S~&~~ro'):C11JcfiC)ilo~~:
~G:xJ5 ();IS1~:~C::Dtii
:a;>Goo?C~: ~ :::D~:(c~ c1:~: .. . 174
DISPOSAL OF TENANCY RULES, 13 (1) {fi 179 l?t)'
. .
DISPOSAL OF TENANCY RULEs-Rule 10-No default it~ payment of
retzt by tenant-His right to work .tllesamt; l,wdforthene...:t
season. For 1951-51 the cbildrt:n of the owner oi the lands
applied for permission to cultivate them as owners and' the leu ants
also i:lpplied. The applicatiQfl 9 the children of the owner was
rejected in both the Ward and District Boards on II~ ground that
their title to ihe property had. AO~ been proved. .for ~!te
year 1952-53 they made a similar application. rhe Ward
Col'Illl?iltee rejected it on th e grot ncl that'there was no .default: in
payment of rent or repayment of agricultural loan by the tenants,
they were lhereforeentitled to work tbe lands. The Committee
further hel9 that the owne~s ne.ver eatned their Jiving as
XXX GENERAL INDEX

PAGE:
cultivators. The District Board di::agreed on both counts ; upon
an application for a writ. of certi,rari : Held: The fact that
r espondents;? and 3 are owners and wonld be in a position to work
the land has no bearing on the case. Under r~ule 10 of thr.:
Tenancy Disposal Rttles, if a tenant is not in clefault he is entitled
to work tl1e land in the next season. As there was no dispute
that rent had been paid and there wa$ no default in re payment of
agricultural loan, the order of the District Board should b e
quashed.
PONOYA AND TWO OTHERS v . THE SECRBTARY, DISTRICT
AGRICULTUR\L oOARD; PYAl'ilN AISD OTHERS 200 .
DISPOSAL (JIF TE-:>:A~CY-D,;/a11lt I y tmant 111 p .1yi1tg l'eut in pre'Vious
ycar.;....A/lolnre1l to R ,sponde11ts by Village Committee- W!tdher
land could be re-alloltcrl ou teuder of rent in arrears. The
applicaticn for re. allo!ment of the land by applicant was rejected
bythe Village alld District Tenancy Disposal Committees on !be
ground that he had committed def:~ult in payment of rent; the
land was allotted to 3rd Respo .:den t. The applicant then offered
to pay the defaulted <~.mounl tothe Headman. Held: That the
land had been vnliJly allotted by the Village Committee and
accord in~ly t!1ere could be no re-allo!tuent of the land in
question as both the District Cor.mittee and .the Village
Committee have acted in acc0rdance with law.
U PO TH!:-1 'II DIST~ICT AGRICULTURAL BoARi), MAUBIN AND
OTHERS 202~
DISTRICT AGRICULTURA.L BOARt> RROCEEDED x.parfe WI THO UT ANY
. RE,4.SON-SUPREMF: COU!~T CAN INl'ERFEI<E :. . ' ,~ .. 96
- . - ]UD6E ACTS as A. 00URT UNDER ~lU.!'ICIPAL RULES 58

EFFECT OF SUBSEQUENT GRANT OF LEASE BY R:,NGOON DEVELOP-

MENT TRUST .O N . LFASE BY HOLDER OF PERMIT ISSUED BY
OC.CUPYING POWER H6
o~9~ y~r ~CGGoo6 ::o0oo Gl:Gm-:>oSoocG~;rolt !T.)oSeo;o
., <(80 <; ~~ 7---:-::riiGt . oo~<:l68:9,p mo3:o3:-m~t
ooCqst:<:~p . OOG~-:>co:>c~Go5? . lT.lGt oo~'8:9:P"l)'Jio_2C
91G::lJ-:> .rooS~oS"lp:~ ~G01t: GGI>[O.Scb~C-mG::o:m~
gjo5~t:~r0fcfi . Go?~-lT.l~t .~C~C:~-:>~~O.SC romljcfJ
~~cB~.'GttloS~oS-t~~~o5Goo6 8g:?go:ltr sa.Gt
ooS~t:~o)df. .@f89Go:~5 GGo:~5-BaoS.eoGo ~~41oS
~ = oo8g1<E@~C:~im;>-:>l:lj'):~ _G@~f:o
oo~tootqst:~'J ~~Go:>-:>cg~ . Gpt~ mGtooc~c:
.c:flfi[Oj?d?GX~GC:I oo@-:>:Gt~o:J~OOGo;>0cf.imGOJS3c;t:q:> GO>':>t
~t:o1ot ~(;)1'313i~ ooGO)')coot:~@~~Err ~~Bu~s')SoS ([>y_ot,&
Gt-:>(f)roS~.~~-:> Q:JcS~oS'=ll-:>:~ :~:iooSs8:9 JDGi&cr.6.~E::
.cjp~~m~~ p:i~oot;p~~oS.o)~:8:::ot rn~02-:>f3::n:ut
-~~~oS~~-:>o1~~~ JD~d.>Q)~ud? oo~;:roE~E:~-:> ::8:[3-:>:.
::o,)t~QtB_02~ ~~fG;:9~6.(oS~m..S??t:.r ::r.wto:iE~t:~'J.
R~oo~oo~~~ Gf.l:::D-:>:G:u-:> da~-:>~rocm-:>:r rnGtooEqsE:~.,..
 . GENERAL INDEX XXXI

PAGE

ENCOUR~GE, _ HAR?.QUR, 90MFORT-MEANING oF 44

 xxxn ~E~ERAL INDEX.

PAGE.
ESTOPPEL-S. 116, Evidence Act-Permit granted by persons ad-
ministering Rango~ Dc:veloPme11t Trust duriog occupation period
and leuse by such Permit-lwlder-Assessment <Jf E1~croachment
Tax by lawful admmistratur of Rangoon DeveluPme.tJl Trust on
le;s.;ee-SubSH}uen! grant of lease by Raugoon Developmet~t Trust
-Effect of .s11ch lease on the lease by Jermil-hol{Jer-Hague
Regulation-Pouer of Occupying Power-5.108 (d) (q), $. 111 (c),
Transfer of Pro.perty Act~Trust Act, ss. 86, 88, 90 aud 94-
Equit~. ~ ot?lained a permit to occupy a piece of. land from the
authorities administering Rangoon Development Trust duri.pg
Japanese occupation, and built a house thereon. He let out the
house and land to the 2nd Respondent. After re-oc~upafioJl, the
administrator of l{angoon Development Trust, assessed the
Respondents with encro,achment taxes an~. later granted a lea~e
for 3Q. years to the Responde"nts, who filed a sui~ for declaration
of title to the.Jfbuse and land. The trial Judge gave a ~ecree as
claimed on appeal to th e .1\ppellate Side of the High Court, the
decree was tnodified and house was declared to be that .of the
appellants, on. further appeal to the Suprem,e Court. Held :
Article 55 of Hagu~ _Re~ulaHons of i908, makes the occupying
power only an adm1mst_rat'?r and usnfr1.1ctuary of land l.Jelongiog
to the State of the occupied country. The-refore the pennit
granted by the authorities administering Rangoo'n Development
Trust during the Japanese occupati?n could not give. any titleto
endure beyond the peri)~ o~ such occupation as against Rangoon
Development TrQst. The r~ght of the appellant under the permit
therefore came to an end when Rangoon D'evelopment Trust
assessed encroachment taxes and later granted lease. There
was no estoppel under s. '116 of Evidence Act. The seCtion
provides that a tenant cannot deny that t!J.e landlord had title to
the property at the date of creating teuancy. The section does
not prevent a tenant frdm pleading that the title. of lhe origiria.l . .
lessor has come to a~l end .. Krishna, Prosad Lal Si11gfra Deo v.
Baraboui Coal Conccru, 64 LA. 3111 followe~. S111 : Bh(tigauia
Bewti.l1 v. Himmat /ladyahar, 20 C.W.N."133S, refeirei:l"io. -s.
108 (q) of Transfer of Property Act provicle_s lila~ a lessee on lhe
determination of the lease is bound to pul the lessor i!lto
possession. But this sub-clause should be read aubject to the
opening words of the parag~aph, .'Ciz., that parties to lease
" ro~sess the r.ights and are subject.to the,liabilities mentioned in
the rule next following or such of tlrem ns. arc aP#ica.blc to tlie
properly lea.<ed" e.g.. un<i;,t s . lll (t:J whe tl th e interests of the
lessor has terminated or s.l08 (d) when thinterests of lessor.anq
lessee have become vest~ .in the same .person, . no question of
delivery. of possession, arises. Ss. 86, 88, 90 and 94 of .the Trust
Act have no application td>the fads of !he present case. . Failure
of the Respondents to inform Rangoon Development Trust when
they ~vere assessed with encroachment tax about the perrnit 0 .
the appellant did not amount to fraud or did not .raise <rny . equity
in favour o~ the Arpe1Jant. :--.
HUSSEIN- BUKSH KHAN V. MUDALTA AND ANOTHER 146:/:
EvioENcE Ac'l'; s. 116 ..,. 14&:
- - -- - , ~- 145 ... ...... "15'_.('
~- OF WITNESS AS TO OPINl0:-1 O"tj TRAOE~MAR~. WHETHER

-
. ADMISSIBLE .. .. :: . 204 .
....
0 . :.
. ~

:ixr~TING LAW 0
ll8"i'
OF
FILIAL RELATIONSHIP, MAINTENANCE
F.i~ANciiAL oRoER.....::R~VIEW
" tS: '
. . CoMMissioNE-R's
. . o~ ~27 .;
 GENERAL INDEX xxx iii

P AGE

FINANCIAL COMMISSIONER, POWERS OF REVIEW 214

f'INDING OF FACT BY VILLAGE TENA!\CY CoMMITTEE WHEN BINDIISG
ON THE SUPREME CooRT , 174
GOVERNMENT OF .BURMA AcT, 1935, SS. 16 (J) AND (4) 13 1
----~----:---- . s. 145 (2) 118-

HABEAS CoRPus-Order of detentiotl, itJ sig11al-l ndefinite deteuti011

of detetm~ j(1r 4 years- Validity-Delegation of powers of
detention nnd nttenrlaut dangers. An order of detention, 'in
signal' was received from the Deputy Commissioner, Shwebo
and the detenue kept in detenti'on since December 1947. The
original order produced before the Court showed that it r'as issued
on the 22nd December 1949 in supers e ~sion of the detention
'in signal . '!'he Deputy Commissoner appH-ed to the Court for
time not less than 30 days to compile a History ~heet of the
App licant after receipt of notice of an application for release;
Held: That an order of detention 'in signal' cannot be acted
upon and a citizen of the Union C:lnnot be kept in detention on
authority" of any such signal. Detention for a short period
pending investigation is entirely different from indefinite detention
for a period of nearly four yeats. Inspite Of the detenue having
been in CUStody for nearly f0ur years, 4aS the authorities
directing such detention were unable to state without further
enquiry the grounds of detention, the orc!er of detention should
be quashed.
T HETTUN v. DEPUTY COl.UUSSIONER, SHWESO AND ANOHIER 3~

HABEAS CouPos-APPlication for directiotts in the nnlnre of-Fir~t

arrest of detemte u11der s. 7 (2)-P1tblic Property Protection
Act-.Release of del emu by Ccmrt-Ametzdment of s. 7 12) nt~d
re-arrest~Purpose of. On the 10111 Oclober 1951 Ute c!etenue
was arrested by an officer.. On the 20th October 1951 the.
President directed detention following the arrest. The Supreme
Coi'rt directed his release on the ground fhat there was t;IO
authority to detain for the purpose of prosecution for a completed
offence. S. 7 (2) of the Public Property Protection Act was
amended. during the proceedings and a!:lhori~td arrest ilnd
detention for purposes of investigation. The de(enue was
re~arrested. Held : There can be no question of legality Of the
subsequent arrest and detention under s. 7 (2j, Public Property
Protection A:cl, but the person detained shd'uld be-either sent up
{or trial or released since investigation is ~mp!eted and should
not be detaine<l for the maximum pericd Of six months prodded
for in the Act. The f<.ct that the co-accused of the detenue has
not been apprehended and his wtereabouts are net known, is
not a grou.nd for continued detention as the case can proceed
against that co-accused under s . 512 of the Criminal Proce-
dure Code. Directions in the nature of habeas corpus may
issue not only to discharge a person illegally detained but also
to direct that the person detained be brocght up befor e the
approp~ia!e Court or Tribunal for hearing and determination of
the cl1arges against him. On~e the .investigation is completed,
the detenue is entitled to be tried speedily in accordance with
law:. U Ba Yi and jJfhers v. The Officer-itJ-charge "of Jail
Yamethin, .B.L.R. (1950) (S.C.) 130, referred to. . . '
L IM PWE H TIN v. THE CHAIRMAN, PUBLIC .PROPER~Y
PROTECTION COMMITTEE AND AN.OTHER 55
XXXIV GENERAL INDEX

PAGE
I
HAI~t:r-. RI, GULATION 146
HAREO t" R, MEANING OF 44

.
' HAVI:-;G THE DUTY TO ACT A'~CORD I:-\G TO LAW " -MEANING OF

H!GII C o URT, ORIGINAT. SmE - Cot~rt-fccs, paym ent of- Regulated by

266

Nulcs and Orders, 11ot bj Court Fa' Act - Amendment of plaint,

1/<tfu.r e rmd cxle11t of, .'>,rmissi: 1- il' law-Limttat iou-Ame.nd-
mellt rt'lat : s back to da'e of origiwll f>lam t-Wi:etlta d.cree o~t
i11 cons~>tcn~ set of facts 1"<1islrf b_.> rlefwd.wt can b~ givetl. to
plaintiff-Set-off- Wizethcr 11C&es.<a ry to be specificall.y ple:rd.cd
to be at/owed. The 2nd D eputy l{egistrar called into que:;tion "1!1e
correctness of court-fees paid on a pbint filed on the lith Noven;ber
1948 for recovery of price of goo os ;;Olu un three different occasions
endil").g the 8th ,\ovember 1945. An am ended plaint was riled on
the 2Jrd Noveftlber 1948 stating that th::: three different transactio ns
formed parts of a single contract. Deiei1dants conte.nded ttla1 the
transactio.n was an e~>trustmel)t 9 goods to be sold for the plait;~ tiff
on a commission basis, and some J:!Oods unsold had b. en returned.
Held: Whatever thepo~ition might have been wh ere the proceed.-
ings are.rej!ulatecl by ,the Civil Procedure Code and theCourt.Fees
Act, the suit instituted on the Original Side of the Hil'(h Court
where neither Act applies.must be deemed to have been instituted
on the 8th November 1946, and the amendment which was allowed
of the plaint (Jn the 23rd November 1948 must he deemed to have
related back to the e<tflier date S. 6 of the Court F.:es Act
read . together with s. 8 l4l makes it clear that payments of
court-fees on the Original Side of .the High Court are regulated
not by the Act but h v t he relevant rules of the High Court in its
Rules and Orders. 1/cld: The variation between the first plaint
and the second plai11t is not of such impvrtance as to att~act the
r ule in Ma Shwe Mya v. Maunf! Mo Hnaung. Ma S/l!f!~ Mya w.
Mm~ng Mo Hnaung, 4 U.B.R: p. 30 at'33, distin~uish.ed. J{e/d
Obiter: There is no decision which goes to the length of permit-
ting the Court ~o reject t~e plaintiff's case and to grant the plaintiff
a decree on an "inconsistent set of facts set 11p by the defendant in
an~wer to the Naintiff's case. Held fudlter: There was a taci.t
understandjng l;lCtween !l>e parties-that th e value nf the jl.OOds taken
re-delivery of by the respondent wo.uld be treated as payment
towards the.,accou{lt of the original sa le for ent!re lot of goods ;
appellants need not make a specific plea o set-off to hiwe the
claim of the respondent treated as pro ta11lo discharged by mutual
consent. Hoe.]4oe v. Scerlot, 2 lbn. 349, applied.
A. C. AKHO'Ol!l ANDoONE v. A. HABIB
HIGH TREASON AcT, s. 4 (1b-Cirarge of abetting rebels-Enco{trageo ,
ltarbour, comfort, meaning of-Intettiion tof eucourage, etc.;
a
nctessary-Preswnption of law of man intending tft.e 11atural
conseqllences of !tis act rcouttable~Bct,efit of douht must be
given to accu~erl. The High Cou;t confirmed tJ.1eSpecial Tribunal's
,.judgment and sentence ag.+inst the a.ccsed on a cl~11rge that he
had encouraged, aided and comforted Naw Seng and his followers
by giving them mediCines and surgical instrun-ients and that
thereby he committed an offence under s. 4 (1) of the High .
Treason !\ct, 1948. In sayingt_hat the giving away of instr.umepts
and.medicines .would be an <lid the High .Court asc;umed- that lhe.
appellant. P.lea&~d guilty to:the s::tid charge. "H etd : On ~_p.pea1
. by . special; leave, 110 perS(\il shall be.presumed to h~'!_e-.'J)leaded
. guilty to acti.fr.ge and that What he says is within the misChief 0(
the charge. .what the appellant pleaded amounted Qnly fo ar-.
:admission .of facts. and not :o Ui~ offenc.e charged. The . w?ra .
 GENERAL INDEX XXXV

I'AGE

"aid" is n ot used in s. 4 fl) of the Hi gh Treason Act, the words

ustd are "encouage, h:lrbour or comfoJ t " . "(hey are not
defined in the Statute and no referenct can be made to a not her
Statute becat,se only the word "harbour " is found useci <i n the
other Statute. The words "encourage and comfort" must
tbereiore bear their ordinary meanin.l(. "Encourage ' has been
defined to mean "embolden, incite, instigate", "Comfort' as
mean in~ ''to strengthen, to encourage, to surport, to invigorate,
to aid, fo abet or to countenance." What the Court must find is
what is the ~ntention. The appellant gave a box of surgical
instruments and medicine. If it was not his intention to encour-
al!e, harbour or comfort the appellant would not be gl'illy. It is
a fundamenta l rrim iple of Jaw that a crime is not committed if
the mind of the person doing th e act is innocent. Rat ttla
Hariprasada Rao v. Tile State, A .I.R. (1951) Supreme CoT!rt I~ep.
322, followed. The s tate of the mind of the appellant should be
judged not by a single act of giving some instruments and medicine
but all tht> ciret mstanct:s of the case must be t:.ken into acco,mt.
The learned judges in the High Court in coming to a conclusion
on the charge went on U1e presumption that a man intends the
natural consequences of his act. But this inference cannot be
drawn where ?.n act is done by a person in subjection of the
power.oi oUlers especially if Ulat be a brutal enemy. The gumy
intent cannot be rre~un:ed and must be proved. If circunutances
showed that the act was done in subjection to Ole power of the
enemy or is as consistent with an innocent intent as with the
crimin:>.J inlent or if there be a doubt in the matter the appellant
i s entitled to be acquitted. In Ole present case the necessary
inference is that the appellant wanted to save his property ; tak-
ing Ole worst view, giving of medicines and instruments was c on-
sistent with an innocent intent as well as with the criminal
intent ; the ];)enefit of the doubt must be ghen to the appellant.
Rex v. Stea11e, L. R (1947) 1 K.B. at p. 1006, referred to. What
inference shoultl be drawn from prO\'ed and admitted facts i3 a
question of law ; if a miscarriage of justice has resulted from a
wronginference the Supreme Court will interfere and put it right.
Dl~. GoRDON S. SEAG~AVE v. T HE UNIO~ OF BURMA 44

" I MPORT : 1 tt;EANING Ol? 227

I MPORT OF GOODS l-VIT H INCORRECT DESCRIPTION .AND VALUE 194
I NJJEii'!NITE DETENTION FoR FOUR YEARS, VALIDIT~ 3J;

I NF ERENCE FRO:U FACTS IS QUESTION OF LAW 65-

J NTENTION TO ENCOURAGE, ETC., NECESSARY #
I NT.ERPHETATJON OF STATUTES 79-
} URJS'OICTION, REF.tJSAL TO EXERCISE AND FAI LURE TO EXERCISE NO
DIFFERENCE 4(}
- -- OF. CIVIL COURT TO EXAMINE INTO CASES DECIDED B Y
UENT CONT-ROLLER 248

- - -- OF A'DVJSORY B OARD TO ALLvT PREMJSES AN,; TO EVICT .
UNAUTROiliSED OCCUPA!I:T .. 218

L AND I N. Pp$SESSio~ OF RECEIVER NOT EXI!.IPTF.D FROM OPERATION o ::;

DtsPosA,L oF TENANCY AcT ANt> RoLES ... ... ..: 255

3
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G:~oc~~g, ,,?.cc~w~esg8~grot;e~a ~5 S:>~?$o
g.>&ies~6~3g). ?g~ @gy-oo~? c~s~~~o 'rlb~pto~? G002
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:38~:Loe:>sR:oe:DR:o~g&rocwcro5~38t'!eo2~~ec~G~o8:cec
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pjg~g~ggeg>:cl!:lccoe bro:c~:glb:pGgci-<!~ggcco~ceee
.:pesocc~g~~cce~:;(,&gl!n:gtp~Sw:dbccoB~ "SC~~Sbpe
pee~goegg>:db:g~::G~~g8g8ccoel:gb~oolsGeg~gge~
98:f'CX>g~pew~ g:fu:gmgo:c!h&ccc.eg5ogooccopcog?fsow
':go~oo bG~~a383Se3S. g. :cl!:leccop~ :cl!:l&cc_c~groacco
pco 3WSOW c~:fleSO~SCbwge~:;~:gb 'fProeple~3bwgec
~ceo8:fle.G~'Pee:gm:gsc~FPQJ~fp:c!e~soron u:Jee
ggegg gfucccwb:~ec ?g!ce~Ggccoe:l 5otci!:leccosncQ
t\9ea 6 f f ego G~OC~~ro 9gJfeg~:sc<D~?3~ce.~@gcC08p
11!ee~oa chco~m 9Jfer3c!3 _:sroff'es ~bGe:Jcoecoocec
g&:~:g6m gg8c~@gcco:;,sc l::lp:>cliceo2pes :begro!j.
gggg8eccog:co ~~~e o.6e:lc np.ccg~~~3coeccrocec goo:~
:g6co ~ce3@gccoe:l tglfuceeli~Lc:p!e:3c3@ :gooroeoro
gcroepcoe.cwcecFf~ gfugoceq:>eGfrSSa:cc~mccrocro
g&:~:g6co gg~ce~lDgccoe:l :gb6e~:;G~o2:fro nc ego
IC GeOC:f>eG sco~?3~ce3 ~~~e oeJoc-sf ,ego
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~~:pro so4-sc:gl9-~e ~ccrocw sb~c5 pooe.G:~so4sc
fpGe!o2:feG :b~g<x>B3g?3~s~ccosoro ~~~e o6e:lc clise~~o
-6( ( 1cGc ego-:cco~COfPCO ceee:'3f23bgfu9:>:gb g~
(f) 1 (c) poego 1 re~ ego 1 (f) poago toe ego Ge!o8~~ro
~gliegb.::l<D~-Ge!oapro :oogeu~gs?s~eccoso~ ~ ~~e ooe>c
:iWVd

xamu "'V"HaNa!:> lAXXX

 GENERAL INDEX xxxvii
PAGE

~cp:cfl D<~~oS03~?rboo~d5ooGn:l:lD'<I?:~~o:t~~~.,s ~:o-:>S

!rbGo:~oo~Jt 03oSao~!m'\6~o:>cn 9c~~:a;; ~?<'fY)
ro~o:>~a
~~~?:~~ f9t~oo?c~g~~.,~cc~oo503~:61 t35
L EASE OR LICENSE 1'0 WORK QUAIIRY-GRANTING OF IS AN ADMINISTRA-
TIVE ACT 11
L UJlTATl0:-1 PERIOD-WHETHER TIME SPENT I N PURSUING RI!VIF.W
CAN BE EXCUSED 182
LOCAL AUTHORJ'fiES (SUSPENSJO:-;) ACT, 1946-Effed on M11niciPal
Acts and Rules-- Military Adtninsitratiuti Proclamaliou 8 oJ
1949 and 7 of 1950-Etfcct OIJ MutJicipal Acl a11d Rftlcs. Ap-
plication cor directions in the nature of quo 'tflarranlo against
Respondents 3 (1) to 3 (n) from holding office and a~ting as
members of tbe Maymyo Municipality on the ground that tlleir
election was null and void as the same were ordered without the
express authority 'lf the Supreme Commander. Held : 1'he
Local AuU1orities (S, spcnsion) Act, 1946 contains no express
provision in the Act or el sewhere that r ules made under the
Mun icipal Acts are S\lspended on coming into force of the said
Act. $. 8 contains internal evidence of the intention of the
Legislature to leave the rules untouched. Helrl also: . That
Military Proclamation No.8 or 1949 was issued by the Supreme
Commander as the President of the .Union of Burma, in exercise
of powers granted under s. 2 of the Proclamation of Martial
Law Ordinance, l948 and had directed by proclamation that
Martial L:tw should be enforced in ilie Mandalay District. The
said Ordinance does not expressly provide that any law should be
suspended or deemed to be su~pended in such area and the
pr odamatio s issued by the President and Supreme Commander
do not purport to suspend any law. So all laws remain in for.:e
i n such area except those which are inconsistent Of the Ordinance
3nd the primar-y O'bject thereof. Held also : That the Supreme
Commander had in Military P roclamation No.8 of 1941) directed
that the administration of all departmt nts in the District , except
the Judiciary, should be under the ch:l!rge of a Commlttee and
delegated p:~wers of administration to s:;ch Comnitlee but no
order or dir~clion about Municipal elections had been issued by
him after s :icb delegation. Conseq~.:ently, the Municipal elec-
tions held in accordance with Municipal Rdes and the Election
of the Respondents are not impeachabJ.e. Further by Notification
dated 5th March 1951 the President has de~ared that the said
Act (Local Authorities (Suspension) Act, 1946) shall no longer
be in farce from the 10th March !951 ; hence the Respondents
can bold office and function as usual
D ALSIR t/, THE SP.CRETARY, MINISTRY OF HE ALTH AND
LOCAL Go_veRNMENl' AND TWO O_T HERS ... 28
L OW ER BURMA T<>WN AND VILLAGE LANDS AcT, S. 16 (a) AND
R UL E 9 ( b) . 214
M ANDAMUS, W RIT . OF, ' IN RESP ECT OF REQUISITIONING A HPUSE-
Question of rensonabletJess or 1~l!c_y of requisitit?n, if relevant -
A house in Rangoon was reqmshqned by the Collector for u$e
as a Labour Wel[are Centre and amongst other content~ns it was
objected that it was not in the .public interestand thatthe centre:
could be accommodated elsewhere. Held: That the net was an
administrati\e act and .that the Conr t cannot inquire into" the
reasonableness, policy or ilie sense or a'.'Y other aspect ? the .
XXX\"iij G;El{ERAL INDEX

PAGE

transaction." Tlte Proviuce of Bombay v. Kul>afd<Js S. Adt.aui

and .>tilers, (1950) S.C. H. 621; Carlona Ltd. v. Commissioners of
~tTorks m~d otltcrs, (1943) All Eng. 1. H. V,;J. II, p. 560, referred
to. It is fo'' the gov.:roment to clec1d.e whether a Welfare
Centre is ner.cssary for a particular locality and how such a Centre
shoultl be accommodatect.
STEEL lltW'l'HERS & Co. LTD. 'II. THE COLLECTOR 01.'
RA~GOON 155
MANI>A:.t l:s- Direciion iu lite ttafure of Mandanws ~tgaiust ordet of
City Court tmdcr s. 22 {I)-Urban Rcttl Co11lrol Acl-Allegfltion
/hr1l 1elcvaut section of the Act not CCn$1.-lered-Witelltcr
Sllfficiant-Time sperzt in imrstliuf ittfruclttous review without
tr. IIY ground tuftether cat~ be excused. The Controller Of Rents
nxecl Standard Rent on 30th 1.\l{ly 1950. A rc:rerence was taken
to the Chid Judge, City Civil Courts, l?angool', under s. 22{l),
Urban Hent Control Act and was dismissed. An application for
review was also di1missed. The applicants sought to move the
Supreme Court by. a writ Of mandamvs and alleged. that the
learned Chiet Juc'ge did not consider or apply the relev ~nt section
of the Urban Rent Con'rol Act and he should be directed to do so.
The application was sc-ught to be amended to include the prayer
{Or isst:e of certiorari Cor which . a period of limitation or
90 day:> has been fiJted by Supreme Court Rules. Held:
Thal inordinate delay in making appli~ation for direction in t,he
m\lure of mandamus should be explained. Time unnecessarily
spent without justifiable cause in pmsuing infn.ctuous pro-
ceedings for review cannot be- excluded for calcul:~ling the
period of 90 days wiUlin which an application for a writ of
certiorari should be made to the Supreme Court 1mder the rules,
The excuse that applicant :.cted under advice in making tile
review application was not a valid reason for enlargement of
time irr the case. Held further: That no writ Of .mandamus
can be issned on the ground that the learned Chief J ustice did not
consider or apply relevant sections c..f the Act. This can be
cauv;~.~sed only in a court of appea l.
ISMAIL MOHAMEO ( AHMED) BOD! & SONS AND ANOTHRR v.
CHI'F JUDGE, CITY CIVIL COURT, nANGOON A:-ID OTHERS 18~

MILITARY AO~rll'ISTRATION PROCLAMATI0:-1 8 OP 1949 AND 7 OF 1950 ... .20

MISTAKE lN DECIDING QUESil0:-1 OF FACT \\'NETHER GROUND FOR
WIUT OF CERTIOHA.Rl
0 . <. 75
M ODE OF PRESENTATION OF AN APPLICATION FOR DIRECTION IN THE
NATURE OF A WRIT FOR habeas corpus

<ftd:ORTGAGE BY DEPOSIT OF TITL'E DEEOS_;WHAT DOCUMENTS MUST BE

DEPOSITED

M UNICIPAL ELECTI ON RULES, RULES 63 ANO 65-District ] udpe

whet!.er pe1sona dtsignata-Revision to Hig/1 Court wfletllcr
lies-Wr:t of certiorari if am be made. Held: The! Dishict
J udge. jn declaring an election roid under Rt'les 63 and 65 Df the
1\iunici_pal Election Rules acls as a C..>!llrt and not a mere fu~rSOna
designata. Hi!f orders a-e thP.rero.re subject to revision by the
High: .Court. The ~unicipal ~~1.le~ have been anie9g~d a nd
: Appeudix C t8 the new Rules makes it clear th;ot the. nistrkt
Judge acts. as .a <:Quit. -x:he prQc~edings are ' ' in the eourt of the
District Judge"; they are to be Ci\i! Miscellaneous Cases and
n otices of hearing are to be giv~ under the seal of the Court.
 GENERAL INDEX xxxix
I'A(;g

The Rules in 3 Ran. 500, 11 Ran. 1, distinguished as procc:eding

upon a consideration of different Ad s and Rules. Habi& S al, t h
v. Sheil!. Bwllzoo, A.i. R. (1931)) Ran. 143, approved.
YAYA PATEL v. THE DJSTIIJCT JUDGE, BASSEIN AND ANOTHER 5a
~cc~oo50JQO')!Ji)"8l~6l~ !Jt)~tooc~c:~-:> ro"~-:>co:)(13~":))?829t
roc~c:9Pti?=OJE o1~::l.:>-:>cooS~oS~-:>:~ Of"o1c:Q"6106oS~c '?@
NEW CASE ON APPEAL, WHETHER PERMISSIBLE 25

OccUPYIXG POWER, POWER OF 146

ORDER OF DETENTION IN SIGNAL .~ 33
0\VNF;RSHIP, DISPUTE TO BE DECIDED BY A
1 CO~fPETJlNT C!Vl'L
.COURT A!'D l:\OT HY THE HENT CO:-<TROLLER 185
0WNER-MEANIJ:\G OF ... 118

.PARLIAMENTARY ELECTION RULEs 46, 47 ANP 48- Wlzetlier Rduruing

Ojjice1 ar;tiiJg ll?tdet Rule 47 exercises quasi judicial function-
WIIetller tzotninqtion p,rpct c,w be rejected owing to t lze absC11ce
of tlze -candidate or his ,Jgen/-Whetlur .cer/iorclri ~flot~ld issue
whw there is au altemalne remedy. He~d: That there c.outd
be no doabt that a Heturning Office acting unde.r Rule 47 of
Parliamentar.v Rules exercises quasi-judicial function. According
to Rule .46; a candidate or his agent may attend the scrutiny of
nomination paper but the~e is no duly cast upon them to attend
such s~rntiny. The p.trpose of the attendance is to enable them
to take objection to the nomination papers of other candidates.
Nomfnationpgper of a candidate can be rejected only on l'(rou.n ds
specified in clause (a), (b), (c) and (dl of sub-rule. (lJ of Rule 47
and the Returning Officer h;-,d no r~ght to reject the nomination
paper of a candidate simply because the candidate or his agent
was nof present. Ordinarily the direction in the nature of
certiorari will. be issued wlien an inferior. \ribunal exercising
judicial or quasi-judicial functions acted in excess of its power
but it is not compulsory ori Court to issue such-directions in e~ery
case of excess of jurisdicticn. W_here the applicant h:ts other
and better remedy available to him the. Court normally refuses
to exercise. its. power in certiorari. Again, where disputed
questions invohe protra0ted hearing of evide'nce, which could be
more completely examined in other proceedings open to the
applicant, the Court will normally refuse toJnterfere in certiorari.
But in the present case there is no dispute that th.e Returning
Officer has exceeded his jnrisdiction. To relegate the applicant
to the alternative remedy by way of election petition after polls
haYe been taken, will mt>an, that not only the applicant but other
candidates fo Parliament from this particular constituency will be
put to unnecEssary expenditure and labo'ur, for the election
petition if .filed is bound to succeed and the polls wOich may b.e
taken will have to be declared null and void. The result will be
that fre;;h elections will have to be held. In these circumstances
though the a!Jplicant had an~ther remedy ~e Court \vould quash
the proceedings. . .
u BA Tu v. THE R~TURNiNG OFFICER; LASHIO ~ND OTHE_RS 1

: tOi?.~05G~effi~O:>t,ooQt~8~S:~-=>~eEs~oo:~cl'QGo:~8 ~- .
PARTIES-NECESS.\RY PARTIES IN A SUIT BY AUCTION PURCHASER
.:
xl GENERAL INDEX

PAGE

PASSING-OFF ACTIO':{-f'riuciples- E>idence of wilnes5 as to . opir;ion

wltelhcr admissible. Htld: The guiding principles applicable to
cases of passing-off actio ns a; e clear and beyond disrute. Ko
man can r~present his goods as being the goods of another man,
and no man is permitted to use an y mark, sig:n or symbol, device
r)r me:~ns, whereby without making a direct false repre~entation
himseH to a purchaser who purchasts from him, he enables the
purchaser to inake a false representation to somebody else who is
the ultimate customer. Hights or property may be acqtJired in
a trade-mark on the pr.:>ved a$sociation in tl~e market of the
device, name, sign, symbol or >lher means in question with the
goods of the plaintiff. Use of the s:lme by the defendant, whether
intentional or otherwise, will amount to false representation.
Singer Manu[acturing Co. v. Loog, (18801 18 Ch. D . 39.5 at 412;
Thomas Bear & Sons (ltzdia) /.ttl. v . Praj'a{!. Narain, (1940} 67'
I. A. Zl2. at 216, followed. In the present ca~e the appellants have
established their ri~ht to the trade-mark" Chinthe in re~pect of
diaries and exercise books. Opinion is one thing and direct
evidence is another. Some of the witnestes examine,d were
llot experts and cannot conseqt!ently j!ive expert testimony by
opinio01. The Court is in possession of the same m;~.lerials a;s t he
w it nesses and their opinion cJn add nolliinJ! to the materials for
judgment by tlle .Court bt:t wil! only encumber the proceedings.
K. E. M OHAMED i!sRAfllM A':{D A~oT!lF.R v. THE TAJMAHAI.
STATIONEnY MART 204
PEN I\L COIJE, s. 417 RFAO wi1'H S. 109 WHETHER CAN BE TAKEN ...
C OGNISANCE oF BY THE SPECIAL JUDG.E . 222
PE RMIT TO St:E. FOR EVICT!ON,ISSUE OF- V\7HE'f,HER APPLlCA'.flON I'oR
. CE~TI.oRARl ~IF;S . . .. .... . . 6C}
- - - -GRAN'lED DURING OCctPATION PERlOO AND LEASE BY
SUCH PERMIT HOLI:ER 146
PERSON WHO HAS COMMITTED OFFENCE OF .li!GH TRI!.\SON. ~H.ETHER
COULD BE DETAINED lNOER Plli:IL!C . ORDER P~ESERVATION. Aer 9~
. .
PRACTICE' OF SEEKING10 PROVE F ACTS BY AFFlDAVliS DEPRECATED;., , 179-
<PREF-ERENTIAL RATE FoR Go~os FRo~I liNITEo KiNGD{nr, . B~t;rsH
CoLONIES, (N DIA OR PAKISTAt<: 105
PR.ESS COMMUNIQUE ~OW F AR. RELEVANT . .... ... I31
4

PRESS (E~fERGENCY POWERS) ACT, s. (11 ' (d;'-..,.Mcauing .O.f the words
"c.las.s or s~.ctio1t of P&:rsons r~sfcfent iu. Burma. ''"-W1zether t!te
. Socfalists or tlu Socia{ist ~arty . jqr.m a class or. sect'ion of
per50_1tS1v'ilhin t!te mea11iug of that . sedion.. Held : 1."h.e golden
:rule' of interpretation is that the .. words of a Statute must
. Primii -'/at;ie . be given thei.r o_rdi.nary meaning. Nokes . v.
J;>oncaster Amolgamq:cd. ColUerie$, (1940) p,..C.. 1014 at .1022 ;
Raila Ram v. The Province pf. East .Fu;tjaf>, A.l.R. (1<;49) F.C.
81 ; R . v. : Peters, {1886) .19 Q.B.D .. 636 at 641 ; Cp. Re R~pqn
HousiJ/g Orqir, (193.9} 2 K.B. 83~,foiJowed . .Thoughdictionaries
:are not to be taken as authoritative exponet.:ts .of tl)e meanings .
of wcrds in Acts e>f Parliament, s~ill the Court often has to
determine the meanfng of .the words by reference :to u )e
' . dictionary..: A !'cJass"or . ~ection ~ witJJin the meaning of.s-...4 (11'
. (d) of Press l1~n1e~g~n~.Y P.Qwers} A~t is.a definitely asc~rtain.able
body of numercus inc:lividuals with clearly defined characteristic
Qr criteriil by which they n1aybe di.din~uished from a:n yoth.et:
~ody C!r group. I ~ 'other words "class ." or" secti0ri ~: is a..
 GENERAL INDEX xli

sdof P<!JS'>nS alllilling one.: con:mon character and po3sc:~sig

common and exclushe characte1 is tics and the tenr.s cany
with th em the idea of a readily a~certainable group h:~vinl{
some ele n~ent of permanence, stability and sufficiently a~umerOl!S
and widespread. It cannot be laid down that the common
bond of e\ery political puty is trnnsitory or that all political
parties are susceptible to rapid changes in their complexion
and composition and that no political party can ever have
any element d permanence or stability. If a political party is
well defined and the number of persons owing allegiance to it is
large enough, there is no reason why it should not te regarded as
a clas~ or at least as a section. Judged by the above tests, the
Socialist Party or the Sociali. ts in Burma are a class or sed ion of
pelsons re~1dent in Burma within tl:e meani ng gf the .A!Ct.
But mere criticism of the members or of its ideologies or
a poliical party, which comes within the definition of c l:~ss
or rection wilt not come within the mischief of s. 4 (1) (d) of
the Act unl ~ ss such criticism tends directly or indirectly to
bring the members or the party into hatred or conte mpt.
Raj Pal v. T/.e Crawn, (1922) I.L.R 3 Lah. 405; Em p(ror v.
Jfiss !faniben L. Kara, 57 Born. 253 ; In the Mallr r of the
"Sun Press" Ltd., AJ.R. 11938) Ran. 417 ; Kamt~ l s ,:rkar
v. Emperor, 11938) I.L. R. 1 Cal. 455 ; Kumar Badri Nnrai1~
Si1z~h v, Chief Secretary to t!te Govtrnrvent of Bihar, A I R.
(1941) Pat. 122; Emperor v. Banomali Jfahara1zn, (1943) U-.R.
22 Pat. 48; "Daily Zamindar '' (Urdu), Lahore, A.t.R (19~7)
Lab. 340 ; ''Daily farbhat '' La1tore v. EmPeror, A.l.R. I19~8)
Lah. 366 at 371 ; DattafrayaSitaratn v. Enzjleror, A.l R. (1948)
T~om. 239 at 243 ; Ma Khin Tlta1z v. The Commissioner of
Pol'ice, Rangoou and one, (19~9) B.L R. 13 at 16, r<ferred to
and followed. "Nawai Wafqt Daily" v. TlteCrowu, (1947) I.L.R.
Zd Lah. 49 ; Ntwspaper ''Parlap " Urdu Daily af Laltore,
(1947) I.L.R. 28 Lah. 795, m'ljorily \'iew, dissented from.
U ON KHIN v. THe UNION OF BUR)fA 158
PRESUMP'I'JON OF LAW O:o' 1\ MAN. INTENDINIO THE N.\'!'UR \ L CON~C:
QUF:NCF.S OF HIS ACT REBtiTTAllLE H
PREVIOUS STATEMENT WHE7HERSURSTANTIVE EVIDENCE .. ~ .15
PoBucORoER CPRESERVATIOK) AcT, 1947, S-A (l) (b) 210
- - - PROPERTY PROTECTLOX AcT, s. 7 (Zl .,. 55
QrESTION oF uw-Inftrence from fact-!J. 15, Contract A. t -
Coerc.i<ilz. Held : The proper legal effect cf a proved fact is
essentially a question cf law. Nam Go pal and t1uo/ her v. Sham-
skhatf'o11 nnd otlt~i.s,.19 I.A. 228; MafarChandra Pal v.Sf(ukur
and othtrs, 45. I.A. '183, referred to and follo"'ed. The practice
with regard to the--concurrent findings of fact is well established.
Such findings will not be disturbed unl~~s there has been a
rr:iscarriage of justice or violation of some principle of law or
procedure. Satgur Prasad v. Mohant Har Nar.:iu Da s, 59 l.A.
147, distingdshed. Torture is an :~ct forbidden by the Penal ..
Code. A threat to commit such an act would come within the .
purvie.w of s. 15 cf the Cor tract Act. In the ptesenl case the :
. lc;t _Respondent apprehended. that she would be t~rtured by
the Japanese and in that apprehen.~ion she execute~ the dec;d of.
sale sought to be cancelled.
MA AtN YU v. DR. l\f~ss A, G. D. NETTO ANO O~<IERS 65
xlii GENERAL INDEX

PAGE
REGISTRAR ntSSOLVIN:l A co.!MJTT I;E OF A Co-OPP.RATIV SOCIETY
NO'f AN ADMINISTRATIVE ACT 191
- - - - H A S 1110 POWER TO ACT t'Nl)ER S 44-A OF THE Co-OPERATIVE
$OCIETIES' ACT AGAINST A PERSON W:EO HAD CEASED TO BE
A ME'~IB,ER OF THE .COMM!T'l'EE ... !91
o:>')::lJ?~G}:~~G::lJ5qC:I O(~c6G6):5i~G:U5G8:J o)cf)~E:nt& ~o:>c:
D<>~oo~cmp~cG o'2S
RP.~T CONTROLLER'S POWER OF REVIEW OF PREDECESSOR'S ORDER

- - - - - - - - O R D E R t:;NDER S. 16-A NOT FII'A.L

REQUIS!'!!lONlNG E)F A HOCSE-QUE-'IION 0 :> REASOXAilLENESS OR

POLICY OF REQClSlTION RELEVANT 155
- - - - --(CLAIMS AND COMPENSATlO:N) ORDER, 1949, R UJ.E 2 (G) 118
- - - - - - {EMERGENCY PROVISIONS AcT. i 9~0 WHETHER ultra
vi1es OF S. 23 (4) OF THE CONSTITUTION 118
- - - - - - O F BUILi>ING.ALLEGEDTO!tEA TEMPI EANDPLACE OF ..
\\'O'RSHIP-DtSPUTEO QUESTION Ol' FACT-PRACTICE
- - - -- - WREfH,BR !UDICIAL OR QUASI-JUDICIAL A: CT .
RESIOE!!1T, SOUTHER~ SHA~ STATF., IVHE'l'HP.R CAN ORtlEII DETE!o:TroN
IN MANDALAY jAIL o F A' .DE1'ENCE \VH'O l_S IN MANDALAY ]AIL
, 210
RETURNING OFFICER, WRE1'HER EXERCISES QlJASI-JUDICIAL FUNC'l'ION i
REVISION .~ND APPEAL, CONtiNUATION Aim NOT NEW PROi::E~DING . 227
REVLEW, GRANT OF POWERS 'bv, \~ITH RETJiOS.PEGTIVE EFFECT 221
---
. -
1
T!ME SPI!N'r IN ' WHETHER CAN BE EXCUSED 18~
'REVIS.l QN LIES TO HIGH COURT AGAINST THE OR,DER OF DISTRICT
JUDGE ACTING UNDER MUNICIPAL RULES 58
- DOES NOT LIE .TO HIGH COURT AGAINST THE ORDER OF THE
CHIEF JUDGE UNDER S. 22 Ol> THE URBAN RENT CONTROL ACT
".REVOCA'rtON OF .A LLOTMEN'r AND SUBS&QUENT ORDER OF RESUA!P
TJON OF LAN,D TOGETHER WITH STANDING CR >PS WITHOUT NOTICE.
llfLEGAL , 2!i7
RULES OF ExEctJTIVE BUSI.~ESS ' f~1
. . ., . .
SEA CUSTOMS Act, S. 167\37), S. 183-lmport off.ood<S wit/1 inCQrrect
deJcY.ip/ioll al((l val11e-.Levy of ciisto111s duty-lnlerferenu' !'.Y
WilY of certiorari-Qucsti.ous of f.-act how .far: can be decided.
Motor c.a r accessories and spare parts were tmported by
petitioner and he dec-lared the place of origin and value. On
exarriinaU.o n it was found.lhat the value was wrong, that some of r
..
the good's were of different origin !!Jan those declared and thaf ......
soine goods had not been dcclared at all' or misdeclared. Tlie
Respondent set aside tile orders of the 'Cu.Jiector and Financial ''
C.o mmissioner and directed levy of. duty at a particular 'rate.
Upon an appliosntion for a writ of cer!ior.arl to quash such. oi'der
on Ute ..gtound that . a mistake..had been made in acecepti!lg the.
C6llee.tors. vafuation and notlhat of the petitioner; He{d: .That . .~ :.
: the que~tion of what is .the value of goods i_!! a pure.l:}nestion
of fac.t. The Resp_o ndent \ITascQmpetent to decide the~:rme )l.nd
the Cour t-will not intc;dere .e ven if H disagreed on .su<;h a c:iuesliqn; .. ..
. . .
'
. . , , .
 GENERAL INDEX xl iii
PAGt:

Gwan Kee v. The U1ti011 of Hurrno, B.L R. (19~9) \S.C.) I 51,

followed. I n view or petilivners admission that ome g >td:~
were undeclared ancl some wtre or origin other than those
declare1t and not covort:d by licence, the Court will not interkre
with the Respondent's finding as tQ valuation.
U HAN SHEIN & SONS 11. THE HON'BLE MINISTER FOR Ft:\AKCE
" NO R RVE!o:U<: 194

SEA CusToMS AcT, s. 191 12 1-R~IIJW of Fi n'" "ial Commissio11er's

Order imposing pwnlt:r fcJr gootls imf'Orle d wit/tout a liatts<'-
" lmPorl"tneaJJIIJ gof-S. 2 {b) ofCotJiroloflmf!url saudExtorls
(TemPorary) Act, J.J47-D~puty Director's Power to grattl i:11{orl
liceuse wuier i\'Oitficattou No. 93-Witetlter offcuce unrirr
s. 167 (l!) of tlte Sea Cu>'fcJmS 11cl ca11 be cv11doncd ~y grantof
importlianse-Grant of pv;r~rs of rt"Liew willt rdrol('ccfill<' ,;[feet
under the 11ew Act-Dutie$ of Ccmrt to ad111itJistcr- Proe<cdiug1
in Revisiou anti Aj>p.;al conltlllll>tion notnW Proceedings- S . J91
!2) (bl, Sea Ctt.<lom~ .4ct as ame11detf-Powers of Prcsidcut.
Conslitr:t.on of /lie /Jmon of B11rma, s. U. On 20th
October 19~ i Applicanb :applied for a license to import gunn}'
bal'(s. The goods \\'ere land.:d at Han goon on the l!th Xovember
b<:fore Any impl)rt lice nse .had been issuecl. 11te goods were
allowed to be cle,ucd on payment of a token fine of Rs. 1.000
by the Director of Supplies. Th: C>llector of Custom. later
passed :tn order vf to~fiscation under :;. lo7 t8l -subjed to
redemption on payn:en: of a fine of Rs. 1,000 and the amount of
duty involvt;d. Later his successor issued notice to $how cause
why a penll.lty sho: ld not be imposed for importing goods
without a license. A penalty twice the \'alue of the imported
goods w~& then imposed. The Financial Commi. ;sioner set aside
the order on the ground th:t! it was 11ltra vires and the Collector
had no power to review or Sltpplement his predectssot's
order. The President on review sd aside the order of the
Financial Commissioner and imposed only a J?enalty of Rs. 4;000
in review proceedings t:nder s. 192 (21 of the Act. All came to
lhe conclusion that tl;le Applicant knew that' goods could onlv be
impo: ted after the license and shipment against anticipated issue
oi import license W:Is against the regulations. The Applicant
applied for a writ of certiorari to Quash the order in the Review
Proceedings. 'Held: That "import" according to s 2 (b C'f the
Control of Imports at:td Exports (Temporary) Act, 19~7 means
bringing into Burma by sea, land or air, The Applkants had
committed an offence under s. 167 (8J of the Sea C;~stoms Act
when goods not covered by any licen~ as required by law
arrived in Rangoon. The contention that the Deputy Director
of Supplies condoned the said offence is not correct a~ the Deputy
Director is not authorized under s. 167 (8) of the s~a Customs Act
to condone any offence. He is merely authorized to issue license
toimport goods into Burma and the condition with which lkense
may be issued must clearl y be conditions to be fulfilled by the
importers and not by the Custom Officers. EndorEemcnt by the
Deputy Director that goods were authorized to bt: cleared on
payment of a token fine are not conditions authorized by .
Nolliication No. 93 under which \he Deputy Director can issue
an import license. The questions whether it is !ail or reasonable
to give an Act retrospective effect or whether a pnrticul;~r Act
should be given restrospec.tive effect ot not. are to bt decided by
the Legislature. If however' the Legisl:\ture in its supreme
wisdom has tliou.ght it fit to give an Act retrospective 'effect,
)ui:lges m\)St ~aminister tl,e Jaw as Ihey fintl it Whatever their
xliv GE~ERAL INDEX

PAGE

own opm1011 as to its mcri b may ue. The validity <f an Act
cannot be questioned on thf' ground that it is unfair or
unreasonable. Gwan Kce v . The U11iou of Burma, B.L.R (194<.)
(S.C) J.Sl,,, referred to and followed. The principle of autre fois
COILtict also, does not arise in the case :~s proceedings in review,
revi3ion and appeal are really continuations of the original proceed-
ings and not initiation of new proceedings. Since the President
under s. 19 I (2J of the Sea Customs Act can at any lime call for the
records of a ca~e for the purpose of satisfying himself as to the
correctness, legality or propriety of a decision and the President
has called for the entire records including those of the Collector
and' his successor and the Financial Com:nissio.ner, it makes no
difference if the succeeding Collecto!''s order was one passed in
revi~w or otherwjse. No time limit has been prescribed for
the l>residelfi's action under s. t 91 f2J (b) of the sai:! Act bLt
the President in this case called for the records and called upon
the Applicant to show cauc:e within a reasonable time after the
Financial Commissior.er's Order. The Presid.ents orc'er did not
contravenes. 24 of the Constitvtion of the Union of Burma: as
the Applicants had been penalised only for violation of a law in
force at the time of the commission cf the act charged as an
offence, tiz., importing goods without an import license and they
have not been subjected to a penalty greater than that applicable
at the time <.f the commission of the offence.
M /s. Rl!.!o;CHHODDAS JETHABHAI & Co. v. THE HoN'BLE
MINISTEi! FOR ]UDICIAL AFFAmS AND OTHERS

SET OFF \VHETHE'R NECESSARY TO BE SPECtFICALr.Y PLEADED TO BE

ALLOWED . ' 236
SHAN STATES MANUAL 135
SOC;ALISTS OR SOCIALIST PARTY WHETHER A CLASS OR SECTION OF
PERSONS 153
S.PECIFIC RELIEF ACT, s, 4:2, PROVISO 248
STEP-SON. CLAIMING 'rHE ESTATE OF' STEP-~fOTHER 15
s u B- LETTING WHETHER A BAR TO REALLOTMENT OF LAND 257

03w:n:x>~ ooco~o3:ro:'llco-::@6:~9 SS::uGo:>-:>oo~oo~-:>rf> G~

rocf>~o5@6: . ... . ... ... .:.
ooco9 o3:4'>?::D~o3:GCO-:>rf>~oo:6)~1 ~~otd5 ~~Goo5G:~o:'l~qps
~rf>S~::u-:>~P, o3i4'>-:>:G@~~fil~tO:Jt :. ~6 1
SU~T FOR BARE DECLARATION WHEN . LlES
0 248
SUPREME CouRT ROLFS, 1948, ORDER (~, RULE 1 .~2
T AKING PE~l!T AT THR BACK OF PA~TY .INTERESTEp (jz'
T A X TIC'.RETS AND "C'O tlNTERFOIL. FOR ALJENGE .' "~ \VfJETIIER
CO~STlTUTE TITLE LEECS -
0
, ..108'
,.
'TENA~T. JiOW' FAR BWNER UNDER REQtJISITION~NG ACT :~ . .. .: ~'1
TENANCY DisPOSA~- AcT At;o RULES-Tite . o:der; ~J t~~ District
. Agricultural Boarcf. tassed e~ parte and allocati'oiJ of latJd for .,.
future years . . Held : That when tlie .District Agrir.ultu;al
'. Board.proceeded ex parte ~ith6pt a1:y re;\son the SJpreme Court
 GENERAL INDEX xlv

could inleofere. T he Tenancy Di<posal Rules make no prod~i

for allocation of land for future yra1s. Nor is there :1ny pro,, i
sion which would en:~l'le the District A~ricullurnl Board to ord.:r
the transfer o( land hy I he owner.
U PO MYA tl. THE DISTRICT AGRICUI.TU llAt. CoMMITT~;E,
INSEIN ANO Oti:E 96
O@~o t'bl o3:>:>1"lJcx:>-=>:''l:;:.t:eo~~ ~o-~:~cn5mooo9aa~oS
~G:x>?ooSi-o3:c;oo-:mq,c;o:q~qm0J~" ~~:c;cn5~oo~t
~UJC~G{>G:l:>? c;cq?00~?~9 ~G~?OO~?GOT0,25 Gel:f18fl
::8~o?~CX>:>:~q: 0'3~o&f;>:~t COOO~~')I~: c:o?IGO)?
:33~~ ~~:Gcn5rooo:oa~~~~Qt3 mme. Q01~G~?
~?:craS~ ~t~G:x>:>om?:~ ~~:c;<Y.)5m rod>~~&:.q
')GOl!Qt~ d3:c;oo:>mq>~ ~t:n;&~;.'lm".2&~o:qQt~9 ood3
OOCl:f:l:>~ J59oo?:@t:Q~ I ::8:o-:>:~oo?:q~G~?00~? OOC~
G:l:>!Cijjtl, GCijJ?OO~:>cnf:~: G.pmo?G~~ ::8:~ex>?00q>~~:c:
:nt 1 Gf>-=>OO~cg~::ntOji~~~~Eo dl~cno1: ~:ae::B:c:>:
'1ja:>-:>:G'):tr.~~~ ooSi<j?CO~!I ::B:GCXYJOOq,~o:gE: GF00011
~tOj/9 oo~?c:~"lJOOQol~G<;JJ' ~~c;o.:>?c;:>~ q,~e::B:o:>:
<;JJOO?:Gq:oo~mt ~:o?mt ::8:Gex>'JOO~GOI')~ t;.OOOJOOO(
QutoSGfi3')8:j ;:.t:eoG~ oo 0041 1 dl~~;omcoma "<6~&
#.b}.dlOOO(~ii4!):>& ~?m~cx}:oSe::nt ~G"i5'1'~ro~
o.:>f91
'lO 1: (Gq>T) q~:Y->(1.)?~1,~ by:~~& ~:o-::: ~OO?IG'\1
aa~affi~-!Ut;;q:~gf~~~cn~: oo<>
TENANT 37
f.ENANCIES Dl POSAL ACT, SCHEME OF 37
TENANCIES DISPOSAL RULE~, 1951, RULE l0-RcallolmC111 of Tenall
Cits-Teuont ,-S. 2-Sch~me of tile Act. In 1950-51 arplicanl's
land was allotted to the lst Respondent who sub-Itt a portion to
another without obtain in~ approval of tbea.uthori:ies. In 1951-52
both parties applied {or allotment of land to the Village Land
Commitlee who allotted it to the owner asn the pre\ious year the
land had been sub-let without tbeir consent. This was revet'l'ed
on apreal by the District Committee. Upon a writ of certiorari-
Relet : That the Vtllage Land Committee had taken the correct
vi{w having rej!ard to the scheme of the Disposal O Tenancoes
Act and Rules. Under Rule 10 it is the tenant who is entitled to
claim renewal; and tenant has been defined as a "person
holding land and liable to pay the rent of the said land." There
:~:re ~'-;'G conditions, vir., the actual occupation of the land and the
habtlily lo. pay the rent. A p~rson who did not hold the land
cannot be said tn be a tenant under Rule 10. If the owner or a
piece of land may not lease out to a tenant of 'his choice, the.
tenant may not also sub-Itt, because.allowing of such sub.letting
would be inequitatle and canMt be the intention ?lf the legisla-
ture and a reasonable interpretation m~:st be given.
TAN KHY WET1. U YIN AND ANQTBER 37
xlvi GENERAL INDEX

PAGX
41
~:G>'):'' ~!33So1o5
u
... 261

~ro:J3:G>'):Ji!33g$!33Gii}:::Ot G1b~!33g~!33GGj:cx:>oS~~:~~t 26~

TENAXCY DISPOSA L RULES- NO PROVISION FOR ALlOCATION O F LAND

FOR FUTURE YEA!;S 96
- - - . CHA!':I>F. Il>l, NOT REPOilTE D TO RENT Col\TROLLER 218

TIME SPEN'f ll>l I'URSUll\G I~F!WCTUO iJ S REViEW WHETHER CA~ BE

EXCLUDED 182
.

.,
TRADE ~fARK, EVIDE l\CF. AS TO 294
...
'TRADE DISPUTE 75
TRANSFER OF PHO:'ERTY l\CT-Mort gagc by deposit of tillc-tfecds-
S. 58 of the Trtrti-Sferof Property Act-What documents must be
deposited-Parties to mortga ge mtt-Title of mortgagor and
morlgagte sold i?L e~:e cutiotz of the deere<' purchased by a t!tird
part y-Sutt by third party- W!ttther tlfeorigi 1u.z mortgagors are
n:cessary parties. Heltl : That tax-tickets and "counlerfoils for
s.
alienee" issued by a He.1dman under 22-A of Land and Revenue
Act are not s uch do;umen 's Of title, the depo_sit o.f which would
create a mortgage by dep.ositof title-deeds. Ma Khi11 Kya w v. R.C.
Dey, I.L.R. 4 Ran Ot> ; V .P.R.V. Cftokalingam Cftr.tty v. Setltai
A clza a11tl ol/zt"rs , I .L.R 6 Ran. 29 ; iVa Jo:> Tean atzd another
v. Ma Tltin Nyuu a,td others, I.L.R.lO Ran."403; V.E.R.M.A.R.
Firm v. Ma Joo 1:eau, l.L.R. 11 Ran. i39; Mat~llg.SIIwe Lon v.
'Mau11 g Slt.we Atz, P.J.L.B. 68-; /Jfautzg-Lu Gale v. ltfamu~ Kya'I!J:-r-a-i,
P.J.L.B. 15; Mnu11g 1<i1t Lay v. Mmmg Tutl Tliaing, 5 Ran.
679. ; Punial>Sind Batzk v. Gatzesh Das NatltuRane, I L .R. 16 Lah.
1113; Jowala Das Go<iud Ra111 ,.. Tltakar Da~, A.I.R. (1936)
Lah. 251, followed. K.l:.C.T. Cliitambaram Firm v. Aziz Mea!t,
(1938) R.L.R. 316, distinguished. 'I'he counterloil for alienee
s not a document of title. It is a mere record of a report of
alienation. A, a mortgagee filed a suit against 8, a mortgago r
without joining C a person who had bOught the same lands at a
Court auctior. arising out Of execution r r.:>ceedings in.respect Of a
money decr ee againstthe mortgagor B. The mortgage su;t was
dec:reecl ;~net the right title and interest of the mortgagor were sold
to D. A subsequent sujt by D against C alone is competent since
the original murtgagor It or the mortgagee 8 are not necessary
par.lies as. they bad no more interest either in the mortga~e
secur~ty or. in the equity ~f redemption.

U Po N~E :1. V .R.A. VEEI~APPA CHETTYAR 108

0

"TRANS'FZ!! OF PROPERTY ACT, SS, 108 (d) AXD Ill (c) L46

U _NI!)UF. INBL.? .i'N:.C B' 0 ~

PPPER BvR~rA L~-NT~..:A.No REVENUE REGUI:;ATio~. 18?9. s. 26 i3s
URBAN RENT CONTROL AcT, ss.J6-BB (2); 16-~ (4) . -~., .185:.
 GE~RAL INDEX xlvii

PAGE
UJ<JJA~ l~J::NT Co:-.nwL At.:-r, s. 22 (IJ 182
-,ss.12 (I) ANO 21 (A) 62
URBAN RENT CONTROL ACT, S. 16-A iJl-Citauge 111 /e11<11.Cy uol
rePoJr tcd nuder s. H1-Ail. (11-Ac/icm of Advisory Boar<lon foolmg
of Ullnulltoristd occupali01t by 11c1a occupnnt 1111dtr s.J6-A A (41
(a)-Jurisd;ct i.;1z to {lllot suciJ Prwzises and to euic t occupant.
P. A. Lazarus wasten:mtof Room No._~. Honse No. 361/365, Sparks
Street, Hangoon in 1946. In June 1951, s. Wong went into
occupation of the premises and Lazarus went out of the premises.
In February 1952 U Ba Nyunt was installed by Wong and
an application was made to recognise him. The Controller held
that change in tenancy had not been reported to him under
s. 16-AA (Il and U Ba Nyt;nt was in unauthorized occupation.,
On the 23rc.l of June 1952 the Advisory Board actirtg under
s. 16-AA ('J) (n) of the Urban Rent Control Act allolttd the
premis.:s to the 2nd Respondent and on the 25th J:ne issued
notice under sub-clause id! of s. 16-A.\ (-/) to U Ba Nyunt to
surrender the premises. Upon an applic:~tion for directions in
the nature of certiorari questioning the last two orders on the
_ground that there was no jurisdiction to isl:ue the order under
s.l6-AA (41 (a). Held: That the order was within the jurisdiction
orthe ContrcH!er. The ruling in (1950) B.L.R. 156 (S.C.) deciding
that for s. 16-AA (4} (a) to apply, the residential premises must
actually be vacant or about to he vacant. The section howe\er
has been amende_d alter that judgment by Act SO of 1950.
wong was intro,Juced after such amendment. Neither 'Wong
nor U Ba Nyunt bad obtained the requisite permit from the
Controller and both were liable to summary eviction and to be
called on to deliver possession and the orders were within the
competence .and jurisdiction of the Controller of Rents.
U Sein Lin v.- The Coutroller of Rents, Rangoo?J, B.L.R ( t 950)
(S.C.)'l56. referred to.
U BA NYUNT v. THE CoNTROLLER OF ReNTS AND OTHERS 213
URBAN RENT CONTROL AcT, So 19 (2)-Priuciplcsapplicnble-Refusal
l)j jurisdict iOJt and /trtlrlre to e.\'erl:ise jurisdictio?J uodilference-'-
W1'it of certiorari. There were 8 rooms in House No. 240/250,
Edward Street, Rangoon on each of the 't hree floors, di\ lc!ed into
four ,;ets of rooms of equal size. On the 1st September 1939 two
tenants were paying at Rs. 300 a mpnth and two others at Rs. 400
a month. Relying on Notification No. 77, dated 17th March
1949 of the Ministry of l<'inance and Revem:e the owner charged
12i per cent inctease lipon the rental C'llculated since Aprill947.
The landlord-then applied under s. 19of the 1Jrban Rent Control
Act to certify dandard re.n t at Rs. 450 in respect of the rooms.
The Ren.f Controller fixed at Rs. 375 a month in respec~ of two
tenants who occupied since lst-Septembu 1939 a1,1d in resp~ of
the other tenants fixed it at Rs. 450 permensem and clai~pefl \h~
he was bound to do so upon the basis of the 1939 rents. Held:
Wh~re . a tribunal owing to wrong interpretation of an enact-
ment .hel<l that it was incomretent to entertain a certain matter
and did not on such view entertain it a writ of certiorari could
issue. There is no distinction between cases oi refusal to exercise
j:!risdiction and a failure to hercise jurisdiction arising from a
mistaken view of the extent of powers conferred. Th~ Controllt.r
was wrong in his interpretation or the Notification n11d failed _to .
. e-xerCise his jurisdicti,an, hence )lis c rder must be qu<\S!:ed. . . .
M." E. BHAIY~T & SONS t, 'J;'HE CHIEF JVCGR OF THE
RANGOON ~ITY CiVIl CoUll'!: AND TWO OT-HERS . 40
 xlviii GENERAL INDEX

PAGE
URBAN RENT CONTIWI, AcT-Issue of permit to sue for evictiou-Re-
fercnce u11dcr s. ~z. Urba,. Rent Coutrol Act to Ciiy Civil Couri-
ApplicafiOtJjor ccrtiorari- Whetller lies. Controller of Rents
granted a permit to 2nd Applicant to sue for evic!ion Of 3rd
Respondent. Upon a reference under s. 22 of the Urban Rent
Conhol Act by the 3rd Respondent it was contended th at he
cannot be said to be in bona fide nee:l of the roo.n in q1estion.
An ap[llicatio{l for a writ of cer tiorari wa~ m.lde to the ~upreme
Court and on a preliminary objeclio:t taken that fle order of the
Chief hrlge was sJbject to revision by the High ~o rt nder
s. 115 o the Code of Civil Procedure Held: That the Ch~tf Judge
in reference proceedings was required. as far as pos~ib!e to follow
the TIJ!CS of procedure laid down in the Civil Pro:;edure Code
under s. 25 of~he Rent A: l of 1920. Ins. 23 of t!'le Urb:ln Hent
Control Act of 1948 ''the Judge may iu his disc!etion follow
as nellrly as possible the procedure laid down for h::ial of sdts."
Such Court acts in a quasi-jlldicial capacity and it is impossible
to say it is doing so as a Court subordinate to the High Court.
Held fur/her: The Chief Jttdgt: of t he 1.-ity Court held that Room
No. 5 (the room in quts".ionl was not b<1wl fide required -for his
own residence by 2nd defendant's brothers. The permit in the
case is a subsisting pertnit and lu:s never bem set aside in due
course. Such a permit cannot be questioned by the Chief Judge
or by any other person in the absence of the person to whom
it was _granted and in proceeding as he did the Chief Judge
assumed a jurisdiction beyond his competence and the
proceedings can therefore be qJashed by c~rtiorari. Mahomed
Ebrahim Moolla v. S. R. latzdaH, 11 L. B.R. 387 ; The Mum"ciPal
Corporaliotz of Rangootz v, M. A. Shakur, 3 Ran . 560, referred
to and distiuguished.

M. E. BHAIYAT .AND SONS (BURMA) LTD. v. CHIEF JUDGE OF .

THE HA!'IGOON ClTY CIVIL COURT AND TWO OTHERS 61}

URBAN RENT (i:O)o!TROL ACT, 1948-0rder of Controller tmder

s. 16-A no/ final -lttrist/ictiou w hen vested in Civil Courts 'to
declare order null and void-SPecific Relief Act, s. 42-l'rrJ'/J~So
Suit for bare cJecLaration i1~ stecia l circumsta11ces 110t prccLud6d,
Held: The Urban Rent (.;ontrol Act, 1948 does. not expressly
provide that the .o rder of the Contrcller of Rents under s. lo-A
shaH be final ; even if it does; a defiance of-or non-co\np.liance
with the essentials Of procedure will give ground {or questioning
the proceedin~s in a Court Of L aw, and Ci-vil Courts will have
j urisd iction to examine ii:fto casts wher~ the pro'Vi'Si9tl.S o'f the Act
ba\!e not been complied with. The Secretary of State for India
in Council v. Roy Jatmdra Natli. Clroudary and a,Wther, A.I.R.
(1924) P. C. 175 at 179; The Secretary of State for rndia v. Mask .
& Co .. l.L.R. (1940) Mad.S99 at 614:, followed . . The Secretary of
Statejrir indiaitJ Couucilv. Maltara'jadhiraja I(a,iieshwa1' Singh
Bahndur, I.L.R. (1936) 15 P at. 246, distinguished. Heldjurtlier:
No SP,ecific plea was raise~ that~ sui~'fo>. a bare dec.l;lratio~ did
not lie; in which event the platnt cquld have beeti amende_d.'
S.T.K: Chetty Firm v. Balasundram, 10 L-;B,R;:199, teferred to.
In the. speciai cJrcumstances of the case, inspife of the pr.Oviso to
s, 42 of the StJecific Relief ,A :ctthe S!J-it for a bare deda'ratipn doeos
lie. Babu.-_Sa~rmal Ti~re~uala v.-G. M. Latimottf; (19481 B:L.R.
113 ; Robert Fischer v, The Secretary P! State for Iudia i1~ CI>Uncil,
(1899) i ..L R. 22 Mad. 270 (P.C.), referred. to.
0 ,;'

B.S. Moa.urD EusooF v. ~AKRID1 AND A!'!oTHER . _ "248-

 GENERAL lNDEX xlix

PAGE

'WANT OF KOTICE TO OW::\ER's AGE:-IT 62

WHETHI':R LA);IO COt:LD BE I~E-ALLOTTED ON TENiJER OF RENT IX
ARREARS 202
WRIT OF CERTIORAR!-Canctllation of permit 1111der S. 12 (I . Urban
Rent Cotztrol Act for wa nt of 1zotice to O'lll1~er's a::ent and taki1tg
permit on the bad of the Party interested--Gorztroll,;r's pouoer of
rt:view of predecessor's order-S. 21 (a), Urban Rent Control Act
a11d Order 47. Rules 1 atzd 2 of /he Code of Civil Procedure.
Con:roller of Rents cancelled a permit granted un:!er s. 12 11) of
the Urban Rent Con:rol Act, 1948 on the ground thai applicant
<lelibertely suppressed his knowledge of the presen::e of the
owner's agent in Burma anj has practised fraud on the office by
taking .. ut such a permit at the back of the party inter::sfe~. Upo~
an obje, tion that the Controller of Rents had no power to review
the order granted by his predecessor. Held: S. 21 (1 ) of the
Urban Rent Control Act, 1948 must be read witJ~ Order 47.
Rules 1 anj 2 of the Code of Civil Procedure. The di:co.-ery, by
the 2nd and 3rd Respondeus n.>t parties lo the pe1mit application
that the same had been obtained behind their back is discoYery
of a new and important matter under Order 47,, Rule 2 to review
the order of his pred~cessor-in-office, and the .Controller Of Rents
was competent to review the order of his prepecessor.
K . K . s. KADER v. THE CoNTROLLER oF RENTS, R~NGOOl-1
AND .OTHERS 62
WRIT OF CERTIORARI-If applicable-Lower Burma 1ow11 and
Village Lands Act and Rules-S.16 {al an:l Rule 9 (b)-Lease
granted under, by Deputy Commisst'on er- Deputy Commissioner's
Order uP-IHld by Fit~attcial Commissi01Jer-Rc..,iew by sttcceeding
Financial Commissioner on a reference by tIre Presidetd -Action
of .Deputy Commission~r whether judicial or quasi-judicial or
administratite. The Deputy (;ommissioner, Hantli"awaddy
acting under R~le 9 (b) of the Hules made in pursuance of s. 16 (a)
of the Lower Burma To.w n and.Village Lands Act gr,mted a lease
to U Kyone Myaing for 30 years renewable for a further term of
60 years. The grant was wilh the previous sanction of the
Commissioner of the Division. Respondents 2 to 4 took the
. maffe,r before the Financial Comuiissioner and the ap~eal was
dismissed. They petitioned the President who referred the
matter to the successor of the l>'inancial Commissioner. The
successor set aside the order granting the lease. It was
contended that the second Pinanciit'l Commissioner had nn
jurisdiction to reyiew an order by the earliet Fin_a ncial Commis-
sioner, that the order was a nullity and that th_e Applicant was
entitled to the benefit of the original order. Held: That though
the contentions are of great interest and general iroJ:ortance,
the 'Deputy Commission.er, tl:e Commissioner and the Financial
Com!llissioner were all a1~ling as Revenue Officers of the Govern-
merit and exercised no. jurisdiction of a judicial or quasi-judicial
nature. In rnaking the !ina! order the Financial Commissioner
was performing an administrative function pure and simple.
If such order was ul/ra t-ires, petitioners had their remedy else-
where nnd the writ of certiorari was not the proper remedy
which could be invoked in the case. H11p For v . .:J'he Deputy
Commissioner, 'lnsein, B.L.R. {1950)'(S.C.) 86; Mohamed Hanif
and o1ze v. The Fina'ncial Commissioner. B.L.R. (1-9 52; (S.C.) 11,
; followed.
U KYONE MYAING 11. !IRI:: FJ);'ANCU.L CoMMISsiONER, BURMA
AND OTHERS . . ,:. 214
I GENERAL INDEX

I' AGE
WRIT OF CEHTIORAR! AND P~OHIBITION-Offmce utzder s, 41i, Pe1zal
Code re,ad ~"th s. lOV -S. 21 (2}. Bttrea<l of Special[n'IJestigation
Act, 1951- Sc]tedule 1 anzmded by the President under s. 24
of tlze Act- [)elegatio-tl of Power by tl1e President to Bttreau of
Special. investigation-How far valid-luristlidio1t of SPecial
Court to proceed witlt tfle trial, Applicant and other accused
were charged with an offence under s. 417, Penal Code read
with s.109. It was transferred to the Court of the Special Judl{e,
Rangoon for trial. In pursuan~e of the pow~rs granted to the
President under s. 24 of the Act to amend the Schedule to the Act,
the President added an item to the Schedule including " such
offences witl1in the mischief of ss. 405, 415 and 463 of the P enal
Code, as are investigated and sent up for trial by the Bureau of
Speciil Investigation". The applicant asked {or directions in
the nature of eertiorari and prohibition on lbe ground that the
amendment of ::ichedule 1 by the insertion of t-his clause is ultra
vires and that lherefore the Special Judge had no jurisdiction to
try the case. Held : That the President has by the said amend-
ment gi\'en a carte blanche to the Bureaa to pick up:md choose in
which c f those cases it will or will not assume powers and d uti-es
and which of those cases it will investigate and send up for trial
before the Special Judge. It also empowered the Bureau to
decide whether a $pecial Judge shot~ld not have power to tFy
any of the cases. The Legislature confided the trllst in the
President, relied upon his administrative wisdom and poi-V,tical
sagacity. So far as the offences mentioned above ane concerned,
the President !'as practically refused to use his judgment an<1
discretion and delega ted his power to the--Bateau of Spedal
Investigation. Such delegation is not authorized by the Actand
is against the principle that where a trust or discretion in>the
agent is involved and the exerci~e of whkh h a s beeit delegateQ,
such a~ent cannot lawfully appoint another to peFforiil his duties."
T he amendment by insertion of item (q) in the Sched11le is-
rtltra vires a;;d the Specia(Judge cann 0 t tak cog)iizance.of sucn
a case even alter .it has been transferred to his Court by the
Presidc11t. Re. The Inrliative and Refere?~dtlm Act, 119L9) A .C.
935 at 945; Re ..Tile Delhi Laws Act,-1912, (1951) S.C.R. 747 :it 907
rekrred to and foliowed .
AH KA~f ~- U SHWE PHONE A:NO OTHERS 222
. \IVRIT OF Ttabeas .corpus- Public erder (f'reservat ion) Act, J,CJ47.
s. S-A {I) (bl-lurisd.'ictfan of . the "Resident, Southern Slta.n
State illhen detenu rn Mandalayt-luri$didiotz to order det en-
tion in Mandalay Jail. 0 Golam Rasul, a Wireless Oper-ator,
attachedto the Union "Military Police at the outpost at"Loim~ve iJt.
Southern Shan State! wall a11egeo. to ;have joined tn~ U ;~;P.
mutineers at"Loimwe and _left his pi)st with them taking with
him the WJT sets and charging engines, the-property Qf .t.t~e
19 Wf'f Hatmlion and banded them over to lh K,N~.O.- insu.r- .
gents at Nyaungzin. . On a repo~t from the H.ead,qoarters of that
Battalion the Resident ~f Southern~Shan State directed his deten.-
ti.on 1n Mandalay Jail on 23rd August 1950. It wall contended for
the :det(!mi that the Resident" had no .jurisdie.tion .as -the D.eten:u
'll!las <th<-M;mdal"ay at the time of.:passin~ of.the order andthat the
Resitrtfu:~. nad :i\Q) jurisdiction. to onler det-ention.. in Mandalay
Jail. ~({~fd': -That' the . R~sident h~d jurisdict.im.t as~ the. ~u
wa$ -~ r&Sid"eht of Sou:tilern Shan-&!ate and his:activi.t:y which
.constituted a menace to "put->tic safety and order Co!Dmenced-jn,
Loimwe . when .he :joi~cd the mutineers and delivered the W./T
. s~ts and .char.g.ing engine'S. M~ .Aye K yi v. Cqmm_issione1: o/
 GENERAL INDEX li
PAG!B

Police, (19-18) B. L.R 772 (S.C.), followed. t"nder s. 5-A ( 4) of the

Public Order (Preservation) Act the Resident or his delegate can
dur.i ng the cn'rrency of the order ior detenliou, specify fr0111 time
to time the place or places where the detena is to be confined.
The Resident was empowered under the Act to direct the confine-
ment of a person <ietained under his orders at a place out~ide
his district. Saw Benson v. The Commiss1one1' of Police, Rangoon
and otlters, B.L.R. (1950) (S.C.) 196, followed.
KjiADIZA BIBI v. THE RESIDENT, SOUTHERN SHAN STATE
A~D OTHERS 210
 B URMA LAW REPORTS

SUPREM~. COURT.

u RA TU (APPLICAN.T) ts.c.
1951
v. Sept. i1 .

THE RETURNING OFFICE R, LASH IO
. AND OTHERS (RESPONDENTS ).*

Parliamc~taty Elecliatt Rules 46, 47 and 48;_Whether Ret~;trn111g Officet

<~cling uni:ler Ru/~47 e.,ercises quasi-juaicialfunciion ~Whethc rnomi'tla
tiol paper can be rejected owing to the absenee of tile 'catkii,;'a{e or hi~
agpnt-Wh,tller certiorari should i ssue wl1e1~ t:Je,re is. a" altert~atite
re1ned~. .
Held: T hat the:e could be no doubt that a :I~etunling Officer acting
under Rule 47'Q(Parl)amentary -Rol~ exercise's'. quasi-judicial function :
According to Eule 46, a candidate or his agent-:~ay. ;lttend . ~e scrutiny Qf
no.mination iiapers bu~ there is no du~y cast upon .th~-'~ '- to a,ttetj~:~~uch.:;c;r~lii'!:Y;
Tl;t'e p."'pose pf ~he :a_tfendance is bb' ena.b le . tM'ri1 :to. take''o~l'Clion' .!o] h e:
" n~.mjmil!on-.l?~pers of othe~ c~ndidatcs. Nominatio~ pa!,er ~fa '6rndidate t~
be rejected on1y. on groundsspeci6e<:l in claus~s (a), '(b~. (c) and (d) of s;rb-n :Je (1)
of Rule._4:7';and the Retu~hig Officer bad no right to reject the nomination
-pap~r. of a .;9Jlndidate . simply b ec~u:se the candidate or his agent ~as not
:pr~ent.
. ' ~rdinarily .lh~ dlrection in the nature of'certiorari will be issi:ed when an
inferior tiibun1i eie~cisipg j udici~l or .quasi-judicial functions acted. in exces
:ol us. power, b!Jt'it is not compulsory on Court ~0 i.Ssue such directions in' ever-y
ca$e of. excess Jurisdiction . .or
.: ' wh~r.e the ~~pij~~t i;as other and better remedy ~vailable to him the Court .
"_norin~n}:{e'ruses to exelociseits powe~ in c~rliorari. Again, where disput~ d
?qU.es?o!ls.:involve. protract~ 'hearing of evidence, which. could be , more
rCQ~PJ~t~ly._e~.~~ined :ill ot~er :proceedings open to the applicant; tpe Cour.t 'Yill-
~n.o'tm~Iiy t duse 1o'-\nterfe.re in certiorari.
::: ,,: <.: :: : . .;~. . . ~ ... . ; .
~. ' But Jii:.llie prese.nf.. ease the're i~ no dispute that. the Retu~ning Officer has
~e~ce~ded'hi~ijurisdidion. To relegate the applicantto the alternative remedy
:byway.,,of ,.el!!cliori:P_etjfio_n after polls have been taken, will mean, that
~ I' , ' - -

h/ ::~:i~.il :MJ.~9 Application No..5~ of 1951 aga.insLthe,order t f the .R~turnlng

~,fficer ;.., .,,::-: ...,_: .::. . .. :: . ., ' , .
fJ' t et??ii~!;~J.i.: :j;!~icj: .~ M.4u}:/(;.,. :_MR. JjJ,ST~~f: THEIN .M AUNG . and.
iJ)1:H'Aui.~Sitm;,J ;.~
~~ .- ;'.1!!.~ .;-_;:. :,-............. - <
2 BURMA LAW REPORTS . [1952
S.C. not only the applicant but other candidates to Parliament from this particular
1951 constituency will be put to unnecessary expenditure and labour, for the
election petition i filed is bound to succeed and the polls whk:h rnay be taken
u BATU will ha vc to be declared nuJ.J and void. The: result will be that fresh elections
'II.
THE ' will have to be held. In these circumstances though the applicant had another
RE'l'URNING rem edy the lnurt would quash the proceedings.
OFFICER,
LASHIO AND
OTHERS. Kyaw U for !he app}icant.

Myint Htoo for the respondents.

The judgment of the Court was delivered by

,
MR. J usTICE K MAUNG.-There can be no doubt
that a Returning Officer acting under Rule 4; of the
Parliamentary Election Rules exercises a quasi-jpdicial
function. His jurisdiction in such exercise is limit~d
by Rules 46: 47 an <!I 48 ..
Under Rule 46, - a candidate or a person duly
authorized by him in writing ri?f.Y attend at , the
scrutiny of the nomination papers but the candidate
or his agent is under no d"Qty to attend such scrutin,..y.
The purpose of attendance by the can~idate . or hls
agent is to ena:ble himto take objection to the riomip.a-
tion papers of any otlier candidate.
No candidate is lial:>le to have his . homi-nahon
paper rejected by the Returning Officer under Rille
47 except on the grounds specified in dauses ' '(~ ),
{.b), (c) and (d) oLsub-rule {1) of ~ule 47. It is clar
ti1erefore that when in this case the Returning Officer
reiecte d the appli~ant's nom_ination paper he acte~''jn
ex~ess qf jurisdiction confei-'r ed . on him by tne
Parliamentary Election .Rules; The learned counsel
for the Returning Officer .d_o es . n~t contend ~pe
contrary. .
. But the real question .remains, namely, whgth~r
t~1~ -Court .Should exercise i~s J?OW~rs... to quash ~e
oroceeding! of the Returniqg_ Offi.cer ..by . way . pf
. ~(rectiohs il:l.-the nature o[ Gertiorai:i: Cer#~)rafi .e~~
1952] BURMA LAW REPORTS. 3

issue when an inferior tribunal exercising judici?l or 1~fi

quasi-judicial functions acted in excess of its powers
u BA Tu
.b ut it is not compulsory on the Court to issue such v.
directions in every case of excess of yurisdiction. RET~::ING
Where the applicant had other and better remedy LOFFtCER~
ASR!O AND
available to him the Court normally refuses to exercise oTHERs.
-its powers in certiorari. Again, where disputed ques-
tions involve protracted hearings of evidence which could
be more completelJ examined in other proceedings
-open to the applicant, the Court will norm:rslly refuse to
interfere in certiorari.
In this case, however, there is not and cannot be
.any dispute that -the Returning Officer had exceeded
hi jurisdiction. To relegate the applicant to the
.alternative remedy ~y way of election' petitions after
polls had been taken wsuld mean that, not only the
:appl~cant _but other candidates to Parliament from this
_part{cular constituency would be put to unnecessary
-<::xpenditure_and la~:<n~r, for tqr election petition if filed
i.s bound to succeed apq the polls which in the absence
of any interference by this Court, may be tak~n, will
'have to _q e d~cJared null and . void, resulting in the
-electioos .for the constituency beginni~g afresh with. all
:its atte1id~mt. yXpenditur~ and .labour.
In th~se oircurn.~tances we~: are .satisfied that this
-is a prop.e r . case for the Court to exercise its
jurisdiction an4 . to qu.a sh the proceedings of the
Returning Q~cer. We :ac:coraingly quash the
proceedi!lgs. of the.. Retuniing Officer, Lashi6, of
the 25-tq May 1951 -:.in ' so far as he rejected the
nominatiort.. paper of the applicant, for default of
~ttendance. There will _b e no orders for col:lts.
 Bt)RMA .LAW REPORTS. [1952

SUPREME COURT.
f S.C. CASSIM EBRAHl M MALIM (APPELLANT)
1951
Sept. 24. v.
MARIAM BIBI (a) HAJI B IBI AND OTHERS
(RESPONDENTS).*

Limitation Act, Article 91-Dee:l oottJined by undue iuflueuce- I<now-

"Tedge of the cot1lents of the documents e.otccuted by age11ts-Suit filed ajtC'r
4 ye&--rs wltet.~.er barred.
Appellant,fatl1er of the Respondents, obtained Probate of the estate of his :
deceased 9.iife who was the mother of the Respondents. Respondents 1 and 2'.-.
execut~d a power-of-attorney in favour of their uncle to execute a deep. of '
release in favour of the appeJiant, ilieir father, on the ground that they have ,
obtained Hs. 21,000 out cf the estate. Accordingly the deed of rel~ase wa~,
executecl by the uncle and he stated that he informed the 1st and Znd
Respondents about the execution of the deeds of releases and there w as no.
cross-examination on the point. The trial Judge held that the claim to s~~
aside fue release was barred by limitation. The Appellate Court set it a~icte.
Htld : That when the agent ol the 1st and _2nd Respondents infvrmed:
them abont lbe execution of the deeds ni-relcases, if they did not. becon(e::
a~are of thei; right to impeach the releases it could only have been becau~~
they cho1>e not to be enlightened." Both the Courts -'held that they ~new th:~ .
true nature of the powers-of-attorney. The claim. to have the ':deeds et
~side was barrea by limitation. ' .
.Dutl v. Dutt, 9 Luck. . 178 at189 ; Mitchell v. Homfray, !HlSiy
8 Q.B,D. 587; Allcard v. Skiuner, - !1887) 36 Ch. D. 145 ; Kuuwar v . .Siugh.
14 I.A. 149, referred to.
. . ~

P. K. Basu for the appellant.

... , ~ ~

Uawoodfee for the 1st an.d ~nd respon4.e_nfs. . :.: :, .

0 '
N. R. Burjorjee .for _.3rd. respondent
The judgment.of the Court was delivered by . :,

. MR. ' JUSTICE E MAUNG:-The.' t~ree responderil~

are two daughters and a son qf th~ app~llant" by h_~s:-
*Civil Appeal Ro. 6 of 1950 against 'ibe decret: of the ~igh Court, Rangoqn
in Civillst Appeel No. f44 o.1937.. . . -.". . ..
' t Presen(: R Jus'UCE 'E MAUNG, ~R._. JusTiCE: THEIN MAUKG .a,nd:
uJ'HAUNG SEIN_, J. .
 1952] BURMA -LAW REPORTS. 5
first wife Khatiza Bibi who died in May 1918 having S.C.
1951
made a will on 22nd November 1916 under which the
CASSI!i
appellant was appointed the executor and certain EBRAHIM
MAL.u.l
benefits were given to the respondents. At the time v.
of Kl)atiza Bibi's death the respondents . were very MARIAMBISI
(a} HAJi
young, the eldest being. about seven years of age and BIB!
AND
the youngest about five: OTHERS.

Probate of the will was granted to the appellant by

the. Chief Court of Lower Burma on ist July 19iO, but
before . that date tqe appellant had re-married. The
children however, continued to live with the father
.and the step-mother though ~ater they all were man:ied .
.It was not till the end of 1932 that the father and the
children ceased to five together at the joint residence
to that da.te at Rander, in India. On 25th December
1932 at . Ran~er each . of the . d~ughters executed a
:power-of-attorney, by which after reciting tnat she had
the benefit to the extent .of Rs. 21,000 out of her
' mother's .e state she appoinfed three persons, ?-ny one
or more of them to execute on her behalf a .document
-of release in favpur of her father as the executor of
the. will of her mother. One of the three agents so
appointed was Ahmed Ebrahim Malim, 2nd witnes~
for . the appellant, and an elder brother of the
appellant j and he on 16th N:oveinb.er 1932 execute~
two .deeds of release in exer.cise of his authority as
agent of the two daught~rs in favour 'of the appellant. .
rhe two . daughters who are the 1st 'a nd 2nd-
respondents before this Court file.d a suit for adminis-
tration of the estate of their mother on the 2nd March
.1936 ~hallenging the ~elets~s ..tPa:de ~n their ..beh~lf by
:their uncle in. pursuance. of th.e pov~rs-of-at~orney
grante~ _by them. Th~ir case a~ set.~ ~lit jn their
plaint cannpt 'be said; to. be 'too '.cleat . .whether'. they
interiqed to rest th~ir clairit on ex~rci~~ .of . ~.rndue
in fluen.c e by their father. ~onducing to the :execution :of
6 BURMA LAW REPORTS. [1952'
S.C. the powers-of-attorney or on fraud in respect of the
19.::!~
releases executed by their uncle. But what emerged..
CASSI~!
Ei3.RAHI~ from the plaint taken as a whole was that the plaintiffs
MA;IM claimed that they did not know that they were granting
.MAR.IAM Bmr powers-of-attorney to their uncle and two others when
w~
Bl,iii they executed and had registered the two documents
.
o:::Rs. of the 25th October 1932 and that they had been kept
out of knowledge of the documents of release executed .
and re~istered on their behalf. till some time in 1935 .
The appellant's defence was thal the daughters k~1ew
perfectly well that .they were granting- authority ~o:
three .persons named in the powers to grant hirri t
releases in respect of his administration of the estatej
of his wife and that before the daughters execute.d
these powers-of-attorney they had examined such :.
accounts as he maintained and had been satisfied that:
'each of them had had the benefit of Rs. 21,000 .o ut 9[
the estate. .He also den ied that there wa:s any .e.x.e rcise.
of undue influence on his part resulting in the execu-
tion of these ppwer.s-of-attorney. ..
The lean~ed trial Judge (now the Chief Justice of
the Union) on . the evidence came to the conGlusi,on~
. tpat the plaiFltiff.s were perfectly aware of the .nature of
the do c t1~nents wl~ic.b they had execut~d. Th.is finding:
has been accepte<;l by the Appellate -Bench :compos~d~
of Goodman Roberts C:J. and Braund .J. on thi~'
view, the learned .trial Judge considered that- the lin~:.~
~f atfack. open to the plaintiffs in their en<;leavour tb;:
set at n aught the releases of November ~-932, couic(
only be op the basis that the po_wers-of-atto.r ney wer~.'.
indu'ced by exercise of undue .i nfiuence o.f their.. father;;-..
, Cert?-in .d,e.cisions of the Priv.y :.counci~ ~nd of th~,
Nigh c?u,rt~ ,_i'n In~ia e~t,1~Ci3:ted ~he 'prin~~pies that . ~:.
tr~.t.:Isaction .in~uce~. by. undue influen-c e tva~- .v~id;:tbl~;._ ..
jn the ~ens~ that it wa.s good . ahd eff~cti:ve .. t1;ntiL
<;ancelled, .a ng that a St,Iit to. cancel such_ .t~a~s~ction if..:
 19'52] BURMA LAW REPORTS. 7
S.C.
instituted beyond three years was barred under 1951
Article 91 of the Limitation Act. Accepting these
CASSIM
principles, the learned trial Judge refrained from EBRAHIM
MALIM
recording a finding whether undue influence of the v.
father operated in the granting of the powers-of- MARlAM B.rsr
(a} HAJJ
attorney, as in any event the claim to cancel the same B1ar
.AND
would be barred at the date of the suit. oTHERs.

However, the trial Court took the view-a view

~hared by the Appellate Bench-that the h\o reieases
did not purport to release the appellant from any
claim in excess of Rs. 21,000 by each daughter ; and
in the result granted the plaintiffs a preliminary decree
for administration with a declaration that each of the
plaintiffs must be debited with Rs. 21,000 against the
share found du.e to her on taking accounts of the estate.
The Appellate Bench, as has been stated earlier,
accepted the finding of the trial Judge that the plain-
tiffs were well aware of the true nature of the docu-
ments they execute.d. n h.eld further that . the
execution of the documents was brought about by
undue influen~e of the appellan_t ; that the .plaintiffs
were not aware and were intentionally kept in
ignorance of the execution at Rangoon of the two
release deeds. ; and tl].at it was only in 1935 that
the plaintiffs came to learn of these release~.
On these finct:ings, the -Appelhite -Bench reached
the conch,1si~n that till the plaintiffs carrie to 'b'ave.
knowledg~ of the existenc.e of the releases, they could
not be said within the meaning ..of ~dicle <)1 of the
Limitation Act to know of the facts entitling them to
have them cancelled as consegue'ntial to undue influ-
ence exerted on them in .obtaining from them the
powers-of-at~orney. The suit in this vie"" would not.
be deemed in$'tiluted beyond , limitation ;.' and in
app~~l a plenary pi-elill}inary adwiqi.stratio!l decree.was .
sub~~Huted for that granted by t.h e trial .Court.
8 BURMA LAW REPORTS. [1952

s.c. At one stage of the hearing it appeared as if it

1951
CASSIM
would be necessary to reconsider the correctness of
EaRAHIM certain ru!es laid down in the decisions of the Privy
MALIM
'II. Council and of the High Courts in Burma and:>4 India.
l\]ARIAM BI'Bl
(a) HAJI
The definitions in clauses (g) and (i) of secti?n 2 of
BIB I the Contract Act have given ri~e to some di'ftculty . .
AND
OTHERS. . Can it be reasonably said that a contract voidable by
operation of section 19-A of the Act as being induced
by u'n due influence remains operative till set aside ?
Will not that meaning be inconsistent with the._.
definition that a" Voidable <:;ontract" is" enforceable,
in law at the option of " one party and not at the.
option of the other? The definition clearly suggests;
that one of the parties is entitled at his option to:
treat the agreement as never having been binding on
him. This, que~tion and the question wliether the.
Privy Council in 1aying down the rule in Dutt .v.
Dutt ( 1) that the .three years permitted by 'the Limita.::;;
tion Act under Article 91 '' began to run not.from thtr.
discovery'of the plaintiff of the .true nature of th e deed
which he bad signed, ~ut from the date when h~
escaped from the influence by which; according tQ the
plaintiff, he was dominated 11 has taken too narrow a,
view of Article 91 of the Limitation Act, are. of .,great..
importance and of no smaJl difficulty. W~th emineri~
Judges in MilcheU v. Hoinfray (Z) ahd Allcard :..J;
Skinner (3) might not the \VOrd_s in the third columi{_
of the Schedule relating to
Article 91 of the Limita?.
tion Act be interpreted to mean " when the ex.ecutant~:
beca'm e aware that the transaction was impeachable as
being ind:uced by undue influence " or ' when h~
became acqu,;iinted .w ith his~ rights to enable him to.:
assert th~m:' .? The . ~arli_er Pri\ry Cqu_ncil r.:uling i~:
KumJar v. Singh (4(w:as.-not as uncomprom. isir{g ~s
..... . . .. . .. . . ..,
(1) 9 Luck.l7&.at.r8'9:. (3' (t887l .36 Cb.D. t45.' . : :_.':i,._-
{2). U8.81).8 Q.B.D.
.. 587. . .. C4) .141.A. 149.
1952] BURMA LAW REPORTS . 9
$ .C.
was the later decision in Duff v. Dutt ( 1). Again, l <J5l:
when t he Legislature, in d efining a " voidable C ASSIM
contract " has spoken in terms which has not uneq ui- EBRAHUI
liiALIM
vocably excluded the possibility of su ch a contract v.
M ARIAM BtBI
requiring to be affirmed to gain vitality, are the Courts (a) HAJJ
entitled to interpret Article 91 of the Limi tation Act BIBI
AND
in relation to section 19-A of the Contract Act as OTHERS,

intentionally excluding the rem edy 1..vhere the ~ers6n

exercising undue in fl uence had been able ~to keep the
other party under control for more than three years.
T hese and other points, however, do not need to
be pursued further in this appeal. Ahmed Ebrah im
Malim, who executed the releases as the plaintiffs'
attorney and on their be_h.alf, has given .e vidence at the
trial ; and he stated definitely that after he executed
t-he release d eeds as the plaintiffs' attorney, he wrote
to them informing them of lhe fact. On this point, he
was not chall~nged in cross-examination ~nd it must
therefore be taken as established that as far back as
1932 the plaintiffs had kno.wledge not on ly of the true
nature of .the powers-of-attorney they granted to this
witness and two others but also of the execution of
r eleases in pursuance of the powers-of-attorney they
had.granted. : . ..
It matters not then for the purposes of th1s appeal
whether a " voidable contract'' u nder the Contract
Ad is operative till rescinded by the par ty having the
opt_ion so to rescind or whether it becomes operative
on the party having the option by acquiescence has
" enforced " the agreement. It matters not again
whether the narrow construction of Article 91 of
th e Limitation .Ad adopted in Dutt. v. D~t ('1 ) o~ the
more liberal interpr~tation suggested by English cases
is the more appropriate. I~ in.1_93?, the--plaintiffs did
not become aware of their : right to impeac_h . the
-
(1 )
. . .
9 Luck. 17.8 at 189.
----
10 BURMA LAW REPORT. [ 1952'

s.c. releases it could only have been because they chose

1951
not to be enlightened. The hyo Courts below agreed
CASSJM
EnR~HIM that they were weil aware of the true nature of th e
MA!~M powers-of-attorney they were granting; we do not
MARIAM BIBJ agree with the Appellate Bench that the plaintiffs did
(a) HAJJ
Bisr not know of the execution of the releases till 1935 ; on
o:;:Rs. the contrary, we find that that they were informed
of their execution by their agent in 1932 ; and that
betwe~n that date and the date of the suit they allowed
the appellant to make payments to them of various
sums of money by way of assistance to them, withou~
in any way questioning the powers-of-at.t orney or the:
releases. All this time, the plaintiffs could and did
have independent advice ; their father was away in
Burma and had no means of further exerctslD'g
influence over them ; and they had living with therrj: .
their husbands. <

In these circumstances, the judgment of th ~ .' A.ppel ~

. late Bench caiJ.not be uphdd. We must 'and ~lo
hold that the plaintiffs are not entitleG.t to rescind- the
releases executed on their behalf by th eir attorney apd
that these releases are binding on . them. If follo\~:S
..then that the judgment of the AppeUate BeHch of tl):e
High Court must be set aside and that . of t}?.e tri~l
Judge affirmed. __
Th~ appeal is ~lowed, tbe judg~ent of the. ~rg,h
Court in appeal is set asi~e and tpat 9 .th~ Or1gi~:i"~l
, Side of the High Co.u rt restored. Qert~in circumstan-
ces disclosed in the evidence, in 01.:1:r opinion, renq~r
it inequitable to saddle c;:itl;ler party witt, the : cos.ts.-.pf
the other. and we direct .tha.t the .parties .bea~ th:~ir
own. C()St~ ~l}l~#gho:ut .. .
 1952] BURMA LA\\" REPORTS. 11

SUPREME COURT.

MOHAMED HANIF AND ANOTHER (APPLICANTS) tS.C.

1951
v. Sept. 27.
THE FINANCIAL COMMISSIONER, BURMA AND
OTHERS (RESPONDENTS).*
Cous/itutirm of Burma-Direction i1t the 11alure of certiorari against
gran/i11~ of a lease 01~ license to work a qttarry- S. 219 of .the Coi~stittt
tion-Writ of certiorari against an admit1islrat.ve act.
Held :'That granting and cancellation of a licence or a lease is an ad .n inis-
trative act and as such the officer granting the licence or lease is not amenable
to a direction in the nature of certiorari in respect of his action. Under s. 219
of the Constitution of Burma, minerals can be exploited by the Union or Union
may grant the right to citizens of the Union or to Companies or As::oc-iation
at least 60 per cent of the capital of which is owned by such citiztns. As
tlie 2nd Applicant was undoubtedly not a citizen at the time when the lease
was granted lo the 2nd Respondent and lie obtained his Certificate of Citizen
ship during the pendency of his revision to the Financial Commis~ioner, tt.le
subsequent event cannot affect the validity of the Deputy Commissioner's
order granting the. lease to the 2nd Respondent in prderence to that of t!1e
2nd Applicant who was ineligible for the lease at the time of its. grant under
the. Constitution.
Hup For v. The Deputy Commissiot~er, Inscin at1d others, B.L.R. (1950).
v.
(S.C.) 1!6; Nakf;uda Ali M. F. pes. Jayara_t11e, (1951} A.C.66, referred to
aFJd. applied.

P. K. Basu for the applicants.

Ba ~~>Sein for the ~espondent 1.

Kyaw Min for the respqndent .2.

The ju~gment of theCourt was delivered by

MR. JuSTICE THEIN MAUNG.--This is an application
for a writ .of c~rtiorari to quash the first respondent's
order in Revenue -Revision No.. 6L-l of 1951.
Th~ first applicant is th~ executor to the ~state of
the late
. .Khan
. ,; : . . Bahadur
~ .. Ibrahim who was ~lessee
. .. of

* CiviLMi&...-Appli-cat_ion No. 4t o 19Sl.

. t Prese11t .: . ~ll. JUSTICE E MAUNG, MR. JU~TICE THEIN 1-fAUNG and .
u SAN MAUNG, J.
.' .
12 BURMA LAW REPORTS. [1952

S.C. tbe Sbwemyindin Stone Quarry first from 1934 to

1951'
1939 and. again from 1939 to 1944.
MOHAMED
HANiF AND
Khan Bahadur Ibrahim died in 1944 leaving a w~ll .
ANOTHER by which he gave the quarry, i.e., the lease thereof, to
v.
TRE FINAN his son the second apj)licant ; and in 1946 the first
CIAL COMMlS
SIONER, applicant, on behalf of the second applican~, obtained
BUR~fA AND
OTHli:RS.
a fresh lease of the said mine which expired on the
9th July 1 ~48.
The first applicant applied for a renewal of the said
lease about a month before its expiry; but the Depu:t y
Commissioner asked bim to produce a Certificate of
Citizenship of the Union of Burma and granted hi,m
only a temporary permit to continue working t~e
quarry for six mon.ths to enable him to prod.uce -Hie
required certificate. ::.
The temporary permit expired on the 9th Janu~ry,
1949, without the first appllcant having obtained.. a
Certificate of Citizenship for the se cond applicant. ' So
on the 22nd June, 1949, the secOiid respondeat applied
a
for lease ,of the quarry. . . ,
The first applicant then filed a written objection
dated the 18th August, 1949 ;. but even in the said
objection 'be me.rel~ stated :
" That the delay forproduction of the: required. Cetti.fi~ate
of Citizenship of the pnion of Burma is due to the-f~ct that . the
late K. B. Ib-rahim has. by his Wi!l given the said quarry' 'to . his
only son , Ismail wh9 is a 1pi00r stpdying in scho.o l_:- The deli-
cate position of the real .owner calls for proper legal' advice -.and
con$ultation of other heirs and members of the decea.s ed's.. family.'' ~

He also 'stated in a .subsequent app~iCation date-~ _,the

15th
. Septe,rpber
. 1949 :... . . . .. .-~t ..: .: .-
. . 0 :. . . .. .: .. . . . . . .' .
- ''The nii~or Ismail "vlio
' is ~h~ _qnly ~Qfl. :()(la~e K:'_~. lbrahi~
and own~r. cif. ~he. quarrY: 1n q uestiqn will apply for .p~rtific~te of
Citizenship o,f the Union of Burma on attaini'ng :the age of. major-
ity. He is n-ow .
16 years ofage. attending sc hool at~Lahore....' ... 1 ' :
1952] BURMA LAW REPORTS. 13

So on the 16th September, 1949 the Deputy Com- S.C.

1951
missioner dismissed his application for exte nsion of MOHAMED
time and for a fresh temporary permit and granted a HAl'IF AND
ANOTHER
lease of the quarry for ten years to the second respon- v.
dent. ,, THE :FIKAN-
CIAL COllMIS-
H e then appealed to the Commissioner, Mandalay SIO :-IE R,
BURMA AND
Div.ision ; on his appeal being dismissed, he applied OTHr:RS.

to the first respondent in revision ; and on his appli-

cation in revision being rejected, he has filed t his
application for a writ of certiorari.
We are of the opinion that the application for a
writ of certiorari does not lie. In Hup For v. The
Deputy Commissioner , Insein and others (1) this
Court has upheld the objectiont hat :

" The Collector in deciding to cancel the unexpired

licenses tn favour of the applicants under section 29 (lj of the
Burma Excise Act is performing a purely administrative function
and that therefore the proceedings in which the Coliector came
to the cor,clusion now att!lcked before us by the applicants would
not be within the cognizance of this Court in certiorari."

[Cp. Nakhuda Ali v~ M. F. D t:. S. ]a)'matne, {195 1) A.C.

66 i~ which their Lordships of the Privy Council held
that the 'Controller of Textiles was taking executive
action in cancelling a . licence and that he was not
therefore amenable to a mandate in the nature of
certiorari in respect.of that action.]
Jf cancdlatio:ri of a licence is an "administra.tive act,
granting a licence also must be such an act ; and if
granting a licence is an administrative act, granting a
lease cannot be anything else. . .
Besides, the learned Advocate for the applicant
has frarikly admitted that the applicants cannot claim
a lease of. the quarry as a matter of right. "
. . ;(1) .B.L:R. (19561 (S.c.), 86.
14 BURMA LAW REPORTS. 1.1952
S.C. His main contention is that all the officers ''pro-
19.51
ceeded on the wrong assumption that no leases or
M.o ifAMED
HANIF.-\,ND permits could be granted by Government .to a person
ANOTH.ER
'll.
who has, not obtained the Certificate of Citizenship."
'TH-E FIN,AN-
CIAL COMMis-
However, their " assumption" must be held to be
SIC~NER, correct in view of Article 219 of the 'Constitution of
BURMA. AND
OTHERS. the Union of Burma which reads:
'' All timber and mmeral lands, forests, water, fisheries,
minerals, coal, petroleum and O.ther mineral oils, all sources of
pote~tial nfergy and other natural resources shall be exploited
and developed by the Union ; provided that subject to such
specific exceptions as may be authorized by an Act of Parliament
iri the interest of the Union, tpe Union may grant the right ~f
exploitation, , development or utilization of the same to
the citizens of the Union or to c, mpanics or associations .at least
sixty per cent of the capital of wbi.ch is owned by such citizens.''

Incidentally, the second applicant applie<:i for a

Certificate of Citizenship after all on the 22'n d
December, 1949, i.e., more than three moJ?th:5 after q;
lease of the quarry had been gran ted to the secq~d .
respondent, and obtained such a c.e rtificate on the
22nd February, 1951 during the pendency of 'his
application. in revision ; but these. subsequent everhs
cannot affect the validity of the Deputy Comtni's-
sioner's order granting .the lease to the second resp'qp.-
dent in preference to the $-econd applicant who ii.~d
not. elected to be a,, Citizen ofthe Union of Bur~a,-et
and was therefore ineligible for the lease under. t,he
Constitution. .:.,
The application is dismisse.1 With cos.ts ; Advocat~s
fee ten gold mohurs.
1952] BURMA L AW REPORTS. 15

SUPREME COURT

u AUNG KYWE (A PPELLAN't) t S.C.

1951
v. SePt. 27
MAUNG PO HLA WI N AND OTHERS
(RESPONDENTS) .*

Buddhist lmo-SftPlOIL claiming /he t>lll te of step-wollter-Law rel11liug 111

children of divorced paren ts-Mainlena11Ct of filial relaliOt$ltiP wtllz
father afler the dit'fJrce of the mother-S. US of Evideuce Act ,Previolls
statemeut used for tlte Purpose of imPeacltmg credit of a' w itness ztluther
substantive evidence.
U Myat Nyein and Daw Thet were husband and wife and appellant was
a son of the union and afterw ards they divorced by mutual consent
U Myat Nyein married Daw Sein but had no children by her. After the
death of U M.yat r.:yein. Oaw Sein ma rried U San Dun. U San Dun by his
first wife Daw Thein Hla bad children who are the Respondents in the appeal.
Appellant maintained filial relations with his father U Myat Nyein and
step-mother Daw Sein.
Held: That Appellant is an heir to the tstate of Oaw Sein when she died
without natural issue.
The law relating to children of divorced parents is greatly misunderstood.
As a COtl~equence of incorrect rendering of Mauugyc by Rlch;nclson at p. 319
(4th Edition! it has been held t hat when:: pa rents effected a divorce with
:partition of properties and arrangements by mutua l consent were made for
the custody or disposal of children alter the divorce, tile children who went
with the faU1e~ did not retain any right to a share in the mother"s e:;tate
and vice versa. The Mamtgy~ translation in specifying "children for who!~\
compensation bas been paid and children of parents sepnrated "clearly referred
.uot to children of parents divorcing in ilO~mal course but to those special
classes dealt. with in ss. 53, 54 and 55 of Volume X of Mmsugye. The
deductions from the right of the rarents to give away chitdren in adoption
-can be valid only in respect of u:inor children for, whatever the law might
ha\e been in early days, by tht:: time: the ll!atmgye came to be comple.tecl, it
was settled Jaw that only minor children could b~ given away in adoption
witho~l. their wishes being consulted. The. right of the children so given
.away in infancy to return to its natural family on attaining majority. was
recognised at pages 23j and 236 of Manugy~ iReference to 4th Edition).

Yan Aung. for the appellant.

Ba Nvunt for .the respondents.
Civil nppe'!l l\o. 1 of 1951 against the decree J the High Court.
.Rangoon, 'in Ch;il 1st Appeal No. 55 of 1949.
t Prese1<t : ~R . J USTICE E MAl.ING, l\IR. JUSTICE THEIN hlAONG and
.uSA:-! MAUNG. T.
16 BURMA LAW REPORTS. [1952

s.c. The judgment of the Court was delivered by

1951

UK~~~G. MR. JusTICE E MAUNG.-This dispt,JJ,t~s to

v.
MAUNG Po
the administration of the estate of one ~ein who
Hr..A wn.. died at Rangoon in 1944. Daw Sein was married
ANo oTHERs. twice, her first husband being U Myat Nyein, after

whose death she married U San Dun. By neit her

husband did she have any issue. Th e appellant is a
son of U Myat Nyein by his first wife Daw Thet and
the r-espon,dents are the children of U -San D un
by his first wife Daw Thein Hla.
U Myat Nyein and Daw T het admittedly ~ed
a divorce by mutual con.sent before U Myat Nyein
married Daw Sein. According to one version the
appellant was about 20 years of age at the time of the
divorce and U Myat Nyein was a Head Clerk of a
Government office in Insein . According to another
version the appellant was about 34 years of age whe~
his father and mother effected their divorce and
U Myat Nyein was then a R esid~nt Exci'se Offic~r,
Taikkyi. .
The second version appeared fr om a statement
made by the appellant in the course of a civil
proceeding earlier than that out of which the present
"appeal had arisen. When this version was put to
him in cross-examination, he explained that it was not
accurate but that the other version which he gave
c
at the trial was the rect one. It is not quite cle<~r
from the judgment the Appellate Bench of the
~High Court which.. sio~ was accepfed as being tli:e
true one. In one pa .of the judgment .the facts were
stated as if the Be h accepted the version given
at the trial. 0~. the next page reliance w~s placed on
the statement>f!lade in the ear_lier proceeding. for the
pur.pose of-e xcluding .th ~ appellant from a share in
the estate of Daw Sein.
1952] BURMA LAW REPORTS. 17

The provision of section 145 of the Evidence Act S.L:.

1951
appeared to ha,e been momentarily overlooked by
U A U ~G
the learned Judges of the Appellate Bench of the KYWE
t.'.
High Court. A previous statement can be ustd for MAu:o;G Po
the purpose of impeaching the credit of a witness AND HLA W I N
oTHERS.
but is not in itself substantive evidence. And in this
case it is clear from the evidence taken as a whole
that the version given at the trial by the appellant
was the correct one. In fact the learned Judges of
the Appellate Bench generally proceeded on the~ basis
of the divorce having been effected at a time when the
appellant was about 20 years of age.
To revert now to the course of the proceedings
out of which the appeal has arisen, the 1st respondent
instituted a suit for administration of the estate of
Daw Sein impleading as defendants his two sisters, who
are 2nd and 3rd respondents before us and the appellant.
About the appellant, however, the 1st respondent's case
was that he was not aware of the previous history of his
step-mother Daw Sein and that accordingly he could
neither admit nor deny the appJ?ellant 's claim to
be anothe~ ~tep-son of Daw Sein. Naturally on
such pleadings the issue relating to the status of the
a.ppellant was simply whether he was a step-son of
D <~.w Sein. The trial Court accepted the appellant's
clai!ll that he was such a step-son, as indeed it was
bound to on the evidence before it ; and .the Appellate
Bench of t~e High Court agreed .with the trial Judge.
But the Appellate Bench, apparently invited thereto
by the 1st respondent on appeal and relying on the
appellant's statement already referred to that on his
father and mother effecting a divorce when he was
about . 34 years . of age . his moth.e r came and lived
with h.im, held that the app~llant as a chila of divorced
parents could not.. inherit the estate of his father
whom. he did notaccarripany on the parenfs qivorce ;
. 2
18 BURMA L AW REPORTS. [ l952

S.C. a fortiori, he could not be an heir to the second wife of

1951
his father.
U .AUNG
KYW~
Th~ law relating to children of divorced parents
'II. has been. greatly misunderstood. The law is mainly
MA\JNG Po
HLA WIN case law. Partly as a consequence of the Manug"e
AND OTHERS.
having been incorrectly rendered in Richardson's
translation at page 319 t4th Edition) as :
''These six children shall not inherit, for rea~ons already
laid down. Also children for whom line or compensation bas
been (iaid, aQd children of parents who have se~arated."

and partly as a result of deductions from the law

relating to adoption of minor child ren, it has come
to be enunciated that where parents effected a divorce
with partition of property and arrangements by mutual
consent were made for the custody or _djspo.sal of
children after the divorce, the children who went
wifh the father did not retain any right to a share in
the...-mother's estate and vice versa. The Manugye
translahon, In spe-cifyi ng (( children for whom fine or
compensation has been paid and children of parents
separated" clearly referred not to children of parents
divorcing in normal course but to those special classes
dealt with in sections 53;- 54 and 55 preceding:,bf
Volu~e X of the MamtJ.!ye. T he deductions from the
right of parents to give away chil dren in adoption
can be valid only in respect of minor children f.or,
whatever the law ~ight have been in early days, by
the time the Manugye came to be compiled it was
settled law t hat only minor children could be given
away in adoption without their wishes being
consulted. See Ma11.ugye, Volum~ VIII, sections 3 and
4. And the right of t he child so given away in its
infancy to return . to its natural ~aJ?ily on attaining
~ajority was recognised at pages 235 .an'd 23b of th~
Manugye.
.
 1952] BURMA LAW REPORTS. 19
Apart from the fac t, therefore, that the appellant S.C.
1951
had admittedly maintained filial relations with his father
U Au:-:G
and stcp-motfi.~Jbe.r.ule..9f..eichJSiQl1 j\S a cgnseq~-e~ce Kvwa
v.
of the parents' divorce cannot in law be applicable MAUNG Po
to - the- appellant. The appellant is therefore as much HLA WIN
AND OTH F. RS.
an heir as the respondents to the estate of Daw Sein
when she died without any natural issue.
The learned trial Judge in rightly granting the
1st respondent a preliminary administration decree,
added a declaration that a certain house diQ. not ~ form
part of the estate of Daw Sein divisible as such
on her death. Such a declaration. was premature
and should not have been made at the stage of making
a preliminary administration decree. As a conse-
.q uence of the decree, accounts will have to be. taken
of the estate of Daw Sein and at the stage of taking
a ccounts it would be open to the parties to seek to
establish the nature and the value of th e estate ; and
at that stage, if the appellant so chooses, he may
c hallenge the correctness of the 1st re~pondent's
entry of the house as fo~ming part of Daw Sein's
e state. Till then it .is . premature to consider the
.extent of the estate and we set aside that part of the
decree of the tiial Court wherein the declaration
was made in respect of this h()use.
In the event we set aside the decree of both the trial
Court and the Appellate Bench of the High Court and
-direct that accounts be taken Of the estate of
Daw Sein and that shares of the appe'Ilant and the
-t hree respondents be determine-d.
As neither party can be said to be wholly free from
blame for the compl~cations that have arisen in the'
dispute, each party will bear its own costs up to this
stage in the litigati<;>n.
. .
20 BURMA LAW REPORTS. [ 1952:

SUPREM E COURT.

t S.C. DALBIR (APPLICANT)

1951
v.
Oct. s.
THE SECRETARY, MI NISTRY OF H EALTH
AND LOCAL GOVERNMENT A:-10 TWO OTHERS
(RESPONDENTS). ".1<

Local Autlrorilies {Su~jlcnsion) Ad, 1946--Effect on MuniciPal .4cts 011d

Ru'rcs-MiliJnry Adnziuislration Proclmuntiou 8 of 1949 n11d 7 of 1950-
Ef!ecl 011 MmticiPal Act a11d Rules.
Application fo, dir ections in the nature of quo wnrrar~fo ag!lin$,t
Respondents 3 {al to 3 (11) from holding office and acting as members of the-
Maymyo Municipality on the ground that their election was null and void
as the same were ordered without the express authority of the Supreme
Comn1ander.
Held: The Lo~al Authorities \Suspension) Act, 1946 contains no express.
prodsion in the Act or elsewhere that nles made under the Municipal Acts-
are susrended on coming into force of the said Act. S. 8 contains in ternal.
evidence of the intt.ntion of t he Legislature to leave the rules untouched .
. Helcinlso : That Military Proclamation No.8 of 1949 was issued by the
S~preme Commander as the President of the Union of Burma, in exercise .of
powers granted under s. 2 of the Proclamation of Martial Law 9rdinance,
1948 and had directed by proclamation that Martial Law shoul d be enfoJ:ced
in the Mandalay District. The SJid Ordinance does not expressly provide-
that at~y law should l:e suspended or deemed to be suspended in such are'a
and the proclama:!ons issued by the Presid:nl and Supreme Commander .do
not purport to suspend :\ny law. So all laws r emain in force in su..:h area.
except those which are inconsistent of the Ordinance and the primary
~~~~ .
Held also: The Supreme Commander had in Military Proclamation
No. 8 of 1949 directed that the administration of all cep!J.rtmcnts in the
District, except the Judiciary, should be under the char~e of a Committee ilnd:
delegated powers of adqlinistration to such Committee but no order' or.
direction about Municipal e lections ' had been issued by him after s~ch
delegation. Conseq uently, the Municipal elections held in accord~ce with.
M).micipal Rules and the Election of the Respondents-are not impeachable..
Further by Notification dated 5th March 1951 the President bas declared
that the said Act[Local Authorities !Susp.ension) Act, 1946] shall no Iong~r be
in force from. the l Oth March . 1951 ; hence the Respondents can hold office
and f undi<n as usual.
~Civil Mfsc! Application No. 4S of 1951 against the order of' the
Secretary, Mini~rY of Health and Local Gov~rnmen~.
t Pr esent: MR. }U~T.ICE E MAUNG, MR. }US.r iCB THEIN MAUI>G.: and
U SAN M AONG, J.
y
 1952] BURMA LAW REPORTS. 21

Chou11g Po for the applicant. S.C.

1951
DALBIR
Ba Sein (Government Advocate) .for the v.
respondents. THE
SECRETARY.
MINISTRY OF
The judgment of the Court was delivered by HEALTH AND
LoCAL
GOVERN-
MENT AND
MR. JusTICE THEIN J\1AuNG.-Tbis is an applica- TWO OTHERS.
tion for directions in ~he nature of quq ~ananto
against the respondents Nos. 3 {a) to 3 (n) to prevent
them from holding office and acting as members of the
Maymyo Municipality on the ground that their
election was null and void inasmuch as'' the Municipal
elections were ordered without the express authority
of the Supreme Commander."
. . Two important questions of law arise on this
application and they are (1) as to the effect of the
Loc,al Authorities (Susp~nsion) Act, 1946 on the
Municipal Act and the Rules made thereunder and (2)
as to the effect of Military !\.dministration Proclama-
tions No.8 of 1949 and No. 7 o.f 1950 on the Municipal
Act and 't he Rules made thereunder so far as the
Districts mentioned in them are concerned.
The learned Advocate for the relator has contended
that all rules made under the Municipal Act are
suspended on the coming into ..force of the Local
A.uthorities {Suspension) Act. 194o. However, there
is no express provision to that effe~t . the said Act
.o r anywhere else. As a matter act section 8 .
thereof contains internal evidenc of the intention
of the . L~gislature to leave the rules untoU<;:hed.
'It reads :
~ . .
Subject to the control of the Governor, ~be person or .
persons appoint~4 under s_eCtion 4 shall h~ve ~utbority to appoint
sue~ officers and 'ser.vants asmay be considered necessary for the
effective discharge of the. duties, power-s and functions, imposed
22 .B URMA LAW R.E PORTS. [1952:
S.C. upon or vested in such person or persons, and, subject to t he
1951
provisions of this Act, the provisions of the Municipal Act or the
DALI:!lR Rural Self-Government Act, and the rules made thereunder,
v.
THE whichever of these Acts may b e relevant, shall apply to any
~EeRE'TARY, officer or servant so appointed."
MINIST'RY 01"
HEALTH AND
LoCAL
The learned Advocate for the relator has further
G:onRN contended that even if Municipal rules were not
MENT AND
TWO OTHERS. suspended on the coming into force of the said Actr

they were suspended by the Military Administration

Proclamations or at least that municipal elections in
the areas covered by the Proclamations could be held
only under specific directions given by the Supreme
Commander.
Military Administration Proclamation No. 8 of 1949'
was issued. by the Supreme Commander as the
President of the Union of Burma, in exercise of the
powers vested in h.i m under section 2 of the P.roclama-
tion of Martial Law Qrdinance, .l9481 hadbY'P-rocl~ma:~
tion dated the 6th Aprli; 1949 directed that Martial
Law should be e.11forcedtn the Mandalay Di~tri.ct.
. The said Ordinance does. not expressly provide that
any law should be suspended or be deemed to have
been suspenqed in the area in which Martial Law is
enforced ; and the Proclamations issu~d qy 'the
Presiden~ ' and the Supreme commander do :not
. purport to suspen<t any la~ at all. . .. . .
:sd an the laws remain in force. in such an a:r~a
~xcept those, which are inc;:onsistentwith the provisiens
of the Ordina:nce and the' primary object thei-~of{ as
stated irr section 3, that the area sha.U be administe~ed
as di.recte~ .by the Supreme Commander. and which
must on that
. account be .deemed exnecessitate to h.ave
() '

.been kep~).ri. <:J.beyan.c e for . the time being by impli:~ a-

tion; and: 1( has .not even been. sugge sted that' the
~t.inidpal Act and the Rule~ thereunder ate .inconsis-;
te nt with . them.
 1952] BURMA LAW REPORTS. 23
Wi th reference to the contention that municipal S.C.
1951.
elections could be held only under specific directions
DALBIR
given by the Supreme Commander hifns.elf, the v.
THE
Supreme Com der has in Military Administration l:)ECRE.T..,.RY,
Proclamaf o. 8 of 1949 directed that the MINISTRY OF
HEALTH AND
administration of all departments in the District, except LoCAL
GOVERN-
judicial, shall be under the charge of a Committee and MENT AND
TWO OTHERS.
delegated to the said Committee full authority to
conduct on his behalf the military admir7istration of
the civil population in the District, subject always to
his orders an<:l directions which he might is$ue from
time to time. ; and it has not even been suggested by
the learned Advocate for the relator that the Supreme
Commander bas issued any order or direction about
Municipal elections after he had delegated full
authority to the sa~q Com~ittee.
So t.h e Municipal Elections which have bee.n held
in accordance with the Municipal Rules made by the
President of the Union of Burma (in supersession of
some of the Municipal Rules, 1934) and published on
the 11th .August, 1950 and the eJection of the said
respondents which has been notified under section 22
of the Municipa{ Act by the Chairman of .the said
Committee, as reconstitutedby-Military Administration
Proclamation No. 7 of 1950, are. not impeachable
at all.
Besides, the said respondents can hold office and
the Maymyo Municipal Committee can function as
usual since the President of t_he Un~on of Burma has,
in exercise of the powers conferred by section 1
sub-section (2) of the Local Authorities (Suspension).
Act, 1946, and by a notification, dated tl}e 5th March
1951 declared that the said Act shall no lQnger b~ iri
fotce with effect (rom the lOth March, 195 1 {i .e., on
the very next day after th.e elections}: m respect
(inter alia) of Maymyo Municipality.
24 BURMA LAW REPORTS. [1952

s.c. Incidentally, the President of the Union of Burma

1951
has also directed by Proclamation No. 2 of 1951 that
DALBI R
v. Mandalay~District (inter alia) shall cease to be under
THE military. administration with effect from the 1st June,
S.ECRETARY.
MINISTRY OF 1951.
HEALTH ANO
LOCAL The application is dismissed with costs; Advocate's
GovERN-
MP:NT ANO fee ten gold mohurs.
TWO OTHERS.
 1952] BURMA LAW REPORTS . 25

SUPR EME COURT.

V. RAMASWAMY I YENGAR A~D OTHERS tS.C.

1951
tAPPELLA NTS)
Oct. 24.
v.
S.V.K.V. VELAYUDHAN CHETTIAR AND ONE
(RESPONDENTS).*

Contract of Agmcy-At;ettl 111 wemy occupied territory, priuofal i11 lnrlia -

E!fcct-La;., npp1ic11blc- Burma Lnws A .:I, s.13 (3}-Whet her 1 ~fer,ational
Law or laws of Burma c1P/>licable-De/c11ce of Burma Aci-Crmtr~o~cf Act- Ss.
23 and S6-co11jlrct of lnws-Coutrncl of agency if govcmed by t/u law
where the j;rit~cij>al resides or ca rries on bust~~ess-lntenJion-Mixed
question of law nndfact-Ncw case 011 appcal - Wiutlterpermissible.
The Appellants (Receivers in India) appointed Arunilchalam as agent to
-con tinue to carry on money lending busine-ss in Rangoon . War broke
out and Burma was occupied by the Japanese. During occupation the
Respondent paid in Japanese currency his debt to the agent Arun:rchalam.
The Appellants contended that the Contract of Agency came to an end bv
operation of law and the agent ha-t no authority lo accept the amount.
licirt Under s. 13 (3) of the Burma Laws Act in cases not provided for
by sub-s. 1, viz., succession, inherili\tu;e, marriage, etc., the ordinary Jaw of
ihe land, if any, should apply and, if there is nt) such Jaw, the case sho uld be
.decided according--to justice, equity a:nd good conscience.
International law deals w.ilh the question of r elati ons between Slates and
not between indi viduals. The laws or Burma applicable to the case are t.> be
found in the Defence of Burma Act and its Rules an.d the Contract Act. The,
Defence of Burma Act is designed or intended for proteccng Burma during
the War. With this object it was provided that no per~on resident in Burma
should trade: or have intercourse with the subject of any enemy slate or with
.any person 'residing in enemy occupied country_. T he p rohi~ition did not
. apply to intercottrse between persons lil'ing in Burma and those living
in other parts of the British Empire. The Act never contemplated that Burma
would be occupied or, if. occupied, there should be no intercourse between per-
-sons in Burma and in other parts of the British Empire. The Defence
-of liurma Act is therefore not applicable.
The provisions of the Contract Act that are applicable are ss. 23 and 56.
S. 56 deals with superveniug illegality. As intercourse bel ween people living
an enemy-occupied Burma and people in I ndia was pot p rohibited under the
Defence of Bunna Act, th.: contract of agency did not be~!Jle illegal cnder
. ~

Civil Appeal No. 20 qf 19.J9 again>t the decree of the Appellate . Side,
iHigh Court. Rangoon,.in Ci~ii . lst Appeal No ..39 of 19W, dated 25tll July 1949.
t . Pr~smt: SIR BA U, Chief Justice of the Union of Bunna, MR. J usTICE
MAUNG and U ON PE;, J. .
26 BURMA LAW REPORTS. [1952
s:c. this section when Burma fell under the occupation of 'the enemy. S. 23
1951 provides if the Court regards the consideration or object of an agreement
as oppo,ed to public policy, the agreement is void. Public policy is not
V.RAMA
SWAMY define::d in th~ Act. It is used in such a way as to serve the interest of one's
IYENGAR own country. Different policies h::we been adopted by England and other
AND O,T ,HURS countries following the British system and by continental countries on the
v. effect of war o.n contracts. In England the giving of opportunity for the
S.V;K.V.
,VELAYUOUAN conveyance of information which may hurt lhe cond uct of war, or may lend io
CHETTIAR increase the resources of the enemy or crirples the resources of the King's
ANOONE. subjects, is prohibited under lhe Act.
Ertdl Bieller Case, (1918) A. C. 260 at 274, referred to.
The ;rincipltrfollowed by Germany, Austria-Hungary, Holland and Italy
was to allow ~ntercourse and trade between persons residing in those
countries and persons residing in enemy countries even after the outbreak
of war unless it was prohibited by speci:~.l enactment, the reason bein'j~
that it wou ld be in their interest.
. .
Oppenlleims lt1fernaltot1al Law, Vol. II 15th Edn,) 263, referre:f to.
iBy allowing trade and intercourse as in this case, the interests of Burma
wotJld not only be not injured but be promoted. Looking on 't he question from
the interest of this country (and that alom: must be taken into account)
such intercourse cannot be held to be opposed to Public Policy under
section 23 of the Contract Act.
Fprther, where the principal and agent live in different conn.trie~ there~
no presumption that the contract will be subject to the law where tJili
principal resides and not where )le carri'es on business. Th.e conc11,1Sio~ ~~;
somelimes be justified that they intended .their contracts to be g~yernei.by
th.e law of the country in which the agent i~ intended to .act.
Diey's Conflicl of Laws:(6th Edn.), 710-711.
The intention of the parties being a mixed ques tion or law andfact and the
point not having been pleaded arid 110 evidence taken cannot be raised for the
., first time in appeal. .

P. K. Basu. for t~e ~ppella~ts.

"' ..
Dr.. Ba Han.: for lhe :respondent No.. f..
.
R. Basu for the resp~nd.~nf..No. 2:
The judgment oi the Coud was delivere d .bY tJie
~hief Justice of .th~ Uriion~ : ~..
. :~:.
u
SIR BA . -T he . p~~sent case is an offshoot .,--~
an .. adniinis'tration suit U.:t ed . in. . the .- .C.ourt of t~e
SubQrdinate Judge of D~va~.ottah, .Soti.thrn Irid~a.
The . administration suit -. conc enied : the es.tat~
 1952) BURMA LAW REPORTS. 27

of one RM.AR.AR.R:VI. Arunach,tlam Chettyar. s c.

19Sl
Arunachalam had one SOIL The son died before the
V. RAMA-
father, leaving a widow S!Jrviving him. A 5ew years SWAMY
later the father died leaviri;.<,~ urviving him two widows.
lYE~G.AR
AND OTHERS
On the death of the fa "'\r the widow of the son v.
S.V.K.V:
filed the aforesaid administr '_!\on suit, making the two VELAYUOHAN
CHETTIAR
widows of the father as parties to the suit. ~n the AND ONE.

course of the proceedings all the three widows adopted

a son each in accordance with their persona! law
and the said adopted sons wert: subsequently made
parties to the suit. In that suit appellants Nos. 1 and
2, V. Ramaswamy Iyengar and K. .R. Subramania Iyer
were appointed receivers. As receivers the appellants
1 and 2 took charge of the estafe of the deceased,
Arunachalam, inclucj.ing the money-lending business in
Rangoon. The mone.y-lendiQg business was then in
charge of an agent called Arunachalam. Arunachalam
was reappointed as agent by the receivers and allowed
to continue carrying on the business.
Then the war broke out and Burma was occupied
by the Japanese. During the time of the Japanese
o.c cupation. the defendant-respondent No. 1, S.V.K.V.
Velayudhan Chettiar paid a sum .of over Rs. 17,000 in
Japanese currency to the agent Arunachalam towards
the partial discharge of a loan of . Rs. 20,000 and
interest taken b~fore the war on an ~quitable mortgage
of some immoveable pr.operties in Rangoon. On the
re-occupation of Burn::ta the two receivers :;tnd tpe
heirs of RM.AR.AR.RM. Arunachaiam filed the
present suit. against the debtor Velayudhan Chettiar
for payment of the loan of Rs. 20,000 and interest due
. thereon mainly on the ground that, ~hen Burma
.was occupied by the Japanese, the 'contract of
0 .

. agency. b.~tWet?n the agent, Arunacl;mlam, living . i.ri

enemy-occ.upied B.i lrma and his two principals living
m Indi.a ca me by operation of law to an end .~nd
28 BURMA LAW REPORTS. [1952
S.C. consequently Arunachalam had no authority to accept
1951
any payment on b~half of his former principals and
vs!~~~- give a dis...-::harge therefor. In support of this conten-
IYE~GAR tion a good number of English authorities were cited
AND OTHERS
v. at the B:n ; but before w~ deal with these authorities,
vES:;~~~AN what we must first determine is what law is applicable
~~~T;!~~ to the case, Municipal or International law.
Section 13 (3) of the Burma Laws Ad provides:
~

E'

''In cases not provided for by sub-section (1), or by any

other enactment for the time being in force,. the decision shall
be according to justice, equity and good conscience."

Sub-section (t) deals with the application of Buddhist

Law in the m;itter of succession, inheritance, marriage
and etc. in cases where the parties are Buddhists,
Hindu Law where the parties are Hindus and
Mohammedan Law where the parties are Mohammedan~.
In other words, what the Burma Laws Act provide? is
that in casec; involving the question of succession,
inheritance, marriage .and etc., the personal ' law of .
the parties concerned should apply but in o~h~;:r
cases the ordinary law of the land should apply 'if
there be any ; but if there is none, the cas.~
should be decided according to justice, equity and
good conscience.
The presen.t case must therefore be decide,d
according to the law of this country. 'l ntrnati6'nal
Law is a law that deals with . the question. qf
relations between States and not between i ndividuals
as in this case. The law of thi~ :country applical:>:~.e
to this case is to be found in tlJ,e . Defence ::of'
B-urma Act e and .the l~ule~ . made there.und,er ~nq
the _- Contrf:~t ...~ct. The Defence: of Burm"; Act
is no longer .- in force: It wa~ repeal;ed s~~e
years ago b~Jt .~t. the ' 'time relevant .to
' t'hi~ ca~e .
it .was in force. The Act was <l:esigned .and
1952] BURMA LAW REPORTS. 29

enacted with the sole object of protecting Burma S.C.

1951
durin g the war and to ensure the achievement of V. RAMA-
this object it was proviC:ed inter alia that no SWAMY
IYt;;~GAR
person residing in Burml should trade or have A:\D OTHERS.
intercourse with a subject of an enemy state or
...
S.V.K.V.
with any person residing in an enemy state or in VEL , YUDHAN
CAF.TTIAR
enemy-occupied country . .The prohibition did cot At;:D Ol'E.

apply to intercourse between persons living in

this country and those living in other parts
of the B.ritish Empire. Having regard to
this prohibition, what is clear is that the framers
of the Act never contemplated that Burma would
be occupied by an enemy and, if occupied, there
should be no intercourse between persons living
in this country and persons living in the other
parts of the British Empire.
The Defence of Burma Act is therefore not
applicable to this . case. What is applicable is the
Contract Act. There are two provisiOns in the
said Act which have a bearing on the point m
issue. They are se'c tions 23 and 56. Section 56
says, inter alia :
" A contract to do an act which, ~fter the contract is
made, becotnes impossible, or, by re<~son of some event
which the promisor . could not prevent, unlawful, becomes
or
void wheel the act becomes impossible unlawful."

The section,_ as it stands, deals \vith the questions

of supervening illegality. As intercourse between
a perscn living in enemy.:occupied Burma .and. a
person livmg in India was not prohibited by the
Defence of Burma Act, the .contract of agency
between Arunachalam and his two principals did
not becom~ illegal unde r the said Act when Burma
.fell under the occQpation of the . enemy. If the
contract of agency was to become illegai, it . would
 BURMA LAW REPORTS [1952
S.C. bec0me illegal under section 23 of the Contract
1951
Act which, inter alia says :
V. RAMA-
SWAMY
IYENGAR '' The consideration or object cf an agreement is la\\ful
A;)ID OTHERS unless-
'11
. S.V.K.V,
VELAYUDHAN * * *
CHETTIAR
AND ONE. the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consic!eration or object of
an agreement is said to be unlawful. Every agreement of
which. the object or consideration is unlawful is vd d.','
r .

Now, what is meant by public policy? It is

defined nowhere. It ,is a loose term and so i.t
is used in such a way as to serve the interests
of one's ow~ country. This is best illustrated by the
different policies followed by England and othe:r
countries which have adopted the British . system
of jurisprudence and continental countries of Europe
in dealing with the question of effect of . War on
. t

contract.
Tl:J.e classical exposition of ~he principle_ followed
by England and other countries which fo~low h~r
system of law is
to be found in the E11ell Bid3cr
cast (1} where Lord Dunedin said:
" From these cases I draw the conclusion that i.1pon 'the
1,round of public policy the continued existence of conir:1dual
relation between subjects and alien enemies Cr .Persoris
v(?luntarily resiclin~ ein the enemy country which (l) gives
<:>pportunities . 'f or the conveyance of
information which ~.ay
hurt' the conduct of war, or (2) rriay . tend.- to incre~~e
the resources of .
the enemy or . cripple the resources : o
the King's subjects, is obnoxious and prohfbited :.by
our law~

AccordiQly in all the cases d:ted at: the :Bar

what .is fpund is that a contr.a d elite~'~ d. i:~t~ .
. .. ..
(1) (1918) A.C. -....
260~2i4: ..
 1952] BURMA LAW REPORTS. 31

between a British subject or anybody living in S.C.

1951
England and a subject of the enemy state or a
V. RAMA-
person living in the enemy state or enemy-occupied SWAarY
IYENGAR
country becomes abrogated on the outbreak of \\ar. AND OTHERS
On the other hand, the principle follov;ed by v.
S .V.K. V.
G ermany, _Austria-Hungary, Holland and~~taly, at VELAYUDRAN
CHt>:TTIAR
least before the First World War, was ~o allo~.<v A ND ONE.
intercourse and trade between persons residing
in those countries and the persons residing in
enemy countries even after the outbreak of.. the
war unless it was prohibited by special enactment,
the reason being that it would be in their interest to
allow it. See Oppenheims International Law, Vol. II
{5th Edn. ), 263.
Now, was it in the interest of this country
that there should be no trade and no intercourse
between persons residing in this country after its
occupation by the Japanese and the, persons living
in India ? The answer must be in the negative.
By allowing intercourse and trarle, if possible,
between persons living in thi~ country after its
occupation by the Japanese and the persons living
in India, the interests of this country would not
only not be injured but on the contrary be promoted
in that it would afford greater and better facilities
and opportuniti~s for the liberation of this country.
Therefore, looking. at the question purely from the
f.
ti n terest of this country, and th~ interest of the
f ountry only_must be taken into a~count, intercourse
rnd ~rade petween persons living in this cou'n try
even after its occupation by the- enemy and the
rersons living in I ndia must be held not to be
~pposed to public policy as laid down in section 23
of the Contract Act. ~
~ .
~- I~ fher~fore follows that the . contract .of agency.
petween Arunac~alam - and h~s two principals in
32 - BURMA LAW REPORTS. [195Z
S.C. India did not become abrogated under section 23
1951
V. RAMA-
of the Contract Act.
SWAMY It is, however, urged that if accordiD:g to the
IYENGAR
AND OTHERS law of tpis country the contract in question did
v. not become abrogated, it must still be held to
S.V.K.V.
VELA YUDiiA~ have become abrogated according to ~he law of
CHETTIAR
AND <NE. India as it was in India the contract of agency
was created. Put it in other words, the submission
is that the question of the termination of agency
.
c.r o~herwise must be decided in accordance with
the law of the. country where the agency is
created. This, vYe do not think, 1s the correct .~
exposition of L1vV. What ts, m our opm10nt
correct is laid down in Dicey's Conflict oj Laws (1),
where the learned author observes
" Whe1 principal and agent live in different countries'
there is no presumption that the contract will be subje6t
to the law where ~be principal resides or carries on busincs~.
In this case, . and even in a case in whiCh both ' parti~s
live in the same country, the conclusion may and will
son1etimes be justified that they intended tbeir contract to
b~ governed by the law ot' the country in \vhich the agent
is intended to ad.''

Before decidiJ;~g what law is applicable, tli,e

intention of th.e parties must first .be determineq.
In the present case the poirit in q\lestion wa~
~ot pleaded ;;tnd no evidence 'was therefore taken
thereon. such ; point, being a mixed q uestiQn.~bf
law . and fact, cannot be raised for the first tifile
m this Court. :
li1 this view of the case the appe~l f.ails ~b_d
lS di~inissed with costs; . '

ur 6th: Edn, t?r. 7Io, 7n:-

1952} BURMA LA\\' REPORTS. 33

SUPREME COURT.

THET TUt\ (.L\I'PLICAKT) t !:;.(; .

1951
1'.
O:t. 24.
DEPUTY COMMISSIONER, SHVvEBO A~ll
ANOTHER {RESPOXDENTS).*

Public Order \l'restr'i'al tou) Acl-tl f>tliC.!I ion for writ of habea:: C()JO!>ns-
Ortlu of tl.tmlion, in signa/-l/1(/t:{inilc tldeulitm of ~ detc111tt: .fr
4 y.:,rrs-Va/idily-DeJeg,,li.>n of f<>tiJ ' I'.< of dcl euliou n11d nllmdnril
da11gers.
An t)rder of detention, 'in si.~tn~l ' was received from the Deputy
.Commissioner, Shwebo and the detenue l:cpt in detention since December
19-li. The original order produced before the Court showed U1al it \\':15
issued on the 22nd December 1949 in supersession of the detention
in signal. The Deputy Commissioner applied to the Court for time not
Jess than 30 days to compile a History Sheet of the Applicant after receipt o
_notice of an appli~,;;~tion for release.
Held: That an order of cletention ' in si~n:ll 'cannot l>e acted upon <n>d
a citizen of U1e Union cannot be kept in cl.;tention on authority of any such
..~igr.ai.
, Detent!on for a short period penclin)! investigation is .entirely different
.from indefinite detention for a period of nearly four rears. lnspite of the
i-detenue having been in custocly for nearly four years, as the anthorilies
~irccting sucl1 detention \vere unable to state '~ithout further enqu ir y the
[:trounds of detention, the order of ~etention ~houtd be qn<tshcd.

Ba Sein (Government Advocate) fvr tbe respondents.

Tb c judgment of the Court was d elivered by
MR. JUSTCCE E MAUNG.-The fa.cts and circum-
ces of this case reflect no little discredit on the
ini strati~ c officials concer.ned and exemplify the
attendant on extensive powers of detention
the Public Order (Preservation) Act being so
ly delegated as it ha-s been.
The applicant in his petition to this C9urt stated
he has remained in detention in various prisons ~

Criminal :Ofisc. Application No. 289 of 1951.

t Present : ,SIR BA (.!,Chief Justice of th.: Union of Bur;na, MR. Jusnc
A01>1G and .MR. JO.STICE rH.EIN .MAUXG.

3
34 BURMA LAW REPORTS. [1952
S.C. in the Union since th e 24th December 11J4!; but the
~951
Nominal Roll from th e Annexe Jail, Insei.n, gin!s the
THF.'f Tu~
v date of the order of detention as the 22nd Decembet-
DF.PGTY
COMMIS-
19-+9. Accordingly, in directing notice to sho\\' cause
iHO>: JW.
SHWI!:BO AND
the Deputy Commissioner, Shwebo, was asked ''to
A!\'0TH : ~ state in his return if the applicant bad been in
detention since 24th December 1947 as alleged in l1is
petition and if so, how and why the present order of
detel1tion was that of the 22nd December 1949."
Notices of the application were s~rved on the
Superintendent, Annexe jail. lnsein, ar~d the Deputy
Commissiouer, Shwebo on the 5th and 14th Septemb~r
respectively. The Superintendent o( tbe Jail filed his:
return ~ubmitting what purported to be a true ce>py
of the order of detention. This copy, however,
omitted an important .d etail, name'Iy, the date of ti)'e
order, and be was called upon to produ~e the originaL
The original or~ter showed th~1 t it was issued by {Jl'e
Deputy Commissioner, Shwebo, on the 22nd :December
1949 . in supersession of "the detenticm order, in
signal, "f' issued under this No. J 91.1/49 ~ 'ip
Disi.rict Office Miscellaneous General Proceedings
No. 16/XVI. of 1948. . .
The Deputy Commissioner, Shwebo, .applied. to
this Court by a letter of the 15th September 1951 for
" time not less tba:n 30 d~ys so as to . ~uable n~~. to
compile a History Sheet of. the applicant Thet Tiu1."
This letter was received on the 22nd September 1951
in this Court and the Judge in . Cha):Ilbers ina<}~the
following dia~y orde.r : - -

" i cannot unde1stand the request of the Deputy .Com-

msslOner fort time. He ol' his precleces~or had. llie d~it.enu
locked.' up ~nee 1947. _ii the allegations i~ _the ~ppiicati:ori;.are
true ;and for the .'D eputy Commis~ioner only nq"v to. hl1nf.!ip
materials again,>t the d.etenu is clearly illegal."
 BURMA LAW REPORJ'.S.. 3)

, he Deputy Commissioner was directed to file his S.C.

tJSl
turn by the 5th October l <J51. A copy of the order
T11.,;r '1 t;~
supplied to the Attorney-General and another v.
De!i'TY
y \vas issued to the Secretary, Ministry for Home CoM~ns
~~o~EI<,
ffairs. Stl\\'1 liO ,\!';()

On the 5th October 1951 the Government Advocate .<\~OTHER.

fl~'""".-.. before the Judge in Chambers that he had not
een able to obtain any instruction from the Deputy
mmissioner, Shwebo. Tbe case was accprclingly
ced before Court on 8th October 1951. The
urt on 8th October 1951 granted the request of the
overnment Advocate for a final opportunity to
"'"<U'J'",n a return from the Deputy Commissioner,
webo, and the hearir:g of the case was peremptorily
ourned to the 22nd October 1951. On the last
tioned date the Government Acivocate again stated
t he had no instruction at all from the Deputy
~ssioner, Shwebo. On this we directed the
,,....,.._.......te rele~se of the applicant, postponing the
nt of our reasons for the order of release to
ater date.
The order of detention produced by the Superinten-
t of the Annexe Jail, Insein, and the endorsements
reon support the applicant's statement in his
on th~t he was first taken into custody on the
December 1947, then sent to Mandalay Jail on
28th December 1947 and later transferred to the
Jail whence he was again removed to t.he
Jail at Insein. Thus the applicant had been
.-.nctl'\r1y for nearly four years. In spite of that, the
who directed his detention were apparently
e at the end of that period to state without
enquiry the grounds on which he had been
. Arrest and detent.ion for a short period on
pending investigat.ion are entirely different
from indefinite detention for a period of nearJy
36 BURMA LAW REPORTS. [1952

S.C. fuur years. \Vhat is clear in this ca3e is that lla\ing

l95l
pu t the applicant in detention the authorities forgot
THE.T T t:.'>
v. all abo 11 t him and his case till their attention was
DEPUTY
<.:o~rm:;
drawn lo the matter by a notice issued from this
~tox~H ,
Court.
SIIIVEBO A.'>U
,\.'>OTHER . It is hard to conceive of a more arbitrary exercise
of the powers under the Public Order (Preservation)
Act . than has been disclosed in this case. It is. also
difficult to understand bow an order of det~ntiolt ' in
signal ' came to be acted upon and a c i tizen of the
Onion kept in detention on the autbority of such . a
signal.
Vve must say that the failure of t he Depu:ty
Commissioner in making a return in the circumstances
set out above is highly reprehensibl e. Only the
possibility that abnormal conditions in Shwebu D istrict
might be responsible for the Deputy Commission~'r's
default deters us from taki.ng further action for w,~at
prima }!tete 1s a contempt of th e authority of i'his
Court.
 1tJ52] BURMA LA\Y REl'ORTS. 37

SUPR EME COURT.

TAN KHY \VET (.\ l'l'LICANT) S.C.

1951
Ocl, 2!1.
U YIN AND ANOTHER ( RESPONDENTS).*

r.,taucics Di$posal Rttlcs,19SJ , Rule 10- Rc-a/lotm.:n/ oflennncies-Teucw!-

S. 2-Scheme c/111~ Act.
In 1950-51 applicant's land was allotlecl to the 1st Respondent who~ubld
.1 portion to another without obtaining a;>proval of the ;~nthorilies. In l'JSI-52
loth parties applied for allotment vf l.ttHI to the Village Land Committee who
a!lo!ted it to the owner as in the pre\ions year the land had been Sl! b-h:
\\' ilhQut their consent. This was re,erscd on appeal by lhe Distric1 Committee.
r pon a writ of certiorari-
Held: That the Village Land Committee ha:t taken the correct view h;nin)!
regard to the scheme of the Disposal or Tenancies Act and Rules. t;n der
Rule 10 it is U1e tenant who is en lilted to claim renewal; and tenant has been
defined as a" person holdin~ land and liable to pay the rent of the ~aid land."
There are two conditions, 11i:;., the actual occupation of the land and U1e
liability to pay the rent. A person who did n ot hold the land cannot be s:~id
1
to be a tenant under Rule 10. If the owner of a&ce of land may not lt-a~c
t oat to a tenant' of his choice, the tenant :nay not ;f:o sub-ld, because allowing
~- of such sub-letting would be inequitable and can not bt: the intention of the
~ le){i:>lalnre and a reasonable interpretation must bt: gi,en.

Tuu. I for the applicant.

Sein (Go.vcrnment Ad v'ocate) for the respon-

T he judgment of the Court \\'as delivered by

MR. JusTICE E iviAU~G.-This t:ase turns on the
irue interpret~tion of Rule 10 of the Tenancies D isposal
ules, 1951. The applicant adm ittedly is an agri"
Jturis( and his prin.:;ipal nJ<:ans of subsistence is by
riculture. In' addition he is also the owner of the
, nd in dispute: In 1950-51 the land was allotted to
. .
.. Civil Mi$C. Application No. 91 of 1951 against the order of the Dis_trict
d Committee, Amherst Distril"t. "
t Pr~cni: S IR llA U, Chier']ustice of !lie Union of Burma, i\1~. }USTICE
- ~fAUN~ anp !\IR. J USTICE THE!~ M.o\UNG,
,38 BURMA LAW REPORTS. [ 1952
S.C. the 1st respOrident by lhe Village Land Committte and
1951
t hat allotment \\'llS tCn)(irmt:d by the District Lan.d
T.\N KHY
Wt:T Committee. The bit respondent, however, did not
v.
U YI!': A~D work the entire land by himself ; instead he sub-let a
ANOTHI!H.
portion of it to another person, clearly without
obtaining the approval of either the Village Committee
or the District Land Committee.
When the agricultural season for the year 1951.52
arr~ved the applicant as well as the 1st resp0ndent
appEed (o the Village Committee for allotment of th e
land. _Th e Village Con~mittee allotted the land to the
applicant on the ground that the 1st respondent thotlgh
allotted the land Ior the year .1950-Sl wa8 not entitl'ed
to llave the land re-aUotted to him for the year 1951-:.52
as . in the previous year he had sub-Jet a portion ' of
the land. On appeal, the Amherst District Land
Committee held that the sub-letting of the land by a
tenant in the previous year is not such a defaulf-as
would entitle the Village Land Commitlee to r cft1se
ilim rene~val for th~ next year.
A superficial txamination of Rule 10 of the Disposal
of Tenancies l~ul cs, 1951, appears to support the
District Land Committee in the vie\Y taken by it. But
when the whole scl1eme of the Disposal of Tenancies
Act and th~ rules thereuuder are examined closely 'it is
clear to us that the correct view was that tak~n by. the
Village Land Co'h1mittee in .this case. Und~r Rul.e 10
it is the i>" tenant" i(he had been allotted the land in
1950-51, who is entitled to claim renewaL Ten~j-lt"
(I

has been defined..in section 2 o.f the Act as mean_ing

"a person or organization which holds land _ai):d is
liable to pay tb~ rent for th8 said land." . .
Now, ~here are fwo conditiqns, :zJiz:, the aCtual
. occ.upation of the l<}nd for the year .1"~50-51 <lnd,. the
liability to pay tl)e rent for that year. 'J~he person." \vho
did not hold th e land in that period cannot be saie;I to
 1'J52] BURMA LA 'vV REPORTS. 39

b t.: a tenant within the meaning of Rule 10. To bc>ld S.C.

1951
otherwise would be to lead to this absurd result thai a
TAN KHY
p..:rson \rho is allotted a piece of land for culti\ation WF.T
i;1 1950-51 and who, sub-letting that piece of land to a "
l1 YIN AND
tl iird party, engaged himself in other pursuits and A!WTHFI~.

became thereby an absentee under-landlord, would

have a right superior to that of the mmer or the person
who actually worked the land. That the owner of a
piece of l<incl may not lease it to a tenant of his cJ10ice
but that the tenant may su~-let it to any person and
yet be allowed to take cover under Rule 10 is clearly
inequitab'Ie and cannot have been the intention of the
legislature. Of course, if the Legislature had clearly
indicated its intentions the mere inequity of the rule
cannot entitle us .to override them. But in this case
t he provisions of Rule 10 can be reasonably i.nterpreted
in the sen~c we have indicated earlier ~mel it is in
consonance with the accepted principles of interpreta-
tion that the equil-'1ble interpretation should be
:preferred.
In these circumstances \ove are clearly of the opinion
that the Amher-st District Land Committee in allowing
the appeal of t he J st respondent e rred in law and we
.quash its dec_isiqn with costs. Adv?cate's fees fivi'J
gold mohi:.rs.
40 B UHMA LA \V REPORTS. [1952

SUPREME COURT.
tS.C.
1951 M. E. BHAIYAT & SONS (APPLICANTS)

Nov . '}. v.
THE CHIEF JUDGE OF THE RANGOON CITY
CIVIL COURT AND TWO OTHERS (RESPONDEi\TS).*
Urb111t Rent Co11frol Act, s.JCJ !2)-Principles af>Pltcable_:.Rejusnl of jnri~,/tC
tiO(f audf,tilure tv exercise jurisdiction nodiffereuce-Writ of certiorari.
'ih::re we~e 8 rooms in House No. 240{250, Edward Street, Rangoon on
each of th~ three floor~. di vided into four sets of rooms of equal size. On the
1:~1 S~ptember 1939 lwv tenants were paying at Hs. 3CO a month ;mel two
others at Hs. 400 a n1onth. Helying on Notification No. 77, dated 1 7! h 1\la~ch
1949 of the i\iinistry of Finance and Revenue the owner chargee! l2! per cent
i;lcrtase upon the rental calculated since April 1947. T he landlord then
applied under s. 19 of the Crban Htnt Control Act to certify standard rent at
ns. 450 in respect of the rooms. The Rent Controller fixed at I?s. 375.. a
month in respect of two -tenants who occupied since 1st September 1939
and in respect of the other tena nts fixed it at Rs. 450 per measem and
claimed that he was bound to do so upon the basis o! the 1939 rents.
Held: 'Where a tribunal owing to wrong interpretation of an enactment.
held that. it was incompetent to l'ntertain a certain matter aitd did not on sOJ:h
Vic:!W enter(;.in it a writ of certiorari Could issue. :;
There is no distinction between cases of ref usaf to exercise jurisdict:on ncr
a fail~re to exercise jurisdiction arising from a mistaken view of-tlie extetlt_of
j'Owers conferred. 'fhe Controller was wrong in his interpretation of the
:'\otification and failtd to exercise his jurisdiction, !.ence his ~rder nnist be-
quashed.

Mirza Md. Raft for the applicants.

' '

Chan Htoon f._o.r: the respou.d ents.

The judgment of. the Court was delivered by

MR. JuSTI<?E E MAuNG.-The learned Atton~ey

General who appears for the Chief Judge of th~
Rangoon City Civii C~>u_rt _and for the Qontroller. of
tl
" Civil Misc. Appljcation No:.- ss of 1951 against the order of the Chief
J udge of the. ~.n~toon City Civil Court in Civil Hent Refen:1ice No. 21 o)950_
-t Prese11t: Sia lhu,. Chief Justice or' the Union of :Bunua, i\IR. JU~TICE:
E MAO.NG and Mt~. JUSTICE T'H_Er~ - ~I_A{n;G. . . _,
1952] -H

l{ents, l~an ,~uon, and who ha::; aJ:;,, been briefed by the s.c
1()51
3n.l respondents the Sooratee Bara Bazaa r Company,
~1. t: .
[ l:ts acldrc:'Secl the Court at great length and with great flii .\1\"AT &
S1:>::; .
h:a rning. In spite of all that, ho\rever, \\e aresalisfied
~.
that this is really a very simple case and can be Til l-. CII JEF
jvl1G E >!'
disposed of 911 a short point. TI:J>
HA'I:(:OUN
House No. 240/250 in Edward Street, Hangoon, is crrv <.:;vJL
Cotln Al\0
a three-storey building with 8 r9oms on each floor and 'fW(> (I Til k:R~.
divided into four sets of rooms of equal size .. and
convenience. The house \vas let to four tenants, two
:-~f these tenants paying on 1st September 1939 Rs. 300
per mensem as rent and hro others, of whom one is
the applicant before: us, r~s. 400 per mcnsem. The
:lifference between the rents has been explained as
being due to the former hro tenants having paid
.s alamis to lhe .o wners on tbeir entering on the leases
d their different sets of rooms in the house.
In April 1947 the O\\ners, who are the 3rd respon-
:dents before us, reduced the rent of the set of rooms
occupied by the applicant to Rs. 300 per metisem. In
July 1949, apparently r e lying on Notification No. 77 of
the 17th March 1949, issued by the Ministry of Finance
and Revenue, the owner charged the applicant
Rs. 337-8-Q beil1g 12! per cent incr~ase on the rent
whic h they had been charging the applicant since April
t947.
Later, appar.entl); realising that Uflder the Notifica-
tion refcn ..<:d to earlier ~2t _per cent inc rease ~hould
~ave been on the rent patd on 1st September 19J9, the .
~d respondents applied to the Controller of Rents,
Rangoon, under section 19 of the Urban Rent Control
ct to certify the standard rent at Rs. 450 in resp_e ct of
I the premises in the house. Objections were filed to
at appliG~tion by ail four tenan~s. .The RelJt Control..: .
r "ir:t respect. of .those two . tenants who wer.e on
st Septein\)er 1939paying R~. 399 per mens_em fixed
42 BURMA LAW REPORTS. ! 1952

S.C. the standard rent at Rs. 375 per mensem. In respect of

19SI
the applicant and the oth er tenant, \\'ho were 011 that
M. E.
BHAIY ,\ T ~
date paying Rs. 400 pe r mensem, he fixed the standard
!-:iOKS rent at R s. 450 per mensem.
v.
1.'111> C II! F.I' In fixin g two different sets of standard r ent the
]uoor. or
TifF. Controller sai cl :
RAI-<CHI0:-.1
CITY Ci\'JL
Counr ANI, " It would be anomalous ia l hat the standard rents of the 4
''T WO OTH F.RS. sets are nol uniform while the siz~s of the rooms are tbe same but
I am bounj under the Act to fix tbe standard rents basing on the
1939 renhls which \\'ere varying."

It is this order that is sought to b e quashed by tht

applicant and which the learned Attorney-Ge neral on
behalf of all three respondents strenuously sought to
maintain. Mr. Rafi for the applicant claims that it is
clear from t he order taken as a whole that the Control-
ler took the view that he was bound absolutely by ,Jhe
Notification and that whether the figure \\'Orked oui in
accorda nce with the Notification was just or oth cr \\'ise,
he was un der a duty automatically to fix th~t figl!rc as
the standard rent.
The l e~ rned Atton_1 cy-General concedes that if tile
order can be reasonably inte rpreted in thnt sense, th e
Controller must be taken to have failed to exerdse a
jurisdiction which is right1y vested in him by section
19 (2) of the Act. It is true 1hat the learned Attorney-
General sought lo dra\v a distinction beh,een a re fu ~al
'Of jurisdict.i on and a failure to exercise jurisdi-ction
arising from a mi staken view of th e extent o~ th e
powers of the Controller. If we do not do him
injustice, the learned Atlorney-Gentral conten d< d' that
-a tribunal refusing to exercise its jurisdiction which ' to
its knowleelge is vested in it; is in a different position
:altogether for t he p~:rpose of certiorari ~rom a t ribunal
whi ch owin g to a wrong intetpretaqon of a n enactme nt
ihought it was in co_m petent to_entertain ~certain n1:atter
 1952 ] BL:RMA LAW REPORTS. 43

.and did not on such ,iew enkrlain it. Tl1is iS \ery :- .c .

1' )1
ingenious but 'vve see no substan ce in the distinction.
~i.E.
The learn ed Attorney-General further conte.nded that HH .~I\- ,\T &
the order was not capable of the interpretation \rhich t!
THE Cfi!F.F
Mr. Rafi sought to put on it and that \\hat the Control jUJoc;F, OF
ler intended to say really was that Rs. 450 per mensem THE
!\,INGOON
was a reasonable figure for the set of rooms occupied CITY CIVIL

by the applicantbut that (~regretted his inability, in

CorJ:T ANO
TWO OTHERS.

>:icw of certain restrictions on his power, to .. asseS the

rent in respect of the two other rooms at a figure in
<->xcess of Rs. 375 per mcnsem. The matter therefore
n~solves into a simple one of interpretat ion of the order
.of the Controller. V\'e are clearly of the opinion that
ihe interpretation sought to be put on it by the learned
-Htorney-General is a strained one and that the natural
=i nterpretation is that put on it by Mr. Rafi. It is
)n teresting to note that the learn ed counsel who
~ appeared fo-r the .3rd respondents in the first instance in
;ihis .Court and who settled the necessary affidavits,
' .obviously acc~pted tile interpretation whicl-i Mr. Rafi
i :rlaccd on that order. Paragraph 5 of the affidavit of
~Ca:;sim Ali Bham, Secretary of t.he Sooratee Bara Bazaar
~,!Company,- is -clear on this point.
[ It follo\vs therefore that the order of the Controller
~ ust be quasJ1ed. It is of course open to the 3rd
~espondents to move the Controller, and to the Control-
r_er, lHl such motion, to consider the matter further ~nd
rome to -a decision in accordance ,,ith law. But th.e
p>resent order cannot be allowed to stand.

t
The order of the Rent Controller is accordingly
uashed with costs. The case was heard be(oe the
ourt on two days and in view of the fact that senior
ii\dvoeates were engaged we assess Advoc~'!e's fees _at
flwenty_gold mohurs. . . . _
4+ Rt.JR~1A L AW REPORTS. [1952

SUPR EME COURT .

t S.C. DR. GORDON S. SEAGRAVE (APPELLANT}

1951
Nov. 12.
v.
THE UN ION OF BURMA (RESPONDENT).'"
Hi;;lt Trc11sou Act, s. 4 (1)-C/urrgc of abetting rcbcls-Eucomat;e , luHIJour.,.
cgmfort, mcnning of-lutculiou to cuc:nwage, rtc., tiCCcssnry-P,cswup-
tio" of \aw of a mau iutcllJiiug the nntur<tl conseqtiCnccs of his act
rcbuttabte- BetJcjit of doubt must be ghcn to accJ,scd.
The H ip:h Court confirmed the Special Tribunal's judgment ar1c1 sentence
a11ainst the accused on a charge that he had encoura~ed, aided and comforted
Naw Scng a.1d his followers by giving them med icines and surgical instru-
IIH:nts and that thereby he conunitted an offence under s. 4 (1) of the High
Treaton Act, 1948.
I n saying that the giving away of instruments and m~dicines would be an
liid the High Court assumed that the appellant pleaded guilty to the said
char~e.

Helcl: On appeal by special lea,e, no person shall be presumed to ha,e-

pleaded t(uilly to a charge nnd that what he says is w.ithin the mischief <?f the-
charge. 'Vhat the. appellant pleaded amounted o nl y to an admission or facts-
and not of the offence charged. .
The word" a id " i~ not \!!ted in s. 4 {1) of th e Hi.l!h Tre<~son Aot, th e words-
used arc " encourage, harbo.ur or comfort". They are not defined in the Statute
and no rt:ference can be made to :~nothet Statute bec:\llse ol\ly th e worcf
" harbour" is found ased in the other Stalule. The words "encoura~e ancl
comfort must therefore bear their or dinary meanin g.
Encourage " has been de fined to inc~n "embolde11, incite, instig;tte ",
"Comfort as mean inz;" to strengthen ,. to encourage, to ~upport , to invi!(orate,
to :lid , to abl'l or to counten:u~cc." What the Court m~t lind is what is tlle
intention. The appellal1t gave a box of surgical in~trnuenls aitcl mec1iein('.
If it was not his intention to encourage, harbour or comfort the appellant
would not be guilty. It is a fundamental principle of Jaw that a crime js not
commitled if the mind of the person doing th~ acl is in nocent.
Ravtdt~ HariPrasada Rao v. Th e State,l.I.R. (1931) Supreme Court Hep.
322, followed. .
The state of the mind of the appellant shouJd be judged not by a single act
of gi\'ing some instruments and medicine but all the circumstances of the case
must be taken jpto account; . .

Criminat Appeal No.16 of .1951.

t Present : StR BA 1:!, Chief J ustice of the .Union of Burma, MR. JusTJCE
TH1:-1 !11AUNG and U T HAUiG SEtl'l, J.
i 952J UURl\IA LAW REPORTS. 45

The lean:e.t jud;,:cs in the Hi g h c..urt in c.>min g lo a ,onclusion on the ~. <..:.

harge wen< on the prt s umption that a m:;n inkncls th e nat ural t.,ns,qcnces 195t
i hi$ ill:!. But lh i ~ inference l'annot be dra w n where :1 11 :ct i ~ <lone by a
U t. Go tm o:-<
~'crson in subje.:ti,)n of the powe r of other~ tspeciall ~ if that be a hrut:li S. S IU GRA \"f:
:acmy. T he !::uilt~ intent ca nn ot be pre~utllcd a nd must be ' prt>\"C:cl. If
;ircu mst:ll;,cs showtcl that the act w:11 done inl'u bj ection to the pow<: r of tl:e T n: UNtON
enemy o r i ~ a" consistent with an innocent intent as \\ ith the crin in:~ i intent Of Br R)l.~.
or if there be a doubt in the matter the appellant is entillc<l to l' e acquitted.
1n t he pre,:cnt case the necessary inference is that the ap pellant w 1ntcd to
s:we his property : taking the w orst vi<:w. ghing or m ed ici nes a nd i::stru-
ments was consiste nt wit h an innocent intent as w e ll as with th e Ct illl ina l
ntont : the benefit of the clOitbl must be g iven tv the appella;1t.
Ucx v. St u w e L.R. (19-l7) 1 K.B. 997 a t p. 1006, referred to.
\:V hat inference should be drawn from pro\ect and acl.nitted facts i~ a
~nest ion of law : if a misca rria~e of ju~ t ke has resulted from a \\" ro ng
n ien~nce the Supreme Court will interfere :~ n et I'Ut it rig ht.

Kyat.i.' l11y i11t, K. R. r enkatmm, G. Honocl~s a nd

C. H. Chan for the appellant.

Chan Tun Aung \Assjstant Attorn ey-Get~ e ra l), for

the respondent.

The judgment of the Court was d elivered by the

...
Chief Justice of the union .

SIR BA u.:..._ This is an appeal by special leave. The

11ppellant is an An~erican citizen and a med ical practi-
tioner by profession. He \vas tried by a Special
Tribunal on three c harges under section 4 (1) of the
High Tr~ason Act, 1948, i.e., for encouraging and
comforting a rebel f)amed Naw Sengand his foll owers.
He was found not gujlty on the first charge and
acqui.tted. But he was found guilty on the second a:n.d
third charges . . On the second charge he was given six
year$' rigo"rous imprisonment and on the third charge
one year's rigorous . i mprisonment. The sentences
were directed to run conc.u rrently. .
. On appeal .to tl}.e High Court the conviction .. and
senten ce passed on the second charge was setaside and
the appell.a nt was . acquitted in t:,espect thereof. The
46 BURMA LAW REPORTS. [ 1952:
S.C. COil\'iction passed on the third ch~t rge was ,C()nfirm e:-cl
1951
DR. G<.li<JJO)o1
but t hl! sentence was reduct!d to the term already
s. SEAGH.A.VE undergone.
THE "
T; NIO :>l The f,i.cts, ;.as found by both the Trial and the
0!' BURMA.
Appellate Courts, stating th em briefly, arc these. In CT
about the last week of January 1949 Toun goo fell to
the Kar~n rebels; whereupon Lt.-Col. Zaw Gawng of
the 1st Kachin Rifles sent three companies under the
comrpand of Na\v Seng who was then a Captain in the
Army fron1 Thawutti to Yeclashe. On arrival there
Cap'tain Naw Seng forswore his allegiance to the Union
Government and went over to the Karen rebe_ls ancl
joined forces \\'ith them. Some time later he broke ~
into the Shan State and we.nt upwards v.:ith som e
Kachin and Karen rebels, seizing Taunggyi 1 Lasbio and
Hsenwi on the \\'ay. They arrived at Namkham in 01-
about the last week of August and remained in occu-
pation thereof. They were there for not more than a:
week before they were driven out by Brigadier _Laz.un .
Tang and his men. They were chased from place to
place but by double-tracking they were able to get hack
to Namkham in the month of December or a few day:/
occupation. During their short occupation they
managed to get a box of surgical instruments and &orne
medicine from the appellant, who was then in charge
of the Mission Hospital in Namkham. The ,givi11g .of
the box of. surgical~ instrurnents and medicine form~'d
the subject-matter of the third charg~. f
The third c.harge is in the following terms:

"That you, during December 1949-January 1950 when ~aw

Seng and his f()llowers occupied N~inkham. arid its environs
f9r t.h'e seconcf time, encour'aged, ~ided and :c()rQforted tben1 .
'l{n 0 wing then'i or tiaving reasonable grounds:'for believing tl-i'cm.
t o :be engaged i~ committing High Treason by . f(iving them
m_edicines and surgtc'al instruments and. ther~by_-_ committed
1952] BURl\lA LAW REPORTS. -t7

.~: 1 ofience puni~hable under Stc;i .. n 4 rJ) of lhe High Treas(' ll S.C.
1951
';\_.t, 1948. a;ld \\'ilhin our cogni;camv."
D1.:. Uot~uu~

ln dealing with this charg~: tlc learned Ju<jges of s. SI.AGIMVE

v.
lhc High Court said : THF. Ut\ JP:>;
oF HUIOJA.

It will be observed that Dr. Sl'a~ra\e knew when he gaYe

il1e slllgic \1 instruments and medicines 10 ~aw Seng that these
instnm.tnls and mediciH's, to use his 0\\'11 words, would be ' a n
~tiel' to the re be Is. "
~
'" will be n oticed that the
lt I:<uned Judges of both the
~pecial Tribunal and th e Htgh Court mad e use of the
~vord "aid " , In fact, the learned Judges of the High
~ rt appeared, with due respect to them , to have been
ed in their decision by the word ' aid " used by
appellant in tbe co urse of bis statement made to
Court. If the app ellant bad n ot used the word
aid " what, we wonder, would have b ee n the obser-
lli~t<Hivns of the .learned Judges. In saying that his
away the surgical i11struments and medicine
be an aid to Naw Seng and his men, the learned
_ LI''"'"'"''"' of the High Court assumed that the appellant
BPJlea<lcu guilty to the third charge under section 4 (1) of
High Treason Act. No person shall be presumed
plead guilty to a charge unless he knows the nature
the charge and that what he says i s within the
ch ief of the charge.
What the appellan t in this case has pleaded amounts
to an admission of fac.ts and not of the offence
rged . In dealing with thi\ q~ es tion what one must
in mind is that the \vord "aid '' is not u sed in
4 (1) of the High Tr.eason Act. What the said
says is as follows :

'' Whoever encourages, harbours or comforts any person

I:Jlom be ~no\vs o~ _h~s reas~nable grounds' for bel ie~iog lo be
J!igaged m . comm~ttmg l11gh treas9n ~b all be pumshed with
48 BUR~IA LA\\. REPORTS. [1952

S.C . ttan~port:-~t i on f0r life <.)r \Yith rignrc11t:. imprisonment for rt tt-rm
!951 which m ty extend to kn yea rs ;:n<l sh:11l also be liable to a line:.' '
DR. GllRIII N
~. SEAClliA\"P.
v. No\\, what is the meaning of each o f th e words
TrrF: (J~w:-: u encourage", .,, harbour " o~ ''comfort" as ur:;d
OF' Bt R ~t A .

there in ? They are not explained or defined, as i~

tt sually clone in most of the penal statt1tes. Nor can
any reference be made to anothtr statute in accordan~.:e
with th e rule lhat" where there are d ifferent statuk s
in fari materia, though made at different times, or
even expired and not referring to each othe r, thty
shall be taken and cqnstrucd together as ou e systtm
and as e~planatory of each other " , because none . of
these words, except the word " harbour " is fou nd used
in other statutes. The word "harbour'' is explained
in the Criminal Law Amendment Act, 1950, as
follows t

" . the \\'Ord ' harbour ' includes supplyin g a person

\\'ith sh elter, foocl, drink, mone;, clothes, arms, ammunition or
means of conveyance , or the assis ting of a person by any means.
\vhethcr of the san1e kind tlS these enutneratecl in this seclio!l Cr
not, to evade apprehension."

In th e case cf. the. words "encourage" and "comfort"

they mu ~tt in . accordance with the well-established
principle of interpretation, be construed jn their
ordinary meaning. The Oxford English Dictionary
defines the word "encourage" as " embolden, in cite,
instigate." In the case of the word '' comfort" it' is
defined as meaning ~ to strengthen, to encourage, 'to
support, to invigorate,to aid, to abet or to countenance."
Now, if t he act of t he appellant in giving a ~_ox
of surgicaloinstniinents and medicine . to Na\\ Seng is
construed in . the light of the above definition of the
words " encourage" or ,, comfort , ' .th~re .can hardly
be any doubt .fhat it conies witliin the mischief. _of
 1952] BURMA LAW REPORTS. 49

section 4 (1) of the High Treason Act. But that does S.C.
1951
not conclude the matter. \tVhat \re must find is \Yith
Dl(. GoRI>ON
what intention the appellant ga\e a box of surgical s. S;;;\(;J(A\'E
instruments and medicine to ~aw Seng. Was it his THE v.UNION
":intention to encourage, harbour and comfort Na\v Seng 01' I3URY A.
and his followers ? If he did not have that intention,
;Ahe appellant would not be guilty. It is one of the
,. Principles of the English Law as well as that of our
;J aw that a crime is not committed if the mind Qf the
~~ipersori d oin g the act is innocent. The same view was
~ adopted by the Supreme Court of India in Ravula.
- Harip1asada Rao v. Tire State ( 1) the head note of
which says:
" Unless a statute clearly or by necessary implication rules
out metls rea as a constituent part of the crime, a petson should
hot be found guilty of an offence against the rcriminal law unless
.lle has got a ~uilty mind. "

t-. Whether a person has a guilty mind or not in

!~doing an act prohibited by law must be judged by the
'-surrounding circumstances of each case. In the
t;present case the state of the mind of the a ppeUant
,~honld not .be judged by a single act of giving some
"'s mgical instruments and medicine. All the circum-
~tances of the case must be taken into acco'unt. As

l.
:l?ointed out, the appellant was acquitted by the trial
~Court on the first charge and on the .second charge by
~.he High Court. The first and second charges
~mbr~ced. some of the incidents that took place during.
!he firsf occupation of Namkham by Naw Seng and his
. en . . The incident~ were {1) that some of Naw Seng's
'en played football in the hospital compound, (2)
at Naw Seng~s men had free access to tl!e hospital,
~~) that oqe .mor~ing ~aw Seng an~ a Karen offic~

(1) A.I.R (l9Stf. S.C.R. 322.

4
50 BURMA LAW REPORTS. [.1951

S.C. were seen seated at a table with the appellant drink-

. 1951
ing tea, and (4) that Naw Seng's men took up defensiYe
DR. GonooN positions in the hospital compound and fought against
s.SE4GRA VF.:
"Q. Brigadier Lazun T ang's men when the latter tried to
THE Ul"I<'N
OF B OR)>f.\. re-capture Namkham. In connection with these allega-
tions the appellant denied tbat he gave permission to
Naw Seng and his men to take up defensive positions
in the hospital compound and that he allowed them to
play football in the bospital compound. He further
said that rhe never entertained Naw Seng to tea and
that the hospital being a public institution, people
could come and see their friends there if they
wanted to.
This explanation of the appellant was ac~.epted by
the triai Court and, as mentioned above, he was held.
not guilty under the first charge.
In the case of the second charge, a letter written
by the appellant to one of his nurses named Narig
Leng, whereby the appellant told Nang Leng not to
disclose what she heard from one Peggy Min about
the intended arrest of the Sawbwa of Hsenwi to
anybody and that if she did so, he would hand.
her over to Naw Seng as a spy, formed the subject
matter of it
The appellant admitted having written that letter
but said that when he wrote the letter he W?S frantic
with anxiety lest., there should qe a panic and fight
among his nurses made up, as they w~re, of Burme.s.e,
Karens, Kachins and Shans in case the news of the
intended. arr.e st of the Sawbwa of -Hsenvvi .were ....to
:
spread about. . ,
.I n dealing with this explanation ~ the appell~nt
the trial
. .
Court
G
observed

: '
,
. " A frantic frame of mind .w.as apparent ; but .if .the anxiety
was about a . fight among the girls; the h:eat was ei1't'irely it-rel~.-
lant to the purpose ' of the letter. "
.
1 <)::: ?J'
~ -
BURMA LAW REPORTS. 51

T his i;-; where the karntd Jud.~es of lhe trial Court S.C.
1951
'.\<.:nt \\'J'Ong. They entirely i.~norecl the state of the
[),, , GO I/ll>:-.'
:11ind of the appellant. Thi s \\as corrected' by the S.SE A(;J{A \ ' F.

k arnecl Judges of the Appella te Court. Though they v

'J'HF. U~I0:--1
did not say so in so many words, the learned Judges of OF B~ l<.\1.~.

the Appellate Court accepted the explanation of the

appellant and held that be had no guilty mind in
n-riting the letter in the way he did and acquitted
him of the said 'charge.
But when they came to deal with the third charge
the learned Judges of the Appellate Court held differ-
e nt views.
The learned- Judges. observed :
" It appears to us that the surgical instruments and anaeslhe-
:~ic,; would be a boon to the wounded rebels, as their possession
\would be most useful in tbe treatment of wounded rebels, in
many of the wounded rebels could be easily operated upon
treated and be made available again to assist in the fight
t the 'Union of Burma. The \\'Oundecl rebels are also
u,,,.,.,..,,.,.n be easily discouraged, if the rebels, whose numbers
large, had no proper or eilicient surgical instruments, or
i&nt:nc:tent anaesthetics, with them for the .rurpo~e of attending on
wounded rebels. Thus Dr. Seagrave could be said to have
e someUiing in encouraging or giving comfort to the rebels in
revolt against the Govemment of the Union of Burma."

In making these observations the learned JUdges

to have been influenced by the saying that a
intends the natur~l consequences of his act. This
a presumption of law and this presumption is not
uttable. In the case of Rex v. Steane \1) Lord

" 'In o\ir opinion it is impossible to . say that w~ere an ad

done by a person in subjection to the power of others,
\11'-'~G:r if that other be a bJ;"utal. eneniy, an inference that he
the. natural consequences of .his act must be ruawn
Ill L.R. (1947) l'J{.B. 997 at p. 1006. .
52 BURMA LAW REPORTS. [ 1952
S.C. merely from the fact that he clid iL The gt;ilty intent cannut b\.:
1951
presumed and 1lll1St be proved. The prope1 ditection to the jury
DH Go1wo:> in this ca~e would lu,ve been tin t it \\'as for the prosecution t0.
S. SEAGHAVF.
v. prove the ctimina1 intent, and that \\hile the jury would he
THE UNION entitled to presume that inte1;t if they thought that the act \\'as
o~ BURMA.
done as the result of the free uncontrolled action of the accused,
they would not be entitled to p1esume it, if the circumstances
showed that the act \\'aS clone in subjection to the power of th~
enemy, or was as consistent \\'ith an innocent intent as \\'ith a
crimiaal intent, for example, the innocent intent of a desire to
save his wife and children from a concentration camp. They
should only convict if satisfied ly the evidence that the act
complained of was in fact done to assist the enemy, and if there
was doubt about the matter, the prisoner was entitled to be
acquitted. "

These observations are clearly apposite to th e

present case. It is true that the appellant was not in
fear of the loss of his life or of injury to himself or to
those dear and near to him as iri the case of Steane.
But he was in fear of losing his va luable stock of
medicine a~d sustaining damage to hi$ hospital build-
ing. Because of this fear he said he gave a box of
surgical instruments and some medicine. This state-
ment remains unchallenged. Taking lhis fact and the
fact that he was held not to have a guilty minq in
-doing what he did in the incidents which . formed the
subject-matter .of the first and second c~arges. into
-consideration, what inference . sho~ld be drawn? The
necessary, and, in fact, the almost unavoidable inference
to be drawl\ is that the giving of a box of surgical iristru-
.ments and medicine to Naw Seng was not so inuch
to help him in his revolt against the Uriion Governme~t
as to save his (appellant's) property. Even taking the
. 'worst vie~v of. the case, one cannot help but 'say that
:the ~ct of the appellant in giving a b<?x of' su rgica~ .
. .instrun)ent.s and medicine to . ~aw Se.ng ~;as as .
<:on.sistent' with .a~ :i nnocent :intent as witli .a.c riminal
 1952] BURMA LAW REPORTS. 53
intent. The benefit of the doubt must then be gi,cn S.C.
l95l
to the appellant. Therefore what~ver view is taken
DH. GORUOS
of the case, the appellant must be held to be not S. SEAGRAVE
. guilty. !.'.
TuP.:UNJOS
It may perhaps be urged that this Court should not OF l:!URM.~.

interfere, as has in fad been urged at 'one stage of the

hearing of this appeal, as there has been a concurrent
finding of facts by hvo Courts. The conviction of the
appellant is not based on the proved and admitted
facts but on an inference dravvn from those proved
and admitted facts. What inference should be drawn
..from proved and admitted facts is a question of law.
If on a wrong inference a miscarriage of justice
; has resulted, this Court must interfere and put
'it right.
One tnore word and we 3re done. On going
through th~ bulky record of the proceedings, we cannot
help thinking that the appellant himself has brought
all this trbl1ble upon himself. His attitude towards the
_Karen nurses and Naw Seng and his men during their
~first occupation of Namkham and his attitude towards
~ Brigadier Lazun Tang would make some people suspect
[that his sympath-ies were with the Karens. Once this
~suspicion was engendered, whatever he did or said
~~ould appear not only to a lay mind but even to
~some trained minds as an act to help and encourage
~h~ ~are~ rebels. This is exactly what ha~ happened
~n tlus . case. Th.erefore, _what we would hke ~o urge
~s that those who come to c.ur country and enJOY our
tpospitality shouici n-o t give grounds for suspiciou,
'eith~r by words or deeds, that they are taking sides in
f ur internal affairs. We are a small country and we
~~sire, as ~s the P.~licy of our Government~ .. to J~ve o~
Jerms of fnendsh.1p w1th everybody. We hke to settle
bur affairs and pr-omote the \.ve)fare of .our people i!l
~u~ own way. If anybody is found interfering in our.
'54 BURMA LA\V REPORTS. [1952

f9~i internal affairs in disregard of our law, he v,ill be

- punished irrespective of whoever and whatever he
DR. GoRDO~
s, SEAGRAVE may be.
THF. 0" 10 :-~ The appeal is allowed. The c~mviction and sen-
oF BuRMA. tence ori the third charge is set aside and the appellant
is acquitted thereof.
 1952] BURMA LAW REPORTS. 55

SU PREME COURT.

LI M PWE HTIN (APPLICANT) t S.C.

I'JSl
v. Dec. 4.
THE C HAIRMAN, PUBLIC PROPERT Y
PROTECTION COMMITTEE AND ANOTHER"
(RESPONDENTS). * ~
J-l:tbeas Corpus- APPlication. for directions iu tile uaittrc oJ- Fi1st arrest of
delemtc under s. 7 (2), Ptlb/ic p,oj>crty Protectio11 Act-Release of
dctcnuc hy Cour:t-Ameudmcuf of s. 7 fZ) and re-arrcst - PttrPose of.
On the lOth October 1951 the detenue was arrested by an officer. On the
20th October1951 the President directed detention following the arrest. The
$upreme Court directed his r(;lease on the gro:md that there was no authority
10 detain for the pt:rpose of prosecution for a completed offence. S. 7 (2) vf the
Public Property Protection l\ct W<~S a111ended ' during the proceeclings and
.authorised arrest and detention for purposes of investigation. The detenuc
was re-arrested.
Held : There can be no question of legality of the subsequent arrest ;uld
detention under s. 7 (2) , Public Property Protection Act, but the person dctain~d
-should be either serit up for tri;tl or rele<tsed since investigation is completed
.and should r.ot be detain~d for _the maximum period of six months provi9ed for
_in the Act. The fact that the co-accu-~ed of the detenue has not been
apr.reherided .and his whereabouts are not known, is not a ground for
:c ontinued detention as the case can proceed against thai co-accused under
~ 512 of the Criminal Procedure_Code.
~ Directions in the nature of llabcn~ corpu~ may i:;sue not only to discharge a
~rson illeg;llly detained but also to rlirect that !he person ddained be br.ought
~p before the appropriafe Court or Tribunal for heariag and determination of
e charges against him. Once the investigation is completed, the detenue is
~ titled to be tried speedily in accordance with Jaw

. U ~~~ Yi and otf1crs " Tire Ofjiccr-iJt-cflargc of Jnil,'tl'ami:tfrw, B.L.I~

.950) (S.C.).130, re!c:rred to.
~

.f
San H laing -for the applicant.

Ba Sein for the respon de~ts~

. Criminal Misc. Application No. 36~ of 195l.

(t ?_resent: _MR, JUSTICE E MAUKG,, ~R. J OS'fi CE Tf!EI~ 1\f.t,t'NG. and
f,I'HAliNG SEI~. J.
56 BURMA LAW REPORTS. [1952
S.C. The judgment of the Cou rt was delivered by
1951
L lM PWE
H-n~
:t-.1R. JusTICE E MAUNG.-The applicant's brother
v. was arrested by th e Bureau of Special Investigation on
TilE
CHA1JlM ,\N, th e lOth October 1951 and has been in custody since
PU!JI.I C
PROPF.l\l'Y that date. In Criminal Miscellaneous Application
PROTJ;C110N
COMMlT'l'F.~;
No. 354 of .1951 this Court directed th~ applicant's
AND brother to be discharged in respect of ti!e d etention
ANOTIII':I~.
ordet of the lOth October 1951 by the arresting officer,.
followed by the order of the 20th October 1951 of the
P resident of the Union, on the sole ground that under
the law in force at the date of arrest and orders of
detention there was no authority for arrest and deten-
tion for the purpose of prosecution for a com pleted
offence. Section 7 (Z) of the P ublic Property Protec-
tion Act having been amended, during the pendency
of that proceeding, authorising the arrest and detention
for the purpose of investigation and prosecution for
a completed offence, the applicant's br~th e r was und er
the amended provisions rearre.sted following his.
discharge und er the orders of this Court.
There can be no question of the legality of the
subsequent arrest and detention under section 7 (2). of
the Act as at present in force. But, as this Court has
laid down in the case of U Ba Yi and others v. The
Officer-in-charge of ]ail, Yamethin (1), a person who
has been detained in custody under section 7 l3) of the
Act should either be sent up for trial or released as.
soon as investigation is complete and such person
should not be detained in custody for the m~xirrium
period of six months provided in the Act. In Ahc
present case it is not sugg~sted that investigation is'not
complete. All that bas been said is that the co-accused
of the applicant's bro~li:er has no~ been apprehended
and his pr~sent wh.ere~I?ou ts are nqt known to the
. (1) B.L.R. (1950) (S.C.J 130.
 1952] BURl\IA LA.\\! REPORTS. 57'

a uthorities. Th e investigating officer is unable to say S.C.

!051
t\"J1en he expects to be able to apprehend tilt
T.1~1 Pw
c<.. -accused, if at all. \i\7hen the Court pointed out tile Hn~

provisions of section 512 of the Criminal Pr~cednre THE

v.

Code under which, inspite of the co-accused not yet CHMRMAN,

PraLIC
being apprehended, the detenue could be sent up for PROPER1'Y
PtWTEt:TioN.
'trial, the learned Government Advocate could not Co~IMrrnm .
A:-\IJ
:adduce cogent reasons to show why this procedure 1\1\()TIIEJI .
s hould not be followed.
_ Directions in the nature of habeas corpus may issue::
not only to discharge a person illegally detained but
also to direct that the person detained in any prison be
brought up before an appropriate Court or tribunal to
:have the charges against him heard and determined.
In this case, as we have said, the arrest and custody of
the applica-n t's brother are legal for the purpose of
~nvestigation and subsequent trial. That investigation
having been completed he is entitled to claim that he
be tried speedily in accordance with law.
We accordingly direct that the person of the detenue
be brought up in custody before the District Magistrate,
Rangoon, in the forenoon 'of the 12th December 1951
"together with a report in writing why be had .
been
~.rrested by the Bureau of Special Investigation on the
~-Oth October 1951; to have cognizance taken of any
~ffence or offences committed by him and to be
lealt wi-th in accordance. with law.

I
:58 HURMA LA\V REPORTS. [ 10.12

SUPREME COURT.
iS.C.
19St. YAYA PATEL (APPLICANT)
Dec. 21. v.
THE DISTRICT JUDGE, BASSEIN AND
ANOTHER (RESPONDENT).>i<'

Municipal Election Rules, Rttlcs 63 a11ll 65-District l1ld/!e wlidl:cr pcrsonJ.

designat~-Revisiott to Hit,h Court wlt~tir cr lies-Writ of certiorari if
ca11 be made.
Held: The District Judge in declaring an election void under Hulcs 63 and
65 of the Munidpal Election Rules acts as a Court and not a mere pcr.<ona
designata. His orders are therefore subject to revisicn by the High Court.
The Municipal Rules h;ne been amended and Appendix C to tltc new
Rules makes it clear that the Dislrict Judge ads as a Court. The proceed-
ings are ''in the Court of the District Judge"; they are to be Cilill\Iiscellane-
ous cases and notices of hearing are to be: given under the seal of the Court.
The Rules in 3 Han. 560. 11 Ran. 1, distinguished as proceeding upon a
consideration of different Acts and Rules.
Habib Sahib v. Sheik Bud/roo, A.I.H. {1939) Ibn. l43, appro1ecl.

Tun A1,mg for the applicant.

P. B. Sen for the respondent.

The judgme!lt of the Court vvas delivered by

MR. JusTICE THEIN MAUN'G.-This is an applicat~on

for a writ . of certiorari to quash the order by \\'hich
the first respond~nt, the District Judge, Bassein has
declared under Rules 63 and 65 of 'the Muni~ipal
Election Hules that the election of the applican~ is
void !,nd that the second respondent, who r~ceive~:kth-e
largest number of votes next 'to the applicant, is ' ~.uly
elected.

Civil Misc. Application No .. l13 of 1.951 against fhe order of the District
Judge, Bassein in CiviJ M-isc. Case No. 4 of 1951.. . .. .
t 'Prcsen.t.: l\fR. JusTICE E MA~~G. 1-iR. JuSTil::E THE~N MAUK~ and
;{; .T.f!AUNG SEIN, J. . . . .
 ilURMA LA\\. REPORTS. 59

In answer to the preliminary objection of the ~{,;1

., arned Acl\ocate for the second respondent that the YAYA l'ATF.r.
' pplicant should haYe mo\ed the High Court in . ~'
. tl 1 d Ad f I 1 ' t I 1 m; 0 rs.
enston, 1e earne vocate or t 1e app tcan 1as T~rcT Juoar.,
.; tated that he has to file the application in th is Court, B:~~~~E~~r>
f.' stead of applying to the High Court to revise the
' ' id order under section 115 of the Code of Civil
Procedure, as there are authorities to the effect that
istrict Judges act as mere pe1sona desigt;ala -and
~ot as Conrts in disposing of Municipal Election
'_ ctitions.
~ He has also invited our attention to The Municipal
~orf>oration of Rangoon \". M. A. Shallur (1) and
b Ba Pe and another v. U Ba S!l'we and others (2).
~n the first cas<:: it was held that the Chief Judge of
lhe Rangoon Small Cause Court, who performed the
functions assigned to him by section 14 of the Rangoon
1-I unicipal Act, 1922, acted as a persona designata and
~10t as a Court and that the High Court had no juris-
r iction to interfere in revision with his decisions. In
e second case it was held that the District Judge who
~
: eld an enqu iry under the electoral rules of the.
andalay Municipality acted as a pe1'son.a designata
:nd that his opinion was not su bject lo any revision by
be High Court.
/ However, these rulings are distinguishable from the .
:se before us as they proceeded upoil a consideration
the re8pective Acts and the Rules which ,,ere in
t ee then .
The Municipal Rules have been amended. and
~ pendix C to .the new Ruies leave no room for doubt
~t D istrict Judges, who hear Municipal Election
i!titions, are to act as Courts and not as mere persona
~ ignata.

ill (1925) IL.R.3 Ran. 560. (2) (1933)I.L.R. 11 Ran. 1.

60 BURMA LAW REPORTS. [1952

1~;~ The Appendix reads:

YAYll i '~\TI;J.
v. "NOTICE
TtlE Dl!i-
TiliCT Jt_; I)(;E,
l)ASSEJ ~ A~O
IN THE COURT OF THE JUDGE,
ANOT!IEfl.
CrvrL MISCELLANEous CASE No. oF 19
In the Matter of the objection petition to the Election of as :>Iembe,;
for at the Municipal Election l1eld on

To
~

Notice 'i s her~by given that the abovementioned objection

petition has been received by me and the same will be cons(cler-
ed on the day of 19 and you are hereby direded
to appear either in person or by a dt1ly authorised advocate
before me at 10 a.m. on the aforesaid date, and on your failure to
clo so, the aforesaid petition will be heard ex parte.
Given under my hand and the sear of the Court this
day 19
Exempt from process-fees.

Clerk.
Judge,"

The proceedings are '' in the Court of the District

Judge "; they are to be Civil Miscellaneous Cases and
notices of hearing are to be given under the seal;Of the
Court.
Even before the Ru.Ies were amended, the f.ligh
Court of Judicature at R.a ngoon interfered in revision
with an order passed. by a District Judge as ~ ~-what
he purported to do was to ~it in the District Court_
of Yamethin and to sign a judgment _purpolil~ng
to l?e a ju-dgment of the CQl:Jrt and stamp: it
with a Court stamp." tsee Habib . Sahib v. Slzeik
Budhoo (1)].' . _ . :
We aceordingJy hold that the Dis-trict-Ju.d ge _:acts
as a Gou~t a~d -. not as ':l _m~re persona .designa~~
' . . '::: .
in
Ui .<\.I.R.. (1~39) Ran. 143._
1952] BURMA LAvV REPORTS. 61

i H~a rin g election petitions under the new Municipal ~ .l'

11,5 1
l~ulcs and that his orders are subject to re\'ision by
a! Cour t.
t I1e H tb 1
Y .\YA P AT F.f.
t.

T he application is dismissed with costs, Advocate's THY~i'1 ~~~~~-. .

fee five gold mohurs, on the preliminary ground that s.~ !'~~ '" AN r:
)he High Court has jurisdiction to interfere in revi- A!'ii>'CH..:~.
'sion \Yith the order in question.
62 BURMA L:\ \V REPORTS. [195 :?

SUPREME COURT.

t:3.C. K K. s. KADER (APPLICANT)

1952
v.
Jan . 14.
THE CONTHOLLER OF RENTS, RANGOON A~D
OTHERS (RESPOXDENTS).*

Writ of certiorari-Ca1tccllatio11 <Jf ten uit 11/tder s. 12 {l). Grban Rent

Ct ttllvl Act f or want of 11otice to o;r)lle r's 11gcnf~ aud faki11.g termil Cl1i
!IJC bac~ of the party i11lere.1[cd. Con/roller's po<c-cr of rcvic;;! of Prc:dc
cessor's order- S . 21 (a), Urbou Rcut Control Act ancl Order 47 ,.
Rules 1 anrl2 of /lie Code of Civ -il Procedure.
Coatroll\!r of Heat~ cancelled a permit granted under s. 12 (1 ) of the Urb:m
Rent Control Act, 1948 on the ground that applicant delibera~ely suppre.ssed
his knowledge of the presence of the owner'~ agent in Burma and has pradi$e<lo
fraud on the office by taking out such a permit at the back of the party
ituterested. Upon an objeclion t11at the Controller of Rents bad no power .to
review U1e order granted by his pndecessor.
Held: S.21 (l) of the Urban Hent COt?trol Act, 1948 must be read with
Order 47, Rules 1 and 2 of the Code of Civil Procedure. The discoYety
by the 2nd and 3rd Resp01idents nqt partie3 to the permit application that ttie
same had been obtained bebincl their back is discovery of a new and impor.tant
n~atter under Or.der '17, !{ulc 2.to review the onlcr of fl!s predecess-or-in-.o thce,
and the controller of Rents was competent to review the order of h.i s
predecessor.
Kyaw Min and Mya Tlzan N~t for the applicant.
Ba Sein (Government Advocate) for .the
respondent 1.
Dr. Ba Han and N . R. Burjorjee for tlie
respondent 2.
A. I. Moda11 for the respondent No. 3.
The judgment of the Court was delivered by
MR. J usTICE .THEIN l\1AuNG.-This is an applica,tion
for a wri.t of certiorari in respect of an order passed by
the Controller
. ,._
of Rents,.. Rangoon, cancelling
. ...a permit~
'
\ .
Civil i\iisc.'Applic:ttion No. 54 of 1951-~gainsj the order o\he Con.trolie~
of Rents. . .. ...
1' Pre~euf: SIR DA u,. Chief Justice of the Uuion of Bur'ma!.' MR .' ]c~tJc. .
E M AUNG .a nd MR. JuSTICE THE!~ MAUNG.
1952] BURMA LAW REPORTS . 63
.which his preclece!'sor-in -officc bad granted to the S.C.
l952
;applicant und er sedion 12 (1} of the urban Rent
!Control Act, 1948. :~~~~~~~~
: He has cancelled the said permit on the grounds Tur: v.cux-
~ 1) that the applicant "had deliberately suppressed his nw~:.Lw oF
?knowledge of the presence of the owner's authorized Rr~~~~~M
nt ~. M. Salehji in Burma at the time he made the A:o:o orHEH$ .

plication for a permit under section 12 {1) to this

ce" and (2) that be had practised " fraud on this
by taking out the permit at the back of tl'Ie parties
o are interested in the property".
The questions as to whether there has been such
uppression of fact or such practice of fraud are mere
estions of fact and \Ye are satisfied that there is
ground whatsoever for interference with the decision
the Controller of I~ents on these queslions

learned Advocate for the applicant has

ntencled that the Controller of Rents has no pover
review the order of his predecessor-in-office.
, section 21-A of the Urban ReJ?t Control Act,
8 must. be read together with Order 47 of the First
~\,.. uo;;;uu''"' to the Cod~ of Civil Procedure ; discovery
the second and third respondents, who were not
e parties to the application for the permit, that the
t had been obtained behind their back is discovery
new and important matter within the purview
Order 47, Rule 1 and the ground for review being
of such new and important matter, the
of Rent~ is competent under Order 47,
2 to review the order of his predecessor-in-office.
So the application fails and is dismissed with costs,
te's fee five gold mohurs.
However; the controller o( R~nts must proceed to
os.e of the application for a permit .:under:- section.
(-1) of the Act in accordance. with law.
64 BURMA LA \V R EPO RTS . [1952
S.C. T he applicant m ay amend it by add ition of the
1952
necessary partie<: and in that case, the Controller
K. K S.
KADER of Rents will' have to d ispose of it only after due notice
v.
THE CO:-< to them.
'TROI.T.ll R OF
RENTS,
RA!'C.O ON
.A!'f> OTHE RS.
1952] BURMA LAW REPORTS. 65

SUPREME COURT.

MA AIN YU (APPELLANT) t s .c
1932
v. Feb. 5.
DR. MISS A. G. D. NETTO AND OTHERS
(RESPONDE~TS).*

"
Qteesliotz of latc- fll/ereuce from fa<'ls-S. 15, Cou!racl :1Ci'l- Cotrci,>tt.
He!d: l'he proper lc!gal effect of a pr)ved'facl is ess enthlly a question o f
bw.
Ram (;opal tl11d auo!hr1. v. Sluw~<k!Jat<>ou ""f. other.<, 1'.> l .J\. 22~ :
.1/afm C/l(lndr,; Pal v. Shukur ami othe,s, 145 I.A. 183, reierred !c)
and followed.
Tl1e practice with regard to the conc.nrrent findings of bet is w ell
esla blislled. Such findings will not be cli>turbed unlc:ss there has been' a
miscarriage of justice or violation o f ~ome principle of law or procedure.
S.1tgur Prdsad v. Malia ;,! Hc<r Nara in D,1s. 59 I.A. 147, distingui~hed.
Torture is an act for bidden by th e Penal Code. A threat to c~mmit such
an act would come within the puniew d s. 15 of the Contract Act. In the
present case the ls t Hespondent apprehended that she would be tc>rtured by the
japant:Se and in thai apprehension she executed lhe deed Of sale SOuj.!hl to be
cancelled.

S. T. Leong for the.appellant.

P. B. Sen for.tbe respondent No. 1.
The judg~ent of the ~ourt was delivered by
MR. JusTICE THEIN .MAuNG.-The 1st respondent
Dr. .Miss Netto sued the appellant a~d the 2nd, 3rd and
4th responder~:ts for cancellation of :1 deed of sale and-
for recovery of .possession of the subject-matter-thereof
on the ground that she had executed the deed of sale
under coercion.
The Court of first instance dismissed her suit on
;the ground tha:t there was no.coetcion a~cl the Court
Civil. Aj>peai Ne>. i4 of 1950 ~gai~st the del:ree of the: High Ct.url in
Civil 2nd Appeal No: 3o of 194\?, dated 24th -Pece.nber 1949.
t Presmt : Mil. ]U.$TICE E MAUl\0; MR. JUSTICE THEil\ MAUi\G' and
~U THAUN<; S~n;, ].
5
66 BURl\1A LAW REPORTS. [1952

S.C. of !1rst appeal also confirmed the decree 9 dismissaL

1952
However, on her second appeal, the Higp Court held
!ITA :\IN Yw
t~
that there was coercion, and that she was entitled to-
DR. MISS
A. G. D.
have the deed of sale cancelled and possession of the
NE'l'TO subject-matter restored to her on payment into Court of
AN. TH!:RS.
a sum of Rs. 1,500 less the amoumt payable to her as
costs.
Tl~e learned Advocate for the appellant has
contended that the High Court should not have set aside
the concurrent findings of fact as to whether th,ere waS.
coercion or not. However, as the High Court has .
rightly pointed out on the authority of Ram G_oPal an~
another v. Shamskha.toon and others'(l)' and Majar
Chandra Pal v. Shukur and others (2), the proper .legal.
effect of a proved fact is essentially a question of la\~'.
Tbe learned Advocate for the appellant relies on
Satgur Prasad v. Mahant Har Narain Das(3j. That~
however, was a case in ~hich no ground for disturbing
concurrent findings of fact had been shown ; ahd
even in that case their Lordships of-the Privy Council
observed:
"The practice of this Board with regat'd to concuri.~nt
findings of fact is well 'established. Such finclings wiU not be
disturbed imless it is shown that there bas been a miscarr~a:ge
ofjustice, or the violation
. . of some . principle . of law,.
. . or
proc~clure)' .
...
The. l~arned Advqcate for the appellant bas further
contended that there was no coercion at all. Howev'e r
the' evidence of the appellant's .own husband 1\.h Yin
clearly shows~ . . . ...
(1) Tp_a t the 1st respondent's '~_. ~ttitud~ aU :3:i'ong
. was that she did not want .to allow :us.. to
redeem -the garden ~;
(lJ 19 LA. 228, (2)' 45 X:A~ 183;
(3) S.~ I.A. 147.
l <J52] BURMA LAW REPORTS. b7

(2) That she wanted British currency and not S.C.

1952
the so-called Japanese currency ;
:I-1A AtN Yu
(3) That in those days the use or British v.
currency was prohibited and that 11 any one A. Dt?- Mtss
G. D.
dealing with British currency was tortured AI'\DNETTO OTHF.IIS,
by the Japs"; and
( 4) That the appellant's lawyer Mr. Hashim
t.\.hmed wrote Exhibit C to the, bt
respondent's lawyer Mr. Esoof. Mr.
Ahmed stated in Exhibit C, which is dated
the 10th September, 1943 11 your client
insisted on having British notes and also
gave various other excuses to prevent my
client from rcpurchasing the lands". He
has merely deposed " I cannot say whether
the insertion in my n otice that the plaintiff
had been insisting on British money had
the effect of frightening the plaintiff". But
this deposition must be read together with
Ah Yin's deposition that in those days
"anyone dealing with British currency was
tortured. by th.e Japs"; and there can be no
d.Dtibt,of the plaintiff having been frightened
thereby since she hastened to reply d~nying
that she had "insisted on having British
notes" (see Exhibit D ... dated the 12th
September 1943) and subsequently accepted
payment in Japanese cur-rency which she
admittedly did not want.
There is also evidence of a Police Officer having
orne to lter and made inquiries at the instance of the
apan ese Kimpetai about that time as to w.bether she
d asked for British notes in consideration for the
"e ..transfer.
~ Vfh~ learned Advocate for the app e1lant h~s also
. onteqded that there could not have b een any coercion
68 BURMA LAW REPORTS. [ 1952

s.c wi thin the purview of section tS of the Contract ,-\cl at

1952
all since there was no threat to commit any act
MA AlN Yu
v. fo rbiclcl<:n by the Penal Code. "# Howev~:r, torture is an
J.)R.Mxss
A. G. D.
act forbidden by the Penal Code ; and having reg~trd
NETTu to a ll tile circumstances of tht:": case lbere can b~; no
AND OTHF.HS.
doubt of t he first re~pondc-nt having apprehended that
she migbt be tortured by the . Japanese and of her
havjng been placed under that apprehension with the
. intention of .making her execute the deed of sale.
With reference to the further contention that there
could not bme bee n coercion "as th e execution 0 ( the
sale deed was under the advice .of her .1.\cl\orate
Mr. Esoof," Mr. Esoof himself has deposed:

"i.\Ir. Menon told n;e that no t only the notices lJ<lc! con1e
from the otber party, the latter was approachio~ the Jap Kimpet~i
(Jap Military Police) with the result that one . police was often
coming to the plaintiff and pres~ing for this transfer to be nude
by her (plaintiff). I told Mr. Menon that t!Jat plaintiff '(Dr.)
was a lady and nobody knew whal the Jap Kiinpetai would -stoop
to do and that it was .best to see that the' transfer was macle so
that there might not be any harassment. T!Jis was m)' final
advice. I myself was frighLenecl to act in this mal ter, that is to
say, dared not give professional advice freely lest I might be
harassed by the J ap Kimpetai., "

v The appeal fails and is dismissed :.vith costs ..

 : o :::J-
. ,..?) B U RMA L A \V REPORTS. 69

SUPR EM E COUR T.

M. E. BH AIYAT & SONS ( BURMA) L TD. ts.c,

1952
lA PPLJCANTS) Feb. 5.
v.
:. CHIE F JU DGE OF THE RANGOON CITY CIVIL
COURT A~D TWO OTHERS (RESPONDENT~). * ~

~l:rbau Rent Control Act-Issue of j>crrml /o sue fo r cviclion-Ref ereJtcc

1111der s. 22, Urban Rettl Co11trol Act lo City Ci11 il Corut-AppJication
for~rtiorari- Whct/1er lies.
Controller or Rents granted a permit to 2nd Applicant to sue for e\'idion
S.-.f 3rd Respondent. Gpon a reference: under s. 22 of the t:rban Rent Control
1
by the 3rd Respondent it was contended lhat l1e c<! o;not be s<tid to be in
ride need of the room in question. An application for a writ of c ertio rari
made to t~e Supreme Court and on a preliminary objection taken that
order ~f the Chit Judge was subject to revision by the ll igh Court under
115 of the Code of Civil Procedure :
Held : Tliat the Chief Judge in reference proceedings was required as far
possible to follcw the rules ol procedure laid down in lhe Chil Procedure
under s. 2.5 of the Rent Act of 1920. Ins. 23 of the lirban I?ent. Control
of 1948" the: Jud~e may in his discretion follow as nearly as possible the
re laid down for trial of suits." Such Court acts in a qu:lsi-judicial
E!!Pac;Jty and il is impossible to say 1t is doing so ;as a Court subordinate to' the
Court.
Held f urther: The Chief Ju::lge of the City Court held that Room ::\o. 5
room in question) was noi bo1iti fid e required for his own rc~idence by
defendant's brothers. The permit iu the case is a subsisting permit and
r~ever been.set aside in due course. Such a permit cannot pe questioned
Chief J udge or by any other per~un in the absenc."e of the person to whom
granted and in proceeding as he did the Chief Judge assumed a
beyond his ~ompetence and the proceedings can. therefore be
by certiorari.
AIIVlO'rneu Ebrahim Moolla v. S. R.laudass, 11 L.B.H. 387.
of Ra11goon v. M.A. Sha1.ur, 3 Ran. S6o.

for directions in the nature of

JUSTICE E lrfAUNG, MR. J OSTICB THEIN MAUNO and-

 70 BURMA LA\V REPORTS. [ 1952
's.c. M. M. Rafi for the applicants.
\952
M.E. Ba Sei1t for the respondents 1 and 2.
BHA\YAT
&SONS
(BURMA) LTD. "
v.
Tu1t Sein for the respondent 3.
CHIEF J UnGE
OF THE
RJ\:'\GOO:-=
The judgment of the Court was aelivered by
CITY CIVIt:.
CoURT AND
TWO OTiiEI'IS.
MR. JusTICE . E MAUNG.-The 2nd applicant
Ayoqb Mohamed Bhaiyat has a brother by name
Ahmed Mbhamed Bhaiyat. As heirs of their deceased
father they are the owners of rooms Nos. S and 5 of
house No. 238/260, Edward Street, Rangoon. Room
No. 5 was at one time in the occupation of
Abdul Habib Ismail, a witness cited by the 3r d
respondent before the Controller of Rents in the
proceedings out of which the present application has
arisen. The 2nd applicant's brother made, an
application to the Controller of Rents for a permit
to sue for t.he ejectment of Abdul Habib Ismail and as
the Controller was satisfied that the applicant's brother
wanted tbat room bona fide for his own residence,
granted the necessary permit. Abdul Habib I sm~il
stated at one place of his evidence that he vacated
Hoom No. 5 on the 5th March '1950 but he aclm.i tted
that on the 27th July 1950 he instructed his lawyer to
reply to the 2nd applicant's brvther that he ~as
not going to vaeate the room as h~ had no alter'n ati.;e
accommodation else\vhere. It is clear therefore that
Abdul Habib Ismail vacated the room only sometime
in july 1950 at the earliest.
On lhe 18th Ft:bruary 1950 t he 2nd applicant also
finding need for his own accommodation, made an
application- against the 3rd respondent for a permit to
sue him for ejectment. T he ..proceedings befor:e the
Controller of Hents were very mu:b. protract~d and
came to a close on ly on the 28th Januajy 'i9S 1. While
 1952] BURMA LAW REPORTS. 71

these proceedings \\ere pending, Room No. 5 l1a\'ing S.C.

1952
been vacated the 2nd applicant went into occupation
. d 111. E .
of it and has been in occupation to thts ate. BHAIYAT

On the Controller of Rents having grant.ed on the !Bv~~~~~To.

28th January 1951 a permit to the 2nd applicant to sue CHIE;JuoGE
for eviction of the 3rd respondent, a reference was oF THF.
. c1v1'1 c ourt un d er sect'10n 22 crrv
rna d e to t h e R angoon C 1ty RA~GOON
crvJc..
of the Urban Rent Control Act by the 3rd respondent T~~~~~H~~~.
challenging the issue of the permit. One of tht: main
grounds taken in the reference was t14at tbe 2nd
applicant now has Room ~o. 5 in ihe house to occupy
and lhat he cannot therefore be said to be in bon/i fide
.need of Room No. 8 for his own residential purposes.
The ]earned Chief Judge of the City Civil Court, as he
was entitled to do, further examined the 3rd respon-
dent and on the materials before the Controller of
Rents, as also the evidence taken by him, came to the
conclusion that the 2nd applicant's application for a
permit was not bona fide in that his brother, who had
obtained the permit to evict the tenant from Room
No.5, did not really need that room for himself and
that the room had been vacated by its previous tenant
ior the use of the 2nd applicant in this case.
In his order the ~earned Chief Judge ce,mmented on
ihe failurt: of the 2nd applicant's brother to give
evidence in support of the claim that the permit to
.evict the t~nant of Roqm No. 5 wa.~ sought and
obtained for resid~ntial purposes of himself and his
-family which ''vas t:xpect~d to arrive in Rangoon
' "x.ith~n a short time froI! India.
A preliminary objection was taken on behalf of the
3rd respondent t9 the appli c~tion for dircctiOfl:S in the
;nattJre of certiorari.- lt is cla~med that the app~.icantl'
sl;loul~ apply to the High Court un~~r section 115 of
:the Civil Procedure Code to revise. the order of the
Chief Judge of the City Civ.il C9t1rt. The case of
72 BURMA LAW REPORTS. [1932'

s c. Mahomed Ebrahinz Moolla v . S. R. ]c.ndass (1) was

1952
relied on for the proposition that the Chief Judge of the
~~~~AT City Civil Court in entertaining the reference, under
& solNLsro the Urban Rent Control Act, acted as a Court sub or-
(H UR~I.A '
v. dinate to the High Court and that therefore the proper
ClliEF }UI) G~; .
oFTHE remedy for the apphcants would be under section 115
~~~~~v~- of the Civil Procedure Code. Apart f.rom the fact that
couRT AJ:' 0 the correctness of this decision has been questioned
TWO OTHER~. .
by the late H1gh Court of Judicature iri The l.Vfunicipal
Corpof'afi6n, of Rangoon v. M . A. Slzakur (2) and other
cases, the Rent Act of 1920 and the Urban Rent.
Control Act of 1948 a re not pari materia on this point..
In section 25 of the Rent Act of 1920 the Chief Judge
of the Rangoon Small Cause Court or a Judge of any
Court entertaining reference proceedings, was required
as far as possible f.o follow the rules of procedure laid
down in the Civil Procedur~ Code. The provision W<lS
mandatory. But section 23 of the Urban RenfContr61
Act of 1948 is in very " ifferent tenus, The pro~'isioh
there is that "the J e mayin 'his discretion follow a:?-
nearly as possible her the procedure laid down {b.F
the trial of suits 'the City Civil Court of Rangoon or .
the procedure laid down for the regular trial of suits.:''
In ' any case underthe Urban Rent Control Act, 1948,.
"it is entirely for the Judge t<? say whether he is going 'to
be bound by any rules of procedure or whether hy_js;
going -to invent his own rules of procedure suited to. t,lj.e .
reference. n is irrl'possible "to conceive of a " .Court"
which is not bound by any prescribed rule of procedti~e
~ and which may at its disc'retion adopt a'4 hoc any:
procedure .i t thinks fit. While we have no doubt' t})~t
the Judge either ofthe City Civil Cou:rt or of any otfifi-
Court in rent reference proceedings, . acts .irt a qu~~i
judicial : cap~city we find.. {t: ~mposs.ible to accept t~~e
.. ... "' .. -; ..
:
I'

11) 11 L.B.R..3S7. (21 3 Ran. 560.

 1952] BURMA LA'vV REPORTS. 73-

_,)ntention that it is as a Court subordinate to the High S.C.

1952
I.>Jurt that he acts in such proceedings. Accordingly
III.~.
:he preliminary objection fails. BH.~IYAT
On the merits it has been strenuously co.n tended &. So:-;s
I BURMA)LTD.
on behalf of the 3rd respondent that the most that can v.
:,\: urged against the order of the Chief Judgc cf the
CHIEF juDGE
or THE
!~ANG OON
City Cjvil Court is that it errs on facts and that this CITY CIVIL
Court in .certiorari will not interfere with findit1gs on COURT AND
1"\\'0 OTHEHS:
facts. It would appear at first sight that there is some
substance in this contention. The decisic..n of~ the
Chief Judge of the City Civil Court was that the 2nd
applicant does not bond fide require Hoom No.8 in the
i10use in dispute for his O\Yn residential purposes, he
., having Room No.5 in \\'hich to live \Vith his family.
But in aiTiVing at that decision, the learned Chief
Judge assumed to himself a jurisdiction to examine
, \\hether the grant of a permit in another proceedings
in respect of Room No. S to the 2nd applicant's brother
\\as proper or not. It was solely on the ground that
, Room No.5 was not bona fide required by the 2nd
'~applicant's brother for his own residence and that the
~ermit for eviction in respect of th~t room wa:> sought in
~the intcr~sts of the 2nd applicant that the learned Chief
~Judge reversed the order of the Hent Controller in the
(proceedings under review. The permit in the other
'case is a subsisting permit and has never-been set aside
).n due course ; and at the back of the 2nd applicant's
" rother. that permit cannot be guesti~ned either by the
~earned . Chief Judge or by any other person. Under
~he authority of that permit the 2nd applicant's brother
~fan at ariimoment sue to evict the 2nd applicant Jrom
Jlhe room in which he has been temporarily accoinmo-
~9ated pending the arrival of the former's family from .
ndia. . "

t But ,foi-..the. a$S~1I?Ption of a jurisdiction beyond..his

om.petence, it js clear that th~ learned Chief Judge of
 BURMA LA\V REPORTS. [ 1952
S.C. the Rangoon City Ci vii Court \\'Otdd have rejected the
1952
reference. The contention of the learned counsel for
BJ~~~~T the 3rd respondent that no question of excess of
(s!~~ii~TD. jurisd ietion is involved in this case cannot th erefore
CHIE:j uocE be accepted.
oF TnE The application is allowed and the order of the
g~~~~~ Chief Judge of the Rangoon City Civil Court is quashed
CoURT A)(o h
-<rwo oTHER~. Wtt costs. Ad vocate ' s f ees t en gold mo h urs.
 1952] BURMA LA\:V REPORTS. 73

SUPRiEME COURT
THE RANGOON ELECTRIC TRAM\i\T AY & t S.C.
1952
SUPPLY Co. LTD., RANGOON (APPLJC~NTS)
Feb.11.
'L'.

"THE COURT OF INDUSTRIAL ARBITRATION,

BURMA AND ONE {RESPONDENTS).*
<Certiorari-Gratd of-Regarding trade disPute-'1Jfis1.1kc in ::deciding
question of fact by Court of ln.lustrial Arbitrafi.ou whcitJel grrmud for
writ.
On 25th April 195: RE.T. & S. Co. Ltd., transferrc:d 16 of the workmen
from the Boiler House Department to the underground department. On the
Z6tn April 1951. 16 workmen were dismissed on account of their refusal to
~.serve. in the underground department. The Court of the Indu~trial Arbitra-
tion, Burma, in Case No.5 of 1951 made asl award for reinstatement of 16 of
the discharged workers and granted other reliefs. Upon an application for a
writ of certiorari to quash Ute said award:
H elcl : That the question whether there is a decision or agreement
regarding inter-departmental transfers was Ont! tof fact which the Court of
Industrial Arbitration was competent to decicle. The mere fact that it made a
.mistake in deciding such 'luestion cannot ordinarily be a ground for a writ of
-ce~tiorari.
Where there was already a dispute between the Company and the
.\Vorkers' Association r~garding the terms and conditi01 s of service relating
1o inter-departmental transfers and such dispute had not been settled there
was a case to go before the Court of Industrral Arbitration and workmen could
not be dismissed because \hey refused to obey orders of t:ansfer \\ ithout the
.decision of the ~aid question of transfer.

J(an Toon for the applicants.

.
T. P. Wan for the respondents.
.
"The judgment of the COurt was delivered by

MR. JusTICE THEIN MAU).IlG.-This is an applica'tion

f'or a writ of certiorari to quash the award of the Court
of Industrial Arbitration, Burma, in. CaseN o. 5 of 1951.
Civil Misc . App\icat_ion No. 61 ef 1~51.
t Prese~ll: Sm :BA u, Chief Justice of the.-Uni~n cf Burma, MR. }CSTJCE
'E MAUNG and MH. JUSTICE .THEIN MAUI'G. . . .
76 BURMA LAW REPORTS. [l'JSZ

S.C. The award is to the effect that 16 clis<:llargcd

1952
workmen shall be reinst;1.tecl forthwith and th at the)~
THI>
RANGOO~
shall be entitled to get half monthly wage~ plus half
ELECTI~IC cost of liyi.ng allowa nce from the date of-their disntissal
TJlAM\VAY &
S UPl'LY (.;o. to the date of their reinstatem ent.
LTD.,
RAi':GOcN The workmen were ash coolies in the Power Station
v. Boiler H ouse Department and they were discharged as-
TH E
couHT oF they refused to be transferred to the Underground
INDUSTRIAL
.'\rwrTRAnox. Department when the boiler was taken off for survey
Bu~~~:IND and recondi.~ioning. .
The case of the applicant company is that it had the
right to transfer its employees from one department to
another, that their refusal to be so transferred amount
to misconduct and dereliction of duty and that they
were liable to be dis missed under the agreed terms and
conditions of service.
On the other hand , the case of the Workers'
Association is that the Company had no right to make
inter-departmenta.l transfers i:ithout the consent 'of tb~
workmen concerned, that there were no agreed tenns.
and conditions of service. in respect of such trar.sfer~
and that the transfer of ash coolies from the Boiler.
House Department to the Underg round Depat'tm~nt
was unprecedented and unjustifiable. . , . :
., The Court of Industrial Arbi ~ration has found orr
the questions of fact that thepfl,rties are in conflict in.
j(

their understanding of the terms an_d conditions of

service issued by the Company" and !hat there -does
p .o t appear to ha~e been a definite .decisiq.n .(<?r
agreement) on the question of int.e r-departmenta.l
transfer.
Ifhas als~ found. that the objection of-the. wo rkme.l f
to their 'being
.
employed. in. the. l. 1nderground
....., . . . . . Pepart"'. .
ment is justified and that the Company is no t justifieq
in ..disr;nis~ing . th~rri .s()leiy 'for :t.h~i'f r~fusal to' s:~rye
tiiirdn . '
1 u:;_z1
7- J
1-3 URM.-'\ L.'i. \\r REPORTS . i7

The question as to whether there was a tl (;fi nitc S.C.

1952
deci::;ion or agreement regarding inter-departmental
tran~fer~ is a question of fact which the Comt of J~A~GOO~
Er.F.CTRIC
.Industrial Arbitration is competent to decide. The TRA~I\\'AY &
mere iact that it has made a mistake in deciding SUPPLY Co
Lrv.
-;;uch a qi.H::sc.ion of fact cannot ordinarzly be a ground
v.
(or issuing a writ of certiorari to quash its a ,,arcl; THF.
:<tnd in this .particular case we are not at all s~ti~t1ed CoUI<T o P
INDUSTl~IAL
that its decision on the question of fact ig erroneous. ARBITRATION
RURMA ANO
Although the question of inter-departmental transfer ONE.
was discussed on the 7th and 8th October, 1947,
1he Company, according to its Manager R. G . .Tyner
"'did not get an opportunity to draft new terms and
condi tions until the latter part of 1951 (sic ? 1950)".
The new terms and conditions \Vere sent to the
Workers' Associ<ttion with the forwarding letter
Exhibit E dated the 8th January, 1951 ; and the
Association protested against them at a special meeting
held on the 21st January, 1951 ; their general protest
. was conveyed to the manager on the 26th January,
1951; and the latter-acknowledged receipt therepf on
the: St11 February, 1951. (See Exhibits F and G.)
Besides, the mamiger, who claims that the ne\.v.
terPJs and conditions of service came into force on
1st January, 1951, has admitted:. "We have receive.d
' protest against paragraph .29 of. Exhibit 5 on the
. 4th April, 1951. Ever since . the protest on the
: 4th April, 1951, no finftl. settlement has ever Qeen.
arrived at." Exhibit 5 is the same as Exhibit E and
paragraph 29 thereof relates to inter-departmental
transfers. . .
so it is quite clear that there already ,.was a dispute
.b et~veen the Company and tb.e Workers' Association
over the terms aqci conditions . 9f service' ~elating to
inter-.d epartme ntal transers before the. g ue.stiori of the
workmen's transfe.r from the Boil~r Ho~se Department
 BURMA LAW REPORTS. [ 1952

s.c. to the Underground Department arose and that it had

1952
not been settled on the 25th April, 1951, when the
THE
RAl'wooN Company' transferred 16 of the workmen from the:
Et~cTRic Boiler House Department to the Underground D epart-
'l'RAMWAY &
suPPLY Go. men t or on the 26th Apri l 1951 when 16 tvorkmep
R~:~~~N were dismissed on account of their refusal to serve ill\
- 'fi"u~ the Underground Department.
couRT oF .. T(h e ap,pl_ication hiils and must be dismissed for the:
lNOUSTR!AL
'ARs~T'RATioN, reasons which we have already stated. We need not,.
SuR~~~~No for the purpose of this application, go into any other
question .e.g., {1) -as to the power of the .Court. of
Industrial Arbitration (a) to extend an existing
agreement or make a new one, or (b) in general tO.
create a new obligatio~ or to modify old obligations-
or (2) as to the extent to which the rights of
employers hav.e been affected by a new concepti<;>n
of social .. duties and responsibilities in the interests
of industrial peace and production. .
However, we must aud incidentally that the. dispute
would. not have arisen at .all if the Company had,..
on the remo.val of the boiler for annual survey~
provided a substitute in aec?rdance with .its pre-war
practice and that the award cannot cause. undue
hardship to the Cvmpany as the boiler has admittedly
been surveyed, the Company's eontemplatio:n 't o
use oil as fuel instead of coal has .he.e n :frustrated
and the Co~pany:has now.reverted to usage of -coaL
The applicatiop is:tlis!l1i?&.ed with costs; Ad:vocate:~s
fee twenty g old mohur~.
1952] BURMA LAW REPORTS. 79

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l~tdttHI Electio11 Ca ses /, p. 247,
(Silt/t) Rttral Co1.s!i fu,1tey, 1937; Dnobia's
Punitlb Anglo-India" Couslil11tncy (Case h'o. 11.

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84 BURMA LAW REPORTS. . [ 1952

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1952] DURMA LAW REPORTS. 85
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8 ~ ..3om-,~ t}.'il:> (C) m rr->.~ \..) w e d-> ffi-, ~ - en..{) ~ : cfu
0
CCJ
0 ciD Ci) c g; ~ (}h ..3o !2. G) ..3o ..8 ..3o ~I') .!r ~ 8 ..?.o '0' ..8 c!IJ ~
0
o ~em a; 8 :.&, :;.B &> ~ ~l ~ &,~ 8 ~Jr !a r&> ~'--" ~ ~f3
-r:;n .&
fn cc \.)') en b8 ..Bo l~ ~ ~.So 8-1 m ~- &, rt]_ ~ ~ ,.....,.. 8 m ('.f')
0
~ _) -flY) 8 ~ ~ ()') CCJ 8 0 0'1 CYl e e -<Xl Len o 6-, ~ ~
!Zl
..f3 em ~ 8 cc !;1 Ci) 3 m - ..e. ~ ~ ffi-, CPn ~ 8 8 ~ 8 '---1 ..3o ~
(3 ~ ern 8 ~ 8 8 ~CCJ ~f}>l'l ]a ..8 em~ o8 G) (&, j &, ~ ~
cD = ~ ~ G> S \Y> CP.n ~ (P/) ~ ~ ~ ..8d G> m 8. cg ..Bo (&) c
.-s CCJ an -r.'> ~ m
oo (B.,..& C.!n p_., o8
gg
Q)
cc QY ~. 8 G)
G> 8 to ..a> P. u ;u;
oO- ~ ffil ~ b8 \.)')
e 0 o_ 0 ru
3 %> ~ 8
1./lJt ~ .> ~
..e
6) G)
.em . .oo ~ 8 ~ ~ ~ ~ c g'l ~ a3 ncr~.& o8 ,S
G:D(P.I'l LOD .--.
e R ~ m
m m% .PJ m
0 0 o G> OQJ b8 ~ ru8 . 6) = [[) ' 8
en o o 0cD c (Y;) m &> Ci> H
6)
,....
m I'Vl o . 2- m 0 oqr .& Len 8 0 ~ G> o JQ j3 (&, oc;. ~ 8 b8 -o
eo ..e ili1 \..) .-3o ..3o rn oq)' .:s \.)') Q') ~ ~ ~ & .: .-3o - ~ ~ \) \..) B VI
0 N
 1952) BURMA LAW REPORTS. 87

SUPREME COURT.
v KYAvV U (a) MYOCHIT KYAW U AND oTHEHS t S.C.
1952
(APPLICANTS)
Mnr. 2.1
v.
BUREAU OF SPECIAL I NVEST IGATIOi'J A:-:n
ANOTHEf~ (HESPONDENTS).*
Direction ;,, the unfure of habea<J corpus-Arrest under~ . 7 (2A) qj llie
Public Properly Profecliou Act, 19+7-Detent iott for si.\ .'4/0ttllts t~n.lcr
s. 7 (3) m;d (.'i) of lfte Acl-.4/lemativc gronud of suspicion.
In the present case the arre~ting officer has stated in his order-
" Wher!!<W 1 have reason to ~usptct and do in fact ~us~:ect that
has committed and[or is committing a prejudicial act".
Held': The mere iact that. the order is couched in alternaiive is not
sufficient to vitiate it when there is a sworn affidavit of the office r concern~d
stating that he' suspected the detenu of h oving committed and of c"mmitting
prejudicial ads and that he m'erely failed to strike off the word" or".
Vimlabai Desflp,mdc, A.I.R. (1945) Nag. 9. distinguished.
'Where the arresting officer has pl:~ced materinls on which he h<1s acted (in
compliance with the decisions oft he Supr(;mc CoUJ tj ancl materials so placed
~i1ow sufficient ground for suspicion, the arrest cannot be challenged.
The law does not require that tile arresting officer is to Le sathfierl.
Suspicion . of \he arresting officer, that ttie detenu has committed or is
committing a prejuclichl act, is sufficient.
ln an application for direction in the nature of lwb,xrs corj>us the Supreme
Court c:mnot go into-the pleas of the detenu as a crim inal court can do when
trying the dttenu for prejudicial ad$.
The Supreme Courtwill not interfere with the ordet of detention ir. anv
way, not ,e yen by granti~ hail, wh~n the arresti;JJ! offic.:cr has sufficient reaso;,
to suspect tlie detenu of having committed prejndicial act.
Kiu Mtr Ma v. T,e Cltairmau. Publtc Property F1ot.:ctto1i Boar.i aud two'
(1948} B.L.P. 574; Tinza Maw Naing v. 1'/te Co1)zmiss-itmer oj' Police, Rmzcoo1z
attd ?nc, (1<~50) B.L.R. IS.<:.) 11; Daw Khin Tee v. Chan Tl!a a11d one, !i949)
U
RL.R. (S.C.) 193, referred to.

Ji.i. M.
Sei1l Tun
Raft and } f tl . t
or 1e app1rcan s.

_ Chan Tun Atmg, Assistant Attorney-General for

~he respondents.
; .
Criminal .Misc: Application No~. 67, 6tl, 7.1, 72,92 and 93 of 1952.
t Present: U THEIN MAU:'i'G;. C'1ief Justice of the Union of Burma,
biR. JUSTICE E MAUSG and U THA.Ol\G SEIK, J.
88 BURMA LAW REPORT S. [ 1952.
S.C. The judgment of the Court was delivered by the
1952
Chief Justice of the Union.
U KYAW U
ltl) MYOCHlT
KYAW U U THEIN MAUl\fG.-Criminal Miscellaneous Appli-
AND OTHEH$
v. cation Nos. 67, 68, 71, 72, 92 and 93 of 1952 have
BUREAU Ol'
SPECIAL been heard together as the facts are more or less.
}1-:VES'J"IGA
TION AND
siimilar and the questions of law involved therein are
ANOTHER. tbe same.
The detenues in all these cases were arrested in or
about th~ last week of January, 1952, under sec~ion
7 (2-A) of the Public Property Protection Act, 1947 ~
and the President of the Union of Burma directed
their detention for six months under section 7 . (3)
and (5) of the Act.
The said orders of the President were withdrawn
and all the detenues were released on tl1e 18th
February, 1952, i.e., during the pendency in this Court:
of their applications for writs of habeas, 'cor~us in
respect thereof.
However, four of the detenues were rearrested on:
'
the same day and the remaining two were rearrested
about a week later under seclion 7 (2) of the Act ; and.
the President has by o rders, dated the 28th Febn.:i~ry
1952, under section 7 (3) and (5) of the Act dir~ded
their detention for a period not exceeding four months.
. for the purposes of invcstigati.o n as he is sati:;;fi.e.d _Jhat.
they have committed prejudicial <!-ds. -~~
The present . applications are for habea~ corpijs in
t'espect of the subse.quJnt arres.ts and the subseq~ent
orders of detention.
Relying on the authorityof Viml.abai Deshp.a1-?de (1),
the learned . Advocates for tbe detenues have tri~d to
_make capi:tal of the arresting officer haying stated in
his orders . under section. 7 (2) -of th~ Ac:~ '' Whereas.
I .. . . . have reason to sus.pect _ahd do in}act suspect
- ----=-
----~--'-
- - - - - - -- -'-- -
(1) A. I..R. (194~1. ~ag: 9.
 152] BLI Rl\'IA LA \V REPORTS.
S.C.
tha t . has committed and/or is committing a 11)52
prejudicial act". However, that was a case in \Yhich {! KYA II' U
the order of detention, couched in alternative terms tal iiiYOCIIIT
KYAW U
only, was not supported by any affidavit of the J\~J> OTIIF.RS
'IJ.
arresting officer at all. In the present cases the arresting BVREAU til'
SPECIAl,
officer has filed affidavits from which it is quite dear ll'VESTIG.I -
that he suspected them .inter alia of having committed TrON A:-10
A:'\OTII ER.
prejudicial acts and that he has merely failed to strike
off the word "or" in the printed forms. '
The learned Advocates for the detenues have also
contended that the arresting officer had no reasonable
ground to suspect them of having committed prejudi-
cial acts. However, the arresting officer has placed
the facts and materials on which he has acted before
this Court by affidavits in compliance with the ruling
in Kin Ma 111a v. The Chairman, Public P1operty
Protection Board and tu.o (1) ; and we are satisfied
that he has sufficient reason .to suspect them as
aforesaid and to make investigation against them.
Their learned A-:lvocates have invited our attention
to the distinction between reasonable satisfaction and
apprehension born of vague anticipation which this
court has pointed out in Tinza Maw Naing v. Tlze
Comm issioner of Police, Rangoon and one (?).
However, section 7 (2) provides:

" Any officer authorized in this behalf by ~eneral or special

order by the Pr:e.;ident of the Union may arrest without warrant
. ny person whom he su~pects of having committed or of commit-.
ting any prejudicial act."

t does not require the arresting officer to be satis-

'. ed ; and in the present cases tbe suspiGion of the
rresting officer is not mere apprehension born of
ague anticipation. It is in respect of p~st prejudicial
..
11l (1948) B.L.H. 574. {2) 11950) 8.L.R: l::i.C.) 17.
<90 BURMA LAW REPORTS. [1952

~~
92 acts which can properly form the subject-matter of
investigation.
UKYA\\" u
:(al ~fvocu 1T It has been suggested that the subsequent arrests

K vAw
AND OTHERS
u and orders of detention for investigat ion could not
v. have been made in good faith since the first arrests
BUREAU OF
SPECIAL and detentions were under section 7 {2-A), i.e., for
I NVE:STI(; A-
.TION ANL> prevention of future prejudicial acts and not for
ANOTHER. investigation of past prejudicial acts. However, they
were expressly stated to have been on account of the
detenues I1aving committed and/or of commi tting or
being about to commit prejudicial acts. . The allega-
tions that they bad committed prejudicial acts were
there from the very beginning and the mere fact fhat
the officer arrested them first only for the purpose of
prevention cannot preclude further action on his part
by way of arr esting them for investigation into past
prejudicial acts .
The prejudicial acts are those of smuggling rice
into Pakistan; and some of the detenues have .ple_a ded
.inter alia that Pakistan was a surplus country to vvhich
rice cou ld not be exported profitably, that it was.
impossible to smu ggle rice into Pakistan on ac<."ount
-of the anti-smuggling squad, that all rice produced' in
the area could b e accounted for without leaving .a ny
room for smuggling and that rice could not ha-ve been
:Smuggled through a particular creek as alleged. How-
.ever, we can not at this stage <tnd for the. purpose of
these applications go into these p.l eas .as if we were
trying th~ detenues for the prejudicial acts. The cases
.a re still at the stage of investigation and th'e pleas ~an
be taken in their defence if and when they ar.e senfup
for: trial. . . :
. Their learned . Advocates have urged . that, in 'the
-case, .~f.....~ur hol~ing. that there are grounds }or
suspicioi1: and investigation, they may be released on
bC~.il wit h such .res~-rictions w.e may think fit a nd p~.op~r.
.1 952] BURMA L A'vV REPORTS. 91

However, \\"e cannot interfere with orders of detentio n S.C.

1952
in any way-not even by g ranting bail-afte r finding,
\J KYA\V U
as we do, that the arresting officer had sufficient ( a) MYOCHIT
KYAl\. U
reason to suspect th em of havi ng committed' prejudi- AI'O OTHERS
-cial acts and to make investigations against them. v.
BUREAU OF
Daw Khin .Tee v. U Chan Tha and one (1), which has SPECIAL
INVESTI GA
b een cited by the learned Advocates, was a case in TION AND
ANOTHER.
which this Court held that it had power in proper
cases to g rant bail to ~1ersons in custody or t1nder
-d etention pending the h earing of their applications for
directions in the nature of habeas corpus ; and the
question of granting bail pending the hearing of the
applications for habeas corpus does not arise as \\"C
.have already heard them in full a nd are disposing of
:them on the merits by this very order.
All of the six applications are dismissed.

,,ii (19-49) B.L.R. (S.C.) 193.

92 BURMA LAW REPORTS. (195Z

SUPREME COURT.

ts.c. DA \V KY\N'E (APPLICANT)

1952
v.
May 50.
THE DEPUTY COMMISSI ONER, PEGU
AND ANOTHER (RESPONDENTS).*
Direction i" /lie 11alurc of habeas corpus-Orrl'u 19, Rule 1, Suprcu:c Courr
Ru?.f.~. 1N8- Public Order Pr<se1vation Act-Ddenlioll under-Co1mni~
~ion of of}:!;1zce of High Treaton.-

Hclcl: That Order l<l, Rule I provides th:>.t an <1r.plication for direction in
the nature of a writ for habeas corpus shall be made by the preseniation of
<t petition duly verified by an affidavit by the person restrained ancl the
application should contain a statement that it is made at his instance and that:
it shotld also set out the nature of the restraint ; when the application is made
by some other person it should state that the pr.rson restrained is unable t~
lll:tke the affidavit and the application is made at his instanc e.
Offences against the State are prejudicial to publi<> safety ana
111ainteJ1ance of public Clrder. When a. p~rson is detained u nder s. 5-A (I) (b)
of Public Order Preservation Act, the real test is whether the Dept1ty.
Commissioner could on materials before him, have been sa)isficd that H was-
l.! ecessary to detain the person concerned to prevent l1im from actin~ in any
manner prejudicial to 'the public safety and the maintenance of public order..
The mere fact that the materials also show that the personde:a'ined could and'
mi~ht also be' prosecuted for high tre.1son, would not deprive the Deputy.
Commissioner Qf his power to take preventive action under s. 5-A {I) (b}ol
of the Act.
A person who has committed the offence of high treason, might be det.~ined<
to prcvc:nl hint from committing further offences again~t the State.
Mti Kyin H1titt v. Tlte Ct>tmui!Siollt!r of Folict, Ra1lgOt>ll a11d llttotlzef, (1'948):
B.L.R 777; lJ Kyu v. rile Commissioner of l'olice, Rangoon, (l949) H.L.R .
(S. C./ 1::, c'i::liaguisied.

Tun Maung for the applicant.

Kyaw (Government Advocate) for the respond~nts.
T he judgment of the Court was deliver~d . by :the
Chief.Justice of the Union.
U T H E IN MAUNG.- This application f~r a writ m
the -n ature of habeas corpus is not in order .
. ..Gr:.iminaJ.M~sc. Ar.plicaliot) N.o .J.Q7 of 195~. : .
.. .t rresent: U THEIN M AUNG, Chief Justice o r. the Union ..: of Burma..
M.R; JUSTICE MYII\T THEIN and u Bo GYr, J, .
1952] BURMA LAW REPORTS. 93

Order 19, Rulel of the Supreme Court Rules, 10-18 S.C.

19SZ
-provides :
" An application for :t directio:1 in the nat\1re of a \\'rit cf
,..
'rHr
habeas corPus shall be made by the ptesentation of a retitinn Dr.Pt:n
COM~IIS
duly verifitd by affidarit hy the person re~traintd saying that it St P!\F.R,.
i ~ made at his instance and setting out the nature of the rfStn:int: .PlWC A);f)
A~ -r,Tt:lo:H .
Pro \icled that where t he pt rson rcstr:~ined is unahle Oll'ing to
the restraint to make the affidavit, the appli t.: tlion shal! l>e
.accompained by an afticla,it made by some other perso11'to the
like effect and shall state that the person restrained' is unable to
make the aflidavit himse lf."
In spite of the aboye rule this application has been
made, not by the detenu Maung Yc H!a, but by his
wife \\it~wut any affidavit of his. She has not even
.alleged that the application is made at his instance and
that he is unable to make any affidavit.
HO\rever, we have beard the application on the
merits as the Judge in Chamber has already issued
summonses to s hov, cause and the respondents . have
filed their returns.
The returns show tbat lhe detenu was an active
member of B.C.P., that in the year 19+~ he led B.C.P.
insurgents in the looting of Village Defence firearms,
4nd that he has been "serving with" B.C.P. insurgents
si~ce then ; and they are supported by the record of
proceedings before the Deputy ComiJlissioner.
They also show that police investtgation of the c_ases
agai~st the detenue under section 122 of the . Penal
~ Code. is about to be completed. So the learned
Advocate for the applicant has ~ontended on the
authority o{ Ma Kyin Hnin v. The Commissioner. of
.Po(ice, Rangoon and anothp- (1) and U Kyu v. Th e
Commissione1 oj Polzce, Rangoon (2) that the Public
Order- (Preservation) Act, 1947, l1<1S been misused m
c_onnection with. q.n offen ce under the Penal Code.
(I) 11948) D.L.R.. 7i-7. i2J (;949) I!. L-.H. :~.C .. . 18.
94 BURI'vlA LAW REI'ORTS. [195Z
S.C . However, the said rulings are easily di sting uishable.
11)52
In Ma Kyin Hnin's case the grounds for detention
were m~re y t I1at t I1e d etenu assocmte
D ,\\V l < Y W ! : : l
" . d w1th . some
0;.::~ry criminals, that he had been organizing a dacoit gang
com11s- and that he \Vas suspected to have been the brain
SIONEII,
PBau .ANo behind a particular dacoity ; and in U Kyu's case the
.ANOTii ER.
on l y ground f or detention was that he acted as an,
infor!fler (let-tauk) in connection with a dacoity. Both
were cases-relating to offences against property whereas
in the present case the offence is against the State, l'iz.,.
high treason under section 122 of the Penal Code.
Section 5-A (1} (b) of the Act reads :

"If the Governor is satisfied with respect to any particular

person that with a viP.w to preventing him from acting in any
manner prejudicial to the public safety and the maintenance of
public order it is necessary so to do, the Governor may make an
order directing that he be detained."

And it is fairly obvious that offences against the State

are prejudicial to the public safety and the maintenance
of public order and therefore within the purview of
section 5-A (1) (b), unlike dacoity and other offences
against property.
The real test is whether the De:puty Commissioner
could, on the materials before him, have been satisfied
that it was necessary to detain Maung Ye Hla to prevent
him from acting in any manner prejudicial to the public
safety and the maintenance of public order; and we are
clearly of the opinion -t hat ne could have been so
satisfied. The mere f~ct that the mate~i als also show
that Maung Ye Hla could-and might also be prosecuted
for high treason could not deprive him of his power to
take prev~n~ive action... under section 5-A <.1)_ (b) of
the Act at all.
is
To put it briefly there. no r~ason why a per~on,
who has c~mmitted the offence of high treason, shquld
1952) BU RMA L A'vV REPORTS. 95

not b e detained in ca~e o f necessity to p t-c\<.:nt S.C.

1<)52
him from committing furt her offences again:-:t th e State,
DAW I<YWE
and there is noth ing in the Act itself to indicate that v.
such a person cannot be detained th ereunder. In iact Tile
Dl-:l'll1'Y
the very object of the Act will be d efea ted to a Comus-
sJoNEt?,
consid erable extent if \1Ve hold otherwise. Pfi'>UAN[)
AN.>THEI< .
Th e application is dism is~ ed .
'96 BUP,MA LAW REPORTS. [195 2

SUPREME COURT.

t S.(,,
u PO NIYA (APPLICANT)
1952
~.
/u ue 9.
THE DISTf~ICT AG .RICULTUHAL COMMITTI:E,
INSEIN Al'\D ONE (RESPONDENTS).*='
1'eu<l11 y Vi>fo.~"l Act and Rule!>- Til e orders <1/ lire DL,trict .4{!ricu/lurtJI
'Hem,{ passed ex p:ute aud nllocafion of laud for future yenrs.
<
Held: That who:n the District Agricultural Bo:lrd proceed<:cl c.r tal tc
without any re'lson, the Supreme Conrtcould interfere. The Ten::mcy Di;;posal
Huks make no prov:sion for allocation of land for fut ure )'< ars r.or is th<:te
a~Y pt<>Yi$iOn which would enable the District Agrkullural Bc.ard lo order
the transfer of land by the owner.

Ha M aung for the applicant.

Kyaw (Government Ad:ocate) for the respondent 1.

Theiu Han for the respondent . 2..

The judgment of the Court was delivered be

I\!R. JUSTICE THEIN.-This applicntion

MYir\T
concerns a piece cf land known as ' Holding No. 27 in
Yezu Kwin No. 526-A, Insein Towns!1ip measuring
7'42 acre ~ . It is common ground that prior to 1950
this .land was worked for successive years by lhe 2nd
respondent U Po Kun as the tenant of a (;hettyar. .
The affidavits and the depositio11s of witne$ses
in the proceegings before the Bwetkyi Villag-e Bo'a:rd
leave. no room for doubt that as U Po Kun did not pay
rent for the successive years that he had worked the
the land and as he would. not or cot1ld not buy. the
land, it was sold by the Chettyar to the applicant
U Po Mya 'in March !'950.. . . . ....
~Civil Misc. Applica:~ion No ..33.of 1952: . .
t Prcwit: U THEIN MAUl\~:. Chief Justice of ~he . t:!nion of .. B.l\rma,
MR. JUSTICE E MAUNG and MR. JU$TICE MY!to:T THEIN: : .
.,r\ ....
1952] BURMA LAW REPORTS. 97

That year, when U Po Mya being a cultivator S.C.

1952
himself, was making preparations to till the land,
U Po MvA
U Po Kun applied to the Village Board for permission v.
THE
to work the same land. The elders prevailed upon DISTinCT
U Po Mya to permit U Po Kun to work the land in AGIUCUL-
TURAL
1950; and it was agreed that U Po Mya himself \vould COMMI1TEE,
INS.EIN
work the land in 1951. AND ONE.

In 1951 when U Po Mya once again, made

preparat.ions to till the land U Po Kun made his second
application to the Village Board. The application
was enquired into and by an order dated the 7th
Nayon Lazok 1313 B. E. (11th June 1<JS1) the Board
pointed out that U Po Kun had worked the land in
1950 without paying rent or revenue and that in the
past also he had been a consistent defaulter. The
Board unanimously rejected U Po Kun's application.
We have penr's~d the records of the proceedings
in the District Board and though we cannot find the
ach1al memorandum of appeal, the Diary Order of the
15th June 1951 shows that such an appeal v.ras filed.
The proceedings of the Village Board were called for,
and without any notice to U Po Mya, the. District
Board resorted to e~: parte proceedings and examined
U Po Kun and his witnesses. By an order dated
15th September 1951, the District Board decided(a) that
U Po 'Mya should work tl1e land. for the season 1951,
(b) that in the event of U Po Kun paying Rs. 700 to
U Po Mya in Taboung lJ 13 B. E. (February-March
1952) U Po Mya would have to permit U Po Kim
to work the land and (c) tha~ if no such payment
should be made, U Po Mya would be. allowed to
continue working the land.
U P9 Mya was apparently neyer informed and \~as
oblivious to what h~d happene4 until he .received a
notice, .date~ the 25th February .1952 fro~ the :District
: Board. informing hi~ that U Po '.K~n had deposited

.7
98 BURMA LAW REPORTS. [ 1952
S.C. Rs. 700 and requiring U Po Mya to withdraw the
1952
same and to transfer the land to U Po Kun.
U Po MYA
t. U Po Mya. received this notice on the 2nd March and
THE
DISTRICT on tbe 3rd March he intimated that he had no desire
.1\:GRlCUL ~o sell the land to U Po Kun .
TtiRAL
COMMifTl!E, On the 7th March, under t_he signature of Thakin
lNSEIN
AND ONE. Kya Nyun, Secretary of the District Board an order was
passed, to the effect that as U Po Kun had deposited
Rs. 700 on t-he 3rd March he would be permitted to
work the holding in question.
The P etitioner U Po Mya, aggrieved with this
order seeks the- quashing of the proceedings of the
District Board and in our judgmen t the proceedings
must be quashed.
Thakin Tin Mya, Vice-Chairman of th e District
B oard in his affidavit has attempted to justify the
order passed on what he considers to be equitable
grounds. He also stated that notice of appeal was
given to U Po Mya and that though U Po Mya himself
was not present his children attended on the days the
Board sa.t to deal with the case. T his contention is
not borne out by the Diary o'rders and in fact the
various entries in th~ proceedings bear out U Po Mya's
contention that he was not summoned and that he did
not know anything about the matter until he received
the notice on the , 2nd of March instructing him to
withdraw t he Rs. 700 purported to have been deposited
b y U Po Kun.
We can see no justification to allow the orders of
the District Board to stand. Apart from the ex parte
nature of the. proceedings \Yhich by.itself is a ground
for interfere-pee by this Conrt, two points stand out
and these afe,.fil;s~ly_, the T enancy D isposal Rules,
1951 make no provision for the all ~cation of l and for
future years. T he order of tb~ District Board was
t hat U Po Mya shpuld work the land fo r 1951, thereby
.1952] BURMA LA 'vV REPORTS . 99
:ejecting U Po Kun' s application. Th e further order S.C.
1952
was that under certain conditions U P o Kun should
U Po MYA
work the land in 195 2. Secondly, we can find nothi ng v.
THE
in the nlles which would permit a District Board to D!STJUCT
order the transfer of land by an owner. Nor can such AGRICUL-
TURA L
an order be implemented by a Secretary of a District CoMMITTEE,
l NSEIN
Board. AND ON.
It is clear that the h1sein District Board has
assumed powers that are not vested in it and_!he orders
passed by the Board in this case must be consi dered
null and void. We accordingly quash the proceedings
,of the District Board of Insei n with costs ; Advocate's
ifees seven gold mohurs..
100 BURMA L AW REPORTS. [1952:

ro'P: ~ 'CGJ"m;~l S
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102 BURMA LAW REPORTS. [195Z:

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 1952] BURMA LAW REPORTS. 103

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.04 BURMA LAW REPORTS. ( 1952

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1952] BURMA LAW REPORTS. 105

SUPREME COURT.
t S.C.
]. KI MATRAI ~ Co. (A PPLICANTs) 1952

v. July 2.

MINISTER FOR FINANCE AND REVENUE

AND ANOTH.ER (RESPONDENTS).*

.~r,clilm i1l lite 11nfu re of ccrliornri-Burma Customs Tariff Act, Schedule l .

; Item 119-l'rcfere1llial rate for goods from United Kingdom, Bxifish
'. Colonies, India or Pakistmz-Gootls imported from Siugaton:
1
~ Held: That under s. 3 of the Bur ma Customs Tariff Act colton bbrics
: nufactured in the United Kingdom , British Colonies, India or Pakistan
e to be taxed at a preferential rate. Rnle 3 provides !hit goods manu-
lured i~ the United Kingdom or British Colonies will be taxed at
~eferential rates only when imported dire-ct from the United Kingdom or
- 'lonies. The. rule was made when Burma was pa.tt of the Indian Empire.
ter separation and/or independence of Burma no r ule sin1ilar to Rule 3 was
de regarding goods of Indian origin. According toss. 2 and 3 of Burma
_. !o:llS Tarjff Act when goods are shown to have been the produce or
ufactu.-c of India, the importer becomes entitled to a vail himself of the
lciere.ntial rate of duty even though it be not illl ported directly from India.

Ba Win and} .
Kya'liJ Min _for the applicants.
,
Chan Tun Aung, Assistant}
lttor?ey-~~peral, and for the respondents.
Ba Setn ...
The judgme.nt of the Court was delivered by
MR. JusTICE E ~AUNG.-Th ~ applicant Company
into the Port of Rangoon on the 2nd August
thirty-on'e 'bale~ of cotton fabrics, adqiittedly of
n produ ~~ and manufacture. The ~oods, how-
were not importe!i direct from Ind ia but were
t into Burma from Singapore where apparently
~ad been lying for some time previous~)'.

Civil Misc. ApplicaUo~ .)io. 38 of 1952.

><.rJ'Q.,, ,: U
THEtN 1\IAUNG, Cbief Just.ice- of t he Un ion .of Burma,
Ju~tCE E MAJJNG and .M1t. JUSTICE MYI~T THEIN.
106 BURMA LAW REPORTS. [195?.

S' c. Under the First Schedule to the Burma Customs

t 95
-
zT an.ff Act, preferential rates of duty are prescribed in
J. ~~~~~RAI respect of cotton fabrics m~nufactured in the United.
MINISTER
v. Kingdom, British Coloni~s, India or Pakistan. Item:
FoR FrNA:-:CE 119 of the First Schedule prescribes SO per cent
AND
REVENUE ad ~alorem as the standard rate of duty in respect of
.AN;::ER. cotton fabrics and 10 per cent in respect of such
goods when they are 1 ' the produc~ and.manufacture:
of lnclia or Pakistan."
The "applic;nt Company, on the strength of such
entries i~ t~e Scheduk, claims to pay only the
preferential rate of 10 per cent ad valorem. on .t he
goods imported by it. The claim was rejected by the
Collector of Customs and tha~ rejection \vas upheld
by the Financial Commissioner (Commerce) and the
Ministry of Finance and Revenue.
The denial to the applicant Corrip~ny or" the
preferential rate of duty was sought to be justified on:
esfablish~d practice since 1941 whereby preferential.
heat.ment had been accorded o nly to goods of Indian
.J>rOduce Or manufacture if such goods were ",.s ent:
direct from India'-'. This practice appears to have
arisen from the fact that rules under section 3 0f.the
Burma Customs Tariff Act provided that in case. of
goods produced pr manufactured in the U-D.ited:
Kingdom or the British Colonies at:J.d for which.
preferential rates of duty are . p~escribed in, the ~irst
Schedule to the Act, such rates are yali.d only if the
gpods are imported d.i rect from the Unit"ed Kingdom
or the British Colonies . . It might appear to .:have.
been. thought reasonable to treat goods prod.uced or
manufactured in India in fhe same way. '
Unfor1':Jnately; 11owever7 for .t he Eeveriue a((thori-
tie.s1 sectjon 3 of the Act. ma:k:~s no n~fetence:
wha1soever to In.d ia or Pakistan, obv.iouslJ.. be~ause
B~~ma was .part of the Indian Emplre,at the thri-e the '
1952] BURMA LAW REPORTS. 107

Act was enacted. It does not appear to have occurred S.C.

1952
to anyone, after . Burma had become separated from
J. KU!ATRAI
India or after Burma had become independent, to & Co.
amend this section. The rules und er section 3 'V .
l\IiNISTER
therefore cannot in any way operate in respect of FOR FINANCE
AND
goods of Indian origin. REVENUE
AND
That being so, section 2, read together with the ANOTHER.

relevant' entry in the First Schedule, must be our sole

guide an d under these provisions once the goods are
shown to have been the produce o.r manufacture of
India the importer becomes entitled to avail himself of
the preferential rate of duty wherever it is prescribed.
Tl~e learned A.ssistan l Attorney-General concedes that
it must be so. : .
In the result the prpceedings of the Minister of
Finance and Revenue, affirming the proceedings of
the Financial Commissioner (Commerce ) and of the
Collector of Customs, Rangoon, assessing the appli-
cant .Company at the standard rate of duty in respect
of 3l bales of cotton fabi-ics imported by it on the 2nd
of August 1950 from Singapore by S.S. ''.Taiksang ",
must. be and are hereby quashed. The applicant
Company. is entitled to costs. Advocate~s fees teo
gold mohurs.'
l08 BURMA LAW R EPORTS. [1952
SUPREME COURT .
ts.c.
1952
u PO NGE (APPELLANT)

July iJ. .,
v.
V.R.A. VEE~APPA CHETT YAR '(RESPONDENT) . *
Tra.n sfer of Property Act-Mortgage by deposrt 'of title deeds--$. 58 of t11e
Transfer of Property Act-Wiznt dowments must be d_cPosite.d-Par/ies
to mortgage suit-:-Title oj mortgagor and mortgagee sold i1: e._xeett!iou of
the decree purchased by a third party- Suif by llzird party-Wizctlier t/1e
orig~lza{ mortgagors nre 11ccessary parties.
Held:. That <.t ax-tickets and "counter!oils for alienee" issued by a Head-
man under s. 22-A of Land and Revenue Act are not sucli documents o title
the deposit of which would create a mortgage by deposit of"tifle deeds.
Ma J(l!;n Ky::~o v. R. C. Dey, I.L.R. 4 Ran. 96 ; V.P.R.V. Chokalirtgam
..Chctty v. Scthm A ella a1zd others, I.L.R. 6 Ran. 29; Jllt1 J oo Teat1 afld auotlier
v. Ma 1'het'1' Nyuu and others, I.L.R. iO Ran. 403; V.E.R.M.A .R. Fim< v.
Ma loo Teat<, I,L.R. 11 Ran. 23\1; Mamg Shr11e Lo1 \': llJauug Shwe AI<,
P.J.L.H. 68; Marmg Lu Gate v. Maung !(yaw van, .P.J.L.B. 158 ;
JJlarzug Kin Lay v. Mauug Trm Thnwg, 5 Ran. 679; Punjab Si"d Rank
-v. GMze~Tt Dao Natlw Rfme, I.L.R. 16 L;.~h. 1113; Jowala Das Govin.d Ram
v. Tl:aka r Das, A.I.R. (1936) L:ih. 251. followed.
K.L.C.1'. CTiidambaram Firm v. Aziz Meah, (1938) Ran. 316, distinguished.
The counter foil for alienee is not.a dpcument of title. It is a mere record
of a report ol alienation.
A, a mortgagee, filed a suit against B, a mortgagor, without joining C
.a person who had bought the same lands at a Court auction arising: 9,;rl of
execution proceedings in respect of a money decree a _gain sf the mortgagor B .
The mortgage suit 'was decreed and the right title and interest of the
.mortgagor wer-e sold to D.
A subsequeut suit by o against C alone is competent sin~c the original
mortgagee A or the mortgagor B are not necessary parties a!! they had no
.more interest ei~her in the mortgage security or in the equity of redemption.

Po Aye for the.,appellant.

A . H . Paul for the respondent.
The judgment of the Court was d eliven~d by
MR. JqSTIGE MYINT THEIN.-Yh~ facts pf. the case
:are priefly these. One .Daw T hin ,Mya who was .
:involved. in ... various fi nancial dealings wal) 'su~d: by
*civil Appeal No. 2 of 1950 against the decree of the High Courf of
'iRangoc_m in Special Appeal No: 2 of 1949. . : .
t Present : MR.}OSTIC)i: MYINTTR EIN 1 U ON PEani:(U 'A;UNG TH.,._ GYAW, JJ,,.
1952] BURMA LAW REPORTS. 109

Veerappa Chettyar, the respondent in this appeal, in f9~?

C.R. No. 412 of 1936 in the High Court of Judicature u Po NGE
at Rangoon and in ~xecu tion of the decree; in Civil v.
Execution No. 4 of 1938 of the Assistant District vs~~~~A
Court of H an t l1awa dd y, h e cause d cert atn propert'tes . CHF.TTYAR.

.
to be sold. . He himself purchased four holdings of
land, three of which being the subject-maHer of the
suit from which the present appeal has arisen: The
three holdings are described as holdings ' Nos. 9, 30
and 46 of 1933-34 or altematively as Nos. 6, 12 and 28
of 1915-16. The sale to the Chettyar is evidenced by
Exhibit III which is a Sale Certificate issued by the
Court.
Daw Thin Mya was sued in C .l~. No. 59 of 1939 of
the late High Court by one U Ba Tin in respect of an
equitable mortgage alleged to have been created by
the depo.s it of certain title deeds relating to a house
known as No. 109 on the Insein Road in Kamayut and
the three holdings Nos. 9, 30 and 46. A preliminary
decree was passed, vide Exhibit V.
I n exec1,1tion, the sale of these properties was sought
and though the Chettyar was not impleaded in the
suit, notice was served on him, presumably. on the
ground that he had bought th em in another proceed-
' ings and w~s in possession of the land. -subject to
; !he rights of the Chettyar the three holdings were
I . .
; purchased at the Court auction by the present
~ appellant U P o Nge. The house was bought by the
? decree-holder U Ba Tin.
f As was to be expected litigation, civil and criminal
t bet ween U Po N ge and the Chettyat' arose out of the
~ situation 'created, culminating in a mortgage suit out of
~ \yhich this appeal. has. arisen brought by U Po Nge
~ against (1) Daw T hin Mya, (2) U Ba Tin, and l3}
[ .Veerappa Chettyar. The suit was first instituted in the
t High Court . in 1940 but,ihe plaint was iater returne4
110 BURMA LAW REPORTS. [1952
S.C.
l9Z2
for presentation to the proper Court. The \:<.' ar years
intervened and it was not till 1947 that the plaint \:r as
U Po 1'\ G I!
fl. pre~ented.. to the Court of the Second Assistant Judge,
V.R.A.
"VEERAI'l'A Hanthav,raddyl and registered as .Civil Suit No. 17 of
~HETTY An. 1947. Daw Thin Mya and U Ba Tin did not contes~
the suit but the Chettyar did and took the stand that no
equitable mortgage was created, 'the documents depo-
sited no't being documents of title as required under
section .S8 Q{f) of the Transfer of Pioperty Act. The
suit, however, . was decreed against all the thr~e
defendants.
The case \vas taken to lhe District Court of
Hanthawaddy by the chettyar on . appeal with
U Po Nge as the sole respondent. U Po Nge)p that
'Court contend ~d that the appe~l was incompetent
because of the failure on the p~t of the appellant to
join. D~w Thin Mya and U Ba Tin. U. Po Nge has
kept up 'this. contention throughout the ~arious Courts
th.<l:l this case has passed through and his learned
-counsel has 1epeated jt before us, that being his first
,ground of appeal,. .
To . us, the fact that Daw Thin Mya and U Ba Tin
took no interest in the proceedings is understandable.
'The attitude tHat Daw Thin Mya presumably took was
that the ~ecree against her had Q,~~n satisfie~, she had
.Jost her propertie~ and the mortgage had been exhaust-
ed. U Ba Tin's attitude was that he had obtained
. satisfaction arid had bought merely the house with which
uPo Nge was not conce.rned. Neith~r Daw Thin Mya
np{ U Ba Tin had any more int~rest " either in the.
mortgage secuiity or 'in. the right of redemption " to
..quote the p'rovisions of Order 34, Rule 1 of the -Ci vit
Procydi..t.re .Code . . This. rule makes it -clear that they
:were n,0.t . ner.es.sar.y partie~ even in.'t he original suit: .A
-suit ;aiainst. the Chet'tyar would have been proper' and
:sufficient since the plaintiff as the .purcha'Ser of the
1952] BURMA LAW REPORTS. 111

i:lterests of the mortgagor and the mortgagee \\'aS S.C.

1952
entitled to sue on the mortgage and the mere fact l!!at
U Po No&
the Chetty.ar had not been impleaded in C.R..-::\ c.:. 59 v.
V.R. A.
oi 1939 could not extinguish th e rights of U P o ::\ ge VEERAPPA
to sue the Cbettyar: vide Ma J(hin J(ynw v. R. C. CH!iTT YAR.

Dey (1).
Appellant's learned counsel has r eferred us to
V.P.R.lf. Chokali11gam C!tetty v. Sethai Acha rmd
'.others {2) where a plantiff had made a purchase by
'Way of speculation, of property which had belonged to
:an insolvent. H e sou ght to set aside a sale by the
:insolvent made previous to his adjudication as such.
By the time the suit was fil ed the property had passed
;through many hands. H e sued the original purchaser
:and t he subsequent transferees for setting aside the
s ales but his suit was dismissed. He took the matter
on appeal against all the subsequent transferees but
-dropped out the original purchaser. The learned
,.Judges who heard the appeal pointed out that the
foundation of the title of all the subsequent transferees
:Was the sale to the original purchaser, and as the trial
. ourt had found the sale to be good, it was res
.udicata as between the plaintiff and the first
':purchaser and that it was res judicata also as between
ithe plaintiff and those who had clainied through the
, rst purchaser. This view was confirmed by the
: rivy Council. Here, the original purchaser was a
1
ital party in the original suit but in Civil Suit No. 17
f 1947, U Ba Tin and D aw Thin Mya were not
ecessary parties and to us it appears t hat neither the
act that Daw Thin Mya and U Ba Tin had of their
: wn accord dropped out of the proceedin.gs ~t the
artiest stage nor the fact that they had been d ropped
ut by tlie Qhettyar in the first appeal and had bee~

(1) I.L.R. 4 Ran. 9P. (2) l .L.R. 6 Ran. 29.

i.12 BURMA LAW REPORTS. 11952:

S.C. consistently dropped out in turn by whoever took the

1952
case up on further appeal, can have fatal results on the
U PoNG!'
v. competence of the appeal befor e us. T.herefore the.
V..R.A.
VEERAPPA
contention that non-joinder of Daw Thin Mya an.d
. C H ETTYAR. U Ba Tin in the first appeal was ~ fatal flaw must be .
r eject~d.
T he other ground of appeal advanced is that the
doeuments in the case are documents of title, the.
deposit ~of which created a rnortgage by deposit of
Title Deeds under section SX (f) of the Transfer o.f
Property Ac~.
The documents are Exhibits Bl to B27, a series
of Revenue receipts in respect of the three holdings
for the nine years covering 1915-16 to 1.933-34, and
Exhibit B28 which is a "Counterfoil for alienee".
is
T his counterfoil issued by a H eadman in relation to
section 22~A of the Land and Revenue Act which~
requires occupiers of land to r{wort to the Revenue
Surveyor or to the Headman any alienation of land.
whether permanent or temporary. . :
Now in regard to revenue receipts it ~s settled l~w
th.at they are not documents of title. Cunliffe J., in
Ma ]oo Tean and another v. Ma Thein Nytm a11d
others (1), said :
"We are thrpwn back therefore on the question whethe_r
a ta~ -receipt and a copy of a map are documents of title ortitle-
deeds within the meaning of the secti~n. I n my opinion they:
are not. They do not even afford reliable evidence of title. I
decline to 'bold that the nature of the document ana subject of a.
d~posit may te merely symbolic .and that, (sanctified, b.y the'
frite-~tion of the dex;ositor, it can be metamorphose~l and drawn.
by equity .;into the requisite cate~ory laid d?wn in the s:ection. :
If these were so J a,pp~ehen~l that a -series of tram tickets'
issued from a terminus, conv~ni.e~tly ~if~atE:d n~at the pro1J~rty:
encumbered might well fulfil , lhe test. l.see. no reason to extencL
.,

. '
11) J.L .R. JO Ra~ . 403.
1 <)52] BURMA LAW REPORTS. 113

the meaning of the c xpt-cs::-ions ' documents of title ' ot- 'title S.C.
deeds ' further than the n:~wnl m e:~ ning contained in these 195%
expressicns. ''- U Po ~GE
v.
This decision of Cunliffe L was confirmed on V.R.A.
VEE RAPPA
appeal and the appellate judgment is reported in CHliTTYAR.

V.E.R.M.A.R. Firm v. Majoo Tean (1). Page C.J., in

an exhaustive judgment propounded the dictum [which
incidentally was regarded as obiter by a Full Bench of
the High Court in [{.L.C. T. C/lidambaram l~'i1'nz v. Aziz
Meah (2)] that documents of title must not only relate
to the_ mortgagor's title but must also disclose an
apparent title in the mortgagor. As to the merits of
tbe case itself Pagt: C.J., held that neither the tax-ticket
nor the map were documents of title.
The observations of Cunliffe J., and Page C.J., are
sufficient to convince us that revenue receipts or
tax-tickets as they are more commonly called, are not
documents of title. If further data for conviction is
necessary one need only look at the revenue receipts
themselves in the cast:. They are issued under
sectiop 37 of the Land and Revenue Act and are
i~sued solely for revenue purposes. They are prepared
with the assessee's name already written in and each
receipt contains the notice printed both in Burmese
and in English : lt Tbis form is a receipt for revenue
only and is not a document of title". And to our
minds it is clear that .they are not. _
We rnu~t now con,?ider what a "Counterfoil for
Alienee" is. Their nature has often been discussed.
We have been rtferred to the Printed Judgmel!ts of
the Court of the Judicial Commissioner for Lower
Burma and the first relevant judgment in the series is
Mautig Sh-we Lon v. Maung s'hwe An (3). The
question was whether a repott entered in a -Headman's
II) I.L.R. 11 Ran. 239. (2) (19381 f{an. L.R. 316. -
(31 P.J.L.B. -68.
114 BURMA LAW REPORTS. [1952
S.C. Register No. -I X (presumably a Register of Mutations
1952
maintained under section 22-A) required to be stamped
U Po NGE
'1). as a document purporting to transfer land. The
V.H.A.
VEERAPPA learned COmmissioner said :
CHETTYJ.R.

''The register is kept for revenue purposes only. An entry

in the register though signed by the transferor cannot be regarded
as the instrument by which the land is transferred on sale,
mortgage o~- lease, as the ca~e may be. The entry, moreover,
only p-urport~
. - to be a report of a transaction which has taken
place."

Maung Shwe Lon's case was quoted with approval

by another Judicial Commissioner in Maung Lu Gale
v. Maung Kyaw Yan (1).
In more recent years there was the case of
Maung Kin Lay v. Matmg Tun Thaing (2) where it
was held that a "pyatpaing" lcounterfqil} was merely
a report o:f an actual sale and that a ". pyatpaing "
merely recorded a report to the revenue authorities for
revenue purposes. The judgm ent does not say
explicitly what " pyatpaing " was involved but since
there is only section 22-A which requires such a report
of alienation, in all probability it was a counterfoil of
Register No. IX .
Register No. IX seems to have gone ou t of use a.
Exhibit B28 purports to be a counterfoil of Register
No. VII.
Departmental dire.c tions in regard to the main~
tenance of a Register under section 22-A as they
appear in the Land and Reven ue Manual of .1927,
read as follows :

" 75. S~ctaon Z2-A of the (Lower.) Burma Land and Revenue
Act enjoins the report by oc~upiers 'of lanp to the revenue
surveyor of --~iir- alie;1_ation of iand, --whethei: permanent _or

(2) S.Ran. 6'19.

 1952] BURMA LAW REPO RTS. 115

temporary and under that sedion a form of register is prescribed S.C.

1952"
.':hich is No. VII of the Land Records Manual . . . . .
U Po NGE
77. . . . . . . . . . . . . . . . . . . . v.
: The report may be made either orally or in writing ancl the V.R.A .
VEERAPPA
) revenue surveyor shall enter the particulars reported in the CIIETTYAI<.
'.
f 1oner-foil of Register No. VII. At the same time he should fill up
; the two outer-foils and give one to the alienor ana one to the
alienee as an acknowledgment of receiving the report. The
ties are not to be required to sign the report but if the
enue su1:veyor is not personally acquainted with them he
ould endeavour to satisfy himself of theit identity particularly
regards the alienor . . . . . "

The latest Manual of 1<;45 omits the reference to

egisiter No. VII and omits also the specific directions
77 and merely requires the rev:enue surveyor to
ter particulars of the transfer. Direction 75 as
nded requires him to enter permanent transfers in
new Register. No. l A. Thus Register No. VII too
ms to have gone out of use. The points of interest
Direction 77 are that the report need .not be signed
in the case of Register No. IX and that the counter-
Is are issued both to the alienee and alienor merely
an acknowJedgment. It is appar ent that the record
maintained rrie,rely for reven ue purposes.
It appears that similar regi$ters are maintained in
ia and extracts from such registers have received
icial evalu<,!.tion. These registers are .referred to as
bandi" and descri bed as "Mu tation Regi"sters ''
, Punjab sind. Ban k v. Ganesh Das Nathu Rane (1)
also ip. ] o.wal(.l Das Govi~d R am v. Thakar Das
where it was held that copies of Jamaband i extracts.
not documents of ti tle, the ~egisters being m erely
e records..
L earned Counsel for appellant has l aid gr"eJ.t stress
K.L.c..-r:. Chid:a1nb~ram. Chettyar. v. Aziz Meah ."(3).
16 Lah . .1113. 12) A.I.R. (1936) Lab. 25J .
:.!3) .(1938) Ran .L.R. 316.
1.16 BURMA LAW REPORTS. [ 1952
s.c. It has b~en rnentioned earlier in this judgmen t that
1952
Page C.J., bad said that to create an equitable rP c r tg age
U Po NGE
v. the documents deposited must not only relate to tile
V.R.A
VEERAPPA mortgagor's title but must also disclose an apparent
CHETTYAR. title in the mortgagor himself. The Full Bench held
that the dQcuments need not disclose a title in the
depositor himself and the rulings in Ma ] oo Tean's
cases ll), (2), were over-ruled only in this resp ect.
Dunkley J., who wrote the main judgment said: " It is
sufficient 'if the deeds deposited bot'la fide relate to the
property or are material evidence of title ". L earned
Counsel lays great reliance. on lhis passage in the
judgment but we venture to think that Dunkley J.,
had in mind the actual documents in the case \\"bich
were (i) a governmeutal grant to the mortgagor's
Immediate predecessor in title, the deposit of which
alon~, Dunkley J., said, would create a mortgage, (ii) a
record of a report made to a J'evenue surveyor
presumably a certificate similar to Exhibit B28 and
(iii) a series of tax-tickets. Said Du~ldey J. ;

" When all these documents are taken together (and they
may be ~o cbnsiclerec\) they suffice to disclose an appareut litle in
the mortgagor .of the properly."

The learned Juc;ige could not possibly have meant

that any document which merely relates to the
property would be sufficient, for if that were so, the
very tax~tickets \Vhich certainly relate to the property
would' be s:ufficient,'and even the tram tickets mention-
ed' by Cunliffe r~, would be sufficie~t.
Towards the end of his argument 'learned Counsel
s;:tid that even if certificates of alien ee in general were
insufficient, Exhibit B28 stood .op a di~ererit footing
because of a .reference made tp a registered deed of
gift by the alienor . to the alienee in. the ~eadman's
:l) I.L. R. 10 Ran. 403 ..
 1952J BURMA LAW REPORTS. 117

endorsement. He mainta111ed that such reference to S.C.

1952
the existence of a deed of gift rendered Exh ibit B28 a U Po NGE
document of title. vVe are unable to sub.scri be to v.
V.R.A.
th is view. The counterfoil is one issued under VEERAPPA
CH ETTYAR ,
section 22-A and Direction 77, and th e Headman as in
duty bound had made the endorsement which was
a gist of the report made to him. This endorsement
was neces~.a.r.y because of the instructions on th e .back
of the form which classifies the various' types of
alienation. We do not even know if either a deed in
fact existed 'or whether it was even produced to the
Headman. In any case the Headman could not insist
upon its production . We are unable to see any
cogent reason why an endorsement made in the usual
course should convert a revenue record into a docu-
ment of title.
We have been urged to hold that the Exhibits
B 1 to B28 taken together, coupled with long possession,
evidenced by the tax-tickets, goes towards proving
ownership. That may be but. we cannot agree more
with Sale J., when he said in ] owala Das Govind
Ram's case ft.) that' in order to Festrict the scope of
the doctrine of equita,ble mortagages and in order to
prevent frauqs it was necessary to distinguish between
documents creating title and documents evidencing
title.
Exhibits Bl to B28 are admittedly of th~ latter
category but in our judgment theyare not documents
of title which show .an apparent titl~ inihe mortgagor.
Accordingly we m ust hold that no mortgage by deposit:
of title deeds could have been created. The appeal is
~herefore dismissed ~vith costs throughput and in the
result Civil S~it . No . . 17 of 1947 of t!H~ Court of the
~nd Assistant.Judge, Harithawaddy, remains dismissed.
. . . . . . . . . . . ,.

. (I) A..i.R. (1936) Lah . 251.

118 BURMA L/\.\:V REPORTS. [1952

SUPREME COU RT.

tS.C. VRAJL AL NARANDAS AND ONE (.t..\ PPLICANTS)
195:?

July 2I v.
T HE COLLECTOR OF HANGOON (RESPONDENT).*

Directions in the natttre of mand,1mus- RequisitioHing (Ewer&ency PrO'IIisious)

Act, 1947, s. 2-Governmcn l of Burma Act, s. H.) (2)-CoJslitutiou of the
Unioti <l} Bu1ma, s. 222 (1) -E~istiug law-Hl fze/her Requisitioning A ct
ultra vires of s. 23 {4)of the CotiSiituli01~-Rcquisitioning whr:tl:e1 judicial
or qtzasi-judicial act- Rule 2 (g), Requisitioning \Claims and Co111Pen
satiotzl Order, 194_9-"0wuer " tmetming of-TcnatJI lto1<fa1 <>7cmer.
' The Colle'ctor of Rangoon by order under s. 2 of the Requisitioning
(Emergency Provisions) Act, 1947" requisitioned a portion of the 4th floor of
No. 545-547, :1-lercbant Street, Rangoon, then in the occupation of the 2ud
applicant as tenant and employee under the I st applicant. Requisition w<~s
challenged on the ground that the Requisitioning Act. 1<;47 w:ls ultra 1dres in
view of the Gpvemment of Burma Act and of the Constitution oi <~urma a~ no
provision had been made for payment of co1r.ptnsation in the rules lramed
nnder the Ad to tenants who had substantial interest in the hinds.
Helrl: 'T hat the Requisitiouing Act, was not ttl/ra tir<'s on acccn:nt of
s. 145 (21 of the Goverumtnl of l\:1rma Act, 1935. It i$ nl"lt abo ul:ra 'l.itcs
.:n account of s. 23 (4 ) of tbe Constitution of Burma.
T he question; whether compen!;ation is payable to any tenant in occupation
'.l covered by the decision in Charles t<. M<~ttasselz v. Tltc Collector of
T?tl1zgootl, a11d Dr. KunLwin, H.L.R. (195l) (S.C.) 201. The tenant i,; included
within the definition of ow1;er of property to who1n compensation is pa) able.
That the amount of compensation and the principles on which and the
:anner in which the compensation is lo be determined are sufficiently
specified ins. 6 !1} mid (Z) of the l~equisitioning Ar.t. These principles are-
lal The owner must be_compensated for any loss sustained by him as a
result of 1eqll'isitioning : . . .
(b) Tl1e amount of compensation tr.ust be fixed by agreement if possible ;
{<) In defl'lult oi ~uch - agreement amount of co:npensation is to be by
arbitration by an arbitrator to be appointed by the P resident,. who
by a gerie~:q or special order may presyribc (he conditions to
which Sticl) arbitrator shall l1ave regard in detcrminin~ the
amount of compensation.
Held also : Reqnisitioning property unde_r the Requisitioning Act is n.ot
a judicial or q~.~.~si-j:~dicial act but a mere administr.ative ac~. No direction in
the nature of certiorari ~an. fllerefore be b;;ued'iri: sucll case.

civi!:Misc. Application No. 14 of 1952. .

t Presmt : U..i'HEIN MAUI\G; ~hief. Justice of the union of Burma,
MR. . usn~E E MP.UNG and MR. JUSTICi. MYINT TH~IN.
 1952] BURMA LAW REPORTS. 11
S.C.
Carltonn Ltd. v . Commissioners of Works atul others, (1943) All. l~ng .
1952
Law Reports, Vol. II, 560; Provmce of Bombay v. KulM1ldas S. Adv.uli
a11d otl"rs, (1950) S.C.H. 62l, refe rred to. VRAJLAL
N ARAMDAS
AND ONE
v.
G. Horrocks for the applicants. THE
CoLLECTOR
OF RANGOON
Chan Htoon, Attorney-l
General, with . Lf or th e res 0 n dent ...
Chan Tun Aung, Asststant 11 p
Attorney-General )

The judgment of the Court was delivered by the

Chief Justice of the Union.

U THEIN MA.UNG.- T his is an application for direct-

ions in the nature of mandamus in respect of an order
by which the Collector of Rangoon has, in exercise of
the powers conferred upon him under section 2 of the
Requisitioning (Emergency Provisions) Act, 1947,
requisitiolied a portion of the fourth floor of
No. 545-547, Merch4nt Street, Rangoon.
It has been h~a-rd together with Civil Miscellaneous
Applications Nos. 137 and 223 of 1951 and Nos. U and
29 \1 1952 so .f.ar as the questions of law, which are
common to all of . them, are concerned. Those
questions of law are (a) wheth~r the saia ~ct is
" exist'ing "law~~ asdefined in section 2~2 (1) qf the
Constitution of the Union of. Burma, (b) whetherit is .
not ultra vires in view of section 23 (~) 1f "the
Constitution, and (c) whether requisitioning premjses
under it is a juciicial I or a quasi-judicial) act and not a
merely executive (Qr administrative) act. .
It has peen a rgued that the ACt is no.t existing law
since it \vas ultra .vires ip~smuch. p.s. it did not . comply
with se.ction 145 (:?.) . o(the Government of Burma Act,
1935, ,vhlc~. r eads ;
120 BURMA LAW REPORTS. [1952
S.C.
1952 " The Legisl ature shall not have po"'er to make any Ja,,.
authorising the compulsory acq uisition for public purposes of ~ny
VRAJLAL
NARANDAS
land, or any commerciai or industrial undertaking, or any
AND ONE interest in, oJ: in any comp1ny owning, any commercial or industrial
v. undertaking, unless the law provides for the payment of compensa-
THE
CoLLECTOR tion for the property acquired and either fixes the amount of the
OF RANGCJON.
compensation or specifies the principles on which, and the manner
in which, it is to be determined."
.
Th~ C<(ntention is that the Requisitioning
(Emergency Provisions) Act, 1947, neither fixes the
amount of compensation for the property acquired nor
specifies the principles on which and the manner in
which, it is to be determined.
Howev~r, section 6 (1) and (2) of the Act provide :

" (1) Wh~re any property or thing is requisitjon ed, or is

deemed to have been requisitioned, under the provisions o~ this
Act, the owner of such property or thing shall be paid such
compensation for any loss he may have sustained as a result of such
requisitioning as may be fixed in accordanc-e with the provisions
of this section. .
(Z) In default of agreeritent between 'the Governnit~ht and the
owner of the property, the Governor shall, by general or special
order specify the authority or persons thrqugh which or whom
any claim for compensation llncler suh-lleO~i-~n (1) shall be
submitted and the authority or person by wlt~ch or whom any
such claim shall be adjudged or awarded."

we a re clearly of the -6pil)i6tf t.p';:Lf section 6 does .

specify the prjnciples on which, and the. manner in
"which, compensation is to be _determined. ;_ These
prip.ciples are :
1. -That the o wner must be p:;~,id c~)lnpensition
fox: any l~ss he inay . hav~ sustai'n.e d as a
result of requisitio'n ing ;
z. That the amount of . coi:npe~~tion must be:
fixed hy agre~ment betw.eep the oWrier and
the Government; if it b~ 'possible to doso ; .
 1952] BURMA LAW REPORTS. 121

3. That in default of such agreement, the S.C.

1952
amount of compensation shall be adjudged VRAJLAL
or awarded by an arbitrator ; and ~ NARANDAS
A~D ONE
4. That the arbitrator must be appointed by the 'II.
THE
Governor. COLLECTOR
The Governor may by general or special order oF RM;GooN.

under sub-section (3) of the same section prescribe the

conditions to which the arbitrator sha~l have regard m
determining the amount of compensati~n payable to
the owner ; but this does not affect the principle of
arbitration as the Governor cannot prevent the
arbitrator from taking .any other relevant matter into
consideration and no rule made by the Governor
under this su'b-sectiori can affect the principle that the
owner must be paid compensation for any loss he may
b.ave sustained as a result of requisitioning.
We accordingly hold that the Act was not ultra
vires and that it is'' existing law '' as defined in section
222 ( 1) of the Constitution of the Union of Burma.
Section 23 (4) of the Con~titution provides :
" Private property may !.>e limited or expropriated if the
ublie interest sot:equires but only in accordance with law which

i
o

.hall prescribe in which cases and to what extent the owner shall
e compensated;''

t only requiresthe law to prescribe in which cases and

o what extent .th~ owrier shall be co~pensated; so an
0 0

0 ct which was "tntra vires ~nder section 145 of. the

0

overnment of 'Burma Act, ol9JS. is not 'likely to

'

:. come ultra vires on ac9ount of the Constitution

'a ving come . into : force after its enactment. Besides, 0

9 far as the Requisitioning (Emergency o-P rovisi9ns)

.ct, 1947 is coqcerned .it .. does provide for payment
0
0

f compen~ation in all cases of requisitioning a:nd it

0

oes prescribe the e~tent to . which the owner

a11 be compe~sated. As -w~ . l}a\f~ state~ . above,
0
122 BURMA L AW R E PORTS. [ 1952
S.C. section 6 (1) provides that the owner shall be paid
1952
compe nsation for any loss he may have sustained as a
VRAJLAL
NARANOAS result Qf requisitioning and section 6 {2) provides for
AND ONE
v. settlement of the amount of co mpensation by agrcem(;nt
THE
COLLECTOR
or award .
OF RANGOON. It has also been argued that the Act is ultra ~'ires
inasmuch as it does not provide for payment of
compensation to any tenant in occupation of a
req'uisitioned build.ing.
However, "this Court has already held in Chades R.
Manasseh v. The Collector of Rangoon and
Dr. Kun Lwin 0) that the Act is not ultra vir es 111
that respect. This Court has obser"ved ther ein :
,, rt is true that the tenant of 0. house has right of prorei ty
in the house to the extent of his term as a tenant and that term
may be for a shorter or a longer period. To that exte11t he is the
owne r of an interest in the house. Can it then be said that when
section 6 of the Requisitioning Act. provic'es machinery for t he
ass~ssm~nt and payment of com);ensation to the ' o\\"ner of such
property ' (1 .e., the property requisitioned) no pro:vision exists in
the Act to :satisfy the 'r equirements of section 23 (4) of the
Constitution in relation to every person havin~ diffet'ent and
concurring estates of ownership in the property requisitioned? It
is ekmentary learning that in respect of immoveable property
both the person having exclusive and unlimited right of enjoyment
of the property and the perso.n having exclusive but restricted-it
may be in measure of time or othei'1.vise..:_righ.t .of enjoyment may
be correctly ~ennecf owners of that property.'' .

The above observation of this Court may be compared

with the following extracts from pages 821 and 823 of
Willis on Constitutional Law : -
"O~nership relates to rit!hts,: . poveis, privileges ntid
immunities concerning elthel'" land or- chqttels . . . ~ . . . . .
Th.e re is taking :whenever any incident o'f' pt'opeity, wh_etber a
. .. .. .: . .
.is
right; power, pri~ilege or imt~unity-9 owner~hip .taicen from the
. .
 1952] BURMA L AW REPORTS. 123

owner . . . \\'hen leased premises are S.C.

1952
taken, the bonus value of the lease to the tenants is also taken. ''
VRAJLAL
NARAND AS
Besides, the Hequisitioning (Emergency Provisions) AND ONE
Act, 1947, which does provide for payment of v.
THE
compensation to " the owner " as required by the COLLECTOR
OF RANGOON
Government of Burma Act, 1935, and the Consti-
tution of the Union of Burma, cannot be ultra vires for
fairure to pr~vide for payment of comp~nsat.i.on to
tenants, even if they are not 11 owners " as suggested
by lhe learned Advocate for the applicants.
It has also been argued that Rule 2 (g) of the
Requisitioning (Claims and Compensation) Order,
1949, which reads " 'owner ' in relation to property,
means the person entitled to sell the property~"
must be ultra vztes ; but the short answer to this.
argument is that a renant is a person entitled to sell
the property, thf. property which he can sell being the
rights of a lessee.
We accordingly' hold that neither the Act nor the
Rule is ultrci vires under the Constitution of the Union
of Burma.
With ~ reference to the question as to whethei'
requisitioning pr~perty under the Requisitioning
(Emergency Provisi ons) Act, 1947, is a judicial or
quasi-judicial act and not a mere administrati'(e act,
the learned Achocates h ave bardlymade any attempt
to. show that it is a judicial or quasi-judicial act. On
the other hand. the Court . of Appeal has held in
Carltona Ltd. v. Commissioners of Works and "OiiJers
(1), which t~ a case under Defence (General)
Regulati9.ns, 1939 : /
"Parliament, which. a.u~horises this regulation, commits to the
executive the discretioi1 to decide and with that dis.cretion, if
. bond flde
. . no .court Cil.ll interfere. All that ~he court can
exercised,
.
..c11 (1943; Ail Eng. Law Report~, Vol. : 11, p. 5~0.
124 BURMA LAW REPORTS. L1952
S.C. do is to see that the power \\'hich it is claimed to exercise is one
1952
\\'hich falls \vithin the four corners of the powers given by the
VRAJLAL
NARANDAS
legislature and to see that these powets are .exercised in good
AND ONE faith. Apart from that, the courts have no powf.r at all to
v. inquire into the reasonableness, the policy., the sense, or any othet
THF.
CoLLEcToR aspec.t of the transaction."
OF RANGOON.
The Supreme Court of India has also held in
Prozince of Bombay v. Kulsaldas S. Advani and
others (1), which is a case under Bombay Land
Requisitio~ Ordinance :
" . that on a proper construction of section 3 of the
Ordinance the decision of the Bombay Government that the
Property was t:eqqired for a public purpose was not a judicial or
quasi-judicial decision but an administrative act and the High
Court of Bombay hacl therefore no jcriscliction to issue a writ of
certiorari in respect of the order of re.quisition."
Besides, requisitioning property under section 2 of
the Requisitioning (Emergency Provisions) Act; 19471
is like taking property in exercise of eminent domain
and there is nothing in the Act to indicate that such
requisitioning must be a judicial 'or quasi-judicial act
and n~t a purely administrative act.
We accordingly hold that requisitioning property
under the Re.q uisitioning (Emergency Provisions) Actt
1947, is an administrative act and not a judicial or
quasi-judicial act in respect of which directions. in the
nature of certiorari can be issued.
As r~gards the fa:Gts of this c~se; the_re is:nothing in
the contentions . of the learned . Advocate for the
applicants that t-heir interest in the premises had not
been requisitioned and that they .h ad not been served
with -notice of requisition. The Cpllector h~s stated in
his Requisition Order :
. . . " I do hereby under the pwvisi~ns 6 sectipl'\ .:2 o the
~equisitioning (Emergency Provisi?ns) Act, 1947, r~-q!lisition the.
. (t) 11950). s.c.R: 621. .
1952] BURMA LAW REPORTS.
S.C.
premises known :~s the :o nion of :~ccommoclation on the fourth 1952
floor of ~o. 545-54i, :\[erchant Street, Hangoon. as inclicatet' i::
YruJ L.IL
the attached .sketch plan. :-;M~ANDAS
I do further direct th:~t the above portion of the sai<i AN ll ONE

(premises anci building) shall be made av.1ilable for.the u~e oi v.

THE
Civil Government with immediate effect." CoLLEC10R
OF RANGOON

A copy of this order was affixed on the preinises

and another copy was served on. the Oriental
Government Security Life Assurance Co. Ltd. as
owner. Besides, the Collector had an Order to quit
the premises served on the f-irst applicant, of whom the
second applicant is a mere representative, as soon as
the Assurance Co . .. iuformed him of the premises
having been let to it.
Vve are not really concerned with the allegation
that the period of 7 days is whoJiy insufficient to
enable the applicants to obtain alternative accommoda-
tion for conducting the family business of rice-millers
.and bankers ; and they have had more time as this
Court issu~d an interim stay order; but we do hope that
the Collec.tor W?uld, with due regard to the paucity of
housing accommodation in Rangoon, give reasonable
time to quit . whenever he has to requisition buidings
which are alr~ady occupied by others. .
The application is dismissed with costs; Advocates'
fees ten gold. mohurs.
The rule n.isi is discharged and- the interim stay
<>rder. is <;:ancelled.
126 BURMA LAW REPORTS. [1952

SUPREME COURT.
t S.C. MAURICE BOWER PADGETT AND ANOTHER
1952
(APP LICANTS)
July 21.
v.
COLLECTOR OF RANGOON AND ANOTHER
(RESPONDENTS).*
Direction in the nature of cctliorari and mtmdamus-RequisitiotJing of
house under s. 2 of Requi,,tiouing (Emerge>~cy Prov'isious) Act,1947-
A Uegation that building requisitioned is! t emple a'lld Place vf h:ligious
worshiP-S. ZS of the Constitutioll of the Union of Burma-LJisputed
questio1ts of fttct-Practice.
The Masonic Hall in Rangoon was requisitioned by the Collector of
Rangoon under s. :2 of Requisitioning (Emergency Provisions) Act, 1947. An
applicat ion was filed in the Supreme Court i0r issue of appropriate writ on the
groun~s :-

(a) The Requisitioning Act was tlltra vires on account of s. 145 (2) of
Govern ment of Burma Act, 1935 and also of the Constitution
of Burma and'
(b) the firsl floor of the bu-ilding is used as a temple and place of relig ious
worship and hence could not be requisitioned.
The Collector in reply to the application did not specifically deny that tbe
building w~ not a place of worship but merely slated he was not aware of the
alleg::ttions about the buildi n~ being used as a temple or that Freemasonry
was =i form of religious worship.
Held: 'l' hc questiot' as to \\hether the Act was 11ltra _vins on account of
the Government of B~.;rma Act or Constitution of Burma has been decided in
Vraj!al Narc~ynndas v. Colleclol' of Rangoon, B.L:R. (1952) (S.C.) 11!1 and
judicial notice can be taken of the facts lhat-
(a) Freemasons have always been re~arded as members of a Society
the objects of w.,.hich arc mutual . help .and promotion o brotherly
feeling among its members,
(b) that those, who profess different religions and can-n ot ther.efore .. have
a common place of \1\!'0rship, have been members o f the same
Society; and
(c) that . the Freemason Hall has never been regarded by the nublic as a.
pla<:e of public worship.
As the activities of Fre~masons in thjs country have been shrouded:
in m.ystery, the .Masonic Hall has not been open to U1e public. and all Free-
.masons..are under strict oaths of secrecy,
. no adyerse
:
inference could
.
be dra\vn
" Civil Misc. Appli<:ation No. 11 of 1952. ,......
, . {Present: U THEIN .. MAUNG, Chi~f J~slice of the U.nio~ of B~rma.
M,R.}U.STICE E MAUNG a'nct Mu. Jus:ncE l\_1YINT THEir:'
1952] BURMA LAW REPORTS. 127

ir m: 1he t:ollector's failure to deny specific:tll) the ;al:egation that the Hall w:ts S.C.
1952
.t place of puhlic worship.
Hdd: Further that requisitioning is not a judicial. but an aclministrative i\IAURtCE
.1.r:tnd therefore cannot be challenged by writ of prohibition or certiorari. BOWEll 1-'At>-
GETT ANO
Where there are disputed questions of fact, which cannot be satisfactc_>rily AN01'fiER
:t<'.j;Jdicated i11 proceedings, suits should be instituted to obtain the necessary v.
COLLE<:
rc:id.
TOR OF
Prasad Naraya1t Sahi mut otlurs v. Th e Slate of Bihar rwd others.
Rrllll RANGOON
.U.R.Il952J Pat. I 94 :tt 199-200, followed. ANO
ANOTHER.
P. [(, Basu for the applicants.

Chan Htoon, Attorney- )

General, with f th respondents.
Chan Tun A.ung, Assistant or e
Attorney-General
The judgment of the Court was delivered by the
Chief Justice of the Union.
U THEIN MAUNG.-This is an application for
~irections in the nature of mandamus, certiorari and/or
prohibition in respect of an order by which the
~ollector of Rangoon has requisitioned the Masonic
~all in Simpson Road, Rangoon, for the War Office.
,. It has been h.e ard together with Civil Miscellaneous
)plication No. 14 of 1952 * on the common ques-
ons of law and we have decided in the said case (a)
',.. at the Requisitioning (Emergency Provisions) Act,
-947, is'' existing law " as defined in section 222 (1}
,. the Constitution of the Union of Burma, (b) that it
~- no~ ultra vires on account of section 23 {4) of the
~onstitutiqo, and (c) that r equisitioning prop.e rties
der it is not a judicial act but an executive or
inistrative act.
Writs of certiorari and prohibition are out of
. estion in view of the said decision ; and the only
. estion that remains _for consideration is whether the
plicant is entitled to a writ of tnandamus in respect
* Reported at p. 118-Editor.
128 BU R l\IA L AW REPORTS. l 1952
S.C. of the first fl_o or of the building, which is c laimed to b e
1952
a place of religious worship.
MAURLCE
BOWER P A D The first applicant has sta ted in paragr~phs 4 and 7
GET't AND
ANOTHER of his affidavit :
'/) ,

COLLEC-
TOR OF "4. The fin.t fko r of lhe building is used as templ e a ;:d a
HANGOON
AND
p lace of religious wono: hip a nd the ground floor is u sed as Hall
ANOTHER . and office.
7. T hat F'reem:ts:> 1 r y, which is universally spread t hrOligh-
out tlie wo~lc1 , h:1.s b een pr:lctisecl in Burma :1s a form o f r e ligious
worship for well over <t hundred year s."

And the Collector has mere ly stated in his cou n ter-

affidavit'' I am not aware of t he al~egations c ontained
in paragraphs 4 and 7 of the affidavit.'' Su the learned
Advocate:! for the applicants has argued that the first
applicant's statement that the first floor of the building
is a plac ~ of religious worship must be .accepted
as correct.
However , the activities of freemasons in this
country have always been shrouded in mystery, the
Masonic Hall has not been open to the public and all
freemasons appear to have been under oaths of strict
secrecy. U nder these circumst ances, which are verY..
special, we cann.ot d raw any adverse in feren~e ~rom tbe
Collector's bare stateme nt '' I am not aware of tbe
allegation s." . .
On the other' hand we must take judicial notice of
the facts ( 1) that freemasons in this coun t ry have
a lways been regarded as members of a .so ciety, the
objects of which ar e mutual help an d t he promotion of
p rotherly feeling. among its me mber s (Cp. A ., New
E nglish Dictionary Edited by Sir James Murr ay,
Vol. IV, p . 5'i 7 op. cit. freema.soq}, (2) t hat t hos~, who
pr ofess differ ent reljgiops and .there'for:e canndt . have a
.common place of worship, bave b een . tnemb e1s: of. the
s~me society, and ( 3.) .th.a t Ireemason halls' ha~.e ~ev_er
1952] BURl\IA LAW REPORTS. 129

~ een regarded by the public as places of religiou::; S.C.

1952
\Yorship.
~IACI~ICE
It is true that according to the first proviso to BowER PAD
s..;ction 2 (1) of the Requisitioning (En'lergem:y CETTAnD
AnOTHER
,Provisions) Act, 1947, no land, premises or things used '[/,
CoL.L.C-
!or the purpose of religious worship can be requisi- ToR OF
RA='GOO~.
f ioned under the Act. But directions in the nature of
-mandamus are issued only if (inter alia) it is clearly
:incumbent on a person holding a public office to do
or forbear doing a specific act [Cp. section 45 (b) of
the Specific Relief Act]. In this case it is not at all
tSlear that freemasonry has been practised in Burma as
a form of religious worship and that the top floor of
the Freemason Hall in qttestion, the ground floor
of which is admittedly used as hall and office, is
a place of religious worship. So this is not a case in
which it is clearly incumbent on the Collector to
forbear requisitioning the top floor of the Hall.
Section 226 of the Constitution of India is the
f ounterpart or equivalent of section 25 of the Consti-
~ution of the Union of Burma and in Ram Prasad
warayan Sahi and others v. The State OJ Bihar and
t hers (1), which is a case under section 226,
amaswami J., observed:

"1t is plain that the petitioner's title depends upon disputed

uestiom; of fact which cannot be satisb.ctorily determined
these summary proceedings. The remedy given by Article 226
an extraordinary one and can be invoked only in exceptional
cumstances by those who have no alternative remedy by way
'f suit or othenYise. In the present case, the settlement of the
d which the petitioners claim appears p1'f.1118 facie illegal. I
e alleg1tion of the respondents is correct, the Court of Wards
. s committed a breach of trust in making the settlement.
here is also no satisfactory reason why the petitioners .should
ot instifute a suit for obtaininS! the reliefs they seek. "

Ill A.I.R. (1932) Pat. 19-1 at 199 and 200.

9.
130 BURMA LAW REPORTS. [1952
S.C.
1952
Sarjoo Prosad J., also observed i.n the same cn~e :
MAURit.:E "I am not satisfied 'j>rimti facie ' for the reaso11s already
.BOWER I'AO
GET'f ANI> staled in the judgment of my learned brother that the p(;titioners
ANOTHEH have established n clear tille or 1 legal right' nece~silating
v.
COLLEC our interference under Article 226 . . . . . . . . l have
TOR OF no desire to prejudice the case o the petitioners in any
RANGOON
ANO subsequent liti~ation that may arise between the parties ; bul it
ANOTHER. is abundantly clear to me for the present that the petitioners '
title or right, if any, depends upon disputed questions of fact
which carlnot be satisfactorily adjudicated in these summary
proceedings."

These observations are applicable with equal force,

though mutatis mutandis, to the present case, which
is under section 25 of t he Constitu tion of the Union of
Burma.
Besides, if the top floor be really a place of
religious worship and the Collector really has no power
to requisition it, the applicants can obtain full relief in
an ordinary suit, which unlike the present application,
must be ciiRposed of after hearing all such evidence as
the parties like to produce.
The application is dismissed, the rule nisi is dis-
charged and the interim stay ordt::r is cancelled ; but
there will be no order for costs.
 19521' BURMA LAW REPORTS. 131

SUPREME COURT.

s. HUIE (APPLICANT) ts.c.

1952
v.
f.'
July 21.
ff HE COLLECTOR OF RANGOON AND ANOTHER
(RESPONDENTS).*

'IM,andaillliS, diredions in lhe 11ature oj-Governmeut of Burma A~t .1935, s. 16

13) and (4)-Httles of "'ccutive business-RequtSt tion iu~ of property
against such rules-Fro:Perfy i.n possessio" of Honorary ;lia gist rate
wl~ther cam1ot be rcquis1tionecl-Prti}Ss Commu11iqutf how jar relc:vanl.

T he Collector of Rangoon requi~itioned No. 77, S ignal Pagoda Road,

~angoon. ior the War Office. It was contended by the owner that the
feqt!isition \\'aS not made through the Ministry oi Public works and Labour as
~eqttired by Ruks of Exec:: live Business made under s. J 6 (3) and (4) of the
~vernment of Scrma Act, 1935, that the owner being an Honorary Magistrate
~is house could not be requisitioned, that t he re was a Press Communique
tssuec! by the Government of Burma that requisition was to be resorted to <nly
~here the present tenant was either willing to vacate or leaving and that
~as no~ the case.
r-H_eld : That r~le~ relating. t?_.lr~sactions of government business have
l>u1mg to do With the reqUISJhorung of property by t11e Collector. The
letitiooer has failed to satisfy the Court that the i1eeds of the Witr Offi,.e
~not be greater than that of a mere Honorary Magistrate and that tt was
~cu tnbcnt on the Collector to do or forbear from doing a specific act under
45 (3) of the Specific Relief Act and lh~ petitioner failed to satisfy these
,. ditions.
;_ Held jJJrther; There is nothingiu. the Requisitioning Act to prevent the
use of an Honorary Magistrate being requisitioned. T he Court is concerned
: h administering the law as it is found in the Act and the Rules thereunder
,t not with any statement in the Press Communique:

Choung Po fpr the applicant.

Chan .Htoon, Attorney..: )

neral, with f
. or the respondents.
: Chan Tun Aung, Assistant
'torney-General.
;.

. ' .
civil Misc. f\pplicationNo. 223 o'f 1951:
.f Present: u. TH'EI~ MAUNG, Chlef J\lstice of th~ Union of i3ur.ma.
JUSTICE E MAUNG and MR. J USTICE' MYINT THEIN.
132 BURMA LAW R E PORTS. r1<Jsz
S.C. The judgment of the Court \vas delivered by the
1952
Chief Justice of the Union.
S. Ht;JF.
7i.
THE U THEIN MAUNG.-T bis is an application for a
CoLLECTOR
oF R.uwoo~ writ of mandamus in respect of an order by which tbe
AND
Collector of Rangoon has requisitioned the premises'
ANOTiiER.
known as No. 77, Signal Pagoda Road, Rangoon, for
the War Office:
It has been heard together with Civil Miscellaneous
Application No. 14 of 1952 so far as the principal
questions of law are concerned and those questions
have been decided therein.
Apart from the said questions of law t he learned
Advocate for the applicant has contended :
" According to rules, the War Office if it wanted additional
accommodation it was to approach th~ Ministry of Public Works
and Labour which in turn should ask the Collector of Rangoou to
reqpis it~on suitable premises."

The reference is to Rules of Executive Business made

by the Governor under sub-sections . (3) and (4) of
section 16 of the Government of Burma Act, 1935,
which read :
" (3) The Gover no1 shall make rules for the more convenient
transaction of the business of the Government, and for the
allocat.ion among ministers of the said business in so far as it is
not business with respect to which the .Governo,r is by or under
this Ad required t~ act in his discretion. .
(4) The rules shall include provisions requiring mii.usters and
secretaries to Government to transmit to the Governor all such
information with respect to the business of lhe Government as
may be specified in the rules, o~ as the Goven10r may otherwise
require to be so lrausmitted, and in particula~ requirir-g a minister
to bring to the notice of the Govemor, and the appropriate:
secretary to bring to the notice of the minister concerned and ofJ
the Governor, a~y m~tter uncle~. coi1si:d~r~tl.oq by him which/
iovolv~s, or appears to h{m li.ke}y . to ' i~volve, any special]
responsibility of the Governor.~:.
~952] BURMA LAW R E PO RTS. 133

However, these are Rules relating to transaction of S.C.

1952
.'Government business which have nothing to do with
s.
~e requisitioning of property by the Collector.
HuJ
t '.
THE
The learned Advocate for the applicant has further COLLECTOR
OF RA~GOON
~. ontended that his house cannot be requisitioned as he AND
~ an Honorary Magi ~trate. However, there is nothing ANOTHER.

pn the Requisitioning (Eme r g~ncy Provisions) Act,

~947, to prevent a house of an Honorary M~gistrate
fbeing requisitioned ; we are not at all satisfied {1) that
~he needs of the War Office of the Union of B urma
!Cannot be greater "than those of a mere Honorar y
~1agistrate of Rangoon, and (2) that it was clearly
!incumbent on the Collector t o have abstained from
~equisitioning the premises ; and directions in the
"rature of mandamus will be issued only if (inter alia)
"t be clearly incumbent on a person holding a public
ffice to do or to forbear doing a specific act [Cp .
he Specific Relief Act, section 45 (3)] .
{ T he learned Advocate for the applicant has invited
..ur attention to a Press Communique issued by
overnmen t on the 11th April 1952, which contains
e following statement:-
" Governmen t has not requisitioned any house at the
ance of the Ministry of National Planning which has involved

l
eviction of tenants in permanent or long-term occupation.
quisitiooin~ has been r~sorte d to only in cases wh.e re there is
nite information that the present tenant is eitbetleaving or is
ing to vacate."

are not really concern ed with the said statement,

have to administer the law as we find it in the
uisitioning (Emergency P rovisions) Act, 1947, and
Rules thereunder. H owever, we do hope that the
pie which has been set by the Ministry of National
would . be followed by others \yhe ~ ever and
..,. ..,,..,~... it is possible ~o d o so.
134 BURMA LAW REPORTS. ~' 19 52
L

S.C. The application is dismissed \llith costs ; Advocates'

l952
fees ten gold mohurs. The rule Nisi is discharged and
8. H OlE the interim stay order is cancelled.
~.

THE
COLLECTOR
OF R AKGOON
AND
.~NOTHER,
 1952] BURMA LA'vV REPORTS. 135

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11
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~58~~tSot:~~:::uoS51 ~Gii(: 1 G@()J?~G?c:E:I GUJo8~ffioS8: 1 G@UJ"
rooS~=t:"l!?:n"

~~C. 0':>G)C: j I @t;;ceoGnQ~')~':OJS o1~Go.:o ~~oS j .(?)~

<J~rot:1 Gm.,oSo 1m~c:@~::Dtn
. . .
. ' -" ~~().)')! G@g~Si G~().)')~:o:>oSGm~t:~~G6j:~~ roc0?.~GGo:>S

G.9:~-J:r ~~15:~G;;q:>::ubt@c:l G@:@oooo1c~~Groc:G::u? G6.:>?uS~t:

rn~oo.,oS~~'l!-=>:~~ o6)S:rnro&~'\G:x>')G().)')o~t,;naGoo.,rrn~"P:i GJO:>f>"
~cf.i"lj?:b" . .
1952] BURMA LAW REPORTS. 141

~~1n<>)Ei~-J:~c ~:::B:~:::B:o1~~G~G:>J'JG'J~OJ'JOjjCI o ct o e oe~J

y~~l roc00-JG@ ~CC~C~C\:(OGGj:~d)eoGD .~I ~;'>oS(:{j'J:D()~cf.>o1 ::~oS~tj?:

cqoG)~l o1d5G~~'JD<l')C'O?'J~ G~<J2GOJ'J:).).)t'JGO TGo 1o5~6)0Jt;n !~
(9tGco?C~
o1d5G~~;I'J ~~0080GD~I B~foS"fp:~~OOo1cqo6)~ D<l'JC'O')'J ~~g?~tc
~ G~oq:cfJ~C6)~1 ~~o5eoGD~~~1oS'-1Jc1~ ~G@~OJGJ)'J~:Jj'J:~I G0058<l~:6jil
O~G~0S6)G~Gtn ~~ffieoGDO')~~;~ ~~~GOJ81 <;t:~~t1c
9j00~9 ~G~OJGJ)'J{:j,O:~')-
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80GD~IO'J9~:~C 0lGrGOJ'JGo~ I G@o:>'Jo3S:6)~80GD~ @tf>oS
Gm'Jt~~H'Do.J0 ~cq8~cGtu @t<t>oS"fp:m::SS:@: G@~.:~Go 9
9J~G)~D<l~o5 ( G@m~5~cg~Q)f>S o:>t:~:o:>oSSJoSG 61:) ~cliP
80GD~fdOO'J:I o1d5G~OJOJ'JCijJC .Bt;'><"!]-:,:nc~cfJC\(oGo:~cGtu
~6po.2C ~'J6)C: ,:) I @tGOO')Cot~5c ec;Gn@~'J<>)C: 0 1D<lyoS ~
(9) D<llijl '' @~GOO'Jtot~5c d32"!J-=>:nc,o.2cf3 o~t:G)OjlGG): '' OJfSI
Q 1c{1g~~ 80GD~~Cg~rrc>'JC'O?'JD<l~f:Ci.l!G~cf3o.Jtu ~c~5 roc0)')

q5~CGOJ-:> Oi?"ff'J:nc'J: 1 Go 9~oo'J:6}~ I ~o)~crocfig>'JGC\(OG~C

Go.J'J~'=lJ'):OOj) rooS'=p:~::SS:~G6j:o.Jtrot: 1 tGoo'Jtot~E cd32
o5eSo.Jtu
BtG~CO? B~G'J~CC~ ~~c:~09j[O~.m~~eo~n ~fig eJ
(o)nc~rot:l ~fiGI ,<(fiG:::(E (J) ~C Gt~oC o.1~GIOC'D'Jil .
142 BURMA LAW REPORTS. [ 1952

::le~J 0')b)~: o @tGro~JtQ{~cceoGG&0D&)CW6Eo1G:x>')d3S?~')~~g8(1~oS

-
~t{>di"jp:
1

t;oG o~~~B~~'Jm'JOJf 1 o1~g~SOJ'J~xtn

~~
~;GQY.)t~ ~t_r"mP ~~ rooSo:)')G~'J:~ ctlrYt~ B~::SSg<JilBb:OJt
~')~cc n7-~rf>eoGo~ ~~m~ta1oS~oSg~QS n c;E~~mSmEqf8)oS~oS~'J
GOJS) O<l~:b)ll
~oS~tt\JoS;xl')GotOGOJ'JOi(C:~j'):l rooSCXJ')G~~p:q ~C~b~~G~G0&)
or~g6:1 ~oS~5 o::oSoo~JC\i8~6G:x>'J~"t'J:o5 oo~:cg:f ~mGB'if
~axf~~ G~6~tG0Ei)Ojl~CjC~ Goo')~Cg~0f~0~:~:'=f-':~ @6oo5
~xoS';loSEqffi~:x>tu G@oo'J~j')g~ fSo3S:~@S:'j') crcOJ0@5~
maS9o5G:).)') GgCXJ'J~Cg~0f~0t:'lJ:9p~oo&)l Gc.D'JG.j'):~G~C~C
~E@@~GOJ')~~p:ro51 0J.'J h1)d3S:~E:@~OJtu ~d3S:Oi?6l6 ~
'j'JI 'ffC06)t8)tf~~G~'Jt@tG~Ei)~O'aGCO'JoS~~';l!OJ~@~o:>tn
BtefOS'=ij')~mo;2oS d?d.io1G::x:>'JC)oS~OJ') oe~P~9S05GooSG~,G~
~g~IJ: ~~'J~ootGOJ'J~b)Ccx?:~:'j'JOCOjjCI S<1rbt:?G~0?6)00Jt~
ge OJ~2oGn~~~~ eoG~~6g~~')CUJ'JS<1P6C: <Y.J!GE>pd)OJ~ot
~Ei)C~:@cft;pCJ6Cr ~!3'2cb20G8~ ''Pith and Substance"~~ OCl~
o?x'J ~0~b}Gf@~G6'Jt:u ~a)J)~ ~~m~~:x>tl eoGom~
o:><(~2oGs{Sl~tg~qo'Jm'=>S<102C:tY.ljGt;poSC'jjt l ~-~~p:saf>'JW). m'J:
20Gs~~~~ eoG~~~tg~SO'JC!D'J~o;26: 01]Jl:G<Y.f!Sc<>1:~~~GOJS
cot: I ~eoGo:x>e 8doot@~G0&)Gt02o1~:x>tn
[See Charles Russell v. The Queen, (1881-82) L.R. 7
A.C. p. 829 at pp. 839-840; Gallagher v. Lynn, '(1937)r
A.C. 863 at p. 870 wh~re Lord Atkin has ol;>serv~d :
I)

'' It is well established that you are to look at the ' true
natur~ and character of the _legislation': Russell v.. The Quetm
'the pith and substance of the legislation'. If, on the view of
the statute as a whole, you find that the substance of . the
legislation is within the express powers, then it is not i nvalidated
if incidenhilly it affects matters which are outside the authorized
field.''

~tGoo'JCQ(~Ec,G~S)\7<1qiCf51 ~5c~ro.S3G~Gf>~tDrn:~~ro'J:.O?t@
G~'J~stf~;l'Jrot:r
.
;>t~o?eOJ
. .
<f.. ~o1~6pi
.
m9o5 (~-)I
.
c~) ~~
!CJ52] 13lJRMA LA"vV REPORTS. 143

(:) ~8J2?1 ~~:GOO~~ 02ro~oS~GOJ?n5~G:lJ'J tt:auGDOJ'=j)'J: o~~J

Et3::0t=u ~;~~?:
[See AttorHey-General fvr Ctmadu v. Attorney- ~~
S~GCO?b G?
General 1 or Britis/J Columbia and others, (1930) A. C.
~~~.,~5c
111 at p. 1 H:S of which their Lord.-hips of tbe Privy Goo~aa~:6)11
Cou ncil bavt observed:
"Qnestions of conflict between the jurisdiction of the Parlia-
ment o the Dominio:1 and provinci:ll jurisdiction ha,e frequently
c,:~me hefore their Lo:d5hips' Board, and as the re~ult of the
decisions of the Board the following(propcsitions may be stated:-
(1) The legislation of th" Parliament of the Dominion, so
k ':1g as it strictly relates to ~mbjet:ls of legislation e:xpre>sly
e11umeratect in section 91, is ot p1ramount authority, even though
it trench<:s upon matters assign.:d to the pro,incial legislatures
by ~ection 92 : see Tennant v. U11iott Batzk of Canada , (1894)
A.C. 31.
* * *
13) It is within the competence of the Dominion Parlia-
ment to provide for matters which, though otherwise witbin the
legislative competence of the provincial legislature, are vecessarily
incidental to effective le~islation by the Parliament of the
Dominion uron a subject of legislation expressly enumerated in
section 91 : see Attorney-General of Ontario , .. Attorney-General
for the Dominion, (1894) A.C. 189 ; and Attorn.ey.General for
Ontarto v. Allorney-General for the Dominion, (1896) A. C. 348.
(4) There can be a domain in which provincial and
Dominion legislation may overlap, in which case neilht:r legisla-
tion will be ultra vires if the field is clear, but if the field is not
clear and the two legislations meet the ,Dominion legislation
must prevail: see G1a11d Trunk Ry. of Canada v. Attorney-General
of Ca11ada , (1907) A.C. 65 .".
~~b)tcx?:o6tt O?G;'>~l~t~ ~O~{O~~G~20GD <(6~ @0 ;~
~cq~:cG:lJ? ~b)Ea?:~~cot:1 ~tGoo?~~~<n~CcGoo~~~t8
~mG@~aoGD ~6~ @J :lJtoEa# t~<(OgGu T02C8'dG@oot~:r cthfi~
02Eu1Gon For the Peace, Order an_d good Government a,?G:lJ?
~t:m~:8Jo5ro~:~:cf{ ~$~6~0?':?:@5:8'd?:@~ 1 .o1c8~~8'd?'i ~.~
~Jl~G:lJ'J eoGS~~~iJd;m?~GO~Gd:J?<(fi~~G~o:>tu
144 BURMA LAW REPORT S. [ 1952

oe~lJ tfo59]'J:~P2d) ~Mo 1~oc'JtloSGOJ'J o~'J~ ~0SGooS5GmGf

@t;>J:i<ij'J: ~: ~~ 0)') Bl G()')IO)')~g ()')I 0@ c; 0 y5\~ IrooSoo'JG ~5c~E@o.t8G~~
~~ ~oSeoGn:x>t' G@m-:J~t8~ ~~~0t~"ll: :x>oS~oS~:l so~cB:x>'J
@tGad3oc GCJ?oS:Xl ,.. ~oS~tGm'JGatOOjl"l)'J:~ ~~55:~ ~(f)oSS:GOJ'J
@~tG'J~c
Ga:>5oo~~E>!n 80'G8@~G6'Jt: ~t~oo'Jt~@~G'J~fcg\) ~Q)~:~09j{O~ ~GBQ20G8
c/6~ ? o l<l6~coS (J ) msirot: 1G~OO'J~t~~~~~~'J;~ ~D~~~~cnOi!
@~Go:J@t:J ~GB'Jt:@t::x>t oo'J:I GBOJ'J~t8~~f>~9]'J:l~ ~oSo3~:
t::x>t oo@'J:@~G'Jt:oofl'J:o:>tu ~m92oS o1c~G~~-'J~moSeo
G8~~at6~~m'JCID'JG~CJ?~B~:x>tn ~~bf?~ G@OJ'J B1 Gml o:;'J~:
o:>t1 o!;)&@~m'Jt~~oSGmS~ ~tqt~:m~~ ~:m'J:@:J mq;o~t
0Jy~5\~00cqjg~ ~op~0t:"lJ::x>d)~d).6p96tl ~ndE>pO ~~ ~~ch~:~
G0~6J~II mmoS~1 ~mspo~t~ ~C1Jjh~o~~C\_3jtl qE:~~o:JOC\ij~~~
0;:~0t:~:o:>oS:roS5:':ljo:>'JGCJ?0SO(?~ GC\jj'Jd)~~xtn

[See Attorney-General for Onfa1io v. Attorney-

General for the Dominion and the Distillers and
Brewers' Association of Ontario, (1896) A.C. 349 at
p. ~63 where their Lordships of the Privy Counc;:il
have observed :

"A powet to regulate, naturally, if not necessarily) assumes,

unless it _is enlarged by the context, the .conservation of the
thing whicll is to be made the s1;1bject of regulation ".

~E>pCJ6C ~mreoG~:x>t I moorCJ6t Gl9Tg~~:~:x>~ S3qtz

~<b~Eroc.&OJ'JGat~G~COjl~p:l CQoSm'JGo~ G~t~t~06)9j(~qc:1
roo5ID)at0GOJ'JOj?~'J:OJtrot: m@:C\jjt ~mGt':IJ~00.0~~G~b~C
Go:ltqo;?~qE~ G@w'J~E 8 0.p~0t~~:0~ [95~:x>oS~05Go:>'Je9Gn@5
o:>~u ~E~OJoS~o5:x>~noOJcf.il GBO?'J~'J:o~ ooo5axi3~~~5~5
~5"[~G::D')Oji~'J: ~o:>E~~Go:>~rot:1 ~Oil~ ooo5rod)G~5-~5~5
66:::nt1 GB~'J~C8~0.pS0~:tlJ:no~S o:>d.).~o5135:G'J~:x>'J@~
~~II _: ~nameoGDQ.J~ rooSOO'JG~tl)'J:~ . G~~9J G~t~tGo:J~~CJ?
,~0'J~t3~~.pE~ ~:o~o5oSS:Go:>p DDrhBo'?.SG~oSG9JII .
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o beJ c r~repcm~ff.>:cf8ch~gle:gc~ecccc~~.L6>~3ropcx:u?.G
npccfe~ggbc.oG~OCSCJeG scoo~g8:o~
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:cbffi 0 ocoo~sc.o~g3~ I proec:cll=l:c.ecc ~ro&gcc.o~ ccc~~Logro
s
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:b~geul?Jg8~3~ s~cco~ro ~~~e obelc t:cc~c.oeccc~sacc
Ab:gen~coo n~cc:cc~~
:t38vf?~B cwcen 3g38gto~G~o2 'L:SJec :b~fu~:SC8o soroec~cle~::g~
~gcro~~~
lbgcro~scB cei~e~v1 r:=ro1.9'ec (b) G t;p&B L.O :gbc@~G~o2?g~
:&l~sc @3c.ro~sc IC zgbc.CP :cco~mffCO GB02~&ec (}gJlegec:~@~ ~
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146 BURJMA LAw REPORTS. [1952

SUPR EME COURT .

t s.c.
1952 HUSSEI N BUKSH KHAN (APPELLANT)
v.
MUDALIA AND ANOT HER (RESPONDENTS).*
Estoppel--S. 116, Ev:dcnce At>t -Pe rmit granted. by pe,sous adiniuistering
Rtmgoort Dcvelop,uellf Trust durin g occupation Period a11c/lcase by such
permit-holder-A~scssmeuf of E11croaclement Tax b11aivftt~ adm inist1atio11
of Raugoon Developmetll Trust ori lessec-Subseqttel!t Bl'(! 11.t of lease by.
. Rtwgooa DcveloPmeut Trusl- Effed of .1Ucl1 -lease 011 t!te lease b:f
Permit-holder-Hague Regtllntion-Power of Oor.upyi11g Poz~er-s. 108
(dJ (q), s. 111 (ct, Transfer of .PtoPtfty Ac.t..:...1'rust Act, ss. 86, 88, 90
.and 94..:...Eguit y.
A obtained a permit to occnpy a piece of land from the authorities
administering Rangoon Develor mcnt Trust during Japanese . occupation, and
built a hol!se thereon. He let oct the house and land to the 2nd Respondent.
After re-occupation, the administrator or Rangoon Development Trust, assess-
-e,d the Respondents with encroachment ta~es and later granted a lease for
30 years to the Respondents, who filed a suit for declaration of title to the house
and land. The trial Judge gave a decree as claimed ; on appeal to the Appel-
late ~ide of lhe lligh Court, thc-: decree was modified and hotse was declared
t o be that o~ the appellants' ; on further appeal to the Supreme Court -
Held : Article '55 of Hague Re~ulatJons of 1908, makes the occupying power
Only an administrator and usu.frucluary of land belonging to the State of the
OCcupied country. Therefore the permit granted by . the authorities
.administering Rangoon Development ~rust during the Japanese occupation,
-could not give any title to endure beyond the period. of such o::c.upation as
.against Rangoon Developn1ent Trust.
The right of the appellant under the permit therefore C.'lme to an end
when Rangoon pevelopflent Trust asse.s~ej<l e.ncroachm~nt taxes and later
,granted !.ease.
There was rio estoppel under s. 116 of Evidence ACt. The section provides
ihat a tenant cannot deny that the landlord had title to the property at the date
of Ct-eati'ng tenancy. Tile .section does not prevent a tenant from pleading
that the title of the original fessor has come to an end.
1<:ri~.hna Pr_osad Lal Singha Deo v. Ba.rabo~tdi c,az ConcHu, 64 I.A. 3 Jl,
:fol lowed . .
Sm. Bhaig(!utaBewah v. Him111at Barlyakf!t .zo, C.W.N. -1335, ~eferr~d to .

.: Ci~il. Appeal No. 10 of 1950 a~ai.nsf. the~ decree of (~e High court of
'Rangoon inCivillsfAppeal NQ. 3.6 of H49. - .. .
.. . f Prc~en t: MR. J.uS~iCE E MAUN~, MR, JJ.J~TlCE M'YINT . THEIN and
; o AUNG 'htA GYAW, J. . . '
;1952] . BURMA LAW REPORTS. 147

~- 108 (ql of Transfer of Property Act provides that a lessee on the S.C.
determination of the lease is bound to put the lessor into possession. But this l952
sub-clause should be read sabject to the opening words of the para~ra ph, tiz.
HOSSBJN
that parties to lease" possess the rights and are S'-lbject to the liabilities BUKSH KHAN
mentioned in the rule next foll> wing or such of titenz as ore a pp,! icablc lo the v.
property leased" e.g., under s. 111 (c) when ti)e interests of the lessor hae i\I UOALlA
terminated or s. 111 (dt! when the interests of lessor anrl lessee have become AND
ANOTHER.
vested inJthe same person, n.> question of delivery of possession, arises.
Ss. 86, 88,90 ;md 94 of I he Trust Act have no application to the facts of the
present case.
Failure of the Responde nts to inform Rangoon Development Trust when
they were assessed with encroachment tax about the permit o~ the appell ant
-did not amount to fraad or did not raise any equity in favour of the Appell:l.nt.

]. B. Sanyal for the app~Ilant.

Ba Than for the respondents.

The judgment of the Court was delivered by
MR. JUSTICE E MAUNG.-The main dispute in this
appeal is on fhe right claimed _b y the respondent~ as
.grantees under a lease of 24th April 1947 from the
'Rangoon Development Trust of Lot No. 45 in Survey
Block No. 29B3, Kemmendine East Circle of the
City of Rangoon.-
This pieee of land appears to have been vacant till
the 30th August 194.3 when tbe appeiJant sought and
obtained a permit from the autliorities then administer-
'ing the Rangoon Development Trust in which the land
-~as vested,O:to occupy the land. This was dur~ng .t he
Japanese occupation of Rangoon . Haying obtained
:the permit, 'the_appellant constructe~ a dwelling house
which does not appear to be of a substantial character
;(n:t the plot of land. .
The permit has not heen exhibited in evidence in
.t-he suit under appeal though it appears from the
'~ecords placed .before -us that i.f'. was, at all times
material, in the pQsse.ssion . or at the 4isposal of -t he
:ai:>pellant. It is .therefore impossib~e to say d efinitely
148 BURMA LAW REPORTS. [1952:

S.C. whether the permit to occupy was for a period s pecified

1952
or was in any other way restricted in the manner of
B!~~~=AN enjoyment of the plot of land. But from the evidence
v.
MUDALlA
of the a.ppellant in cross-examination at tbe trial, it
,.No appears that when the permit was issued to him the
ANoTHER. authorities then administering the Rangoon Develop-
ment Trust did not ~x the rent payable for temporary
occupation of the land and that to this date he has not
paid _anything towards the rent of the land.
In March -1945 the lawfu.l government of the
country reoccupied Rangoon and it was only some
time thereafter. that the civil administration by tbe
lawful government of the country was resumed. It was
then forth~ fiJ:"st time that rent was fixed on the 11th
June 1946 by the Rangoon Development T rust for
temporary occupation of the suit land at the rate of
Rs. 12-8-0 per quarter payable with effect from the t hird
quarter of the financial year 1945-46. By that time
the respondents were .i n physical occupation of the
Icind, the' 2nd respondent, who is the 1st respondeAt's
wife, having taken a lease from month to month of the
house in October 1945 from the appellant. The
aut~orities of the Rangoon Development T rust, finding
the respondents in actual occupation, 9emanded
what was called encro'achment tax from them. The
respondents paid. it till they were granted _ on the
24tl~ April .1947 ;a 30-year lease of the same plot of
land. T hereafter, of course, the respon~ents paid
the quarterly rent stipulated under the lease from
t.he Rangoon Development Trust .
The demands of the appellan_t for rent from the
2nd respondent from April 1946 did not meet with
success, ,appar~ntly becaus~ from that time: onwards.
encroachment- rent had be~n assessed on and paid by
:.{he ~espond ~o ts themselves in their -own name .
. A<;~ordi_ngly, iri. Sin_all Cause. ,Suit .~o. 2212 of t'941
 1952] BU&MA I.:.AW REPO.RI.S.... 141}

of the City Civil Court of Rangoon the appellant sued S.C.

1952
the 2nd respondent for a sum of Rs. 160 representing
HUSSKJN
house rent for 16 months ending with 31st july 1947. BUKSH KHAN
v.
A decree was passed in favour of the appellant. MuDALIA
On the strength of this decree for rent, the ANOTHER. AND

:appellant applied to the Rangoon Development Trust

to have the lease previously granted to the respondents
in respect of the plot of land tr~nsferred infio his name.
Notice of this application was given to the repondents
who instituted the suit under appeal to remove the
of
doubt cast on their title as holders a 30-year lease of
1he suit land. In the suit under appeal the respondents
sought a declaration of their right to the land and the
house thereon which they claimed to have been
constructed by them at their own cost. They also
sought to have the decree in the rent suit vacated as
having been obtained by fraud;
The trial. Court granted the respondents a decree
declaring their right .to the land and the house thereon
but refused to vacate the e~rlier decree for rent passed
against the 2n9-respondent. .
The r-espondents were apparently content to accept
the decree of the trial Coutt ~ut the appellant appealed
and a Bench o(the High Court varied the ti-ial decree
.by affirming t~e declaration ot title in respect oi the
land in favopr of the respondents but, on the g-round
.that the house thereon was constructed by and at the .
-cost of the appellant, granted him permission to remove
the same within a month of the appellate decree.
The .appellant in -this appeal before us challenges
.' the correctness .of the decision of the trial Court and
-of the High. Court in respect of the suit land.
Twomain point~ were taken ~t .the .hearing of the
appeal on -behalf of the appellant. The prinCiple of
-estoppel by .tenancy was invoked in denial of the
Tespondents,.. claim to. the .land
. and in support of the
150 BURMA LAW- REPORTS. [1952''
S.C. appellant's title thereto. It was also argued t hat a .
1952
tenant stands in a fiduciary relation to his landlord
HUSSEIN
BUKSH KHAN and that the lease which was obtained by the respond-
71.
MUD ALIA ents must in equity be treated as obtained on behalf
AND'
ANOTHER.
of and as trustees for the app~Hant. Incidentally and
in support of the se_cond limb . _of the case for t he
appellant, it was argued that .the lease was obtained
. . . ' .
by

.fraudulent
<.
concealment
.
of facts

and therefore
was void.
Reliance was placed on a decision of the Calcutta.
H~gh Court in Sm. Bhaiganta Bewah v. H immat
Badyakar (1) for the proposition that section 116 of the
Evidence Act "does. pot imply th,at after the expiration
of tenancy, the tenant is free to dispute the title of the
landlord". At page 1339 of the report Mookerjee. J..
-expressed the opinion that the Evicle.nce Act had.
not altered the earlier law in In.dia which he summed:
up a~: .
It Two conditionsr then, are .e ssential to tbe existe~ce of the:

estoppel, first, possession, sec'ondly, per;nission ; when these

conditions are present, .the estoppel arises, and the esto ppel.
pievails so lotig as such possession continues.''

On this diptum it V~,ras contended b efore _u s . t_hat t~1e:

.2~d t:espond.e nlat any rate, h<~.ving come l:nto possession
by p~rmiss.ion of the appellant as a monthly tenant, is-
estopped so long as she continues that po~session from1
dispu.tipg the title of the- appell~nt. . In further s~pport.
of this proposi.tion,: l~arned, :-Counsel relies a]so on-.
s~9tion 108 (q) o(the Transfer of Pro.pe~~Y Act . under
which it was clairhed that on. the determination of. the
~ I 1. .., o

leas.e the .lessee .is. QQ_I:lnd fb . put the .lessor i~to

possess~otr-~f. tbe prqpejty .ah<l.-.~th~t till that _ha~ _b een
, do.n~:the. _l~ssee!s obllg~tions are:~~ot .at an. end: .
il> 20 c ;w.N; 1335.
 1952] BURMA LAvV .REPORTS. 151.
.

The argument based on section 108 (q) of the S.C.

1~52
Transfer of Property A<:;t overlooks one very pertiJ?ent
HUSSEIN
factor. Section 108 in enumerating the rights and BuK<.H KHA!o;'
liabilities of the lessor and the lessee did not make v.
MUDAL!A
an unqualified enunciation of the same. It was said AND
ANOTHER.
~f the lessor and. the lessee in the opening paragraph
. of the section that they tt possess the rights and are
s~bject to the liabilities mentioned in the rules next
f?llo.wing, or.suc!t of them as are applicable to. the
property .leased''. The justice of the qualifications
beco.me apparent when we look, for instance, at the
provisions of section 111 of the Act. . Under clause (c) of
this section the lease becomes determined becaus~ the
interests of the lessor in the property has terminated,
or, und~r clause (d) because the interests of the lessee
'and the lessor in the whole of the property become
~~sted at the same time in, ohe person in the same
right, and the obligation to put the lessor into
.possessiqn of the property carinot possibly arise.
The effect of section 116 of the Evidence Act has
been more authoritatively defined in a decision iater
~ha~ that of the Qalcutta High ~ourt by the Privy
Councilirl Krishna Prosad Lal SinghaDeo v. Barabondi
coal Concern (l). At page 319 of the report it was
:s.a id:
l} '

"The section postulates that fl;_~re is atenancy s.till CO~ltinuing,

.that it had its beginning at a give!?- dite from a given landlord'.
It "provides that neither a tenant nor any one claiming throu}.!h
a tenant shall be he:ird to deny that that partic!llar iandlord had at
that 'c.iate .a title. tot~e .i>ioperty . :. Nor does the
.principle apply to pr~vent a tenant 'from pleading that the title .
of the original lessor .has since come to an end!'

Thi~ exposjtiori of law by the Privy . Council, if we .

may say so. :with respeCt; is :n.o more .th~n giving the to
------~~--~----------~--~~~--------
.
.. fll 64 (A. 311;
---
152 BURMA LAW REPORTS. [1952

S.C. plain words of section 116 of the Evidence Act their

1952
plain meaning.
Bu~~:s:r;AN. Applytng, then, these results to the facts of the
v. present case, it is impossible to see how the principle
MUDALIA
AND of estoppel qm help the appella.nt. As we have said
ANOTHER .
earlier, the actual terms of the permit reli ~d upon by
the appellant are not known to us as the appellant has
chosen not to exhibit tbe document which was either
in his poss-ession or at his disposal when the suit went
to trial. Assuming everything in favour of the
appellant, that permit which was granted to him by
the authorities administering the Rangoon D evelopme.nt
Trust during the Japanese occupation of the City of
Rangoon could not give him any-title.to endure beyond
the period of such occupation as against th~ . Rangoon
Development Trust. Article 55 of the Hague Regula-
ti~ns of 1908 makes the occupy.i ng State 'o nly an
adminjstrator and usufructuary of land belonging to
the Stat~ of the occupied country and. the authority of
. Hie .occupying State does not extend beyond the period
of occupation. It was clearly open to the authorities
of the Rangoon Development Trust aftet: re-0ccupation
of Rangoon by the' lawful government, to oust a person
who;held lands belonging to it under grant of or permit
by the auihorities appointed by the occupying State to
administer its lands d uring the occupation.. To such
.a person the lawful administrators of the Trust . owed
c no duty of any kind and when on the , 11th June 1946

the respcH~den.ts were treated by the Rango.o n De~elop

merit Trust as permissive occupiers and were charged
encroach~ent rent as . from the t.h ird quarter :of
i945~46;. any. riglj!, ~hich the . appellant might have
.. ~ad; : ~.md;e'r, the oHgi.rial permit' during the Japanese
regi.riie.. -a~d .. subseq'lienfacquies.cerice by the l~:wful
~dminisfr~tors of the~~r~~t, definitely came t9 .an end.
Frotn that moment .seeti.OI.l fll (c) of the Transfer of
1952] BURMA LAW REPORTS. 153
Property Act would come into operation. Clause !c) of S.C.
1952
the same section also became then applicable. In either
. . HussEIN
case, after that date the continuance of 1he tenure wh1ch BuKsH KHAN
is one of the essential conditions for estoppel under Mu~i.LrA
section 116 of the Evidence Act cannot be said to sub.- ANOTHER.
AND

sist. Besides, in the present case the respondents

are not interested so much in challenging the right of
the appellant in October 1945 which mar~ed the
beginning of the tenancy, as the continuance of any
right in the land in the appellant after June 1946.
This challenge is not barred by the words of section
116 of the E vidence Act.
In support of t,he proposition that the respondents
stand in a fiduciary relation to the appel!ant with the
consequence that the lease granted to them is, in
equity, for the benefit of and on trust of the appellant,
the provisions of sections 86, 88, 90 and 94 for the
Trust Act are relied on. Section 86 can have no-
application as between the appe11ant and the respon-
-dents. It is Impossible to bring the respondents
. within the class of persons defined in section 88. It
,is
t
also difficult to see the relevancy of section

90 of
,the Act. This section requires for its application that
,t he person who gains the a_dvantage musl have done so
~n derogation of the rights of the other person
~nterested in the property. What right had the
f-ppellant on lOt~ June 1946 or thereafter? His permi~
Urom the occupation authorities did not give him any
[pght beyond the period of occupation.
Section 94 clearly is not in point.
Learned Counsel for the appellant, obviously in
fesperation; then had recours~ to so~e ill-define~:l.
t>rinciples of what he called equity. H e claimed that
fhen the. lawful administrators of the Rangoon
~e~elopmen t Trust 'in June 194.6 demanded the
fncr~achment re~t from the respondents, the latter
154 BURMA LAW RE.PORTS. [ 1952:

S.C. were under a duty to inform such administrators that

1"952
the appellant had a permit from . the occupation
Bo~~~s~;AN author~ties and should have insisted on the encroach-
v.
MUDALIA
ment rent being demanded from the appe_llant. By
AND failing to do so, learned Counsel claim_s that the
ANOTHER. respondents committed a fraud on the Rangooru
Development Trust and that the lease obtained
subsequently by the respondents on the strength of
their being already on the land was void. Learned
Counsel .'did not support this proposition by . any
authority ' statutory or otl:J.erwise; and when it was.
pointed out to him that section 19 C>f the Contract Act:
merely makes an agreement. induced by fr-aud cc a.
contract v.o idable at the : option of the party whose
copsent was so caused" and not void .i n . toto, no con-
vincing_answer was forthcming from "him.
In th~se circumsbinces the appeal fails and must.
be dismissed with costs; Advocate's fees ten gold.
mohurs.
 1952] BURMA LAW REPORTS. 155

SUPREME COURT.

STEEL BRos. & Co. L TD. (APPLICANTS) t S.C.

1952
v.
lttly zz.
THE COLLECTOR OF RANGOON (RESPONDENT).*
rrnt of ilfandamus in resP&cl of requisitiourng of " ilou~!-Qu~stio11 of rcasot~
nblmess or Policy of requisitio11, if reletanl.
A house in Hangoon was requisitioned by the Coliector for use.as a Labour
Welfare Centre and amongst other contentions it was objected t~at it was not
in the public intere~t and that the ce ntre could be accommodated e l~ewhere.
Hel d: That the ad was a~ administrati ve ac t and that the Court cannot
inquire into "the r easoilablt:ness, policy or the sense or any other aspect of
the transaction."
The Prof.'i11Ce of Bombny v . Kulsalclns S. Aclvnm nud others, (1930) S.C.H,
621 ; Carlon a Ltd. v. Commissione rs of Works a1:d o!/ters, (1943) All Eng.
L.l~ Vol. Il., p . 560, referre~ to.

It is for the government to decide ''!hether a Welfare Centre: is necessary

for a particular locality and how such a Ce~tre ~hOlold be accommoda ted .

G. Honocks for .the applicants.

Chan Htoon, Attorney-'1

Genera], Burma with . . 1
Chan.Tun Auug, Assistanr.rfor the respondent.
Attorney-Genera~, Burma j
The judgment of the Court was d elivered by the
Chief Justice of the Union.

tJ THEIN MAUNG. -This is an application for direc-
~ions in . the nature O~ mandamus and.for pr.ohi~ition
~n respect: of a_n order .by which the Collector of
~an~oon has requisiti~ned the premi~es known as
~0. Lansdown Street, Rangoqn, together with the
r,hole build~ng thereon for use by Govei-nment as a
~abo~r Welfare Centre.
?. *Civil Misc.. Application No. 29 of 1952.
;, t Prese11J : .U
'fHJnN MAUKG, Chief Justice o.f the Union, MR. Jt:STICE
E ,MAUNG and MR. j US'l'ICE MYINT THEIN.
156 BURMA LAW REPORT S. [ 1952
S.C. It has been heard together with Civil Miscellaneous
1952
Application 'No. 14 of 1952 and the principal questions
S'rEF.L BRoS.
& Co. LTD. of law nave been decided therein.
T~F: Apart from the said questions of law, the applicants
CoLLECToR have contended in their affidavit :
OF RANGOON.

J' 6. I understand that the said premises have been requisi-:

tioned as aforesaid for use as a Labour Welfare Centre, but

I aver that the Monkey Point area never had a Welfare Centre in
the past a~d. I submit lhat, if tbe public interest requires that a
Welfare Cent~e be established in that area, there is no sufficient
reason why Government should not erect a building for that
purpose on one of the many pieces o[ vacant land in that area
without re's ortiog to the requisition of existing buildings which
are in occupation.
7. Adjacent to the said premises, there is a large piece of
vacant land presently under lease to the .applicant and I aver
that the applicant is ready and willing to make a sufficient
portion Qf the said land available to Government.
8. Furthermore, I respectfully submit that the said premises
.are unsuited for a vV~lfare Centre in that the building thereon
bas no ground floor and the rooms of the said building are about
14 feet from the gl'ound level. I submit thlt a building erected
:about 3 feet from the ground level would be more satisfactory
for the purpose of a Welfare centre and that a wooden building
suitable .for use as a Welfare Centre and having fhe same floor
space as the suit premises could be built in ftom four to six
week.s."

However, the learned Advocate for the ap.p licants

has conceded that opening a Labour Welfare Centre
mus.~ be in publi'c inte.r est ; and it is for Government
:to cie.cide (1) whether a L:~.bour Welfare .C entre Is
nec,esSJl-~Y for the part~cular locality, and (2) how such
a Centre should be acc.ommo~ated .. The decision of
. the Government t.hat _the building .is required for a
public.purp.ose is an ad.~inistrative- act ;.and we have
no power at all to inquire into the "reason~bleness,
the policy, the sense or any other aspect of the
19521 BURMA LAW REPORTS. 157

transaction " [Cp. Tlze ProviNce of Bombay v. S.C.

1952
Kulsaldas S. Advani and others (1) a nd Carlo11a Ltd.
ST.EEL BRoS.
v. Commission ers of Hlorks and others (2)]. & Co. L TD.
The application is dismissed with costs ; Advocates' 'II.
THE
fee ten gold mohurs. The rule nisi is discharged and COLLECTOR
01' RANGOON.
the in terim stay ord er is cancelled.

CiJ. (~9SOJ i:i.c.R. 621, . tiJ 11943) All Eng. L.R.. Vol. ll, p. 560
158 BURMA LAW REPORTS. [1952

SUPREME COURT.
t s.c u 0~ KHIN (APPELLANT)
1952
v.
THE UNIO~ OF BURMA (HESPONDENT) . '"'
l'ress !Emergency Pc-wusl All, s. 4 (1) (dl -Mcaning of the ~cords '' class or
section oj Pet sons tcs:dc ll t in Burma ''-Wiuther the Socialists or tile
Social ist Party fo rm a. class or sectio11 of Persons within tJte 1;eamng of
that SC(!tiOII.
Held: The golden rule of in terpretation is that the words or a Statute
must Prima facie be given their ordinary meaning.
Nokes v. Do11wster Amalgamated Collieries, (1940) A.C. 1014 at 1022 ;
Ralln RarFJ v . The Province of East P:tn.jab, A.l.R.(1949) F.C. 81 ; R. y .Peters,
(1886) 16 Q.B.D. e36at 641 ; Cp. Re. RtponHousing 01der, (1939) 2 K.B. 838,
followed.
Though dicUonaries are not to be taken as authoritative exponents of the
meanings or words in Acts of Parliament, still the Court often has to determine
the meaning of the words by reference to the dictionary.
A'' class'' or" section" within th.e meaning of s. 4 (l)(d) of P.ess (Emergency
P.owers) Act, is a definitely ascertainable body of numerous individuals with
clearly defined characteristics or criteriR by which they may be distinguished
from any other body or group. I n other words'' class" or" section" is a set
of persons all filling one common character and possessing common and
exclusive characteristics and the terms carry with them the idea of a readil y
ascertainable group having some element of permanence, stability and
sufficientlY n umerous and widespread,
It cannot be laid down that the common bond of every political party is
-transitory or that all political parties are susceptible to rapid changes in their
-complexion and composition and that no political party can ever have any
-element of permanence or stability. If a political party is well-defined and
ihe number of persons owing allegiance to it is hrge enough, there is no
re~son why it should nat be regarded as a c!assor at le:~st as a section.

Judged by the above tests, the Socialist Party. or the Socialists in Burma
arc a class or section of persons resident 'in B 1rma within the meaning of the
Act.
. .
' But mere criticism of the meip-bers or of the ideologies of a political party,
which comes within th e cefinitioi1 of class or section .will not come within
the mischief of s. 4 (Il (d) of the Act unless such c.riticism tends directly or
indirectly to bring the membc~s or the party into hatred o_r GQntempt.
* Civil Appeal No. 13 of 1950 again~t the decree of the. High Court,
.:Rang()On, in Civil Misc. No. 17Z__of 1950.
. t l'resmt; u 'I'HEtN M.AUNG, Chief Justice of . the Union, MR. JusiicE
E M~trNG ~~d -r.ii~. }USTiCE'' l,iYn~'r THEt:.::.- .
 BURMA LAVv REPORTS . 159
R,rj Pal~. The Crown, (19221 I.L.R. 3 Lah. 405; Emtuor v. Miss .llouibcn
S.C.
;_ .\-,rra, 57 Bom. 253; ltr tire Maller,>/ the '' Sun Press '' l.ld., A.I.R. (1'J3~l 1952
!-~!:>. 417; Knmal Sttrkar ,._ Emfieror, (1938) I.L.R. 1 Cal. 455: Kur:tar
.B. dr i .\'Main Singh v. Chief Sccrftary to #he Governmrnt of Bihcu, A.I.R u 0~ KHtN
7)
..i.i SHI Pat. 132; EmPeror \', Bnllolllali Mnlt~rann, (1?4:1) I L .R 22 P .. t . .:::; :
'l'TIE ONION
-~'f.>,rily Zamindar ", \l. rdt,), Laltorc, A I.R. (1947; Lah. 340 ;;"Daily .Part !tort ",
OF BURMA.
~'La!; OJ e v. Et~~Peror, A.I.R. (1 947) Lah. 366 at 371 ; Dattatraya Sita:a ;n v
'. m teror, A.l.R. (l948i Bom. 239 a t 243 ; Ma Khin Titan. v. 1'/te Co,;un i s$i.mo
~~ l'c>lice, Rangoon and one, (1949) B.L.R. 13 at 16, rei erred lo :1nd fo llowed .
~~. "Nawai Waqt Daily" v. The Crown, (19471 I.L.R', 28 Lah. 497; .'\'cuspapcr
'l:4.. i'artnp" (.rdu Daily of Laltr~re, t\947) l.L. H. 2S Laic. 7')5, Majority view,
_;d issented from.

~ P. K. Basu for the appellant.

: Chan Hto~m, . Attorney-1/

General, Burma wxth f
t ~ or th e respondent.
Choon Foung(Governrnent-1
Advocate) J

The judgment of the Court was delivered by the

Chief Justice of the Union.

U T HEIN MAUNG.-This is an appeal b y special

l eave u nder section 6 ~f th e Union Judi ciary Act, 1948,
from the judgment passed by a Special Bench of the
High Court under section 24 of the Press (Emergency
Powers) Act. .
. The appellant who is the owner of t he "Bainakhit
Press, " Rangoon, has been ordered by the President
un de.r: se(:ti~n 3 (3) of the said Act to deposit Rs. 3,000
with the District Magistrate, :Ran goo; , on the ground
that the .article under t he headline (/ ~ltS~~G@oo'=i:cyE:
~oo~~'~ published :in the ":8amakhit Daily " of. the
28th F ebri,Iary, 19.59, contained matter of the natur~
described in section .4 (1) of the Act ; and the .SpeFial
Bench which consists of U Tun Byu C. J., U Aung Tha
GyawJ. and U Bo Gyi J., .has held (U AungT4a Gyaw
J.; :dissenting} th,a't the article in .qu~stio~ m~st b.~
considered-to be ari' article -which : t~nds, indirectly at.
160 BURMA LAW REPORTS. [1952
S.C.
1952
least, to create feeling of hatred or contempt against the
Socialist Party in Burma and that the Socialist Party is
U 01\ KHI~
v, a class or section of persons resident in the Union of
TH:B UNIO N
OF BurmA. Burma, i.e., that the article does contain words of the
nature described in section 4 (1l(d) of the Act as
amended by the Union of Burma (Adaptation of Laws)
Order, 1948.
The relevant part of section 4 (1) (d) as amended
:::,:~ads:
;-'

,,
. any newspaper . . . containing any words
. which tend, direclly or indirectly . . . . . . .
(d) to bring ido hatred or contempt the Government estab-
lished by Jaw in the Union of Burma or the administration of
justice in the Union of Burma or any class or section of persons,
resident in the Union of Burma or to excite disaffection towards
the said Government. "

There are .only two questions for decision in this

appeal. They are (1) whether the Socialists or the
Socialist Party form a class or section of persons resident
in the Union of Burma and (2) whether the article
tends, at least indirectly, to bring the Socialists or the
Socialist Party into hatred or contempt.
The words" class " and "section " are not defined
in the Press (Emergency Powers) Act and the General
Clauses Act ; and the golden rule of interpretation is
that the words of a statute must primd facie be given
their prdinary ,. meaning. [See Nokes v. Do,ncasfet
AmalgaJnated Collieries (1).]
Besides, these words are not terms of art and they
are not unfatnmar or uncommon words ; and, as the
Federal Court 6-India has observed in R(Jlla Ram v.
The Province ofEast Punjab (2) ;
" .. . . . when the . words used in the Act are clear a-nd
unambiiuous, and t.b,ey are not unfamiliar and u~commou words-
(1) (1940) A.P,.; 1014 .at 1022. 12) A.I.R. (1949) F.C.81 .
1952] BURMA LA v-v REPORTS. 161
or such words as may be aptly described .as terms of art, it is S.C.
unnecessary to travel beyond the Act for the purpose of HI 52
construing them. " U Os KfiJN
v.
According to A New English Dictionary, Edited by THE UNJON
OF '.3URMA.
Sir James Murray, Vol. II, p. 466 op. cit, "class"
means-
., A number of individuals (perSOI\..$ or things) possessing
common attributes and grouped under a general or 'class '
name ; a kind, sort, division ; "
and this is now the leading sense of the word.
According to the same Dictionary, Vol. VIII,
p. 36\l op. cit, "section '' means-
., a separate portion of any collection or aggregate of persons
e.g., of the population of a country ; a group disti nguished by
a special varjety of opinion, forming pad of a political or te)jgious
.party.''
Dictionaries are not to be taken as authoritative
exponents of the' meanings of words in Acts of
,Parliament, but as Lord Coleridge has pointed out in
:R. v. Pete-rs (1) (!it is a well-known' rule of courts of law
, that words shall be taken to be used in their ordinary
~ sense and we are therefore sent for instruction to these
;.books." [Cp. Re. Ripon Housing Order (Z) where the
:Court determined the meaning of "park " by reference
ito the Oxford English Dictionary.]
However, the matter is not res inl.egra. The High
~Court of Lahore has held in Raj Pal v. The Crown (3)
~hat a fortuit<?us concourse of one 0r two Inspectors or
iSub-I nspectors and a few policemen who happen to be
~employed at a partic~lar place cannot be designated a
fsection, much. less a class of His Majesty's subjects.
~ The High_Court of Bombay has held in EmPeror
N. Miss Mdnib""'en L. i(ara (4) that the word'' classes" in
~ec~ion 153-A. of the.Penal Code included any definite
(1) !188~) 16 Q.B.D. 636 at 641. (3) (1922) I.L.R. 3 Lab. 405.
(2) (1939): 2 K.B, 838. (4) 57 Born. 253.
11 .
162 BURMA LAW REPORTS. [1952

S.C. and ascertainable class of His Majesty's subjects

1952
although the ~lasses may not be divided on racial or
U ON KHIN
v. religious ground and that the word " capitalist " is too
THE UNION
OF BURMA.
vague to denote a definite and ascertainable class.
The High Court of Rangoon has held In the Matter
ofthe "Sun Press," Ltd. (1) that Indian bad characters
are not a class of His Majesty's subjects.
The High Court of Calcutta has held in Kamal
v:
Sa1'kar Emperor (2):
" The words ' class or section ' in clause (d) of section 4 (1)
to my mind must mean a definitely ascertainable body of indivi -
duals, not an indeterminate body or group having no clearly defined
or non-variable characteristics or criteria by which they may be
distinguished from any other body or ~roup. Exploiters or
capitalists as such, any m01e than, say, literates or illiterates, or
the rich or the poor, do not in my opinion constitute a ' class ' or .
' section' within the meaning of this clause."
The High Court of Patna held in Kumar Badri
Narain Singh v. Chief Secretary to the Governnunt of
Bihar (3) that the wt>rds " masters or exploiters " are
too wide and vague to denote a definite or a.s certainable
class. It has also held m Emperor v. Banomali
Maharana (4).:
1' The Legislature in framing section 153-A, Penal Code,

18'60, never contemplc~tecl that it should be used with reference

to particular small grpups of people. The' classes contemplated
under the section must be not only.clearly defined and separ.1ble
bul also nun1;erous. .
Consequently, a small and limited grou~ of zamindaJ'S
cannot be regarded as cons~ituting a ' class,. within the meaning
of the section."
So far 'there is a consens.us of o'p inion to the effect
that " class .or . section " is a
definitely ascertainable
body of mimex:o~~ individuals with
.
clearly'.. ..defined
.
. .. .

(I) A.l.R. (1938) Ran.417. : (3) A.I.~. (i9tl) Pat. 132. .

(2) (1938) 1:):-.R. 1 Cal. 455. (41 (1943) I.L.R. 22.Pat. 48.
1952] BURMA LAW REPORTS. 163

characteristics or criteria by which they may be distin- S.C.

1952
guished from any other body or group ; and this is in
U Os KHJN
consonance with the meaning of the words as given
in the said Dictionary. THE UNION

OF BURMA.
However, th e matter does not rest there. In the
matter of the' 'Na'lt'ai Waqt Daily'' v. The Crown (1),
a Full Bench of the High Court of Lahore, consisting
of Muhammad Munir, Achhru Ram and Mohammad
Shariff JJ., helQ. (Achhru Ram J., diss~nti"ng) that
the words tc di.fferent classes " in section 4 of the
Indian Press (Emergency Powers) Act refer to
religious, racial, social, tribal and possibly economic
or functional but not to political classes like the
Congress, the Mahasabha or the Indian National
Congress.
In the matter of the Newspaper "Partap" Urdu
Datly of Lahore (2), which also is a Full Bench
decision, Muhammad Munir and Mohammad Shariff
JJ., again held that <:\ political body like the Muslim
.L eague was not a class or section within the
meaning of .section 4 (i) (d) or (h) of the Act, while
fBhandari J., did not deem it necessary to ~.ecide "the
~ question at all.
~ In the matter of 11 Daily Zamindar "(Urdu) , Lahore
ff(3), another Full Bench of the Lahore High Court,
~~onsistin?; of the same three learned Judges as in the
atter of the Newspaper 11 Partap " Urdu Daily of.
: ahore (2) has held unanimously that a political
: rgani~tion like the Congress can~ot fall within the
; bit of the expression " class".
We must look into the reasons given for the last
ree rulings more closely as they have been strongly
elied upon. by the learned Advocate for the applicant
support of his contention that the Socialists and the
(1) ~1947) I.L.R. 28 Lah. 497; (2) (1947) I.L.R. 28 Lah. 795.
. (31 A.I.R. (19*1) Lah. 340.
 BURMA LAW REPORTS . [ 1952

S.C. Socialist Party cannot be a class or section within the

1952
purview of section 4 (1) (d) of the Press (E mergency
U . O~ KHIN
v. Powers) Act.
THE U ICION
OF B URMA.
Muhammad Munir J.'s reasons are contained in the
following_ extract from his judgment in the matter of
the" Pm-tap, (Urdu) Daily, Laho1e (1) : -
" In my opinion, the words ' class ' and ' sectton ' in
clause (d) and the word 'classes' in clause (h) of sub-section (i)
of sectiOI1 4 are not applicable ~o political parties. They
undoubtedly include within their scope religious, racial and tribal
divisions and possibly functional, lingual and territorial divisions
inasmuch as such aggregates have sufficient nllmerical strength
and carry some fixed and permanent trait or feature which
distinguishes them from others. The common bond of a political
party, however, is only a transitory and constantly Buctuating
pbenomenot1 and is not capable of any durable definition. 'While
the religion, origin, avocation, language or residence of a people
is a non -varying attribute or charactersitic making them a class
by themselves, the mere holding of political opinion on a parti-
cular matter at a given time or of having for the time being a
political ideal does not constitute the people holding that opinion
or haviug that ideal a class any more than the holding of a
certain opinion on a matter of art makes the peop~e holding that
,
opinion a class."

Mohammad Shariff J., has given his reasons in the

following extract from his judgment in the matter of
the "Na'?J)ai Waqt Daily", Lahore (2) .:-.
" Th~ expression ' classes ) as used in section 153-A of the
I ndian Penal Code and in section 4 of the Press Emergency Act
is difficult of exact definition. It certainly c~vers .well-defined
religious denominations and racial groups readily ascertainable
.where there is some element. of permanence and the group is
~~1fficiently numerous. [Emperor v. Miss Manibetz (3)]. Beyond
that it is not safe to speculate and each ca~e must be decide<:! on its
{)Wn facts. But it cannot .cp-ver::.a political party or group held
together -~y .tbe community of interests to ac?ieve a . ~ammon
(1) (1947) I.L.R. 28 Lah. 795: . -(2) __(1947) I.L.R. 28 Lah. 497.
(3) 57 Born. 25~~ .
 1952] BURMA LAW REPORTS. 165

object. Political parties come and go and are susceptible to S.C.

1952
rapid changes in their complexion and compol'ition. To hold
otherwise would lead to strange and inconvenient results. U ON KHIN
v.
In that case a severe attack on the motives and methods of a THE UNION
political party may be actionable and . this would retard the OF BURMA.

growth of a bettet and healthier society pa1ticularly in countries

whioh aim at a democratic fqrm of government."
As regards the word ''sections," he bas stated in
his judgment in the matter of the ''Par!ap" (Urdu)
Daily, Lahore (1):
'' T here is an attempt' to bring into hatred or contempt' the
1
rvluslim League but I doubt if a pQlitical body is a section ' of
His Majesty's subjects. The very considerations which prevent
a political b.ody from becoming a 1 chss' do also proh ibit its
being a' section' which too demands some element of permanence
which is not to be found in groups held together by a common
politicJl objec~ve."
. To put it briefly Muhammad Munir and Mohammad
:shariff JJ .,have held that a political party or organi-
:sation cannot be a class or section within th e purview
'of section 4 (1) (d) of tbe Act as the common bond of a
fpolitical party is transito~y and political parties are
~susceptible to rapid changes in their complexion and
~om position ; and Mohammad 'Shariff J., has also
pbser ved that' to hold otherwise would lead to strange
and inconvenient results.
~ .
l - Bhandari J., has accepted the majo.rity view i.e., the
f.iew of Muhammad Munir and Mohammad SharifJJ.,
in the subsequent case in the matter of "Daily
Z.aniindar" (Urdu), Lahore (2) where he has stated :
t' But two questions at once arise. The first is whether a
~litical organisation such as the Congress or the Muslim League
~ be re~arded as a ' class or section ' of His Majesty's subjects.
ftie expression '_class' appearing in clauses (d) and (lr) has not
Reen
[
defined in the.statute and it is necessary, therefore. to refer
{1) {1947) I.L.R. 28 Lab. 79S. (2). A.I.R. (1947} Lab. 340.
166 BURMA LAW REPO'RTS. [ 1952
S.C. to a standard Dictionary of the English language for ascertaining
1952
its ordiil1ary signification. According to the Shorter Oxford
U ON KHIN Dictionary, the expression 'class' means 'a number of indivi-
v.
THE UNION duals (persons or thin~s), possessing commoi attributes and
OF BURMA groupedc.to~ether unclei a general or ' class ' name ; a kind ; sort ;
division. But o~dinary dictionaries are somewhat delusive
guid~s in the construction of statutory terms. The word 'class'
is vague and to find out what is meant by it, we must look at the
scope of section 4. The explanations. to this section accord full
recognition to the right of an individual to make a fair comment
on matlets of public interest so long as such comment does not
have the "effect of tending to excite sedition or to .excite strife
between classes. Indeed it is a privilege of the press freely to
a
adopt policy and pursue it and to exercise its own judgment on
matters of pub1ic interest.. If that were not so, a very large
number of daily papers and weekly periodicals which are
uneeasingly engaged in supporting;i"political parties will have to
c<:;ase publ!cation. Our attention has not been invited to a single
authority :in which a political organization was declared to
be a 'class' of His Majesty's subjects. A class or section of
His Majesty's subjects is a set of persons all filling one common
character and possessing common and exclusive characteristics
which may be associated with their origin, race or religion. The
.term 'class' carries with it'the ""idea of a readily ascertainable
group having some element of permanence, stability and
sufficiently numerous and widespread to be designated a _class.
It is in this sense tl~at the expression has been commonly
understood in this country and it is in this sense that it ought, in
my opinion, lobe construed."

We can accept the view which, after afl, is the

common view o(Muhammad Munir, Mohammad Shariff
and. Bhandari JJ., that a class or section is "a set of
persoqs all filling one cotnmon char~cter and possessing
common and exdusive characteristics , and that the
terms carry with them t he idea of a readily ascertain-
':;:,able group h~ving ''some element of . permanence,
s~bility: a:nd sufficiently numerous .and widesJ?r~Gt:~H
bm.t \V"'e.can~ot agree that the: cqmmon bond of ev~ry
poliHcatparty-:is tr:[nsitory or~t,'h~t a:Il:.p9litical parties
 {~52] BURMA LAW REPORTS. 16

are susceptible to rapid changes in their complexion S.C.

1952
and composition or that no political party can ever
U ON Kun
have any element of permanence or stability. v.
THEUN IO~
Achhru Ram J., has observed in his dissenting OP BUR!ISA.
judgment th erein :.

''I , with all respect, feel J..>ound to express my inability to

mbscribe to the very wide proposition enunciated by my learned
brother that such parties can, under no circumstances, be
:egarded as such classes.

* * * *
If a well-defined gtoup or collection of persons, of sufficient
importance numetically, bearing one common and exclusive
name, is bound together by common attributes or characteristics,
I do not see any reason, on principle, why it cannot be regarded
as a class within the meaning of section 153-A, Indian Penal
Code or section 4 (1) of the Indian Press (Emergency Powers)
Act, and why feelings of enmity or hatred between two spch
groups can be promoted or attempted to be promoted with
impunity, me1ely because the common attributes or characteris-
tics which bind them together consist of their respective political
programmes and ideologies."

T eja Singh J., another Judge of the Lahore H igh

Court, has also stated in ' 'Daily Parbhat," Lahore v.
Emperor (1), which was d ecided by a Special Bench
consisting of Bhandari J., Mohammad Shariff J. , and
himself:

"With all t1eference to my learned brother, I am unable to

.subsc~ibe to the proposition that a political par ty can in no case-
_b e regarded as a class or section of His Majesty's subjects
. withi~ the meaning of clauses (d) and (h) of sub-section (1) of
sec_tion 4. My opinion is that if a political party is well-defined
and ~be number of persons owing allegiance to it is large enough,
~here- is no reason why it should not be regarded as a class or at

(l) A.I.R. 11947) Lab. 366 at 371 .

168 BURMA LAW REPORTS. [1952

S.C. least a section of His Majesty's subjects for , after all, the under-
1952
lying object under the provisions of th~ Indian Press (Emergency
U OM KHIN Powers) Act was to put down and penalise the writings appearing
'/}.

THE UNION in newspapers and journals that have the tendency to create
OF BURMA, disorder irt the coun-try either by bringing into hatred tbe
Government established by law or by creating enmity. between
different sections of people and lhere does not appear to me to
be any reason why a writing which cr-eates serious hatred or
enmity between the ~eU-def.ned political parties consisting of
Iarge numbers, of the nature that is likely to result in open
conflict between them should not be hit by the Act.

We respectfully agree with Acqhru Ram and Teja

Singh JJ., and hold that a political party or organiza-
tion can be a class or section within the purview of
section 4 (1) (d) of the Press (Emergency Powers}
Act.
We must riow consider whether the meaning of the
words '' dass or section '' should not be modified in
the light of the observation .of Mohammad Shariff J.t
th~t a politi.cal party being held to be a class or section
would lead to strange and inconvenient results.
Maxwell. has stated:

"To arrive at the real meaning, it is always necessary to

get an .exact conception of the aim, scope and object of the
whole Act.

Where the language of a statute; jn. its ordinary meaning

and grammatical construction, leads to a manifest contradic~ion
of the apparent purpose of the enactment, o( to some inconven-
ience or absurdity, hardship or injustice, . ' presumably not
intended, aconstru.ction . may be put upon it which modifies the
meaning of. the words, and even .the structure of ~he sentence. "

(See pagesj22 :and 2.36 of ;..fqi:;oel(on Inf.erpretatfqtt of

Statutes,
. 9th Edition.~)
. .
.. . . : .
 1952] BURMA LAW REPORTS. 169

Besides, the High Court of Bombay has held in s c.

1932
Dattatraya Silaram v. Emteror (1) :
U OK KH l N'
"It is the duty of a Court to attempt to find the intention of v.
THE UKIOl'\
the legislature and to give effect to that intention. The more oF BURMA.
literal construction ou~ht not to prevail if it is C'pposecl to the
intention of the legislature as apparent from the statute,
and if the words are sufficiently flexible to admit of some
other construction by which that intention will be better
effectuated.

With reference to the aim and object of'the Acb

we agree with Achhru Ram J., who has stated in the
matter of the 11 Nawai Hlaqt Daily", Lahore v. The
Crown {2) :
~ " Both the provisons of the law mentioned above [i.e., the
1provisions ot section 153-A of the Penal Code and ~ection 4 (1) of
the Press (.Emergency Powers)] Act are meant for preserving the
public pe1ce, and I can see no reason:tble ground at all for
assuming that the legislature intended to hit promoting or
attempting to promote feelings of hatred or enmity between those
groups of bodies of persons only which were bound together by
,common religious, racial, social, tribal, economic or functional
pttributes (my learned brother is prepared to extend the definition
pi 'cllsses' to all such groups). but had no intention of preventing
such feelings being promoletl or attempted to be promoted
~etween groups, howeve? great their importance numerically and
~owever sharp the line dividing them from ~ach other, where
fach of them is bound together only by common attributes
~nsisting of_ a common political programme or icle<;>logy ;
though the need for preventing such feelings bein~ promoted
etween them m;\y be the l!reatest. "

With reference to the suggestion that the scope of

b e Act must be determined in the light of the
~planations to section 4 thereof, Explanations 1 and
. are irrelevant ; and both Explanations 2 and 3 contain
e qualifying clause 11 without ex~iting or attempting
excite hatred, .contempt or _disaffe~tion. "
fl) A.I.R.(l9t8) Bon.1. 239 at 243. {2) Ci947) l.L.R. 28 Lah. 497.
170 BURMA LAW REPORTS. [ 1952
S.C. Even where a political organization is a 1 'class or
1952
section" mere criticism of the members or the
U ON KHIN
.... id eologies of that .political organization will not come
"THE UNION
OF BURMA.
within , the mischief of section 4 (1) {d) unless such
cr iticism tends, directly or indirectly, to bring the
members or the organization into hatred or contempt ;
and this really is in consonance, and not in conflict,
_with the following statement of this Court in
Ma Khin. Than v. The Commissioner of Police, Rangoon
and muHl) :-

" It is of the essence of democratic government that one

political Ol:~anization is entitled to criticize and.attack another
political o_rganization so l9ng as such criticism and attack is
l egitimate and is not prohibited by law.''

T o the contention of the learned Counsel fo r the

applicant that a statute which fetters freedom of
expression on the activities of political parties is not
in consonance with the spirit of a democratic Constitu -
tion, we do not need to say more than thafthe Act we
are considering is a legacy of the colonial days inherited
as " existing law " under section 226 (1) of the Con-
stitution and that its retention seems to be an. indication
of the Government's view as to its continued necessity.
SG> there is ~othing in the aim, scope and object of
the Act to prevent any political orgaui:tation Iroin being
a class or section of persons resident in the Union of
Burma. Tbere is nothi~g to justify the presumption
thatthe Legrslature never intended such inconYenience
or hardship as might . ensue from a p-o litical' or-ganiza-
tion being treated as a class or zection. U nder these
drcurpstances we cann9-t ap.ply the rule of exceptional
construction and modify the language of t.he Act .to
. exclude .politi<;al qtga~izations.
. ..
'~"The u~_defiying
. . -- .
(I} (19~91 B.L.R. 13 at p. 16.
 1952] BURMA LAW REPORTS. 171

principle is that the meaning and intention of a statute S.C.

1952
must be collected from the "plain and unambiguous
U ON KHIN
expressions used therein rather than from any notions v.
which may be entertained by the Court as to what is T;FEB~;:t
just or expedient ". (See Maxwell on Interpretation
of Sta.tutes, 9th Edn., p. 4.)
We have discussed the question of law at consi-
derable length as it is of great importance and there
has been difference of opinion on it, not only in the
High Court of Lahore but also in the High Court of
Rangoon .
The facts. however are fairly simple. The Socialist
Party is a well-known political organization which has
been in existence for several years. Its members are
numerous and that the party has a widespread following
. in the Union appears fro~ the number of its represen-
ta~ives in both Houses of Parliament. It certainly
cannot be said of it that its common bond 11 is only a
transitory and constantly fluctuating phenomenon and
is not capable of any durable definition ". It certainly
is a definitely ascertainable body of numerous indivi-
duals with Glearly defined characteristics or criteria by
which they can be distinguished from any other body
Qr group.

~owe agree with U Tup. Byu C.J. and U Bo Gyi J.,

that the Socialists and the So,cialist Party do form ~
class or section of persons residing in the Union of
Burma anq that they fall within the purview of section
4 (.1) (d) of the Press (E~ergency Powers) Act. We
must make it dear, however, that being the majority
party in Parliament or in the Union is not a relevant
criterion.. Whatever the creed or colour o~ a parti-
..cular political party or organization, whether in powex
.pr out of po.wer, .provided it is a readily ascertainable
group wit.h some el.ement. of permanence and stability
~nd .~ith .a sufficiently numerous and widespread
172 BURMA LAW REPORTS. l1952'
S.C. .following, such a party or organization will fall within
1952
the meaning of the terms 11 class" or " section " ; and
U ON KHlN
v. in the event that such a party or organization is brought
THE UNION
OF BURMA.
into hatr.~d or contempt by means of a publication, the
Press (Emergency Powers) . Act will have application.
As regards the article itself, it was published at a.
time when insurrection was at its height in many parts
of the Union of Burma and even the general elections
had to be postponed on account thereof, inspite of the
express provisio1_1 in section 233 of the Constitution.
that the first general elections shall be held within
eighteen montbs~ from the date of the coming into
operation of the Constitution.
The gist of the article which is alleged to have
been based on an inquiry in the Socialist Party itself,.
is as follows : The Socialist Party taking undue
_a dvantage of the general elections having been post-
poned for a year was going to d_o wlfat it liked. It
would expel U Tin, U Tun Pe and U Ba Gyan from
the Cabinet and make it impossible for U Nu to remain
therein. Thereafter it would form a purely Socialist.
Government with Bogyo,ke Ne Win, Supreme Com-
mander, as Prime Minister. It will then purge itself and.
expel U Win also from the Cabinet. It would take the
said steps which are not only new but also destructive
as the Socialists bore a grudge against U N u and
Independent Ministers and could not forgive them for
certain specified reasons. If the Socialists carried out:
their programme the country would b.e absolutely
ruined. The States rpight not take it .lying clown, th~
expected foreign aid and loan might be withheld, and.
the Socialists might then have to negotiate with Red'. .
China. In fact the consequen~es would be so disas-
trous that tl~e writer dar.e d not contempla~e them at all
The allegation that ~he :SQc'tali~t Par~y was going tQ-
take destructive measur.es ~ut of spit_e,. ..taking. undue
 1952] BURMA LAW REPORTS . 173

,advantage of the general elections having been post- S.C.

1952
poned and regardless of even such consequences as the
U 0Jt KHIN
ruin of the Union of Burma, must necesarily have a ~-
l'H~ U:>:ION
tendency to bring it into hatred or contempt. As a OF BURMA.
matter of fact the writer himself appears to have
realised that his articl~ must have that effect since he
has stated therein : '' I have no desire whatsoever lo
make the country hate the Socialists by publishing
false statements. It is not necessary for me'co publish
false statements about them in order that they may be
hated by the public. Things have already been
moving in their natural course by their own force and
momentum " (meaning that the Socialists have already
: been incurring public hatred by their own action). He
has even added : cr Mogyo appreciates fully that danger
to his personal safety is increased in writing this
article, but as he knows well what the Jaw of
mutability is, he is undaunted ; a person is born only
to die".
~ The matter does not rest there even. He has
~ concluded his article with the statement: ''As regards
t the Socialists' plan about the Burma Army, however,
rMogyo dares not write about it at all ". .
t The learned Advocate .for the applicant has argued
r that we must not speculate abou t what has not been
':actually wrilten, but we are clearly qf. the opinion that
the said statement must be taken with its context and
that it becomes ~ighly significant against the Socialists
and the Socialist Party when it is construed in the light
: hereof. ""
So we agree with the majority decision of the Special
Bench of the High Court that the article does contain
ords which tend to bring the Socialists and the
~ Socialist f>ari:y into hatred or contempt.
! Theappeal'is dismissed with costs ;Advocates,. fee
(ten gold mohurs.
 Jl 0 s soerocoopcfu~ *
.
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Z~61] 'S~'H0d3'H M V'I VW~H1S: vll
 1952] BURMA LAW REPORTS. 175

OO'l?:eo~'l C}j!l1~0jl:x>tl SSro~:ro~:~OCOjib o:lW?c8~:~eii oe OJ

~OObaJ~CO?:C\:ljr C)j!l1~:~~;~5 C)j!l1~.:~C:x>~u ~ c
e:C'9G!3'3':lc
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. G~3?C~~o~:l GCijpro<XY.):~6)~"ij0:~P2cf) DCJ~:6)G~G;>~:II c1:~111
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176 BURMA -LAW REPORTS. [1952

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I' t9S2J BURMA LAW REPORTS. 179

SUPREME COURT.

MAUNG KHO LAN (APPLICA::-JT) ts.c.

i952
v. Aug.7.

MA NGWE LWAI AND O~E {RESPONDENTS).*

Dir.:ctiou iu the 11alure of certiorari-Allotmeut bY District Teua11cy Disposal

Committt'c scttiug nside Villa ge Committee's ord.;r-Rrtl-:: 13 (1) (f) of
Displ)sal' Rilles-District Committee n ot applying mi11..l to re.1t 1]1te~tion
Facts. contrary tv fiudings, how jar caa be Prov.:d by afjidnvils i11 writ of
ccrt iorari.
The Village Committee allotted a pie ~ e of land to applkant the owner in
th e previous year. On appeal the District Committee set it aside. For the
current agricuitural season parties again applied. The \'illage Committee
found that the 1st respondeut defaulted in payment of rent and allotted the
land to the owner to cultivate his own land. On appeal it was simply stated
that the dispute was exactly the same as in the pre\ious year and that the
appeal must be allowed as in the previous year. Upon an application for a
writ of crrtiorari.
Held: That the District Committee had not applied its mind to the real
~uestion at issue whether rent was paid in the previous year by lst respondent
'or not. Where facts are at issue before I nferior Tribunals they should have
,been thorou~hly thrashed out there, ancl new facts cannot be allowed to be
proved by affidavits on the application for a writ. The Supreme Court will
hot normally go beyond the reco:d. The finding by the Village Committee,
b\ the absence of contrary finding on appeal, is binding on the Supreme Court
and there was nothing in that finding whereby the Viliage Comrnittee'acted
illegally or otherwise ~h$111 in due course of Jaw.

Tun I for t-he applicant.

0 . S. Woon for the respondents ...
The judgment of the Court was delivered by
MR. J usTICE E MAUNG.-The Thaton District
._enancy Disposal Committee which, by the order
-'n der review in . these proceedings, has set aside the
llo.t ment made by the relevant Village Tenancy
., ci~il -Misc. Applic~tion No. 7'1 of 1951, being aP,plication for direction in
~e nature of certiorari. . . . . .
,.. t P~eseut: U THEIN MAUNG, Cllief Justice of the Unicr.; MR. ]USTlCE
f
t(
MA~.NG and MR. J~STIC~ M YINT THEIN.
. .
180 BURMA LAW RE PORT S. L l9S~

S.C. Disposal Committee, has not submitted the proceed

1952
ings of the Village Committee. The proceeding~
MAu~~N KHo which it has submitted to this Court of itself are also
MA ~GwE very sc;nty and consist only of a memoran dum of
.L:wAI
AND ONE.
appeal, a copy of the order of the Village Committe~
and its own appellate order, together with a cer tified
copy of its appellate order in respect of the same land
in the previous agricultural season. T he provisions of
Rule 13 C() (j} appear to have been a dead letter as far
as this District Committee is concerned.
In the previous tenancy year the Village Tenancy
Disposal Committee allotted the disputed land to the
applicant who appears to be the owner. A n appea}
was preferred by the I st respondent to the District
Tenancy Disposal Committee which set aside the allot-
ment made in favour of the applicant. In the present
agricultural season the parties applied again for a new
allotment and the applicant's case before the Village
Committee, as before us as well, is that the 1st iesf on-
dent defaulted . in payment of r eJ.?.t for the previous
agricultural season. This claim was accept ed by the
Village Committee and on the specific ground that the
1st respondent, a tenant of the previous year, had
defaulted in payment. of r ent, refused t o re- allot the
land to her for. the current year. The Village
Committee then._proceedect to grant leave to the appli-
cant as an owner-cultivator to till his own land.
An appeal was preferred by the 1st respondent to
the T haton District T.e nancy Disposal Committee. I n
the petitiOJ1 of appeal nO reference whatsoever was
made to t he point" really at issue. It was not alleged
by her that she had paid or had made any attempt to
pay the rel}t .for the prev~ou.s year. As far as the
pr oceedings s how no ~me . appears to have been
examined and i.he order. rne1:ely stated that the dispute
between the part ies was exactly t.he s ame d i.s pute
 1952] BURMA LAW REPORTS. 18

which the Committee had considered in the previous S.C.

1952
year. It then proceeded to hold that as in the
previous year the appeal must be allowed. It does MAUSG KHt
LAN
not appear that the District Committee ever applied its v.
llfA NGWE
mind to the real question at issue, namely, whether L\\' AI
AND ONF..
the rent for the previou.s year was paid by the
1st respondent or not.
Before us affidavits have been filed on behalf of the
. 1st respondent claiming that she did t~nder the
statutory rent to the applicant but that he refused to
accept the same. The practice of seeking to prove
facts by affidavits filed before us when the same facts
were at issue before inferior tribunals and should have
been thoroughly thrashed out in such tribunals is to be
deprecated. \Ve should not normally, as a Courtfrom
which directions in the nature of certiorari are sought,
go beyond the record. the finding of fact that the
1st respondent has not paid the rent for the previous
year to the applicant, specifically arrived at by the Village
Committee, in the absence of a contrary finding by the
appellate Distr i~t Committee, is binding on us unless
it. is made clear to us that the Village Committee arriv-
ed at that findi~g illegally or acting otherwise than in
due course of Jaw. Such circumstances do not exist
in the present ease.
The application is therefore allowed. The order
of the Thaton Di.strict T enancy Disposal Committee is
Huashed with costs ; Advocate's fees five gold mohurs.
 BURMA LAW REPORTS. [196Z.

S UPRElYfE COURT.
tS.C.
1952 IS MAIL MOHAMED (AHMED) BODI & SoNs. AND .
ANOTHT<;R (APPLICANTS)

v.
CHIEF- JUDGE, CITY -C.IVIL COURT, RANGOON
.. AND OTHERS
. (RESPONDENTS). *

Man'damus- Direclio" in tile nature of Mandamus aaiusl order of City Court

uuders. 22 (I)..U,ban Rent Cont1ol Act-Allegatio1tl/iat reltv nt1t sectt ou
of tfoe Act not considered- Whet Iter suj]icie11t-Timc sjent itt pursuing
infru ctuous review 1vithout aup; grvund whether ca" bt e;~Fused.
T he Controller of Rents fixed Standard Rent on 30th May 1950. A referene
was taken to the Chief Judge, City Civil Courts, Rangoon, unde r s; 22 (1) '
Ur-ban Rent Control Act and was dismissed. An application for review was
also dismissed. T-he-app licants sought to move U1e Supreme Court by a writ ,
Qf mandamus and alleged that the learned 9]uef Judgedid'not consider or apply
tlie relevant section of the Urban Rent Controi Act and he should be directt:d to
do so. The application was sought to be amended to include the prayer for
issue of certiorari for which a period of limitation of 90 days has been fixed by
Supreme Court Rules.
Held :-,That inordinate delay in making application for direction in th'e'
nilture of man~atnus should be explained. Time unneces.sarily spe!lt withoi:t
ju,$tifiable cause in pursuinl'( infructuous proceedings !or review cannot be
excludect' for calculating the peri od of 90 days within which an application for a
writ o! certiorari should be made to th" Supren1e Court under the rnles. ;)
The excuse that applicant acted under advice in making the' review applica-
tion was not a valid reason for enlargement of time in the case.
Held Jurtlte r : Tl~at no writ of mandanrus can be issued on the ground
that' the learned Cbie'f Justice clid not consider or apply rel evant seetions
of the Act. This can be ca~vassed only in a court of appeal. .

Tun Seinfor the applicants.

0. S. Woon for the respondents 1 and 4.

C. A. Soorrna for the respondent 3.
*Civil M1sr:.':Application No. 212 of 1951, being application for die!;tions .
in the nature .of mandamus.
+Present.:'p ~THE!~j M'AUNG, Chief Justice of the Union, MR. J usTrcE
E .MAuNG and MR. jUSTI CE MYlNT THEIN. .
 !-952] 13 URMA LAW REPORTS. 183"

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

1952
MR. jUSTICE !vlYINT THEIN. - The 3rd respondent lSM~Jt
~OHAA{EI>
~n this application, the Soortee Bara Bazaar Co., ~pplied (AHMEJ?)
~ the Controller of Rents for fixation of standard rent Bom &
SoN~ AND
~respect of rooms ocGupicd by the applicants. The ANQTHER
v.
applicants contended before him that they had paid CHU::F
JUDGE,
Rs. 10,000 each as 11 salami " and that therefore it was. CITY CIVIL
agreed that rent nould be kept stationary af~Rs. 300 CgJJRT.
RANpOON
per mensem in respect of each set of rooms. A!IDOTHERS.

The Controller mentioned this contention in his

,erder of the 30th May 1950 but said that th e 1939 rent
of Rs. 300 was unduly low and he therefore ordered a
25 per cent increase and fixed the rent at Rs. 375.
The applicants being dissatisfied took the matter on
reference to the Chief Judge of the Rangoon City Civil
Court under section 22 (1) of the Urban Rent Control
Act but the application was dismissed. An application
for review of the dismissal order was also dismissed.
On 30th November 1951 the app}icants file<;! an.
~pplication in this Court seeking :

~ '' (1) A rule-11ist in the nature of a writ of Mandamus to the

~st respondent (the Chief Judge o the City Civil Court) directing
~im to comply with and to apply the provisions of section 19 (2}
~c) of the Urban Rent Control Act . . . . . . in the
~etermination of the st<tndard rent in questiOI\ . . . .
f
1
(2) Notices of this petition
to be issued to respondents 2 and
S (Coutroller of' Rents; Soortee Bara Bazaar Co.) who are
interested in the matter "

T he application came up for hearing in the usual

~ay and the learned Advocate for the applicant was
tsked to explain the inordinate delay in filiug the
rpplicati<?n. He obtained an adjournment to apply
1ormally fo..t: extension of time under the Limitation Act.
li. . We have now .before us an appl ication dated the
tJth June 1'952 which is . (l) for extension of time to
184 BURMA LAW REPORTS. [ 1952

s.c. condone the statutory period of limitation and (2) for

1952.
leave to amend the original petition for Mandamus to
IsMAIL
MOHAMED
one for. both Mandamus and Certiorari.
(AHMED) It is argued that the applicable writ is Mandamus
BOD! &
SONS AND since the learned Chief Judge did not consider or
ANOTHER
v. apply the provisions of the relevant section of the
CHIEF
JUDGE,
Urban Rent Control Act in determining the case and
CITY CiVIL that ther~fore the learned Chief Judge should now be
CouRT,
RANGOON directed to do so. This contention to say the least is
AND OTHERs.
an ingenious one and if a writ of Mandamus were to
lie whenever a relevant provision of law is not applied,
the reper~ussions would be unimaginable. There
would be no need to have Courts of Appeal e\en acd
there will be no room for writs of certiorari to issue.
The contention cannot be countenanced.
In regard to a writ of certiorari, the rules of tbis
court prescribes a period of 90 days within \Yhich to
make an application.
A very long time has elapsed since th~ original
order of the Chief Judge was passed and unnecessary
time was spent without justifiable cause in pursuing
the infructuous proceedings of Review. The affidavits
filed by the applicants stress the excuse !hat they had
acted under advice of Counsel. V\T e can however see
no valid reason why the enlargement of time prayed
for should be grented..
The application for extension of time is dismissed ;
leave to amend the original petition is 9,ismissed and it
follows that the original petition itself is dismissed
with costs ; Advocate's fees five gold mohurs.
1952] BURMA LAW REPORTS. 185

SUPREME COURT.
t S.C.
BO KYI MYfNT ANI\ OTHERS (AI'PLICAt\iTS) 1952

v. Aug. 7.

CONTROLLER OF RENTS, RANGOON AND

OTHERS (RESPONDRNTS).*

Direction i11 th~ nature oj ccrliorari--Proc,edings u111/er U rbn,~J Rent Control

Act, s.l6-BH (2)-Alloli~tg premtses t o owu1r fo r o.;cutn tio~-Assumflio1f
by Co,drol/er thnt nppJicaut is 1/11 owner-S. 16-A A (4\ (a) how fu r appli-
cable-Whe" the re !S d ispute as t o oumer.<llif'-Affidavit:;, l oose nud
irresPOJJSible statements, deprecated.
U Ba Yi agreed to purch ase House No. 11, South l~ace Course Road from
Mrs. Malkhoo in 1939. T he purchaser was put in possession before the
payment of full purchase price. The premises were ren ted by U Ba Yi's
widow Da w Kha and the previous owner sold the premises in 1949 to
U Aung Thein who attempted to establish title by application for fixing
Standard Rent. No notice was issued to Daw K.ha. the Controller holding
that U Aung Thein was the landlord as defined in the Act. U Aung Thein
later issned notice to 1st and 2nd Applicants, the occupants, to vacate the
premises. They applied to the Controlh:r for continutd occupation . The
Controller dismiss ed 1 the application holding that they were tenants of
Daw Kha. Finally U Aung Thein applied to the Controller for sanction to
prosecute the 1s t and 2nd applican ts for vacatin~ t he premises. The
Controller held that U Aung Th.:in was owner by reason of his title deed and
that the occupiers were liable to summary eviction under s. 16BB 12) of the
Urban Rent Control Act. Later the. Controller proceeded to allot the premises
as President of the Advisory Board to U Aung Thein :~s owner for his
occupation. Upon an application for a writ to quash the proceedin!fs-
Held: That the dispute as to ownership between U Aung Thdn and
Daw Kha is a matter to be settled in a competent Civil Court. The applicants
1 and 2 ca111e into the premises as Daw K.ha'~ tenants. The order by the
Controller that it. was immaterial as to whose tenants the applicants were so
long as they are tenants of the premises is illc:gal and unsustainable.
In the present case the Controller's action in PNceedings under s. 16-.o.A
(4} (a! of the Urban Rent Control Act wher~by the Controller could direct the
landlord to occupy the premises when they become vacant is wholly irregular
as Daw Kha. was landlord and no notice was iSsued to her. All that the
Controller could have done under the section was to direct Daw l<ha M ld the
premises to a specified pers.Jn and wait for compliance oi the order.

*Civil Misc. Application No: 31 of 1952, beia~ application for directions in

the nature of certiorari.
t PresetJt: U THEIN MllUKG:, Cl,ief Justice of the l'nion, MR. Jusn.c~
E MAUNG and MR. JusTICE MYINT T~EJN.
186 BURMA:' L AW REPORTS. [ 1952:
S.C. ( statements in affidav its shou ld not be made l oose.:!, cr irresp o nsibly. A n
1952 affidavit i s mad e on oath and as such i s asokmn ~ tate m ent and care sho uld b e
tak en that loose slate111ents are not made.)
Bo KYI
I\(-nNT
AND MHERS Myint Toon for the applicants.
, v.
CoNTRoE.LER
OF RENTS, Q. S. r~voon for the respondents 1 and 2.
RANGOON
AND OTHEHS
C. C. Khco for the respondent 3.

The judgment of the ~ourt was delivered by.

MR. JuSTICE MYINT THEIN.-This ca~e has a long

history.
In 193 9 one U Ba Yi obtained possession of House
No. 11, South Race Course Road, t1nder an agreement
of sale entered into with Mrs. Malkhco. Under the
agreement he was to make 48 monthly instalments of
Rs. 60 and on the comt)letion of these payments the
house and land were to be conveyed to U Ba Yi. By
the time th e Japanese invasion took plar.e U Ba Yi had
paid some 29 instalments. U Ba Yi died b efore. the
liberation and it appears that no further collections were
made from Daw Kha (b is widow) by .Mrs. Malkhoo
who instead sold the premises to U Aung Th ein
{the 3rd respondent in.. the present application ) .in
1949.
At the time of.. the sale to U. Aung Thein the
premises were .occupied by one Daw Than Nyun who
admittedly was the tenant of Daw Kha. 0 Au ng
Thein's 'first attempt to establish his titl~ to the premises
was by way of an application to the ~ontroller of Rents,.
R~ngoon, in Proceedings No. 489.- E of 1948-49. for the
fixation of sfandard rent. The application w_a.s dirycted
against D aw Than Nyun wh6 was de~cribed . as a
tres't;'>assef. Daw .i 'ban .Nyun took th~ starrd that she
was Daw K ha's tenant and that sh e had b een:.so for
th e foi.tr years . previou~ to the application .. T he
!W52] BURMA . LAW REPORTS. 187'

~ontroller held t hat U Aung Tht:in was the owner of s.c

1952
fhe premises and as such was entitled i.o r eceive rent
Bo -Kvr
&nd that therefore he was a 1 ' Iand lorcl " as d efined i\1YI!I;T

~~der the Act. No opportunity was a.fforded to .\~0 OTHERS 'll.

~aw Klu to make her representations and the CONTROLLER
OF RENTS,
fo ntroller fixed the standard rent at Rs. 30 per HA NGOON
AN D OTHERS.
p:tensem, an order which affected nobody.
~~ In 1951 U Aung Thein made ne w efforts to better
f.lis posi:tion in regard to the pre mises an(!}. issued
ices to Bo Kyi ~'fyint and Ma Khin Aye (1st and
d applican ts in this case} who by then \rere tbe
cupants, to vacate the premises. These new tenants
alarmed and therefore made an application to the
troller of Rents for permission for continued
iion. Th ey were indifferent as to whcm they
pay rent but wantecl to pay to the person
titled. The Controller in Proceedings No. 331-E
1950-51 held that . they wert in fact tenants
f Daw Kha and that their application was not
ntainable.
In Proceedings I\ o. 27-l\1 of 1951-52, U Aung Thein
c~ again made his final effort out of which the
eedings before us have arisen. By an application
d the 24th November 1951 be asked the Controller
sanction to prosecute B o Kyi Myint and Ma Kbin
for vacating the premises and installin g Da "'~ Hla
ing and others (the other appli cants before this
rt) without formal permission of the Controller.
The Controller held an enquiry and despite the
tentic>n of Bo Kyi Myint and Ma Khin Ayt ihat
had not vacated .the premises, found that they had
e so and that they had installed the others. He
(vide paragraph 2 of his ord e.r of th e 5th March)
the point of ownership was settled by U Aung
n's production of titl e deeds. He held- also that
occupiers, _as_unauthorised te~ants, were liable to
188 BURMA LAW REPORTS. [1952
S.C. summary eviction under section 16-BB (2) of the Urban
1952
I<ent Control Act. His order et~cled with the remarks :
l:lo KYI
l'YIYINT
AND OTHERS '' Be.fore action indicated therein can be taken, it is necessary

CoNT=~LLER that the premises should first be allotted to a suitable person by

oF HENTs, the Advisory Board. Tile proc':!edings will thete.fore be put up
RANGoos
AND OTHERS,
at the next meetinl! '"
of the Board or necessary action.''

This order, as lias been pointed out, was made

on the ,,5th March. On the previous day U Aung
Thein had filed an application for permission to
occupy the premises" as owner". The endorsement
under date 4th March by the Controller is : "Put up
with connected proceedings at tomorrow's meeting of
the Advisory Board".
The Advisory Board of which the Controller is the
Chairman made its recommendation on the 5th 1\Iarch
to allot the premises to ' 1 U Aung Thein, O\vner, for his
occupation".
The Di<1ry order of the 6th March in 27-M of
1951 -52 is this:

''This proceeding was put up before tbe Board. The Board

r.:!COmmends Lhe allotment of the premises to the owner U Aung
Thein for his bona fide occupation. I ssue allotment order. At
the same time isst1e notices \mcler section 16-AA ( 4) (d) to the
present <ccupants."

Tl~is order was impkmented fully the same day.

It is in respect of these orders that the application
before us is made.
\Ve desire to say from the outset that the d1spute as
to the ownership between U Aung Thein and Daw Kba
is a matter which should be settled in a competent
C~vil Court. For tP..e purpose of the case qefore us
the landlord involved is Da:w Kha and not u Aung
Thein. The original ten.a.nf -'D~w Than Nyun was
Daw Kha's tenant and .Bo Ky.i Myint .and Ma &hin Aye
 1952] BURMA LAW REI'OWfS. 189

came in as Daw Kha 's tenants. If lhe Cont(oller's S.C.

1952
allotment order in favour of U Aung Thein is to be Bo KYI
allowed to stand he will cccupy the premises not as MY INT
ANI> OTHERS
"owner for bontz fid e occupation '' but as D a\v Kha's 1'.

tenant on the standard rent of Rs. 30 fixed in Proceed- CoN T ROLLE R

OF REI\TS,
ings No. 489-E of 1948-49. I< \N GOON
A:-W OTHERS.
The Controller bad dealt with Proceedings No. 27-M
on the w rong assumption that U Aung T hein was the
landlord. U Aung Thein as well as the app-licants in
the case made it clear that Daw Kba had put in the
occupie~s as her tenants but the Con troller was swayed
by U Aung Thein's title-deeds and was reduced to
saying in his order of the Stb March: "It is immaterial
wheth.er they were tbe tenants of the petitioner or not
so long as they are tenants of the premises in question,
it i$ ~ufficicnt for the purpose of t he present case".
Tbe Controller's explanation is that he had acted
according to the procedure laid down in section 16-AA
,4) (a). This section provides that if he should receive
info rmation th<lt any premises are vacant or are about
to be vacant, q1en with the advice of the Ad visory
Board he may direct the landlord to let the premises
.
when they becqme vacant, to any person specified in
'
.th e direction . ~nstead of issuin g the requisite direc-
tion tJ Daw Kha he issued notices ~o tT .Aung T hein
and the occupiers to deliver possession of the premises
~o U Aun g Thein.
The stage fo r the issue of notices to the occupiers
'had not arrived. All that the Controller could have
.done was to issue a notice and a direction to D aw Kba
~o let th e premises to a specified person and w~it for
;DawKha to comply with the order or to consider her
~bjections, if a ny should be forthcoming.
: Taking the .case . as a whole we are led to the
tonclusion
'
that. the
. order of . the Controller of the
5th March 1952 ~annot be ~mowed to stan4 and we
190 BURMA LAW REPORTS. [1952
S.C. accordingly quash this order together with all the
1952
subsequent orders passed by the Controller in imple-
BoKYJ
MY!NT mentation. Advocate's fees ten gold mohurs.
l\ND ~~HERs The Controller is directed to dispose of U Aung
'CoNTROLLER Thein's application on its merits bearing in mind that
OF RENTS,
RANGooN for the purposes of the case before him Daw Kba is
A~o oTHERs. the landlord of No. 11, South Race Course Road.
One other matter we desire to mention. We have
noticed.,.)n many cases that come before u s that state-
ments in affidavits are loosely and irresponsib.Iy made.
Very often the statements are not borne out by and in
fact are contrary to the entries in the records. In the
present proceedings .the Controller's statement in his
affidavit that he did not decide the question of
U Aung Thein's title is contradicted by paragraph 2 of
his order. H e stated also that the description of
U Aung Thein as owner of 11, South Race Course
Road, was an oversight. It could not have been a
mere oversigh~ for U Aung Thein's case is based upon
his; allegation that he is the owner. The recommenda-
tion of the Advisory Board of which the Controller is
the Chairman was in favour of " U Am1g Thein,
owner, for his occupation". The Diary Order of the
6th March m entioned "allotment of the prem'ises to the
owner U Aung Thein for his bona fide occupation''.
An affidavit is made on oath and is a solemn state-
ment and care should b e taken that loose statements
are not .m ade.
1952] UURMA LAW REPORTS. 191

SUPREME COURT

THAKfN HLA KY\VAY (APPLICANT! t S.C.

1952
v. Att.!/. 7
u NY I NYI (HESPONDENT). ~.~

Co-<Jftrtitive Sociclie~ Act, s. <:4-A-Registrar tli$!Olvi"f! ,, c, 111mil!ee of n

Co-opera lhe Society a11d declariw! some mcmbas to bt' rli>qllalified t or
elccliOI' jor 2 years-At>PliGnt ion for writ of cutiorari--:II,Ptlieo.ul wltu
was the Preside11t of the society i11 1/Je previous term aln disqualified .
Po-.uer of the Registrar IInder s. 44 Iii) whether e~:cr;ds to members of a
Co111mittec whose t erril lza; cxpired-IVhcl/Jtr order judicial or
ad111inist ratzvc.
field: Under s. 44-A of the Co-operative Societi es Act th<: Registrar may
dissolve tbe CQmmiltee and also direct !hat :.IJ or any of its members shall
be disqualified from being eJected for a period ~pecified in the order, The
Committee !hat can be dissolved i~ the Committee which ha~ mism anaged the
affairs of the Society and the disqu,llificatiQn is "again~! its members". The
test in such ca~es must b! whether applicnnt was a member of the Committee
which is dissolved. Since the applicant hao ceased to be :a member of the
Committee lo ng 'before the proceedings were initiated against the SodGty
.s.44-A can have no application lo him. Further the section cannot be in voked
to cover the case of past member of the Committee even if the mismanagement
began at the time t11e applicant was President.
Held f urther: That the order in the case was one expre~sly under s.44A
tof the Act and that is the onl y provision under which :m order of dissolution
!and disqu:tlificatioit can be made-hence it is not nn administr<~tive act but
~able to be quashed. ii in e~cess of jurisdiction.

i T. P. Wan for the applicant.

f .0 . S. Woon for the responden.t.
r
f- The judgment of the Court was delivered by
t MR. JUSTICE MYIN1' THEIN.-The respondent who
the <egistrar of Co-operative Societies, acting under
.ection 44-A of the Co-operative Societies' Act, passed
o~der dated the 19th April 1952 dissolving the

CiVii Misc. Applic.'ltion No. 55 of 1952.

t P rtse.,_.t: U THEIN MAUN6, Chief )uslioe of the Union, ?;f;R. JUSTIC~
MAUISG -AND 1\fR. }USTJ CE MYINT THF.JN.
192 BURMA LAW REPORTS. [195Z
S.C. C0mmittee of the Dock Workers' Co-operative Society
1952
Ltd. (a society registered under the Act), for misman-
THAKIN HLA
KYWAY agement. In th e same order, eight out of the eleven
v.
U NYt!'lYr . CommiHee Members were declared disqualified from
being elected to office for a period of two years.
Furth<:r in the sa me order a di~qualification for the
same period was imposed uron the appli c~ nt Thakin
Hla Kyway who was the President of the Society in
1950-S 1 Jl,nd "vbo had cei1sed to be a membe;- of the
Committee long before the proceedings were initiated
against the Society.
The application before us is not concerned with
the dissolution of the Committee nor with the dis-
qualification of its eighl members. It is the application
of T hakin Hla Kyway for directions by way of a writ
or' cerhorari to quash the order of the Registrar ln
. so far as the disqualification regarding himself is
concerned.
His learned Advocate contends that section 44-A
contemplates action against an existing Committee and
t~at the disqualification can be declared only in.respect
of those actually serving on the Committee dissolved .
In our judgment lhis contention must be upheld .
Section 44-A runs :

"Jf in the . opinion of the Registrar, the Committee cf nny

registered society ,js mism :m;~ging the affairs of the society, he
may by order in writing, nftel' giving the Committee an
opportunity to stnte their objections, if any, dissolve the Com-
mittee and direct that nil or any of its members shall be
disqualilie(\ ftom being elected to the Committee of the society
for a period to be specified in the order not exceeding three
years ."

From the wor_~ing '0f: the sectio_n it is .clear that the

body that can be 'd iss_oLved is the Committee which
".is mismanaging the affairs of_the society ~ and that
1952] BURMA LAW REPORTS. 193

the disqualification can be directed only against " its S.C.

1952
members 1). The test in this case must be, " Is the
THAK!N HLA
applicant a member of the Committee which is KYWAY
v.
dissolved ? " The answer is in the negative and there- U NY! NTI.
fore it follows that section 44-A can have no application
to the applicant who had ceased to be a member
of the Committee since 1951. Even if the mismanage-
ment began at the time the applicant was the
President (as contended by the learned Government
Advocate) section 44-A cannot be invoked as''it cannot
cover the case of a past member of the Committee.
The learned Government Advocate's second point
is based upon the statement in the respondent's affidavit
that the order in question was an administrative order
in respect of which a writ of certiorari can have no
application.. We can see no force in this argument
since the order itself expressly stated that it was one
made under the section. In point of fact this is the
only provision under which a dissolution of a Com-
mittee and the disqualification of its members could
have been ordered.
For these reasons, the portion of the respondent's
order dated the 19th Aprill952 in so far as it relates
to the applicant Thakin Hla Kyway's disqualification
for a period of two years, is quashed. Advocate' fees
five gold mohurs.

13
194 BURMA LAW. REPORTS. [1952

SUPREME COURT.

tS.C. U HAN SHEI N & SoNs (APPLICANT)

1952
Aug. 14. v.
THE HON'BLE MINISTER FOR FINANCE AND
REVENUE (RESPON DENT) .':.<
Sea Ct1st11ms A cl, s. 167 (37}, s.183-lmf>9rl of goods with inco1Ttct descriPtio11
and taluc-Levy of customs duty-hrterf erw cc by way of certiorari-
Qnest iO if &oJ! f act llotiJ fa r can be decided.
Motor car accessories and spare parts "\vere imported by petitioner and he
declared the place of ori gin and value. On examination it was found that the
value was wrong, that some of the goods were of different origin than those
declared and that some good!. had not been declared at all or misdeclared.
The Respondtmt set aside the orders of the Collecfor and Financial Commis-
sioner imd dil ected ~s:vy of duty at a particular rate. Upon an application for
a writ of ce rtiorari to quash such or der on the ground that a mistake had been
made in acceptin~ the Collector's valuation and not that of the pe titioner:
field: That the question of wbat is the value of ~oods is a pure question
of fact. The Respondent was competent to decide the same and th e Court
will aot inlet fert: even if it disagreed on such a question.
Gumn Ku v. Tht Unio" of Burma, B.L.R. !1949) (S.C.) 151, followed.
In "icw of petitioner's <>dmission that some goods were undeclared and
so~ne were of origin other than those declared and not covered b y licence, the
Court will not interfere with the Respondent's finding as to valuation.

[(y:r,w Min for the applicant.

0. S. Woot't (G~vernment Advocate) for the
re~ppndent .

T~e judgmeq,t of t_he Cour~ was d elivered by the

.Chief Justice of the Umon.
U THEIN MAUNG.- This is an application for
directions in the nature of certior~ri in respect of an
order passed b y the first respondent under sections 167
(37) and 183 of the Sea Customs Act.
~<~ Ci.vil Misc. .Application No. 84 ~f 1952.
t Present: U ;fHI.'IN. MAU)(G, Chief Justice of the Union, MR: JusTiCE
E ?.i-A1JNG and MR. }l:isT.IC~ MYINT :rHFIN.
1952] BURMA LAW REPORTS. 195

The petitioners imported motor car accessories and S.C.

1Y52
~pare parts declaring t hem to be of USA, U.K. and
~ustralian o:igins and declaring their value. to be U H&..::.:SHBI
SONS
!-1

~Rs. 39,062 c.d., Rangoon.

THF.
l~ On ~.ctual examination of the goods, the Collector IION'BLE

w Customs,. Rangoon, found (1) that the goods were FORMINISTER FINANCE
A :olD
f.wortb Rs. 66,814; (2) that the goods worth Rs. 2,784 HEVF.:"UE.
1were of Canadian origin and therefore nol covered by
fpetitioners' licence ; ( 3) that some of the good'3 bad not
rbeen declared at all j and ( 4) that the petitioners had
t-<Ieliberaiely misdeclared the contents and value of the
tgoods imported. He accordingly confiscated the
;entire consignment giving the petitioners an option to
"fpay in lieu of confiscation a fine of Rs. 15,000 plus the
~uuty calculated on the basis of the" ascertained value''
~.and also imposed a penalty of Rs. 12,400.
On appeal the Financial Commissioner set aside the
Collector's order ; but in revision the respondent set
aside the orders of both the Collector and the F inancial
ommissioner and directed the petitipners to pay duty
(m Rs. 66J814 and to pay a fine of Rs. 3,000 only.
,. The learned Advocate for the petitioners has urged
lhat the respondent made a mistake in accepting the
~ollector's valuation of the goods in preference to
~h eirs; and the petitioners themselves have stated in
r,aragraph 9 of their affidavit :

~ ~ Petitioners had however imported under the Invoice

~rticles similar to the so~alled non-invoiced components and
these had been accepted by the Collector of Cuswms at peti-
~oners' Invoice values, and it was strange that the so-called non.
invoiced componenlll referred to in paragraph 8 above should n9w
be valued at ' ascerhined ' or market prices."

~
However, the question as to what is the .value of.the
ood~ is a pt.~.r~ question o.f fact which .the _re.spondent is
~mpetent to decide an d lhis Co.ur.t will not interfere .
196
.,
BURlMA LAW REPORTS . [1952

S.C. even if it does not agree with him on such a question.

1952
[See Gwan Kee v. The Union of B~nwza ( 1}.]
u~~;:sIN The fine must be held to have been rightly imposed
T~:~.: as some goods were admittedly undeclared, some goods
HoN ' ts LE were admittedly of Canadian origin and t herefore
MINISTER
FoR FINANCE uncovered by the licence, and the whole consignment

RR:ENNou.E. which was d eclared by the petitioners to have been

worth Rs. 39,062 only have been found to have been
worth as ,much as Rs. 66,8 14. .
The application is dismissed with costs; Advocate's
fee ten gold mohurs .

.(1) iu..R. (1949) (S.C. H51.

 1952] BURMA LAW REPORTS. 197

SUPREME COURT.

T . N. AHUJA & Co. {APPLICANTS) ts.c.

1952
v. Aug.14.
ABDUL LATIFF JAMAL & Co. (RESPONDENTS).""

APPlicativn for sPectal leave-S. 6. Utti01L Judiciar) Act, 1948-Admuce

whdhn loan or for Pt~rchase of a lzu/Uii by way of discount-Findings of
fact-Cat~se of action 011 origiHal corzsiderat ion w/t(n J~littguislt ed
Accord aud satisjactlotz.
The Lower Courts found that the original transaction between the parties
was not one of lottn but of discounting a hundi i.e. pnrchase of a h11ndi for
less than its face value. On an application for special );:ave :
H eld: That the finding of fact that the original tmn~action was not on.: Of
Joan but of discounting of hundi <"annot be challenged on appeal.
Held furl!zer: That U1e catltiE:: of action in the original consideration is
extinguished if the JenJer by negotiating a negutiable instrument has made
the Bill h is own and thereby accepted the instrument a$ accon1 and satisfaction
of the original consideration, viz., liability of the borrower.
Mnmt.g Clt ~t v. RfJshatt .V. M . A. Kateem Ovm.er & C~., 12 Ran. 500.

P. K. Basu for the applicants.

S. A. A. Pillay for the respondents.
The judgment of the Court was delivered by
MR. jUSTICE .E MAUNG.-All that can be said in
support of the present application for special leave to
appeal under section 6 of the Union Judiciary Act has
been said by the learned counsel.. for the applicant.
However, we are not satisfied that this is a fit case for
special" leave to pe granted and the application there-
fore stands dismissed.
The present proceedings arose out of a suit insti-
tuted by the applicants for the recovery of Rs. 5,000 with
interest there011 on the _basis that the sum of Rs. 5,000
* Civil Misc. Application No. -2 of 1952 being application for Special Leave
to appeal.
t Prese11t : U THEtll .MAUNG, Chief.] Jstice of the Union, MR. JUSTICE
E MAUNG and MR. }USTICE MYINT THEIN.
198 BURMA LAW REPORTS. [1952

S.C. represented a loan made by the applican1s to tlte

1952.
respondents on 19th l'vlay 1939. The facts, which are
T. N. AHUJA
& co. not in dispute, are that on that date the applicants
A:~UL issued <'4 cheque f0r Hs. 5,000 in favour of the respon -
LATIFF dents and thC' respondents endorsed in favcur of the
JAMAL & Co. . d. d f .
applicants a bun 1 ma e out in avour ot the respon-
dents by the United Oil Mills Ltd. This hundi was
later endorsed by the applicants in favour of the
National ,City Bank of New York <vvhich again endorsed
the same back to the appplicants.
Th e applicants' claim that they issued the cheque
for Rs. 5,000 in favour of the respondents by \\'ay of a
loan of a sum represented by the cheque was disputed
by the respondents in their written ~tatement. The
suit was dismissed by th e trial Court on grounds
into which it is not necessary to enter here . .On
appeal being preferred by the applicants to the High
Court it was dismissed. In dismissing the appeal
a Bench of th~ High Court rejecting applicants' claim
that the transadion resulting in_the issue of the' ~beque
for Rs. 5,000 was one of loan, said :
"What really see:;1s to have happened was that a hun eli
which was drawn in fa,our of Abdul Lntiff Jamal & Con pany
by the Uniteci Oil Mills Limited in a manner similar tc Exhiuits
1 and 2 was cliscount:ed by I he plaintiffs T .N. Ahuja & Company
at the rate. of 9 P.er. cent per.annum and the !;aqJe \\'as endor:;ed
in their favoi.Jr by thedefendants Abdul Latiff Jam::~l & Company.
It was then endorsed by the plaintiff Company to tire Bank for
consideraticn as was usually done,. the plaintiffs having bencfi'ted
by the difference in the rate of interest charged by them to the
defendant Compauy and that charged to them by the Bank."

. The .learned counsel for the applican ts relies

str<?ngly .on a. Full Bench decision of the High Court
of .Juci:i'cature in . Maung chit v. Roshan.' N. M.A.
Kareem Domer &Co. (1) .. With resp,e ct, it is difficult!
llf 1? Ran: 500.
 1952] BURMA L AW REPORTS. 199

[.to see the application of the ck:cision to the present s.c.

1952
[proceedings before us. The High Court had come to
T. ?\. AHI!J4
:a finding on facts that the anginal transaction between & Co .
:the parties was not one of loan ~ut was one of discount- ABDUL
!'.

:ing of a hundi . LA TIFF

JA~IAI.. & Co.
' On the basis then that the cheque .for Rs. 5,000 was
Issued by the applicants to the respondents in
pursuance of a discpunt transaction (and acl~ordingly
payment by the applicants was in consideration of the
hundi which had been endorsed oYer to them and
'\vhich in ordinary language may be described as being
bought by them), a claim as on a loan clearly is not
~ppropriate in the circumstances. Further,
)1aullg Chit's case (1) . provides a complete answer to
~he applicants' case even on the assumption that the
~riginal tran_saction was one of loan. As iVas said at
tp~ge 505 of the report :

"On the other hand the cause of action on the original

[consideration is extinguished when the amount due under the
fegotiil?le instrument is paid or if the lender by negotiating the
~11strument or b~ laches or otherwise bas made the bill hi.s own,
lnd thus must be regarded as having accepted the ne~otiable
i nstrument in,-accorcl and satisfaction of the bo:TO\n::r!s liability
en the original consideration."

T h.e application is dism issed with costs; Advocate's

(ee five gold mob~.1rs.

(1) 12 Ran. 500.

200 BURMA LAW REPORTS. [1952

SUPREME COURT .
. t S.C. P9NOYA AND TWO OTHERS (APPLICANTS)
1952
Aug. 14. v.
THE SECRETARY, DISTRICT AGRICULTURAL
BOARD, PYAP6N AND OTHERS tRESPONDEN'fS).*
Disposal of Tcuartcy R11le-Rule 10-No default in payment of tent by
ten~f -Hts right lo work the same land for the ne:d season.

For 1951-52 the children of !he owner of the lands applied for permission
to cultivate them as owners and the tenants also aprlied. The application of
the children of the owner was rejected in both the 'Vard and Dist rict Bo:!rds
on ohe ground that t heir title to t he property had not been proved . For the
year 1952-53 they made a similar application. The ward Committee rejected
it on the gr.nmd that there was no default in payment of rent or repayment of
agricultural loan by the t<:nants . they were therefore entitled to work the
lands. The Committee further held that the owners never earned thei r livillg
as c ultivators. T he District Board disagreed on both counts ; upon an
application for a writ of certiorari : '
Held: The fact. that respondents 2 and 3 are owners and would be in a
position to v.:ork the land has no bearing on the c~se. Un.der Rule I 0 of the
Tenancy Dispo~al Rules, if a tenant is not in default he is entitled to work the
land in the next season. As there was no disp~ote that rei1t had been paid and
there was no default in repayment of agricultural loan, the .order of the
.D isltkt Board should be quashe.d .

P.M. Beecheno and Khin Mau11g for the applicants.

P. K. Basu for the respondents 2 .and 3.
The judgment of the Court was delivered by
i;he applic~ntsin "this
MR. JUSTICE .MYINT THEIN.-
case have beeii working the Iarios. in dispute for some
. years past. For the season 1951-52 the respondents
2 and 3, Maung Khin Maung and Ma Hla Myint,
. c hildren of the owner Shafat Ali, deceased, applied for
permission to cultivate these lands as owners but their
application was rejected by both the Ward and the
District Boards:
----~~------------~--~--
. *Civil Misc. App.l ication No. so:of i952 being applicatior(.for directions
in. thenature of ceriioni~L
t P~ese11t : U T..a~r}l !'.fAUNG, Chief Justice of. the Union, ?>fR. JusTICE
E MA UNG and MR: lusT'rcE MYINT THEIN;
 t952 l BURMA LAW REPORTS. 201

S.C.
This year the respondents made a similar applica- 1952
tion and again the Ward Board dismissed it pointing P
ONOYA AXD
out that the tenants who had not defaulted either 111 the Two oTHERs
payment of rent or in the repayment of agricultural THE vSEcRE-
loans were entitled to continue as tenanb. The mem- ~~~;; A~~~~:
bers of the Board in their order of dismissal expressed cuLTURAL
BOARD, PYA-
the view that the respondents had never earned their PoH AND
OTHERS.
living as cultivators and that they were not ir.....a position
to work the land them~elves .
The District Board, to which the matter " as taken
on appeal by the respondents, disagret:d with these
views. Stressing the fact of ownership and IHJiding
that in the past Maung Khin Maung had earned his
living as a cultivator, the District Board decided that
the lands shou ld be restored to the re!'pondents as
.owners for their cultivation.
Neither the fact that the respondents are the owners
nor the probability that Maung Khin Maung ...rould be
.able to work the land himself can have any bearing
upon the case before us. Rule 10 of the T enancy
Di:;posal Rules provides tha.t in respect of land which
had been worked the previous year by a tenant
(whether installed without dispute or in~talled by a
'Tenancy Board) if there is no default in the payment ot
rent nor in the repayment of agricultural loan, then
:such a tenant is entitled to work the land in the
!<:om~ng season.
In this case the receipt of rent is admitted in
-paragraph 4 of Maung Khin Maung's affidavit. Repay-
: men( of agricultural loans by the applicants is not
~ denied. Therefore under Rule 10 they must be
~a~cepted as tenants for the pr~sent season. The order
~of the. War.d . Boar4 was. co:rect and proper a~d in the
:result t.~e ordt?r of the D1stnct Board of Pyapon, dated
lhc 30th May 1952 must be and is hereby quashed
Advo~ate ~s fee eighty-five kyats~
2{)2 BURMA LAW REPORTS. [1 952

SUPREME COURT.
t S.C.
1952
u PO THIN (APPLICAi\T)
Attg. ZO.
v.
D ISTRICT AGRI CULTURAL BOARD, MAUBTK
AND OTHERS (ReSPONDENTS).~
DispJS<ll oJ fena"cy-De{ault by tewmt i11 (ayiug rent i:z pre'idous ycnr-
.4 llotme~ to Resfondclll~ b_~. Village Committee- Wllef her [(11:d COflld l><!
re-allott<d on fender of rent in n run r.<.
The applica.tion fcor n:-allotment of the lard by applic~nt was rejedecl
by the Village and .Cistrict Tenancy Distl"Sal Committe<:s or. the ground !hat
he had committed dl!fault in payment of rent ; the land was allotted to
3rd Respon!lent The applic~nt then otrered to pay the defaulted amotnt to
'the Healman.
H c!cl: That lhe l:md h;td b':en validly allotted by the Village Committee
and :~ccordingly th.,re could be 110 re-allotment of Ute land in question as both
the Di~trict Committt-e nnd the Village Comrr.i:tee have acted in accordance
with l:lw.

Ba Th(ltf. for the applicant.

0. S. Woon (Government Advocate) for the

respondents.

The judgment of the Court was. delivered by

MR. JU!->TICE _E lvlAUNG .-On th.e ap~ilicant's own

sho"'ving it is cleai that bis application has no merits~
Both the Village~ and the Dic;trict Tenai1cy. 'Disposal
Committees rejected his request f~r. re-allotment' of the
land irr dispute, of \Ylrich he had been a tenant in the
previous\,year, on the ground that he had committed
defai:llt iri payment of rent.
. The application for allotme}\.t was considered by
the Village committee on the 15th March 1952 and on
t.bat. date,_ o~~ the. ground that. lhe applis::~nt had
.. ."Civil Mise:. Al)plica!ion No. 99 of 1952 b~i.n!;! application. fdr dlrectJons:
in certiorari. . _ . .
t Present : .U Tam~ MAu~o. Ghief Justice .of the Union, Mli. 'JusTtc~:
E . \IAU:\G and MH. jusTi.?E MYINT THEi~.
 l952j BURMA LAW REPORTS. 203

.committed default in the payment of rent in the L\W S.C .

11i 52
previous years, refused to re-allot the land to hi11L It
~fas only on the 23rd March lv52 that the aP.plicant, 1 .
0ISTIHCT
!o-n l1is own showing, went to the headman of the .o\GIIlCUf
!village and offered to p~y the rent in default. 'Why the 'l't:H.\l
80AI~ D , MAU-
pplicant tendered the rent in default to tl1e headman .IliX ,\NU
OTH F.RS.
nd n ot to his landlord is due tf'l the fact t.hat the sum
~.n default represented the, lanrl revenue clue on the)and
f, . . . ~.
ffor -th<: previous two years. \Vhat appear:) to have
i: 1appened was that the owner instead of co llecting t\\'ice

he land revenue from his tenant and paying out of that

ollection the land revenue to the headman, received
-or himseli only the rent due to him and left it to the
' pplicant to pay that part of the rent \\'hich represents
:he land revenue direct to the hcacl man .
At the time the ~pplicant offered to pay the sum in
fault to the headman the land had been allotted to

E e 3rd respondent by the Village Committee and

c-ordingly the applic1nt could not in any case receive
t e-allo1ment of the land in question.
i. The le~rned couns~l. for' the applicClnt vva~ forced to
foncede 111 these circumstances that neither the
~istrict Ten~ncy Di~posal . Committee nor the Village
lfena?cy Dis~osal c.ommittec had acted otlierwise
lban m accordance wtth Ja ,,. .
The applic<:ttion therefore.: f:~ils a1id is dismi~sed
~ith costs, Advocate's fee five gold n1ohurs.
:204 BURMA L AW REPORTS. [ 1<i52

SUPREME COURT.
ts.c. K. ~. MOHAMED EBRAHIM AND ANOTHER
1952
(APPELLANTS)
Au g. 22.
v.
THE TAJMAHAL STATIONERY MART
(RESPONDENT).*
Passing -o!f,..:;ct iot~-Priucifl~s-Efl irletla of wit ness tlS to opiuiot whether
adm~ssible .

Held : The guiding principles applicable to cases of passing-off actions are

clear and beyond dispute. No nan can represent his goods as being the
goods of another man, and no man is p~roitted to use any mark, llign
or symbol, device or means, whereby without making a direct false represen-
tati >D himself to a purchaser who purchaset from him, he enables the
purchaser to auake a ratse reprcsenl<.lion to som~:uo<ly else wllo is the
ultimate customer.
Rights of property may be acquired in a lrade-mark on the proved
a.c:sociation in the market of the device, name, sign, symbol or other means in
question with the goods of the plaintiff. Use of t_be same by the defendant.
whether in tentional or otherwise, will ;tmount lo false representalitln.
Si11ger MmiU/actflr itlg Co. v. Loog, (1880) 18 Ch. D. 395 at 412; T!latnas
Bear & Sons (lndit~) Ltd. v. Prayag Narain, (t94()) _6i I.A. 212 at 216,
followed.
In the present case the appellants have established their right to the trade-
mark Chinl.he" in respect of diaries and exercise books.
Opinion is one thing and direct evidence is another. Some of th e
witnesses examinee\ were not experts and canpol conse'luently g ive expc:rt
testimony by opinion. The Court is in possession of the same materia ls as
the "itnesses and their opinion can add nothing to the mater ials for Jt.dgment
by the Court out will only encumber the proceedin ~s.
4

]. K Munshi for the appellanls.

M. M. Rafi for the respondent.

T he judgment of the Court was delivered by

MR. JusTICE E _M AUNG.-A wealth of authorities

has. "been
.-
Cited _ by learned counsel at the.- hearing
.
Civil Appeal N~. 11 of 1950 against the decree iri Civil 1st Appeal No. 44
of 1949.
t Praent : 1\!R. J USTICF. E :\JAUXG, l\1R. J usTICE :11YINT Tasr:-~ and
U ON 1-'F.. J_
 1952] BURMA LAW REPORTS. 205

of this appeal which arises out of a ciaim by the S.C.

1952
appellants for injunction and ancillary reliefs in \:t.'hat
K. E.
may be shortly described as a " passing-off action". MOHAMEI>
But the guiding principles applicable to the appeal are EBRA HL'.f
AND
clear and beyond dispute. A!\OTHlU~
....
As was said in Si11gc1 Manujacluri11g Co. v. THE
Ti\JMAHAL
Loog (1): STATIONERY
MART,
. ''No man is entitled to represent his goods as being the
goods of auother man ; and no man is permitted to us~? any mark,
sign or symbol, device or means, whereby, without making
a direct fa lse representation himself to a purchaser who
' purchases from him, he enables such purchaser to tell a lie or to
make a false representation to somebody else who is the ultimate
;c.ustomer." :

This. principle has been enunciated in a slightly

different way in Thomas Beai' & Sons (India) Ltd. v.
Prayag N arain (2) thus :
" It is clear that the right of property that may be acquired
in such a trade-mark is based on the proved association in
,th_e market of the device, name, sign, symbol or other means in
~question, with the goods of the plaintiff, so that the use by
~he defendant .o n such goods of the trade-mark will amcunt-
wbether the defendant intends it or knows it or not- to the false
f{ . . .
f.epresentatwn that the goods .are manufactured cr put on
ltte market by the plaintjff."

This representation can be to the .eye or to the ear

tut whether there h as been such a representation,
~ei ther to the eye or to the ear, must be ~etermin e d
~aving regard to th~ special conditions peculiar tu the
' oun~ry where the trade-,mark is being put forward .
.he mythical " Chinthe " has been a common sxmbol
1
this country even before it attained independence,
:nd: af~er in.d epe.nd ence, by its adoption in the Court- .
.lA~rns of the T!n.i on, the symbol has become almos~
'(!)" .(1880) 18 Ch. D. 395 at 412. (Z) (1940) 67 1.~. ziz ~t 216 .
. '.
206 BURMA LAW REPORTS. [1952

S.C. unin:rsal. It must also be remembered tbat the , -ital

1052"
element in such disputes, namely, the probability
K. E. of deception, will turn wholly or partly, on questions
MOHAMED
. EBR.AHI)I of fact. ,
ANQ
ANOTHER The appellants, who are engaged in business as
v.
THE General Importers and Wholesale Dealers of various
. T.UMAHAf,
STATIONERY
classes of goods, claiwed that in respect of station ery
M -A RT. articles they are entitled to the u~e of the '' Chinthe "
mark as iJ;l Exhibits A and B on all. stationery art icles
and that the respondents by their marks Exhibits C
and D are passing off a colourable imitation of the
appellants' trade-marks Exhibits A and 'B.
Exhibits A and B are identical representations of a
mythical animal which is described as a_ '.' Chinthe ".
That term is also descriptive of a lion as found in
natur~. Mark Exhibit _B is smaller in size and is use d
_o n diaries issued by the app_e llants, whereas Exhib it A,
which is of larger size, i s used on exercise books issued
by them. Exhibit -D which .w as used by the respon-
'dents on exercise. books and diaries issued by them
represents :the _mythical "Chin the'' in a . different
posture from that adopted by the apptllan1s in their
marks A and B. There can be no dispute in this
. appeal as regards Exhibit D. The trial Judge, as also
the Appellate Bench of the High Court, has held that
this constitutes a co]ourable imitation of.the appellants'
'' Chinthe" trad'e-mark Exhibits A and B, and tb~
re~ponden:ts have nof appealed against that finding.
Wh-ere the Appellate . Bench differed from the tri.al
Judge is that whil~ the trial Judge . granted the .
appellants Hie reliefs they sought ip respect . of ~hi:s
. trade-mark in connection with all stationery articles,
tl~e _Appellate Bench -restriCted -the .,reliefs .to exercise .
bo9ks oniy. . . . .
-_ With tespect, .we _-ar~ . o(the Q_pih.i o_U..thi.t _a sliglj J
departure -1s iiecess~ry from / the terms of both tht
1952] BURMA L AW REPORTS. 20i

decrees granted by t he trial Judge and the Appellate ::;.c.

1952
Bench in respect of this mark. vVith the Appellate
I<. E.
Bench we agree 'that the appellants, on the evtdence, !I!OH.UIIW
have not established their right to this trade-r;nark in EBRA!HM
A ~O
respect of aH stationery arti c les ; but there is sufficien t ,11\0THER
'll.
evid ~::n ce on th e record to justify the conclusi on THE
TMMAHAL
arrived at by the trial Judge that they have established S'rATIONEllY
the right to the trade-mark in respect of diarit:s in MART.

.addition to exercise books. To that extent ....we shall

vary the appellate decree of the High Court.
Coming now to the trade-mark Exhibit C as used
by the respondents. The Appellate Bench has well
described it as consisting-" not only of the Chinthay,
.in a sitting posture but also of two dragons-one on
each side of the Chinthay. T he dragons are copies of
the dragons on the City Hall of the Rangoon Municipal
Corporation. T hey are much larger than the Chinthay
itself ; they are not by any means less prominent than
the Chinthay, even though the latter happens to be in
the middle . ." T heir Lordships might well
have added that the dragons are not only copies of the
figures on the City Hall of the Rangoon Corporation
"but are also such as a Burma n sees in every VIllage
~onastery or every pagoda. W e stress this as some
>of the non-Burman witnesses called in support of the
~ppellants' case profess to be unable to distinguif.h
fbetween a chinthe and a dragon ~ Thus Kader
fMohideen, the 7th witness for the appellants, said of
hhe two figures at the side in trade-n1ark Exhibit C
J" T hese are also 'Chinthes '" and also ''To me they
!:appear to be' Chinthes' ' '.
~ At the hearing of t he appeal, learned counsel for
Mhe appellants relied strongly on many statements

~
ade b y witnesses for the respondents in their cros.s -
xamination as s~rength ening their case that Exhibit C
lso is ~. colourab]e imitation of their trade-marks
208 BURMA LAW REPORTS. [1952
S.C. Exhibits A and B. Kumaran, one of the witnesses for
:951
lhe respondents, in answer to a question ''If you had
. K. E.
MO!fAMED 111 your shop exercise books bearing Mark C ar.d if a
EBHAHIM
AND purcha~er came and said 'Give me a Chinthe brand
ANOTHER
v.
exercise book ' would you give it to bim ? " said "Yes.
THE If I have it in stock". A simi1ar answer was given by
TAJMAHAL
Sr.>.TIONERY him in respect of Exhibit B and of Exhibit D
MART.
Another witness, A. 1\1. Khan, said in answer to a
question as to what he would do if a custome! asked
for a chinthe trade-mark exercise book and he had in
stock only exercise books bearing Exhibit C trade-
mark, that be would give the customer such a book.
Other witnesses for the defence .engaged in retail sale
of exercise books did not go so far as these two~
witnesses but they substantially agreed that if they had
only exercise books wilh Exhibit C trade-mark on
them they might have given the customer such books
when asked to produce chinthe exercise books.
However, not one of these witnesses, so strongly relied
upon by learned counsel for the appellants, had
actually sold an exercise book bearing trade-mark
Exhibit C as a chinthe exercise book. Their state-
ments only amount to this that they are of the
opinion-or, in simple language, that they think-
that if in their retail business a customer were to ask
for a chinthe exercise book they might indifferently
have delivered lo such customer either exercise books
with trade-mark Exhibit A or Exhibit C as they
happen to have in stock at that" moment.
Now, this is not evidence. . They are stating not to
facts but only to what they think might have happened~
Opfnion is one thing and direct evidence is another.
These witnesses were not.examined as expert witnesses.
and ~re not persons to give e-xpert ~e~timony ." The
.Court is in possession of the same ni.aterials of opinion
as. any .?f these witnesses and thei~ opini.o n can add
1952] BURMA LAW REPORTS. 209

nothing to the materials for judgrner1t by the Court but S.C.

1952
rather help only to encumber the proceedings. It
would have been different if the witnesses had ~poken r.I:;;~A~Eo
to facts within their knowledge, such as that on such ER~~~n1
and such occasions they did succeed in selling exercise ANOTH E R
books bearing E xhibit C \.Vhen the demand was for T=E
. b ook s b eanng
exercrse . t.lle Ch.mth e t ra d e-mar I< of the STATIONERY
T/IJMAHA L

appellahts or that they themselves had been decei.ved M ART.

into purchasing as appellants' exercise books th~

exercise books bearing the disputed trade-mark
Exhibit C. With respect, it appears to us that the
learned trial Judge aiJowed himself to be influenced by
.such inadmissible statements in arriving at the conclu-
sion that Exhibit C is a colourable imitation of the
appellants' trade-mark Exhibit A.
We respectfully agree with the Appellate Bench
pf the High Court that the exercise books bearing
Exhibit C trade-mark cannot be mistaken for the
:exercise books bearing the trade-mark Exhibit A.
As the learned Judges have said : "The addition
~f two different symbols: viz., the dragons, is so
fons~icu~us and th~ to:al dissimilarity of the general
~ombmahon of marks rs such that to any one .at. all
~cquainted with th e respondents' trad e-mark, we .c an
~ard ly think that even on the most cursory glance there
r ould be any deception."
J.. In these circumstances the decree .Of 1:he Appellate
~ench of the High Court is affirmed subject to the
rariation that the appellants are entitled also to re~iefs

~
respect of diaries b earing the offen ding trade-mark
xhibit D or a colourable imitation of the appellants'
ade-mark Exhibits A and B.
The parties will b ear their own costs of this appeal.
21.0 BURMA LAW RE PORTS. [1952
SUPREME COURT.
tS.(.. KHADIZA BIB! (APPLICANT)
1951
Sept. 10.
v.
THE RESIDENT, SOUTHERN SHAN STATE
AND ANOTHER (RESPONDENT S).*
Writ of habeas corpus-Public Order (Prcsertation! Act.1947, s. SA (ll !b)-
Jurisdiction of lfle Resident, Soulhcrn Sflan State wllen dttl!uu in
Mot11dalty-Jnrisdictio" to order dclt11lio11 in Mandalay Jail.
Golam Rasul, a W ireless Operator, attached lo the 'Gnion Military Police af
the outpost at Loimwe in Southern Shan State was alleged to have joined the
U. M.P. m ulinee&s at Loimwe and left his post with them taking with him the
W/'f sets an.d cl1arj!ing engines, the property of the 19 W/T Battalion and
handed them over to the K.N.D.O. insurgents at Nyaungzitl. On a report
from the Headquarters of that Raltalion the Resident of Southern Shan Shte
directed his detention in Mandalay Jail on Z3rd August 1950. Jt was contended
for the detenu that the Resident had no jurisdiction as the detenu was
in Mandalay at the time of passing of the order and that the Resident had no
jurisdiction to order detention in Mandalay }ail.
Held: That the Resident had juri~diction as the delenu was a resident of
Southern Shan State and his activity which constituted a men ace to public
safely ano order commenced in Loimwe, when he joined the mutineers
and delivered the W/T sets and charging engines.
Ma Aye Kyi v. C01;111nissioner of Police, (1948) B.L.R. 772 {S.C.), followed.
Under s. S-.< (41 of the Public Order (Preservation) Act the Rellident or his
deh:gate can durin(! the currency' of the order for detention, specify from
time to time the place or p lar.es whe-re the detenu is to be confined. The
Resident was em powered under the Act to .direct the confinement of a person
detained under his orders at a place outside his district. .
Snw B~tiSOn v. The Commissioner of Police, Rtmgoo11 and Otlters, n .L.R
(19~1 (S.9.1 196, followed.

Tun I a'nd. Bp Chit for the applicant.

0. S: W oo11 (Goven)ment Advocate)' for the
respondents.
The judgment of the Court was delivered by the
Chief Ju~tice of the Union.
U T HEIN MAUNG.-This is an application for a writ
o h~b.eas corpus for the production and ~elease of th~
Criminal Mjsc. Application No. 183 of 1952 being application for
directions in the nature of habeas i:orpus.
t Present: U TH EIN MAUNG, Chief Justice of the Union, MR. J USTICE
E MAUNG andMR. JUSTICE MYtNT. THEIN.
1952] BURMA LAW REPORTS . 211

applicant's husband Golam Rasul who was a wireless S.C.

1952
operator attached to the Union Military Police outpost
KHAD!ZA
at Loimwe in the Southern Shan State. Brlli
On the 23rd Ai.1gust, 1950, the Resident of the said v.
THE RESt-
State directed his detention in .the Mandalay Jail under DENT,
Sot:THI!:RN
section 5-A (t) (b) of the Public Order (Preservation) $HAI'I STATE
Act, 1947 ''as there was reliable information that he ANOTHER, AND

had be~n acting as a wireless operator i~... KNDO

camps in Karrenni (now Kayah) State " ; and the
Resident's statement in the return that he "joined t he
UMP mutineers at Loimwe and left his post with them
taking with him the W /T sets and charging engines,
the property of the 19 WfT Battalion, and handed them
over to the KNDO insurgents at Nyaungzin, Kayah
State, and later sided with the KNDO insurgents when
they occupied Loikav., Kayah State" is based on the
Report of HQ,. 19th W/T Battalion, UMP, dated the
f3.rd December 1948. So we are satisfied that the
Resident had sufficient materials before him to justify
the order of detention .
The learned Advocate for the applicant has con-
tended that the Resident had no jurisdiction as Golam
Rasul was already under arrest in Mandalay, outside
his . territorial jurisdiction, when he passed the
said order. However, this Court has already held
in Ma Aye Kyi v. Commissioner. of Police, (1) :
" . . . . . the power of'the Commissioner
of Police, Rangoon, to order detention under section
5-A of the Act is limited to residents of Rangoon or the
:.a ctivities must be within the Town of Rangoon. \Vhen
:a person was not a resident in the Town of Rangoon or
.his activities do not constitute a menace to public safety
or public order in the Town .of Rangoon, the Commis-
sioner of Police, Rangoon; has. no jt,Jrisdi'ction to ordtr
: d~Hmtiori."
(1) (1948) B.L.R. 'i7~. (S.C.)
212 BURMA LAW. R.EPORTS. [ 1952
S.C. In the present case Golam Rasul was a resident of
1952
Southern Shan State, and his activities which con-
KHAUIZA
. BIB! stituted.a menace to public safety and order commenced
'1/.
THF. RESI-
ir. Loimwe, where he joined the mutineers and whence
DEN'f,
. )UTHERN
he took away the W/T sets and charging engines.
SAN STATE The learned Advocate for the applicant has further
ANIJ'
ANOTHER. contended that the Resident had no jurisdiction to
order detention in Mandalay Jail. However, this Court
has alrea'cly stated in Saw Benson v. The Comm.issione1'
of Police, Rangoon and others (1) :
" The question whether an officer directing detention can
direct the confjnement of the detenu in a place outside the
district though not, for the reasons given above, arising in respect
of tbe Deputy Commissioner, Amherst, must be considered as it
has an important bearing on the subsequent detention order
made by the Deputy Commissioner, Insein. It appears to tfs
that this objection overlooks the provisions 'of section 5-A (4) of
the Public Order (Preservation) Act. Section 5-A (4) of the Act
~~powers the President or his delegate in . respect of a person
directed to be detained under section 5-A' (1) (bJ, during the
currency of the order for detention! to specify from time to time
'the place or places wher~ the detenu is to be confined. We are
clearly of the opinion therefore that a Deputy Commissioner
empowered to act under the Public Order (Preservaticn) Act
may direct the confinement of a person detained under his orders
at a place outside his district."

We accordiqgly hold. that . the Resident had

jurisdictio~ hot only to order Golam Rasul's detention
under the enactment but also to direct his . detention
in Mandalay Jail.
The application is dismissed ; but. in view of some
correspon4ence in the record of fhe pr.oceedin.gs before
the Resident, we must add (i) that he should, review the
case of the detenu and: decide whether his further deten-
in.
ti~~ is necessary to prevent him from acti~g :a.IJrman-
ne~ prejudicial to the public safety and the mahitenance
Ul B.L.R_. (1950) (S.C.) 196.
1952] BURMA LAW REPORTS. 213

of public order, (ii) that in deciding the sa1d question S.C.

1952
he should, after consideration of all relevant facts and
circumstance~, exercise his own independtmt judgment KHAOIZA
BlBI
and discretion, and (iii) that he should order. release v.
THE Rt:$1-
of the detenu as soon as he has come to a decision in DE;>;T,

exercise of his own independent judgment and discre- s~~~T~~::If-

tion, that his further detention for the said pur.oose is ANOTHER.
AND

unnecessary.
214 BURMA LAW REPORTS. [1952

SUPREME COURT.
t S.C.
1952 u KYONE MYAING (APPLICANT)
Sept. 17.
v.
THE FINANCIAL COMMISSIONER, BURMA
AND OTHERS (RESPONDENTS).*

Writ of certiororr-/f apfl ictlblc- Lower Burma T<YI.f n and Village La1ufs
Act aurJ. Rules- S . 16 (a) and Rule 9 (b) -- Lease g1anted 1mdtP', by Deputy
Comm~siota;r-Deputy Commissioner's Order up-held by Finamial
Co;umz~stoner-Rcview by succeeding Financial Conmzissiot!er 01L a
rcfereuce by the Presidmt-Action of De1)u!y Commissiv11er whether.
judicral or quasi-judtcial or admiuiSlrative.
The Deputy Commissioner, Hanthawaddy acting under Rule 9 {b) of the
Rules made in pursuance of s: 16 (a} of the Lower Burma Town and Village
Lands Act granted a lease to U Kyone Myaing for 30 years renewable for a
further term of 60 years. The grant was with the previous sanction of the
Commissioner of the Division. Respondents 2 to 4 took the matter before the
Fina,t~cial Commissioner and tl1e appeal was dismissed. They petitioned the
Pr.esident who referred the matter to the successor of the Financial Commis-
sioner. The successor set a's ide the order granting the lease. It V\.'<lS contended
that the second Financial Commissioner had no jurisdiction to review an order
by the earlier Financial Commissioner, that the order was a nullity and that
the Applicant was entitled to the benefit of the original order.
Held: That though the contentions are of great interest and ge11eral
importance, the Deputy Commissioner, the Commissioner and the Financial
Commissioner were all acting as Revenue Officers of the Government and
exercised no jurisdiction of a judicial or quasi-judicial n:lture. In making the
final order the Financial Commissioner was perforrni~g an administrative
function pure and !>imple. If such order was ultra vires, petitioners had their
remedy elsewhere and the writ of certiorari was not the proper remedy which
could be invoked in the case.
Hup Fo~ v. The D6j!uty Comnmsiimer, lnscm, B.L.R. (1950) {S.C.) 86;
Mohamed H anij and otze v. The Fi na11cial Commissiot1er, B.L.R. {1957.) (s.C_) 11,
followed.
Cha~mg Po for the applicant.
0 . S. Woon (Government Advocate) for the 1st
respondent. .
Thein: Han for the 2nd to 4th r~spondents.
~ Civil Misc. Application No. 49 of 1952 being application for direction in
the nature of c~rtiorari. ' .
t 'Present: u THEl'N M,AUNG, c!Ud Justice of. th.e Union, MR. JusTICE
E MAUNG a~d MR. JUSTICE MYINT THEIN.
 1952] BU RMA LAW REPORTS. 215
The judgment of the Court was delivered by S.C.
1952

MR. Jus1 ICE E 11AUNG.-t.\n int~::resting question U Kvo~

MYAISG
oi law rdating to the power of the Financial Commis 11.
THE
s ioner to review an order made by his predecessor Fl:'<ANCIA(.
Co~I~us
under th e Lower Burma Town and Village Lands Act SIONER,
and the Rules thereunder was raised. But from the BUR MA AND
OTHilHS.
nature of proceedings in certiorari that question does
not fall to be determined here and must await
determination els ewher~ in appropriate proceedings.
The Deputy Commissioner, Hanthawaddy, acting
under Rule 9 tb) of the Rules made in pursuance of
section 16 (a) of t he Act, granted a lease for a term of
30 years renewable for a further term o f 60 years of a
piece of land in the town of Syriam to the applicant
for industrial purposes. The gran t was with the
previous sanction of the Commissioner of the Division,
as required by the Rules. The second to fourth
respqndents, who are resid ents of Syriam, were among
those opposed to the piece of land being granted to
~h e applicant for industrial purposes and they had been
r~ising objections to such grant bot~ b efore the Deputy
Commissioner and elsewhere. When the grant was
~ade by the Deputy Commissione r, they took the
matter up before the Financial Commissioner in
Revenue Revision No. ST-9 of 1951 withoutsuccess.
;The order of the Financial Commis.sioner dismissing
tb eir application in revision was passed on the
~4th September 195'1. I n no way discouraged by the
cefusal of the Financial Commissioner to set aside the
grant of I he lease made by the Deputy Commissioner,
~hey petitioned to the President of the Union and
~eir petition was referred to the successor in office of
~he Financial .G,ommissioner who dismissed their
previous applicati9n. The new F inancial Commis-
~ioner took a diff~rent view from that of his
216 BURMA LAW REPORTS. [1952'

S.C. predecessor and on the 24th February 1952 set aside

1952
the order of the Deputy Commissioner granting a lease
U KYON
MYAING
to the applicant.
'IJ.
'J"'RE
It has been strenuously contended before us that
F!~ANClAL neither on a reference by the President of the Union
CoMMis-
SioNER. nor on his own authority has the second Financial
BURMA AND
OTHERS.
Commissioner jurisdiction to review the order of his:
predecessor. The learned counsel points to Rule 75
o"f the Rules made under section 16 (a) of the Act and
to the tei-ms of section 40 of the Act in support of l1is.
contention. He claims that the order of February
1952 made without jurisdiction is a nullity and that the
applicants are entitled to retain the benefit of the lease
which had been affirmed by the earlier order of
September 1951 of the first Financial Commissioner.
These contentions as we have said earlier are of
great interest and also of general importanc:e. But in
view of the previous decision of this Court in Hup. For
v. The Deputy Comn1issioner, btsein (1) and Mohamed
Hanif and one v. The Fznancial Commissioner (2) it is
clear that in these proceedings as now framed the
questions do not call for consideration.
The entire series of proceedings beginning with
that before the Deputy Commissioner, Hanthawaddy
and ending with the second . review order of the
. Financial
.
Commissioner, Burma of the 24th February \

1952 deal solely, ~ith the question whether a piece of

land at the disposal of the Government situated in the
town of Syriam should or should not be leased for
industrial purposes to the applicant. The Deputy
Commissioner, the Commissioner of the Division and
the Financial Commissioners were all acting on behalf
of. the Government and as Revenue Officers of
the Gover.n~ent. The functions \~hich they . ~vere
(1) B.L.R. il950) (S.C.) 86. (2) B.L.R. (l9.52) (S.C.) 11.
1952j BURMA LA\V REPORTS. :2'1 7

exercising and the q uestion \\'hich engaged their S.C.

1952
attention in such proceed ings are in no \ray different
U KYO~ :.
from those \Yhich an owner of a piece of land would be MVAI~G
engaged in or b e exercisir.g when about to g ral}t a lease 'II.
T HE
of his land to ano ther per~on . Th ere was no q u estion F l NA1"CIAt.
CoM!IHS
of the exercise of judicial or quasi-judicial function . SICKER,
BURMA AND
I n passin_g tht: ord er of the 24th February 1952, th e OTHF.RS.
Financial Comm issioner was performing an administra-
tive funct ion pure and sim ple. If as contended on
behalf of 1.he applicants t hat order was made in excess
'of the power s of the Finan cial Commissioner and the
applicants are not bound by it they have their remedy
elsewhere. Bu t as we said earl ier, certiorari is not the
'p roper remedy which the applicants could invoke.
T he appl ication is ther efore dismissed with costs,
Advocate's fee ten g old mohurs.
'218 l3URl\1A LAW REP ORTS. [1952

SUPREME COURT.

rs.c. u BA NYUNT (APPLICANT)

1952
Sept , 17.
v.
THE CO::\l'TROLLER OF RENTS, RANGOON A ~D
OTHERS (RESPONDENTS).*

Urban Rent Control Act, s.16-A (1)-Change in tenancy not reported under
s. 16-AA. (l}- Action of Advisory Board on footing of unaut:1oriscd
occupation by new occupant under s. 16-A .4 (41 (a) -lt~risdiction to allot
SLICh Premises a11d to evict occuj>at1l.

P. A. Lazarus was tenant of l'{oom No.8, House No. 36"!/365, Sparks Street,
Rangoon. in 1946. In June 1951,S. Wong went into occupation of the premises
and Lazarus went out of the premises. In February 1952 U Ba Nyunt was
install.ed by Vvong and an application was made to recogn ise l]im. The Con-
troller held th(lt change in tenancy had. not been r eported to him under s
16-.~A {lJ and U Ba Nyuot was in unauthorized occupation. On the 23rd of
June 1952 th e Advisory Board acting under s. 16-AA (4) (a) of the Urban Rent
Control Act allotted the premises to the 2nd Respondent a nd on the 25!11 June
issued notice under sub-clause (d) of s. 16AA (4) to U Ba Nyunt lo surrender
the premises. Up011 an application for directions in the nature of certiorari
questioning the last two orders on the ground that there was no jurisdiction to
issue the order under s. 16-AA (4) (a) :
Held : That the order was within the jurisdiction of the Controller. The
ruling in (1950) B.L.R. 156 (S.C.) deciding that for s. 16-AA (4) (a) to apply, the
residential premises must actually be vacapt or about to be vacant. The
section however has been a:nended after that judgment by Act 50 of 1950.
Wong was introduced after such amendment. Neither Wong nor U Ba
Nyunt had obtained the requisite permit from the Controller and both were
liable to s ummary eviction and to be called on to deliver possess ion and the
orders were within the competence and jurisdiction of th e Controller
of Rents.
U Sein Lin v. The Cflzlrollcr of Rents, Ra11goon, B.L.R. (1950) (S.C.) 156,
refe rred to.

Ba Ti1't for the applicant.

. 0. S. Woon (Government Advocate) for the
respondents 1 and 2.
] citfer for the 3rd respondent.
. Civil Misc. Application No. 85 o\952 being application for directions 'tn
the nature of certiorari. '
t Present': U THEHI MAUNG, O~ief Justice of the Uriion, -MH. J usTICE
E MAUI'G .a nd MR. 'JUSTICE MYIN~ THEni.
 1952] BURMA LAW REPORT,S. 219

The judgment of the Court was delivered by :;.c.

1952

MR. JusTfcE MYINT THEIN.-O ne P. A. Lazarus, v.

T H~;
whose '"'hereabouts are unknown, became tlw tenm1t
Co~rRoLLER
of residential premises known as Room No. 8, 361/365, () f RE~TS,
I~A~ GOOX
Sparks Street, in 1946. In June 1951 he vacated the AXD OTHERS.
premises after installing one Sbankee Wong. In
February 1952 Wong left after installing the applicant
U Ba Nyunt.
An application under section 16-AA (1) of the Urb;:-.n
Rent Control Act, dated the 18th February 1952 and
signed " P. A. Lazarus" for permission to sublet to
U Ba Nyunt was filed \.Vilh the Controller. Notice 'vYas
issued to the landlord and on the 26th February 1952
the enquiry took place. What tr<1.nspired then is
embodied in the Diary Order of that date which runs:

" G. S. Smith who signed the application passing himself as

P. A. Lazarus present and examined. His statement reveals that
he was n~ither the tenant of the room nor had he ever lived in
the room. He had merely come forward to personate the real
tenant Lazarus who had vacated the rc<>m about six or seven
months ago . . . "

Mr. Smith's evidence is revealing. We quote the

-following from his statement : -
" 1 had signed the application at the request of l\111. Wong
-who was then occupying Room No. 8 . , . . I know the
tenancy of the rooms stand in the name of P. A. Lazarus. . ..
Mr. Vi7ong told 'me definitely that he had purchased the room in
question from Lazarus fo'r Rs. 2,600 to. 2,800 or so, and that
.he had sold it again to U .Ba Nyunt . for Rs. 4,2CD."

The Contr~ller p~obe9 into the case further and

,later examined Wali Ullah, the BUJ Collector of the
landlord, U.Ba Nyunt anq Lolita,..the wife of Shankee
wong who was said. ~o be out_of Rangoon. The
Collector held that as th.e change in. t.e nancy had not
220 BURMA LAvV REPORTS. [1952

s.c been reported to him as required under section 16-AA

1952
(1) U Ba Nyunt was in unauth orized occupation.
v. He followed up the matter by placing the proceed-
THE
CONTROLI.ER
ings be(ore the Advisory Board at its meeting of the
OF RENTS, 23rd June which allotted the premises under section
i~ANGOO"
AND OTHERS. 16-AA (4) (a), to the second respondent U Sein Thin.
On the 25th June this allotment order was implemented
by the issue of a notice under section 16-AA (4) (d) to
U Ba Nyunt requiring him to surrender the premises.
"'
It is against these orders that the present applica-
-tion before us is directed. The main contention is
th.a t the Collector had no jurisdiction to issue the order
under section 16-AA (4) (a}. Reliance is placed upon
U Sein Lin. v. The Controller of Rents, Rangoon
\ 1) in which this Court had held that for this
section to apply, the residential premises must actually
be vacant or are about to be vacant. The section
however has been amended after that judgment was
passed, by Act 50 of 1950 and the amended section now
runs:

" When the Controller . . receives information that any

residential premises are vacant or about to be vacant or tltat such
j>remiseS have bce11 vacated by a tCtEant, and ar' OCCUj>ied after the
commencement of the Urban Rent Control (At~~endment) Act, 1950.
by any Person without the Permission of the Controller, he acting
with tlie advice o the Advisory Board . . . . may direct the
landlord to let the pr.emises viheri they become vacant . . .
to a person or persons specified in such direction ; ''

The words italicized have been ad.ded to the original

section. tt is clear that the original tenant was Lazarus.
He installed Wong in June 1951, that is, after the enact-
ment o( the Urban Rent Control (Amendment) Act
of 1950. Wong left and. U Ba Nyunt ccmi~nenced to
..occupy
.
in
the premises F.ebruary 1952. Neither Wo6g
: .
_(}) B.L.R. i950 (S.C:) 156:
1952J BURMA LAW REPORTS. 221

nor U Ba Nyunt had obtain ed the requisite permit from S.C.

1952
the Controller, and therefore the Controller took action
under section 16-AA \4 ) (a). vVith the adv i c~ o f the U BA v.NYU:>T
Advisory Board be directed the landlord to accept Cor.:;~~~LER
U Sein Thin as the tenant. In implementation of this o~ RENT~.
R\ -< .;00~
<>rder he acted under section 16-AA ( 4) ( a) by calhng .~::-:o oTHERs.
upon U Ba. Nyunt, who is liable to summary eYiction,
. to deliver possession.
On the facts established it is clear that the
Controller's action was well within his competence and
jurisdiction, and therefore this application must be and
is hereby dismissed with costs. Advocate's fees
eighty-five kyats. The ad-interim. stay ord er 1s
:discharged.
The case is an un savoury one and we wish to
<>bserve that on the statemen ts recorded and on the
material before him, the Controller should have
:-considered the advisability of launch ing criminal
;proceedings against Smith and others for the offences
~hey appear to have committed. I t is not too late for
~uch action to be taken.
222 BURMA LAW REPORTS. [1952

S U PREM E CO URT.
t S.C.
1952 AH KAM (APPL ICANT)
sett. zz.
~.

u SH'VIlE PHONE AND OTHERS ( R ESPONDENTS).*

.,
Writ of cerfioruri atid prohibition- Offence 11nder s. $ Pe1al Code
rend W1lh s. 109- S. 21 (2), Bureau of Special lm:cstigation Act, 1951-
Schcdulc 1 n11'e11dcd by tlte Preside11t under s. 24 of the Act-Delegation of
power by the President to Bureau of Stecial Investrgaito11- Flov;; far
valid-hwisdiction of SPecial Court to proceed with lite trial.
Applicant and oth~r accused were charged with an offence under s. 417~
Penf\1 Code read with s. 109. Itwas transferred to the Court of the Special
)Lldge, Rangoon for trial. ~ In pursuance of the powers granted to the
President under s. 24 of the Act to amend the Schedule to the Act, the
President added an item to the Schedule including" such offences \vi thin the
mi~chief of ss. ~ W and ~~ o the Penal Code, as are i~\estigated and sent
up for trial by tile Bureau of !3'pecial l~westigation ''. ( The applicant asked for
directions in the nature of certiorari anci prohibition on the ground that the
amendment of Schedule 1 by the insertion of this clause is ttlfra virt!s and that
therefore the Spl'l'.i~ l J 111lge hnd no jurisdiction to try the case.)
Held: That the President has by the said arr.endment given a carte bla11che
to the Bureau to pick up and choose in which of those cases it will or wm not
assume vowers and duties and which of those cases it will investigate and send
up lor trial before the Special Judge. It a lso empowered the Bureau to decide
whether a Special Judge should not have power to lry any of the cases. The
Legislature confided the trust in the President, relied upon his admi nistrathe
wisdom and political sagacity. So far as the offences mentioned above are
concerned, the President has practically refused to use his judgment and
discretion and .delegate(! his power to' the Bureau of Special Investigation.
Such delegation is not authori~ed by the Act and is agaif)st the principle that
where a trust or discretion in the agent is involved and the exercise of which
bas been delegated, such agent cannotlawfully appoint ano.t ber to perfonn hiS
duties. The amendment by inser tion of item (q) in the Schedule. is ultro
vires and the Special Judge cannot take cognizance of such a case even after
it has been transferred to his Court by the President.

He. The [;;itiative a11dRe fe rendum Act, ' (1919) A.C. 935 a t 945 : Re. Tire
Delhi Laws Act,1912, (1951) S.C.it 747 at 907, ref~rred to and followed.

* Criminal Misc. Application No.. 137 of' 1952 being application for.
direction in V>.e nature o( probi bitio~ and/or certiorari.
t PreSen.t: U THEIN M AUNG, Chiei Justice of the Union; MR. J USTICE
E MAUNG-and MR.. J osTtcE MYIN T :rHEIN.
1952] BURMA L AW REPORTS. 223

Kyaw M~!int and l for the applicant. S.C.

1952
Kyaw Mm J
AH KAM
';J.
Chan Htaon, Attorney-General with u SHWE
PHONE AN I)
OTHERS.
Chan Tun Aung, Assistant Attorney-General and
0. S. Woon ( Government Advocate ) for the
.respondents.
The judgment of the Court was deliYered by the
Chief Justice of the Union.
U T HE I N MAuNr.. -This is an application for direc-
tions in the nature of certiorari and prohibition in
'r espect of proceedings which are pending as U Pa Kyin
.A h Kam and six others, Crimi nal Hegular Trial
. 38 of 1952 in the Court of the Special Judge,
ngoon.
The application i.s made on several grounds ; but as
it must succeed on two of them, ~'iz., (1) that the
amendment of Schedule I to t he Special Investigation
~'Administrative . Board and Bureau of Special Investiga-
~tion Act, 195 1 by insertion of Item (q) is ultra ~ires
1
and l2) that the Speciaf Judge appointed under the Act
f-t herefore has nb jurisdiction to try the case, we
~shall abstain from discussing the other grounds in
'~ccordance with.the well known judicl.al practice of not
;_d eciding more than is .strictly necessary. [ cp, the
~rem.arks of Their Lordships of the Privy Council
in Re. The Initiative and Referendum Act ,(1), which
'~re cited in Re. The Delhi Laws A ct, 1912 (2).]
~ The case against the applicant Ah Kam and his
c o-accused is one u n'der s.e ction 417 of the P enal Code
~ead with section 109 the~eof. . It has been described
as SUCh not Only by th~ COmplaimi.nt, WhO I S
an Assistant .D irec~o~ of . the B ureau of Special
(1) (1919) A.C.935 at 945, . . ' (21.(1951) S.C.R. 7.4i at 907.
224 BURMA LAW REPORTS. [1952
s.c. Investigation, but also by the District Magistrate of
1952
Rangoon before whom the complaint was filed and the
AH KAM
v. Special Ju_dge to whom it bas been transferred by the
U SHWE
PHONE ANO
President under section 21 (2) of the Act read ~vith
OTHSRS. Schedule 1 thereto.
( Section 21 (2) authorizes the President to transfer
any case relating to any of the offences m enti:oned
in the Schedule from an ordinary Criminal Court to
the Court of the Special Judge.} However, an offence
under section 417. of the Penal Code was not in the
original schedule to the Act. It is covered by the
schedule now as .the President has amended the
schedule in exercise of his power under section 24 of
the Act by adding I tern (q).
Section 24 does authorize the Presiden~ to amend
the schedule. . However, the schedule itself is realJy a
list of offences (1) in resp ect of which the Speciai
Investigation Administraiive Board has certain powers
and duties under sections 4, 5 and 7 of the Act and the
Bureau of Special Investigation has certain pow ers .a nd
duties under section 17 thereof and (2) for trial of
y.rhich a Special Jud~e is appointed under section 21
(1) thereof ; and yet Item (q) which has been inserted
bY. way of amendment merely reads:

'' (q)- ooo;1:~~Sf~G:;o:~:g-:>~ro ~o:~S:o:~~Goo:9 !r.l~0t~:~tq~ ~:~

ooS~~tGp~::no5~: <{fiY 90 ~ 1<p ~ ~~ 9 G? "ti?.:~GGTc:OO: G::n1 ooSB1o5
<:765 !r.lCY.llt:otG::D? B~SI~?: (Such offences yvithin the mischief of
sections 405, 415 - ~n.d 46~ of_the Pe.na.l Code as a~;e investigated
and sent up for trial by the Eureau ,<?f Specia_l Investi~ation : ) "

So far as offences within the mis.chief of the said

sections are concerne:d t~e Presi~ertt h~~' by . th~ said
.amendment, given a carte .blanch.e. to the Bureau. . It
will be at liberty to pfck"up and choose (~)"in whi,ch of
.those cases
. . ~he powers
it will or will not aSSl.lme . and
195] BURMA LA W REPORTS. 225

duties un ch:r the Act and (2) which of t hose cases it \rill S.C.
19.5 Z
investigate and send up for tr!r.l before a Special Judge.
AH K;.:,r
It will not Qniy be able, withotit any l et or hindrance, t:l
U SiJI"."E
to inves t itsdi v.:ith powers in r espect of sot~e cases PH o:-:r! A:->0
under the said sections of the Pena! Code and disown OTHERS.

any duty in respect of othe: cases under the same

sections but also to .decide ad hoc \\hether a Special
Judge s hould or sllo"t.tld not have jnri~diction to try
any of those cases.
The legislature trusted the Presiden t, relied upon
his administrative wisdom and political sag2city, and
left it to him -to alter the list of offences ; but, so far as
offence~ under the said sections .are concerned, the
Pre~ident has practically refused to exercise his
judgment and discretion and delegated his powe r under
section 24 of the Act to the Special 1nvestigation
Bureau. In doing so, he has virtually authorized it to
decide-n0t even in ad vance and therefore in th e
abstract-but ad hoc and therefor e retrospecti\'ely as
regards each concrete case under any of the said
sections-whether it should be entered in the schedule
or not. t Such delegation is not auth orized by section 24
or any other provision of the Act. On the other
hand as the auth ority to amend the schedule that
has bee.D; given by the Legislature to the President
certaii11y '' involves a trust or discretion in the agent
for tpe exercise of which h e is selected", its delegation
:by the President to any other agency is prohibited
:b y the well-known rule '' vicarius non habet vicarium"
:(such an agent cannot lawfully appoint apother to
perform the duties of his agency). ) (Cp. Broom's Legal
!Maxims, 10th Edition, p. 570.) The President to
~hose judgment, wisdom and patriotism the_duty of
~mending the schedule has been entrusted cannot
f~~ieye himself of the responsibility by choosing
~another agency upon which the duty shonld be
15
226 BURMA LAW REPORTS. [1952

S.C. devolved ; nor can be substitute the judgment, '\.Yisdom

1952
andJpatriotism of any other body for those to which
AR KAM
fl.
alone the L~gislature has seen fit to confide the trust.
'(J SHWE So tile amendment by insertion of I tern ( q) in the
PHONE AND
OTHERS. schedule is ultra vi1'es ; an off.e nce under section 417 of
the Penal Code read with section 109 thereof remains
an offence which cannot be tried by the Special Judge ;
a case relating to such ail offence cannot be transferred
by the Pre sidPnt from an orclinary Criminal Court to
the Court of a Special Judge under section 21 (2) of the
Act or at all; and ~ Special Judge cannot take
cognizapce of such a case even after it bas been
transferred to his Court by the President.
The rule nisi is made absolute. The order trans-
ferring this case from the Court . .of . the District
Magistrate, Rangoon to the Court of the Special Judge
and the proceedings in the Court of the Special Judge
after the transfer are qt1ashed ; and the Spe::;ial Jlldge
is prohibited from proceeding vyith the trial of the
applicant and his co-accused in Criminal Regular Trial
No. 38 of 1952.
The Spe.cial Judgy sho!Jld return the ~ase against
the applicant and his co-accused to the District
Magistrate, Rangoon, from whose Court it was trans:..
ferred to his.
d952] BURMA LAW REPORTS . 227

SUPREME COURT.

}.1/s. RANCHHODDAS JETHABHA I & Co. t S.C.

1952
(APPLICANTS)
SePt. 29.
v.
THE HON'BLE MINISTER FOR JUDICIAL
.AFFAI RS AND OTHERS (RESPO:.;DENTS).*

:sea Customs Act, s. 191 (2}-Ro'View of Financial Commi$Siot~ers Order

i :njosing peua.lty for goods imported wit/;oul a liccrtse-" ImPort"
meanmg of-S. 2 (b) of Control of imports attd Exports (Temporary)
Act, 19-17-DePuty D11ector's to:uer to grant in: port lice11Se utzder Notifi-
cation No. 93-lllhether offrnce u11der s. 167 (8)of the Sea Gus/oms Act
can be condotzed by gra11t of i.11Porl licetzse-Gra,zt Of powers of ret'it'A.
wrlh retrospe.ct;vc effect under the Nezv Act-Duties of Coa~rl to
admi11i;ter-P rocecdiugs itz Revision a1J(t Apfcal cotditiUation ttot new
proceedi,.gs- S. 191 (2) (b), Sea <-usl,:ms Act as amended- Powers of
President -Cmstitu~io11 of the Union of Bttr111a,-s. 24.
On 20th O: tober 19~7 Applicants applied for a license to import gunny
bags. The goods were landed at Rangoon on the 8th November before
any import license had be<n issued. The goods were allowed to be cleared
on payment of -a token line of Rs. l,OOG by the Director of Supplies. The
' Collector of Customs later passed an order of confiscation under s. 167
' (~) subject to rede'mption on payment of a fine of Rs. 1,000 and the amount
of duty involved. Later his successor issued notice to show cause wh;y a
;penalty should not be jmposed for importing goods without a license. A
penalty twice the value of the imported goods was then imposed. The
Financial Commissioner set aside the order on the ground that it was
ultra vires and the Gollector 'had no power to review or supplement his
pred'ecessor's order:
The President on review set aside the order Qf the Financial Commis-
sioner and imposed only a penally of Rs. 4,000 in review proceedings
, under s. 192 (21of the Act All came to the <;onclusion that the Applicant
: knew that gJods could only be imported after the license and shipment
<:against anticip<~led isS'Ile of import license was against' the regulations.
The Applicants applied for a writ of .certiorari to quash the order in the
!. h'eview Proceedings.
Held: That "import" according to s. 2 (b) of the Control of Imports
and Exports {Temp.orar.y) Act, 1947 means bringing into Burma by ~ea,

"' Civil Misc. Application 'No. 63 of 1952 being application for direction
in the nnture of certiorari.; - ''
t Present : U THEIN MAUNG, Chief Justice ' o.f tile Union, MR. ]USTICE
MYlNT THEiN and U ON P, J.
228 BURMA LA'vV REPORTS. [1952
S.C. land or air. The Applicants h <1d committ<: cl an offence under s. 167 rg)
1952 of the Sea Customs Act when goods not covered by any license as
required by law arrived ;in :Ra.;go0n. T!c coatention that the Deputy
Mfs. RAN
CHHODDAS Directc)r of Supplies conclonec! tb e said C>i f::n;: e is not cor!ect as the Deputy
}ETHABHAI Dhector is no1 authorized under s. J67 (8) of the Sea Customs Act to
& Co. condone ;\ny offence. He is mereiy antilorized to issue license to import
~ goods into Burma and the condition~ with which license may be issued
THE hoN'BLE
MINISTER must clearly be conditions to be inl ti llt:\1 by th<:: iinporlers and not by the
FOR jUDICIAL C.ustoms Officers. Endorsement by the Deputy Director that goods were
AFFAIRS AND authorized to be cleared on payment of a token fine are not conditions
OTHER!;l
authorized by No.tification No. 93 under which the Deputy Direc.tor can issue
an import license.
The qu>:stions whether it is fair o r reasonable to give an Act
retrospective effect or wheth~r a partic ula r Act should be giv.en retrospec-
tive effect or not, are to be decided by the Legislature: If, howe ver, the
Legi~lature in its supreme wisdom has thought it fit to give an Act
retrospective effect, Judges must administer the la w, as they find it
whatever their own opinion as to its merits may be. Tbe validity of an
Act cannot bt: questioned on the ground that it is unfair or UlJ reasonable.
Gwnn K~e v. Tlie Vuion of Bt<rma, (1949) B.L.R. 151 {S.C.l. referred
to and followed.
The principle of autrefois comtict also does not arise in the case as
proceedings in review, revision and appeal :1re really contini.tations of the
original proceeding~ and not initiation of new proceedin~s. Since the
President under s. 191 (2) of the Sea Customs Act c:10 :at any ti;ne call
for the records of .-. case for the purpose of satisfying himself as to the
correctness, legalt!y or propriety of a decision and the P r~Sfdeot has called
for the enti~e records including those of the Collector ana his successor
and the Financial Commissioner, it makes no difference if the succeedinl!
Collector's order was one passed in r eview or otherwise.
No time limit has been prescribed for the President's action under
s. '191 121 (bl of the said Act but the President in this case called for
the records and C;illed upon the Applicants to show cause within a
reasonable time after the Financial Commissioner's Order.
The President's ordet' did not contravene s. 24 of the Cot~slitution of
the Union of Burma a~ th_e Applicant had b~en penalised only for viola-
lion. of a law fn force at the time of 'the commission of the act charged
:rs an offenee, viz., importing good~ witbout an 'imp9rt licen-se and they
have ~ot been subjecto!d to a penalty greater than that applicable at the
time of the commission of the offence.

C. A. Soonna fo r th e applicants .
. Chan Tun Aung, Assistant. Attorney-General with

OS> S. M-oon \Gover.n ment 'Advoc(ite) for the

r-espondents.
 1952] HCRMA LA\V REPOR T S. 229

The judgment of the Court was d elivered by the b.C.

1952
Chief Justice of the Union.
1'>'1/s.
UAN-.
CHHODDAS
U THEIN MAt:~G.-This is an application for a iETHABHAI
& Co.
writ of certtorari to quash the order of the first respon- v.
dent dated the 18!h February 1952. T~~~~~~~U:E
The facts have been set out fully in the judgment FoR JoolciAL
. C . AFFAIRS AND
of t l11s onrt on a previous apphcabon by the same o'l'HERs.
applicants for directi on$ in the nature of a writ of
prohibition restraining the first respond e ntfromfurthe~
action in the proceedings in whi ch the said order has
been passed subsequently. [See Ranchhoddas
]ethabhai & Co. v. The Secretary of the Union
Government, Jlfiuistry oj judicial Affairs-and two othe-rs
(1).] So we shall set out only such facts as are
r elevant for the purpose of this judgment.
Th~ applicant applied on the 20th October J947
for a license to import 48 bales of :;unny bags valued
:a t Rs. 22,272 ; but the goods arrived and were landed
[at Rangoon on the 8th November 1947 before any
)mport license bad been issued to them. T hereafter
~hey got an import license dated the 14th November
~ 9+7. On a representation being made by them that
~he goods had already arrived, the Deputy Director of
Supply made two endorsements both dated the 23rd
pecember 1947, on the said import license. One
dorsement reads, " Goods authorized to be cleared

E n payment of a token fine of Rs. 1,000 (Rupees one

ousand only)" and the other endorsement rea<;l,
rvalid for shipment on 5th November 1947 " .
~ T he Collector of Customs, Rangoon (Mr. V. B.
~eynaud) passed the following order on the 21st
fanuary 1948:- .
" 'At the time of importation of the goods they were 'not
1?-vered by .'a vaJidjmport license: As import of goods witb.o u.
(ll B.L.R. $1950) (S.C.) 68.
230 BURMA LA'vV REPORTS . [1952

s.c. a va lid
license CcJ;stitut.es an infringement of the import Trade
1952 Comrol regulatio ns, the goods are confiscated tmder section 167
~/:;. I{AN- (8) of ; he Sea Custoras Ad, subject to redemp tion under section
CHHooDAS 183 ibid .on payment of a fine of Rs. 1.000 (Rupees one th;:,us?.ncl
J'RTHAUHAI
& co. only) Plus the amonnt of duty involved. In view of the fact that
v. , the license has since b'een amended by the Coinmerce and
THEHONBLE
MINISTER Suprly Depadment to cover the consignment in question, only a.
FoRJ?DICIAL token penalty has been imposed ".
AFFAIRS AND
OTHERS,

His ~uccessor in office (U Ko Ko Gyi) then called

upon the applicant to show cause why, in addition to-
the fine already paid, a further pena lty should.
not be~imposed on them for having imported the goods.
wi'thout a license ; and he ultimately imposed a further
penalty of Rs. 44,544, i.e., twice the value of the
imported goods. He considered that the applicants
did not .deserve to be treated leniently as they did not
instruct the shippers not to ship the goods before the
license was received, alt'hough they . knew (1) that
the goods could ~e shipped only after obtaining a
license and (2) that shipment in anticipation of
the receipt of the necessary license was against the.
regulation.
On appeal by the applicants the Financial Commis-
sioner set U Ko Ko Gyi's order aside on the ground
that it was ultra Vi!es, as, under the Sea Customs Act
as it stood then, U"l{o Ko Gyi had no power to. review
or supplement Mr.. R~ynaud's order at all . .
Now the President or rather his a_lter ege, the.
Hon'ble Minister for Judicial Affairs, who has been
authorized in this behal(by the Council of Minister~r
has set aside the order of the Financial Commissioner
and -i~p~sed a penalty of only Rs. : 4,000 i_n review
und.er section 191 (2) . of the Sea Customs Act, this
Court having dismissed t.h.e.applicants' application for
a writ ef prohibition .tq prevent. reyiew of the said
order.. The President;~as coine . to the same 'finding
 1952] BURMA LAW REPORTS. 231

of facts as U Ko Ko Gyi that the applicants knew S.C.

1952
that the goods could be shipped only after obtaining
M/s. I~AK
the li cense and that shipment in anticipatiotJ of the CHHODDAS
receipt of the necessary li cense was agajnst the JETII ABHA!
& co.
Impor t Trade Control Regulations, but he reduced v.
THE HO!'(BLE
the pen:t!ty having regard to the circumstances of Mt!'(ISTF.R
the C:1St:. FOR ]l10ICIAL
AFFAIJ.:S AND
The present application is for a writ of certiorari to OTHERS.

quash the order passed in the said review.

" Import ''according to section 2 (b) of the Control
of Imports and Exports (Temporary) r'\ct, 1947 means
bringing into Burma by sea, land or air. So the
applicants must be deemed to have committed an
offence under section 167 (8} of the Sea Customs Act
on the 8th November 194-7 when their goods, which
were not covered by any license, as required by t he
Order under section 3 (1) of the Control of I mports and
Exports Act, 1947 arrived in Rangoon. (See the
Commerce and Supply Department Notification No. 93,
dated the 30th September 1947 .)
The learned Advocate for the applicants cannot and
does not q>ntend that the offence has not been com-
mitted. H e can only say (1 ) that although the
applicants themselves are not free from bJame, the
offence that they have committed is a purely technical
one and (2) that the offence if any has been
virtually condoned by the DeputyDirector of Supply
who made the said endorsements on the Import
License.
However, the relevant part of Notification No. 93
under which the Deputy Direc(or can issue an import
license merely reads :

~ . . . . t he Governor (now President) is pleased to

prohibit the i mport into Surma from any place outside Burma of
any. of the goods of the descriptions specified in column Z p the
232 BURMA LA \V REPORTS. [1952
S.C. First Schedule appended to the Burma Tari!'f Act as revised from
1952
time to time except the following :-
M/s. RAN
CHHODDAS
JETf'!ABHAI
& Co. (ixJ Any goods . . . . . co\ereci by'a s.Pecial license
THE JoN'BLE or an open general license as the ~.:ase may be issued without
MINIS'l'ER conditions or with conditions as the case may be specified in
FOR JuDICIAL writing: by . . . a Deputy Director of Sllpply . ''
AFFAIR~ AND "
OTHERS.

It merel~ authorizes the Deputy Director to issue

licenses to import goods into Burma. It does not, by
any means, authorize him to condo.ne any offence
under section 167 (8) of tbe Sea Customs Act. He
can issue only licenses to import goods which haYe not
been imported yet ; but he cannot issue licenses in
respect of goods which have already been imported
and in respect of which an offence under the Act has
already been committed. He himself must have
realized that he could not condone any such offence at
all since he merely endorsed 11 Goods authorized to be
cleared on payment of a token fine of Rs. 1,000 ''.
Conditions with which licenses may be issued by him
mustclearly,be.conditions to be fulfilled not by Customs
Officers but by the respective importers. So his
endorsements are not conditions authorized by
the said Notification. They are not binding Cli1 the
Customs Officers at all ; and Mr. Reynal)d erred in
abstaining on acco'Clnt of the said endorsements from
imposing any penahy in addition to the fine in lieu of
confiscation. _
The learned Advocate for the applicants has also
laid stress on the facts that before the Sea C~stoms
(Amendment) Act, 1949 was enacted the Collector of
C1,1stoms could not review any order o.f his pr~dec~ssor
in office and that .the. President could rio.f- $UO m.otu
review ~ny case disposed of byany officer . or' .C tistoms
or lhi Chief Customs authority ; and. he has ais~. urged
 1952] BUR1\1A LA\V REPORTS. 233

that it is neither reasonable nor f<tir for the legislature :>.C.

l952
Jo give them the pow~rs of rc.:view \Yith retrospective
.
tf- ffec t trom tl1e 4 't 11 January 1><-r'8 H owever, ~1 c 1..: :.J/s. HAN-
cHH ;.; ouAs

~egislaturc in its supreme wisdom ha~ thought fit to Jc;IH~~~A 1

.<Io so and we must admin ister the la\\' as we find it
~ . r THE HoN'BLE
~~hatevcr our own opm10n as to tts ments may be Lcp. MxNrsTER
~h e ru 1"
g: c
mg o f t 1111S our t m. Gwan .1:T.(ee v. 1'"/ze u. ,.(
FOf< J t:UICIAL
n10n o1 AFFAIRs ANo
f.Burma (1).] . OTHERS.

t J'hc validity of an Act cannot be questioned on the

iground ~hat it i:; unreasonctble or unfair ; and, in
iairness to the learned Advocate for th e applicants, we
~nu st add that he has not actually questioned the
S,alidity of the Amendment Act at all.
~ With reference lo his contention that U Ko Ko Gyi
(lid not sav in his order that he \\as reviewing
~1 r. Reyn~ud's order, U Ko Ko Gyi, who had
~fr. Reynaud's order before him, called upon the
rpplicants to s_how cause why a penalty under section
~67 (8) of the Sea Customs Act should not be imposed
bn them in addition to the fine in lieu of confiscation
u
~nder Mr. Reynaud's order and ultimately imposed
uch a penalty. So we are satisfied that U Ko Ko Gyi
".. eant to and did actually review Mr. Reynaud's order
' P,efelt that Mr. :Reynaud made a mistake in abstaining
. om imposing any penalty at all.
With reference to his further contenhon that
Ko Ko Gyi violated theprinciple of autrefois convict
n in1posing the penalty after Mr. Reynaud had merely .
ed the applicants in lieu of confiscation, the
rinciple does not apply to an order on review of the
iginal order just as it does not apply to ~n order on
peal from or in revision of the original order as
roceedings in review, in revision and on appeal are
. .
. lly continuations of the original proceeding$.
.

U) H.L.R. (1949) IS.C..:.I151.

234 BURMA "LAvV REPORTS. [1952

~9~2 Section 191 (2) (b) of the Sea Customs Act, as

- amended by the said Amendment Act, reads :
M/s. RAK-
C.IHIODDAs
}ETHABHAI ''The President of the Union may, at any time and on
& Co .
'II. application or otherwise, call for the recorc! o any case disposed
TRE HoN'BLE of by any ofl1cer of Customs or the Chief Customs-authority for
MINISTER . .
FOR JuorcrAL the purpose o sahsfytng htmself as to the correctness, legality or
AFFAiRS AND propriety of any decision or order macle and may mak!' such
OTHERS.
orders as he tb111i<s fit."

And in 'the present case the President has called for

t he entire record of the case including Mr. Reynaud's.
order and U Ko Ko Gyi's order as well as the
Financial Commissioner's order and made -such order
as he thinks fit. So it will not make any difference
even if U Ko Ko Gyi's order was not passed in review
of Mr. "Reynaud's order.
The learned Advocate for the applicants has.
com mented on the facts (1) that U Ko Ko Gyi called:
upon them to show cause only on the 16th August 1948,
i.e., about eight months after Mr. Reynaud bad passed
order (2) that the President called upon them to show
cause only on the 14th July 1949, i.e., about six months.
after the Financial Commissioner had passed orders.
and t3) that the President himself passed orders only
on the 19th February 1952. However, U Ko Ko
Gyi acted well within two years which is the period
prescribed by p:wviso (t:) to section 191 (i) of the Sea.
Customs Act ; no time.limit has been prescribed for the
President's aGtion under section 191 (2) (b) thereof~
and the President called for the records and called uponi
the applicants to show cause within a reasonable-
time after the Financial Commissioner had passed
orders.
; As regards . t.!le a,~10unt .. of penalty, it is a mattet
within the discr;etion of the President. subject only td:;
the maximum prescril?ed b_y _the Act an~. he has, in~
1952] BURMA LAW REPORTS. 235

vic'' c, f the circ umstan ces of the cas<:, a<..:tual ly reduced S.C.
1952
it from Hs. 44,544 toRs. 4,000 only .
111/s . HAl\
The l::aruerl Advocat<:: for the applicants has urged C:HI: o :.a; AS
JETIIMlH~I
for the iirst time before us and by 'vay of las1 resort &: Co.
th at t!!e Pres ident'~ order cont ravenes section 24 of v.
TH" Ho:--'aLF.
the Constitu tion of the Union of Burma. However, MINISTER
FOR ]UD!CIA.C
sectic n 24 thereof merely provides : AFFAI RS AND
OTHERS.

" No pers0n shall he convicted of crime e xcept f&'r violation

of a l<! w i ll force at the time of the commissicn of tl'.c act charged
as an offence, nor shall he be subject :o a penally greater than
that applicable at the time of the commi$sicn of the offence. "

Thi:-> section has not been violated as the s ubstantive

law has remained the same and (1) the President has
pena1i&ed the applicants only " for violation of a law
in force at the time of the commission of t he act
charged as an o ff~n ce" i.e., for having imported goods
without an import license and (2) they have not been
"subject to a penalty greater t!Jan that applicable at
the time of the commission of the offence."
We accordingly hold that the President has not
exceeded his jurisdiction in passing the order in
question and t hat there is no ground whatsoever for
int erfering with it.
The .tpplication is dismissed with costs; Advocates"
fee twenty gold mohurs.
236 BURMA LAW REPORTS [1952

SUPREME COURT.
t S.C. A. c. AKHOON AND Q;-.JE (APPELLANT)
1952
Dec. 4. v.
A. HABIB (RESPONDENT)/"'

Hi[!,lt Court, Original Side-Court-fe~s. paymetzt of-Regulated by Rulzs t111d

Orders, not l.y Court Fees Act-A111endmeuf of jlaiut, 11aJua and r:dmt
of, termissible itz l1w-Limitaliott- A111eTLdn:ent relat<S back to date of
origiuol plai1lt-Whet1Ier decree on inconsisletrt set of j(lcts raisrd by
de/cnrla1rt call be give11 to Plninl iff-Sel-off- Wltcthcr lleccssaty lo be
specifically P!eoded to be o llowed.
The 2nd DepLtty Registrar called into question the correctness of court-
fees paid on a plaint .filed on the 8th November 1948 for recovery of price of
goods sold on three different occasions ending the 8th 1\ovember 19'1:5. An
amended plaint was filed on the 23rd ' November 1948 statiug th<'t lhe three
different transactions formed parts of a single contract. Defendants contended
that the transaction was an entrustment of goods to be sold for the plaintiff on
a commission basis, and some goods unsold bad been returned.
He.l d: \o\'hatever the position might have beeq where the proceedings are
regulated hy the Civil Procedure Code and the Court Fees Act, the suit.
instituted on the Orivinat Side of the High Court where neither Act applies
must be deemed to have beeh ins tituted on the 8th November 19~~. unci the
arr.endment which was allowed of the plaint on the 23rd November 1948
must be deemed to have related back to the earlier dtfe. Section 6 of the
Court Iees Act read togeth~r with section 8 (.f ) makes it clea that pa;mcnts
of court-fees on the Original Side of the High Court are regn!.ated not by lhe
Act but by the relevant rules of the High Court. in its Rules and Orders .
Held: The variation between the first plaint and the second plaint Is nol of
.such importance as to attr;ct the rule in Ma Sit we Mya. v. Matmg Mo HTLaung.
Ma Shwe Mya v. Maut~g Mo Httattn{l, 4 U.B.R. p. 30 at 33, distinguished.
Held Obiter: There is no decision which ~oe& to the lengtlt of permitting
1he Court to reject the pta in tiff's ca~e and to g.rant the plaintiff a decree on an
inconsistent set of facts set up by the defendant in answer (o the plaintiff's
case.
lfeldfurtller: There was a taCit under.;tanding between the parties. Utat
the value of {be goods taken re-c!elivefy of by the respondent wot.~id .lie. treated
.
--------~------------~-----------------------------------
Civil Appeal No. i 5 ot'l ~50 again:; I the decree of the High.Courf ln' Ci vn
ist AppeatN:o. 54 of 1949.
t Prese;W: U THErN MAUNG. Chief <Justice of the Union o~. Burma,
.MR. JUSTICE E MAUNG and MR. JUSTICE MYJNT THEIN.
..
 1952] BURi'd A LA W REPORT S. 237

a$ tow a rd; lhe acc-o:::l'. ()[ 1he ori l!inal s ale i>r entire lot of ;;oo(ls ;
p~ yntcll t '>.C.
arpellant~ nt>ecl not m a k<:' ~ sp~ :;i:ic p!ea 0f s c:t-off t.) have the claim o f t!1e \9:02
responden t trcat:!d as 1'ro lmrfo d i.;c hargeci l>y mn;u:l! .;(n se n t. A.C . ..\KH OON
A:>:r> OX F.
1-loe Mot ;. S ecrl, rl . 2 l b n. 34'.', ::tprtiecl .
:\ . rl AB!B.
!11 . :11. Raft for the :;ppeibnts .

P. B. Sert for the respon dent.

T ile judgment of the Court was delivered by

MR. JusTICE E r.Lu; t-w .-This i::; an appeal in a

suit where th e r~: spo n.d0 n t claimed a sum of Rs. 34,471
as the contract price for goods sold an c! delivered to
the a ppelbnts. 'J'he appellants denied the sale w hich
was p; e:l'led by !; he respondent and claims that the
transaction was one under \Vhich "the d efendants' firm
should be pla intiff's soh! commission a.~eni s for sale of
pl2intiff's perfumerie s on p1;ices fixed by the plaintiff,
t he com n:ission being 5 per cent on the gross price".
T he le:trned t_rial Judge on the Original Side: of the High
Court accepted the respondent's case that the transac-
tion was one of sale and granted 'him a decree for
Rs. 32,271 with costs on that amount. On appeal, an
Appellate Bench of the H igh Court rejected the
respondent's version and relyil':g on th e appella~ts'
accomit of lbe transaction v~tried the decree of the
trial Court and granted the respondent a decree for
Rs. 19,771.
The appellants '!-PPeal to this Court and the
respondent has filed a cross-obj ection. The appellants'
main contentions are that the suit was barred by
limitation, that the amendment allo~ed on the Original
Sid~ of the High Court. of the plairit was not per-
missible in law, and .that no plaintiff can succeed on a
case inconsi'stent wit h that set up by him in his
pleadi~1gs. The .respondent, . on the. other hand,:
complains t hat the Appellate Bench erred on the facts
0 0
238 13URMA LAW REPORTS . i_ 1952

S.C.
l \152
in differing from the trial Juclge's view of the tr ue
nature of the transaction between the parties, t Lat the
A.C. AKHOON
MID O~E transaction was one of sale and that the decre e of the
A. HA~IB. trial J~dge should have been confirmed
'V.
by the
Appellate Bench.
The learned counsel on both sides cited several
decisions bearing on the points of law at issue in the
case. But for reasons \:vhich will become apparent
later, it ,;_s not necessary in this judgment to exan: ine
and discuss them in detail. These decisions relate to
the question . how far a departure is permissible, if at
all, from the ordinary ruie. that the plaintiff can
succeed only on the cause of action pleaded by him or
consistent with his pleadings. _It is claimed on behalf
of the appellants that the Appellate Bench of the High
Court having negatived the respondent's case of sale
had no justification to make out a new case for him on
the basis of the appellants' written statement that the
:transaction was one of entrustment for sale on cornmis
-sian. What the Appellate Bench had done amounts
to changing, without even the respondent seeking to
amend his plaint, the subject-maHer of the suit.
Reliance is placed amongst others on the decision in
Ma Shwe MyLt- v. Maung Mo Hnaung (1) wherein it
was said, "When once that contract has been
negatived, to permit the plaintiff to set up and establish
another and an ifidependentcontract altogether would,
in their Lordship's _opinion, be to . go outside the
provisions established by the Code of ~ivil Procedure,
to which refere11ce has been made ". Since such an
amendment of the pla.i.nt would not b e permissible,
the learned counsel tor the appellants says, a decree
on a new case without amendment, a jortio_ri is not
permissi?1e. . . ._
. .
(1) '4- ij.B. R. p .. 30.at 33.
1952] BURMA LAW REPORTS. 239

The learnt.:ci coun~el for the n .: spundtnt, on the S.C.

1952
other hand, claims that the appellants cannot be :said
lo have been taken by surprise, as <titer all it was his own A.C. AKHOON
AND ONE
case which was accepled by the Ap pdlate Berlch and A. HAOIS. v.
on the basis oi wl1ich the a.ppellate decree was made
in substitution of the trial decree. In view, however,
of our conclusions on the facts it is not necessary, as
indicated earlier, to examine in d etail these conHicting
points of view. Suffice it to say that no cleci'sion has
been placed before us, and we know of none, which
goes to the length of permitting the Court to reject
the plaintiff's case and to grant the plaintiff a decree
on an inconsistent set of facts set up by the defendant
in ap.swer to the plaintift's case.
The question of limit<ttion was raised at an early
stage of the hearing of the appeal by the Court. The
point arose in this way. On the 8th November 1.94H
. the respondent filt::d on the Original Side of the High
Court a plaint alleging three separate sales on three
different dates and claiming as a result of the three
transactions a total sum of Rs. 34,471. Court-fees then
paid was a sum of Rs. 1,540. The 2nd D~puty
Registrar, before whom the plaint was filed, took the
view that the three separate transactions cailed for the
application of section 17 of the Court Fees Act in
which case there would be a deficit in court-fees paid.
Accordingly by his diary order the learned Deputy
Registrar called upon the plaintiff to explain why
deficit court-fees should not be paid on the plaint as
then filed. Instead of explaining the alleged deficiency,
the plaintiff on the 23rd November 1948 filed a petition
seeking leave to amend the earlier plaint. In the new
plaint, the three transaction$ . earlier pleaded were
alleged ~o form parts 'Of a single contract of s.ale entered
into on the 8th November 1945. This appl i~ation was
granted by ~he D eputy. RegistrarJ n.ecessarily without
240 BURMA L.l.\\f REPORTS. (1952

S.C. is:=;m; of notices to the appellants ;1s by that date no

1952
no1.ice had yet btcn i::;:>ued of the earli<;:r p laint to
A.C. ~'KH_o?:\ t hem.
AND O:\h
v. Tb~ statement in the diary order of lbe 8th
A. H.~BJB. November 194-~ tl:at <>.s the learned 2nd Deputy
Regis~rar "'"as not satisfied tbat suf-ficient court-fees had
been paid on the plaint presented, he was then not
admitting the plaint bu t kept it pending awaiting an
explanation from counsel, ra ised doubts in o.u r mind if
the suit must not be taken ~s insrituled on the 23rd
Novt;mber 1948 on \\;hicb elate what has been
described as an ame11ded P.l a in t was filed and admitted
by the 2nd Deputy , Registrar on the court-fees
already paid on the earlier plaint. It is true that this
is a most technical point especially as ihe deficit
court-fees on tbe original plaint was of a small amount
only. But, tech~icai- point or not, if the suit must be
deemed to have been instituted only on the 23rd
November 1948, the suit is admittedly out of time.
After hea1iug le;unecl counsel we are sa'tisficd that
whatever the position might have been where
the proceedings are regulated by the Civil Procedure
Code and the Court Fees Act, . the present suit
instituted on the Original Side of the High Court
where neither Act applies, must be deemed to have
been instituted on the 8tb November 19-18. Section 6 .
of the Court Fees Act read together with section 8 (4)
thereof makes it clear that payments of court-fees on
tbe Original Side of the High Court are regulated not
by that Act but by the relevant rules of the High Cour~
which are to ,b e found at page 56 of its Rules and
Orders (19~6 Edition). The Deputy Registrar had not
in this case fo1lowed the procedu re .laid down in :Rules
~0, 21 a~d 22 of th e Rules of Proc~dtire of th~ High
Court ori the Ori ginal Side. The 'sta:tement"o-r .the
l~arned Deputy Registrar m his. diary entry :of t.he
1952 J BURMA LAVv REPORTS. 241

-8th November 194-8 that the plaint \\as not admitted S.C.
1952
can have no meaning in view of these rules. The
plaint must have been deemed to ha,;e been admitted A.CA!SU ..~KHOON
OXE
thn and the amendment which was allow~d. of the A, HAEIB. v.

plaint on the 23rd November 1948 must be deemed

to have relat ed back to the earlier date.
The objection taken on behalf of the appellants that
the learned Deputy Registrar should not have allowed
the amendment to be macie on the 23rd Novem~er 1948,
in our opinion, is not at all substantial once we take
the view that the suit must be deemed to have
been instituted on the 8th November 1948. The varia~
tion between the first plaint and the second plaint is
not of s uch importance as to attract the rule m
Ma ShweMya v. Maung Mo Hnuung(l).
The legal questions having then been settled m
favour of the respondent, it is necessary next to
examine how fa.r the Appellate Bench was justified in
holding that the transaction was one of entrustment
for sale on commission. As was indicated earlier in
this judgment, we are of the opinion that on the facts
the learned trial Judge is right in holding that the
transaction was one of sale as alleged by the respond-
ent and not one of entrustment on commission as
alleged by the appellants.
. The respondent eAamined himself and two of his
ex-employees and the first appellant examined hit:nself
for the defence. Thus there is . no independent
testimony on either side. The evidence of_ the two
witnesses examined . on behalf of the respondent also
is not very helpful.as they profess not to be present at
the time of talk between the parties. And we are
satisfied that neither the first appellant nor the
respondet:tt has been as truthf,~l ,in. their testini_ony_ as
can be desired; ~oth ~f th.el?} ~ppe~r to have engage_d
tl l 4 U.B.R p. 30 al 33.
16
242 BURMA LAW REPORTS. [1952

1~5~ in a good deal of fencing with the opposite counsel

- and with the. Court in the course of their examination .
A .C . AKHOON
AND oNE In th1s state of affairs we are left with the surrounding
A. H~am. circum&tances and the admitted documentary evidence
on the record to arrive at the true nature of the
transaction.
What is common ground is that on the 8th, 9th
and 11th November 1945 the respondent delivered at
the apptllants' shop various perfumery goods and
accessories together with the statements of their values
and that the goods thus delivered were accepted and
the statements were endorsed with the signa:t ure of the
first appellant and returned to the respondent's
employees who delivered the goods. These statements
do not specifically indicate the nature of the transac-
tions between the parties they being merely lists of
goods and their values. We have also the .accepted
fact that sometime later, the exact date is in dispute,
part of the goods found their way back into the
r.espondent's possession. How they got back to the
respondent is in dispute. The appellants claim that the
respondent came and took them back on their informing
him that they were not prepared to continue to act as
commission agents. The respondent, on the other
hand, claims that the appellants came and dumped
them at his doors inspite of . his refusal to receive the
goods back.
Of the two versions relating to how part of the
goods found their way back into the respondent's
possession two factor.s go a long way to support the
respondent's version: One of .~hese two factors is that
the second appellant, w~o, and not the fir~t appellant,
-took part in this. particu.lar .tra~sacti.on of -re..delivery
.did :not give .evidence in ~he .. triaf Court, though he
admittedly was theri in Rangqon. Equally important .
was the fact .!hRt Exhibit " F " which is a Hst of the
1952] BURMA LAW REPORTS. 243

goods purported io have been given re-delivery of to S.C.

1952
the respondent and which n-as prepared by the
;) . c. Ar<HOON
.appellants for signature by the respondent on his A~O O~E
t'
.acceptance of the goods were produced at the 'trial by .'\..HABIB.
the respondent without his having signed the same.
The goods v:hich were delivered to the appellants
by the respondent on the 8th November, 1945 were
.admittedly unfinished goods. They require manipula-
-tion before being sold as perfumes. And the story
that the perfumery goods were e.1trusted for sale on
commission basis at the rate of 5 per cent for the
agents clearly does not explain the transaction
satisfactorily. The unsatisfactory nature of this
.defence inust have been apparent to the appellants as
well, for the first appellant in his evidence at the trial
varied the entrustment story of the goods for sale on
-commission considerably. Instead of entru&tment for
sale on commission basis with the appellants, the
respondent was alleged to have been merely permitted
to keep the goods for making into perfumes ready for
sale at the appellants' shop, but in the custody of the
-a:-espondent's own employee who was supposed to turn
th,e raw materials into finished. goods prior to sale.
This variance between the written statement and the
evidence was necessitated also by the fact that the
appellants did not produce any acc.ount of the goods
sold on commission between the dates the goods were
:<ieposited at their shop and the date when a fair
portion of them, evidenced by Exhibit'' F" found their
~way back into the respondent's possession. It must
~!early have occurred to the first appellant that his story
~-of entrustment for sale on commission basis would
;r eq.uire the pro~uction of account books relating. to
[~ales of th.e 'go9ds. :. : .
':' Then again, there . ~s also the paym.e~t of a total
tsum af Hs. 7,100 made by the appellants to the
244 BURMA LAW REPORTS. [1952

S.C. respondent beginning with the payment of Rs. 1,000 on

1952
the 29th November, 1945 and thereafter very regula.r
A.C.AKaooN daily payments of Rs. 100 till the 28th January, 194 6.
AND O~E

v. These payments were claimed by the appellants to be

A. HABIB. cc d' .
advances on con Ihon t 11at the advances would be
set-off against the commission when due on actual
outturn and sale". Bearing in mind that the commis-
sion was due, if the appellants' story is true, from the
respoud{>nt to the appellants this is meaningless. The
first appellant's suggestion that these payments were
made to accommodate the respondent who was in
financial difficulties a~ the limt: also is clearly negatived
by the letter of the 6th December, 1945, which is
E xhibit 9 produced by the appellants. This letter
reads, " Kindly giv~ to the bearer of this letter Rupees
three hundred on account of three days. Our motor
car is out of order, so we are unable to come. We
will come tomorrow and write in the books". This is
not a letter which a person seeking a favour would
write to his benefactor. This clearly is the kind of
letter, though very polite In tone, which a person who
has a right to make a demand would write to his
debtor.
All these factors are inconsistent with the
appellants' story of entrustment of the goods for sale on
commission basis. . On the other hand, they lend
. strong suppert. to. the respondent's claim that. the
tralilsaction respiting in the delivery of these ,goods on
three separate dates in November, 1945 by the
respondent at the a,ppellants' shop was one of sale of
the goods at the prices fixed in the three documents
acknowledgir.g the receipt of the goods by the
appellants. . . .
lt has been suggested on .:beh'alf of .the ~Epellants
that the three. transactions evidenced by Exhibits 2, 3
-~nd 4 ~ilitate strongly -against t~e respo~dent's
 1952] BURMA LAW REPORTS. 245

version of the original transaction being one of sale. S.C.

L952
Exhibit 2 is a receipt in respect of 40 gross of empty
bottles at Rs. 100 per gross. It bears the date .\.~~:~~~oN
15th january, 1946. Exhibit 3 is a letter requesting the A. HABIB.
"
appellants to deliver to the bean:r 4 oz. of Musk Nepal.
The letter closed w-ith the statement ''The money has
already been received here". This letter is dated
6th December, 1945. Exhibit 4 is a receipt in respect
of four different classes of perfumery goods all to a total
value of Rs. 8,250 signed b y the respondent on the
3rd January, 1946. The appellantc;' learned counsel
claims that the prices mentioned in Exhibits 2 and 4are
identical with the prices stated in the original list of
goods delivered to the appellants in November, 1945.
He says that if the transaction in November, 1945 had
been one of sale, it is not at all probable that the
appellants would have charged identical prices on a
resale of the goods. There would, in normal
circumstances, be some force in this contention. But
in the present case, part of the cross-examination of
the respondent was directed towards showing that the
prices stated in the three original lists of November,
1945 were highly inHated and did not bear a fair
proportion to tlole real prices of the goods. It is also in
evidence that the appellants found difficulty in
converting the -raw materials into finished goods and
even if finished goods could be manufactured they
found difficulty in disposing of the goods at the rates
stated in the original three lists. In such circum-.
stances the appellants must have considered them-
selves very fortunate in bein g able to persuade the
respondent to take back the goods referred to in these
three exhibits at the original valuations.
The delivery in November, 1945 of the goods by the
respondent .at t~e appellants' premises could not have
been therefore for saie on commission basis by tht
246 BURMA LAW REPORTS. [195?
S.C. appellants as the respondent's agents. Tb e re can be
1952
no other explanation, then, of the transaction but. that
A.C. AKHOON
AND ONE it \\as a sale GIS alleged by the respondent. \Tve there-
v.
A. HARJB. fore uphpld the trial Judge's finding that the original
transaction which resulted in the delivery of the goods
evidenced by Exhibits A, B and C on the t{th, 9th
and 11th November, 1945 was one of sale.
To what extent, then, does the consideration for
the sale ,of the goods by the respondent to the
appellants remain undischarged ? The trial Judge
took the view that the amount still outstanding is a
sum of Rs. 32,271. In arriving . at this figure the
learned trial Judge refused to take into consideration
_the value of the goods re-delivered by the appellants
under Exhibits 2, 3 and 4 to the extent of Rs. 12,500.
The judgment does not state why no account was
taken of this sum in adjusting the liabilities of the
parties. But it is clear that the learned trial Judge
took the view that the appellants shcml"rl have pleaded
a set-off, in the absence of which .he did not feel
competent to give to the appellants credit for this sum.
The Appellate Bench in tbe view it took of the nature
of the original transaction had no difficulty in
adjustipg against the value of the goods whi.c h did not
reach the respondent this sum of Rs. 12,500.
The question whe~. a plea of set-off is necessary
and when it is not has been discussed in the case of
floe Moe v. Seedat .(1). We are in agreement
with what has been said in this case by Lentaigt)e J.,
at pages 357 and 358 of -the report. In the present
case it is clear frQm the stat ement of the respondent
himself at t_h e trial that there was a tacit understanding .
between the parties tliat th~ value of the goods taken
re-delivery uf by the respondent would be treated as
payment. towards t}J.e ' .a;ccoun t of the original sale for
(Jl 2. ~an, p. 349 . .
 1952] BURMA LAW REPORTS. 247

entire lot of goods. For ~xample, when the S.C.

1952
respondent was asked why the sums due in respect oi .'\.C. AKHOON
Exhibits 2, 3 or 4 hc.s.d not been paid, his answer was, AND ONE
II.

11
I de not make this payment under the impression A. H .\ Bits.
that when I received my money this amount will be
d~clncted ''. Agai n, he stated in answer to a similar
.question in respect of 4 oz. of Musk Nepal delivered to
a third party by the appellants under his instructions
he gave a similar answer, " I thought this amaunt will
be deducted from the money due to me." About the
end of his cross-examination he stated that he did not
give cr~:!dit to the appellants for this sum of Rs. 12,500
as, after a lapse of 4 years, he had forgotten the
transactions. In these circumstances we are satisfied
that the appellants need not make a specific plea of
set-off in respect of the sum of Rs. 12,500 but are
entitled to have the claim of the respondent treated as
p1o tanto discharged by mutual consent.
The result is that while we do not entirely agree
with the reasons given by the Appellate Bench of the
High Court, we are of the opinion that the respondent
is not entitled to anything more than the sum awarded
to h im by the A,ppellate Bench. . Accordingly we
affirm the decree of the Appellate Bench of the H igh
Court, the appeal and the cross-objection are both
dismissed. Each party will bear its own costs
throughout.
248 BURMA LAW REPORTS . [1952

SUPREME COURT.
tS.C.

-
1952

Nov.10.
B : S. MOHAMED EUSOOF (APPELLA!-:T)

v.
BAKRIDI AND ANOTHER (RESPONDENTS).*

l:rba11. Rent Co1ztrol Act, 1948 - 0rder of Controller under s 16-Anot

/itlal-Jurisdiclion n>hen vested iu Civil Courts to declare o1der null
tmd 't"Oid-SPecific Relief Act, s. 42.- Proviso-Suit for bate clecla-
rafiol1 iu sPecial circumstances not Precluded.
Htld: The Urban Rent Control Act. 1948 does not expressly provide that
the Order of the Controller of Rents under s. 16-A shall be final ; even if
it does, a c:'efiance of or non--.:ompliance with the essentials of procedure \\'ill
give ground for questioning the proceedings in a' Court of law, and civil
Courts wil l have jurisdiction to examine into cases where t!ie provisions of
the Act have not been complied with.
The Secretary of 1State for India in Cotwcil v. Roy litindra Nallt
Chowdh.ry atzd arzotlter, A.I.R (192~) (P.C.l 175 at 179; The
Sccret.uy._f Slz,(e Jvr l1ufia. v. Mask & Co., l.L.R. (11)40) .Mad. 51)1} al 6J4,
fof!owed.
The Secretary of State f or India in Counc:l v, MaftarajadhiraJa
Kamesllw<lT Sinp.h Bahadur, I.L.R. tl'J36). 15 Pat. 246, distingu ished.
Held further : No specific plea was raised that a suit for a bare declara-
tion did not lie, in which event the plaint could have been amen de d.
S.T.K. Chetty Firm v. Balamndr,rm, 10 L .B.R. 199, referred to.
Jn tne special circumstances of the case, inspite of the proviso to
s, 42 llf the Specific Relief Act the suit for a bare d<:"claration does lie.
Babu Sagarmal Tibrewala v. G. M. Lattnzot,r, (1948) B.L.R: 1.13; Robert
Fisc/t(r v. The Secr(tary of State for .l ndia in Counetl, (1899) I.L.R. 22 Mad.
170 (P.C.l, referred l o.

G. N. Banerjee for the appellant.

.Aung Mitl (1) for the 1st respondent.
Civil Appeal No.2 of 1951 against-the d_ecree of the High Co.ur t, Rangoon
in' Civil Revision No.1 of 19W
t Preset~l : U THEIN MAUNG, Chief Justice of the Union of Surma,
MR. JUSTICE Mvnrr TH EIN and U Bo Gyr; J.
1952] BURMA LA W REPORTS. 249
S.C.
The judgment of the Courl was delivered by the 1952
Chief Justice of the Union. B.S.
MoHA\II!D
EUSOOF
U THEIN MAUNG.-On th e 19th November, 194~, v.
BAKRIDI
the first respondent Bakridi who is a tenant of a stall, A:-<D
gave notice to the second respondentS. M. Ahmed, A ~OTHER.

who was his sub-tenant in respect of the said stall, to

quit, vacate and give peaceful possessiOf! thereof to
him by the end of December, 194~. ~
On the 24th December, 1948, S. M. Ahmed ~pplied
to the Controller of Rents under section 16-A of the
Urban Rent Control Act, 1948 for permission to sub-let
.the said stall to the appdlant B. S. M. Eusoof.
On the 2nd January, 1949: Bakridi instituted Civil
"Regular Suit No. 8 of 1949 in the Rangoon City Civil
Court against S. M. Ahmed for his ejectment from the
stall.
On the 10th January, 1949, the Controller of Rents
passea an order permitting S. M. Ahm ed to sub-let the
stall to Eusoof with effect from the 1st January, 1949.
On the 17lh February, 1949, Bakridi applied to the
Controller of Rents to review the said order ; but his
.application was dismissed on the 24th of that mon th.
On the 29th March, 1949, Bakridi instituted Civil
Regular Suit -No. 212 of 1949 in the Rangoon City
Civil Court against Ahmed and Eus~of for declaration
that the said order of the Controller of Rents was
null and void. This suit was heard together with the
previous s uit, the evidence in both suits was recorded
in it by consent, and both of them were decreed on
the 24-th Deceml:>er, 1949.
Eusoof and Ahmc!d then applied to the . High Court
to set aside the declaratory decree in revision ; and as
t~i~ application .has been dismissed by the High_Court;
Eusoof has appealed to this Court with ~pe_cial leave
under section 6 of th e Union Judiciary Act, 1Y48.
250 BURMA LAW REPORTS. ll952'
s.c. Eusoof's learned Ad vocate has raised two questions.
1952
. B.S.
of la\\' in this appeal, viz.: (1) that the civil Courts have
MoHAMED no jurisdiction to declare the order of the Controller
EUSOI)F
v. of Rents null and void and ( 2) that the suit for bare
BAKRIDI
AND
-declaration does not lie.
A!\ OTHER. With reference to the first question their L ordships
of the Privy Council have observed in The Seaetary
of Stale for India in Council v. Roy ]itindra N ath
Chowdhty and another (1) : -

''The wor,is of this statute imposing finality upon the

orders of ~he Board of R~venue i11 Sll C-h a situation appear to
their Lordships not only to be imperative bnt most salutary.
Two conditions, however, must be noted ; the fint is that
mentioned, vh, that fundamental irregulllrity, that is to sl!y, a
defiance of or non-compliance with the essentials of the proce-
dure would still give grovnd for questioning the prcceedings in a.
Cm.1rt of law. The second proposition is that the burden of
establishing such essential and fundamental violation of statutory
~equirements rests upon the person alleging it."

Their Lordships have also observed in The Secretary-

of State for India v. Mask & Co. (2) :-
" It is settled law that the exclusion of the jurisdiction of
the civil Courts is not to be re:tdily inferred, but that such
exclusion must either be explicitly expressed or clearly implied.
It is also well-settled that even if j~trisdiction 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
stalittory tribupal has not acted in conformity with the
fundamental principles of judicial procedure.,"

The Urban Rent Control Act, 1948 does not

expressly provide that the order of _the Controller of
Rents under section 16-A thereof shall be final ; but.
even if it. does, a defiance of or non-compliance wifh.
the essentials:
.
of the. procedure
.
will;_- according to
.(1) A.I.R. (1924) (P..C.) - "175-at 179: {2) l.L.R. {1940i. Mad. 599 at p. 614-
 HURMA LAW REPORTS. 25-t
S. \..'.
Thu Sccrclary of Slate for Indi!l iil Co11mcll v. Roy 19::2
]i:inrlra Xat!z Clwwdhry a11d a11olher (1) still gi,e B. :! .
ground for questioning the proceedings in a Court of MOf!A .\ !l;o
Er .- OOF
law and the civi !Courts will, according to The St'cretary 'l"
.BAK!UOl
:of State fur India v. Mask & Co. (2) still l1me AND
"jurisdiction to examine in to cast!s where the provisions ANOT I!EI<.

.of
,. the Act have not been complied with."
I n the present case the Controller of Hents has
passed the said order without notice to Bakrid'i inspite
~f the fact th~,t sec tion 19-A (1) of the Act expressly
provides '' Before exercising any of the powers confer-
red on him by this Act, the Controller shall give notice
of his intentitm to the landlord and tenant or
~occupier if any." It clearly is a case in which there
has bt;en a defiance of or non-compliance with the
essentials of procedure-a case in which the provisions
:of the Act have not been complied with.
Eusoof's learned Advocate has further contended
that Bakridi having availed himself of the remedy
rp rovided by the Act and applied to the Controller for
review of the said order, he has no further reli!ec y in
~ivil Courts. He relies upon The Secreta1y of State for
'in lia in Council v. Maharajadhiraja Kameshwar
ngh Balzadur ~3) . . However, Mohamad ~oor J., who

t rotc the leadtng j'udgment observed m that very

ue:

''It is well-settled law that if any private right is in terferecl

mrttb under the authority of any statute and no remedy is provided
lh the statute itself, the agf{rieved party bas none ; but ii a remedy

l
l
as been given in the statute, the aggrieved party can get that
emedy only in the manner stated, provided always that those in
uthority who interfere :with private rights do so strictly accord!ng_
io the mode prescribed in the statute." .
. ' 0

(1) A:I.R. !192~) (P.C.) 175 at'179. (2) I.L.R,. (1940) Mad. 599 at 614.
. (3) I.L.R. (1936) 15 Pat. 246. .
252 BURMA LAW REPORTS. [ 1952
S.C.
1952 The _present case is not one in whic h the pers0n in
B.S. authority, viz., the Controller, has interfered with
MoHAMED Bakridt1 s private rights strictly according to the mode
EUSOOF
v. prescribed in the st~lute. Moreover, if the ControUer
BAKRlDI
AND had g~ven notice to Bakridi as required by section
ANOTHER.
19-A (1) of the Act, Bakridi could have shown that
notice to quit, vacate and give peaceful possession had
already been given to Ahmed and that as a result
t hereof 'A hmed's own sub-tenancy would terminate at
t he end of December, 1948. As it is the Controller
has passed an order on the lOth January, 1949, permit-
ting sub-letting or assignment with effect from the
1st January, 1Sf49 of a sub-tenancy wh ich had already
expired on the 31st D ecember, 1948.
With reference to the contention that the suit "for
bare declaration does not lie, Eusoof did not make a
specific plea to this effect in the Rangoon City Civil
Court. He merely pleaded in paragraph 6 of his
written statement therein " A mere declaration as
prayed for would create an anomalous position." If
he had pleaded specifically that the suit did not lie
and if there really be any substance in that plea, Bakridi
could have applied for permission to amend the plaint.
See S..'/'.K. Chetty Firm v. .Balasu.nd1am p ).
Be that as it may, we are of the opinion that th~
s uit for bare declaration does lie inspite of th e proviso
to section 42 of the Specific Relief Act. Bakridi had
already filed the suit .{or ejectment of Ahmed 9n the
2nd January, 1949 and.Ahmed's own sub-tenancy bad
already expired on the 31st December, 1948. So
alleged sub-letti ng or assignment of the sub-tenancy on
the lOth Ja nuary, 194<J, with effect fro~ the 1st of that
monfl~ sluring the pendency of the. ejectment suit,. even

-
though- .it yvas with the permissio.Ii of the Controller,.
.
cannot affect the decree in that suit ; ~nd..according to
(1) 10 L B.K. 199.
1952] BURMA L AW REPORTS. 253

the Full Bench ruling of the High Court in Babu S.C.

1952
Sagar mal Tibrewala v. G. M. Lali111our (1). the said
B.S.
decree may be executable under Order 21, Rules 97 l.\IOHAMEO
EUSOCIF
and 98 of the Code of Civil Proced ure against. Eusoof v.
who according to paragraph 2 of his own written 8AKRIO!
AND
statement in the Rangoon City Civil Court "has been ANOl'li ER.

in possession (of the stall) long before the 1st January

1949 " presumably with the consent of Ahmed. In
this connection it is rather significant that EtJ.Goof has
pleaded in paragraph 5 of th e said written statement:

'' This defenc~ant submits that the suit is premature and

should be dismissed as the cause of action had not yet ARISEN
at the time of the institution of tbe suit (having regard to pendency
of the suit in Civil Regular.Suit No. 8 of 1949 ofthis Honourable
Court."

Equally significant are the facts that the said suits

were heard together and that evidence in both suits
was recordeC: by consent in t.he suit for declaration
only.
The case is somewhat similar to Robett Fischer v.
The Secretary of State for b~dia in Council (2). There
11
if the so-called cancellation (of separate registration)
is pronounced void, the order of the Government falls
to the gr0und and the decision of the Collector stands
good and opera_tive ''. In the present case if the
Controller's order permitting assignment is declared
_nu11 and void, status quo ante will b e restored and the
decree jn the ejectment. suit will have fu1l effect in
:accordance with the said Full Bench Ruling. The
iegal position will be the same as if this Court has
quashed the proceedings of the Controller by directions
jn the nature of a writ of certiorari. As a matter of
fact i3akridi would have obtained t~e s~me relief much
qui-cker if he had applied to t~is Court for t~e said

(1) (1948) B.L.R. 113. (2) (1899) l.L.R. 22 Mad. 270 (P.C.);
254 BURM:A LAW REPORTS [1952
S.C.
1952
directions instead of first applying to the Controller
for r eview of his own order and then filin g the suit for
B.S.
MOilAMEII declaration that the order is null and void.
Et:SOOJ'
v. Weaccordingly hold that civil Courts have juris~
BAKIHOl diction to declare the Controller's order null and void,
ANO
ANOTHER. that their order declaring it null and void is correct
and that under the special circumstances of the case
the suit for bare declaration does lie.
The 'appeal is dismissed with costs ; Advocate's fee
ten gold mohurs.
1952 J BURMA LAW REPORTS. 255

SUPREME COURT.

K. K. DEVER (APPLICANT) ts.c.

1952
v. Dec . 4.
THE CHAIRMAN, DISTRICT TENANCY
DISPOSAL COMMITTEE, HAN fHAWADDY,
AND TWO OTHE!\S (RESPONDENTS).*

Disposal of Tcn.mcy Act a111l Rules-Land S11bjec/ to allotment-Land in

possession of a Recci~:cr 110t t:-cemplcd.
Held: A Heceiver"s possession" of land cannot in any way Ct.rlal the
power of a Tenancy Board to allot the sam~. The "possession of a I<ecei,er
cannot be on a footing more privileged than that of au owner whose lands :m:
subject to allotment by a Tenancy floard.

G. N. Banerji for the applicant.

Ba Sein (Government Advocate) for the 1st and
2nd respondents.
A.. R. Venkatram for the 3rd respondent.

Th e judgment of the Court was delivered by

MR. JuSTICE MYlNT TH EIN.- The 30 acres of paddy

land involved in this application forms part of the
estate of A. A. Thever Brothers of which the applicant
K. K . Dever is the Receiver.
The 3rd respondent A.M. Palanichami Thever was
;allotted these 30 acres by the Kyauktan T ownship
!T enancy Board for the season 1951-52 in preference
~o one Gurusinga. The latter's appeal to the
J{anthawaddy District Board was d ismissed.
Palanichami proceeded to work the land but the
~ec.eiver ob tained an ad interim in junction order in
~ ... ---
Civil Mjsc. Application No.187 of 1952.
t Present : U T HEIN ltfAUt-'G, Chief Justice of the Union of Burma,
fMR. }US'YICE E )bUNG, and MR. JUSTJCE MYINT.THl>JN.
256 BURMA LAW REPORTS. [ 1952
s.c. the High Court prohi biting th e 3rd r espondent from
1952
interfering with the Receiver's possession. The 3rd
K. K. ~~wsn respondent was dispossessed.
TH J?
CHAI RMA)-1,
For t.he current season 1952-53, th e 3rd respondent
Dts't'RtC'r was once again re-allotted these lands, despite the
6~s~~~~~ contentions of the Receiver who was represented by
c~~~~:_E. his agent Gurusingha. The District Board confirmed
wAoDY AND the Village Board's order.
T\VI) OTHERS.
Applicant' s learned Advocate contends that because
of the order of injunction prohibiting the 3rd
respondent from interfering with the possession of th e
Receiver, the Tenancy Boards had acted beyond their
jurisdiction in allotting the lands. This contention,
however, has no subs~n ce. A Receiver's " posses-
sion" of land cannot ic. any way curtail the power of a
T enancy Board to allot the same. The " posse~sion "
of a Receiver cannot be on a footing more privileged
than that of an owner whose lands are subject to
allotment by a T enancy Board, under the provisions
of the Disposal of Tenancy Act and Rules.
. The applicant's 'learned Advocate also contends
that since the 3rd respondent was dispossessed it
cannot be said that he was the tenant for the previous
year. That again is incorrect. The 3rd respondent
was the legal tenant and actually worked the lands
until he was dispossessed on a wrong construction of
the injunction <irder. He was unable to reap the
paddy because of the action of the applicant himself.
Under Rule 10 of the Tenancy Disposal Rules land
has to be re-allotted to the tenant of the previous year
if he had not defaulted in respect of .rent or agricultural
loan. No such default has been suggested and
therefore, in our judgment, he was rightly re-allotted
these lands.
The application is dismissed with costs ; Advocate's
fees eighty7five ~yats.
1952] BURMA LAW REPORTS. 257

SUPREME COURT .

u E MAUNG AND O:t\E (APPLICANTS) t S.C.

1952
v. Sept. 17.
u PO THIT AND TWO OTHERS (RESPONDENTS )~.

DisPosal of Tet~aucy Act ancl Rt#lcs-Revocatio1~ of rr'Uotment -Resuut('thm <>!

/ancl aml sehttre of slatuling croPs wit/tout notice itlegal-Sub-le/lir~g
Wluther il d.iS.."J1tAJ/ijics lc11anl of tmwiotls :year from 'r,-nllctmwf
- Teuaucy Distosal Rules.
Hdd : T.he order of a District Uor~rd revoking the nllotment nnd a
subsequent order resuming the land together with the standi ng crops without
notice to the tenants are not warranted either by the D isposal of
Ten:lncies A.,;t or by the Tenancy Disposal Hules.
Htld ju;t11er : Sub-letting is not a disqualificalion under Rule 10 of the
Tenancy Disposal Rules so as to bar re-allotment in the next tenanc.y year.

Tun On for the applicants.

Ba Nyunt for the 1st respondent.
0. S. Wqon (Government Advocate) for the 2nd and
3rd respondents.
The judgment of the Court was d eli vered qy

MR. JuSTICE MYINT THEIN.-In May 1951, holding

No. 10 in Kwin No . 752, Yinnyein West, measuring
fifty acres belonging to one Ma Ni~ha of Rangoon was
allotted in two separate portions, hyenty acres being
allotted to U E Maung and thirty to U Po Sein,
the applicants before this Court.
Trouble began when U Thein Maung (who is
d escribed as a Member of Parliament, President of the
Thaton Peasants' Organisation and Peace Officer of the
District) wrote to the Officer-in-Charge of the Police
9utpost . .at .. Yinnyein on. the 2nd.. Nove!Uhcr 1951
Civil Misc. Application No. 92 or 1952. .
t Prcseul : U TH.IN MAUNG, Chief Justice of tb17 Union of ~urma
MR. J UST ICE E MAUNG and l\1.R JUSTICE MYl~T J'!l'll'!
1
l7
258 BURI\TA .LAW REPORTS. [1952
S.C. informing the latter that sub-letting of l:lnds had taken
195~
place and asking him to prevent the collection of
U E AUNG .
ANV oN~-: paddy tn order to prevent a breach of th e peace.
v :P~ TH!T Action '" Was swift. Both U E Maung and U Po Sein
. AN'o Two
O'l 'HERS.
were arrested, bail \\'as refused and they were
kept in custody for a fortnight. The paddy
on their talins were seized and a.' prosecution under
Rule 17 (a) ,of the Tenancies Disposal Rules was
launched against them on the allegation that U Po Sein
had sub-let five out of his thirty acres to one
U Tha Dwe.
After their release from custody the two applicants
tried to gather the remaining paddy when they were
promptly re-arrested, kept in cu_stody for 3 days and
charged with theft.
The two applican ts have retaliated with a
complaint against those they consider responsible for
their detent~on and suffering.
These cases are pending.
On the 8th January 1~52 a meetin5 of the District
Board of Thaton was held. On the information of
U Thein Maung who is a member of 'the Board, that
five acres of the fifty had been sub-let, the Board there
and then decided that the allocation of the fifly acres
should be revoked, without in~orming U E Maung or
U Po Sein and without giving them an opportun ity of
meeting the. charge. The order was all the more
inequitable in that U E Maung was penalised when
it was a five acre plot out of U Po Sein's thirty t hat
was alleged to have been sub-let.
. When the current cultiv~tion season drew near,
U E Maung and U Po Sein (who were not even aware
of the order of .the 8t.h Ja11uary 1952) made .t htir
applications in the _usual course; {or re-~liotment of. the
same lands. ~- By an. order dated .the 29th February
1952 1 the 'Village Board held that these hinds ' had
 BURMA LA\V REPORTS. 259

already been resumed by order of the District Board s.c.

1952
aod .had been re-allotted to one U Po Thit and that l' E MAUNG
therefore only U Po Thit would be entitled to work AND ONE
v.
the lands. '(; Po T HiT
AND TWt>
An appeal was lodged wi t h the District Board and OTHERS.
by its order of the 14th May 1952 the Board
reiterated that the lands had been resumed because of
sub-letting and that this order of resumption had not
been. appealed against, and that therefore it r~mained
unchallenged. T he appeal was accordingly dismissed.
Applicants maintain th at there had been no
sub-letting. They maintain that they are the victims of
harassment.
We must emphasise that this order of the 8th
January 1952 passed by the District Board and the
subsequent order resuming the land together with the
standing crops are not warranted either by the
Disposal of Tenancies Act or by the Tenancy Disposal
Rules.' These orders t herefore have no legal effect.
W e express no opinion whether there has been
sub-letting in this case but we must point. out that even
if the sub-letting is proved, it will have rio bearing upon
the right of a tenant to be re-al_lottcd the lands he had
worked in the previous season. Under Rt!le 10 of the
Tenancy Disposal Rules, as it stands, if a tenant of the
.previous year l'las . paid his rent in full and if he has
repaid the agricultural loan if he had taken it, he is
entitled to be re-allotted for the current season the
same lands that were allotted to him in the previous
year. Thus even if the sub-letting is proved, apart
from the possibility of facing a charge under Rule 17
(a) of the Rules, his rights to be re-allotted the same
lands a_re ~ot affected on that ground . .
Clearly therdore the District Board in ordering
resumption o( the l~md~ acted wit~out jurisdiction.
The Village Board erred i~ - accepting this illegal orqe1
 BURMA LA \V REPORTS. [1951
:'9fi as binding and in refusing to re-allot the lands to
. -=-=-- . U E Matmg and U 1)o Sein. The District Board
u E MAUKG
ANo oNE erre d agam
. . 1 . I . . d
111 re ymg upon t 1eu prev1ous or er.
u J?ov.TBJT For these reasons the order of the Thaton District
ANDTwo
OTHERS.
Board of the 8th January 1952 together with its order
of resumption of the lands in q~estion, the order of
the Yinnyein Village Board of the 29th February 1952
and the order of the District Board of the 14th May
1952 are"'q uashed, and the proceedings are returned to
the Village Board for disposal of the applications of
U E Maung and U Po Sein with the observation that
on the materials before us we are of opinion that
U E Maung and U Po Scin are entitled to be allotted
the lands which they had work~d in the season
1951-52, that is twenty and thirty acres respectively of
Holding No. 10 measuring fifty acre(in Yinny,ein West
Kwin No. 772, Paung Township, Thaton District.
Advocate's fees eighty-five ky<~ts.
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1952 J BURM A LAW REPORTS. 263

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gw~ssc.oe:be:coole:cG:g:ctg:ltue ~~bbgggro~e~gg!eeGJ~cc&; rGel c
ZS6l] "Sl~Od:!DI MV'1 VW~DH i?9Z
 Rl
II sa~boog ~ 0 & die~~~~:fosco8~~ 1L0~ro'
so~@:dscon3 ccg;~groooocog~sos@g>c~cE:>~~ g;fu~Sb
. n1cc.
~ cccscooso:{e:re~@lpccg~)O:{e:re~~ c.ofPSscre:b~:cco~
::ro:~g~eg~d:R:.oog>le~-le eg;cco~:~greco:ceG~~oc,Jrosccc&5
'=Stiroscc~~~=gge~~o~g>o&nsoCt>~socco~w (s) (G) (b)
- .
('c) so~ro ~b~:g:crog;cfu~emlcesbge~~soo~chg>o& gfuoo~;
npcc:{C~~pcfu~ :gc~Logccso*~ Ct>~gro~ff>S~8:> 11ccd
u~oo~~ ~~ccopcfu~ ~ge~~'PI!:\)Los~ge~~ n3ccLog~ge~~soo~chff>o~;
1
:~ ~ L~ bee ( c.o) 0c 98ec c~o2:14 :b~:crobc@:~ ~~~e cGelc 13fu~
~~~~~o~~ gff>~gro~ gful o~Se~ro ccc~so~:<.cole:c@:~~ ~bgff>gro~~so@~<:o;
g~eoo~s~ ~~e r G-cG elc llCeG@S'SCcc~pclfu~c.o~04~!~sco~so('\j~c@o~fu:
I (;~ soclfu~ npcc~c.o~~sl!:u~gcc:gbsccc:gsoelessec~:Gc.ollff>1ffG~Oa_'
~ W :p<}g:> ':gb~cc:g&!pcc.o~ W~LRgec~ oc ggec ~o2~3ck Jc.o~
rc; e.J c ff~sc.o~:b~:crole:r.@:~g~e ~ffssc.o~:b~:ccole:c@:~c&:R:.o~
S9Z s~~OdH'H MV'1 VW'Hf1 9 fZS6I
266 BURMA LAW REPORTS. /1 CJ52

SUPREME COURT.
tS.C.
1952 u KO KO GYI (APPLICANT)
D-:c. 4.
v.
ENGINEER-IN-CHARGE, RANGOON CORPORA-
' TION AND ANOTHER (RESPONDE~Ts).*

Directions itt the 11tllure of Certiorari and Pro!tibitio~t-Cily of Rttugoon

Muliicipal Act-Conslrucliotz alullmPlication of ihe Phrase " lzavirt[!. tlze
. rlnlyto act <lCCOrding to latl!l"
Held: There is no provision in the Corporation of Rangoon Munic'ipal Act
Which requires the Engineer-in-charge, in issuing an order directing the
demolition or removal of an unauthori~ed structure, to act in anything but an
administrati ve or executive capacity.
Heldfnrlhr:r: The test of" having the duty to act according to law" taken
by itself is not sufficient. Everyone is under a duty to act according to law
bnt failure to act according to law will not in every case give rise to a right in
the injured party to seek directions in the nature of certiorari and prohibition.

U Hl.11.1e v. U Trw. Olm, (1948) B.L.R. 541, foll owed.

I<hin Maung for the applicant.

C. C. Khoo for the 1st respondent.

Yan Aung for the 2nd .respondent.

The judgment- of the Court was delivered by

MR. JusTICE E MAUNG.-The applicant was on the
16th September 1952 served with . an order from the
Engineer-in-Charge, Buildings Department, Municipal
Corporation of Rangoon calling upon him to demolish
a structur.e occupied by him at No. 171, ~. 50th
Street7 Rangoon, as having been put ttp \vithout' any

* Civil Misc. ;AppHcation' No. 2~0 of 1952.

t Preswt : u .THEIN MAUNG, Chief Justice of U1e Union o~ Burma
MR. JUSTICE E- .MA.uNG and MR. JuSTICE MY INT THEIN,
 l <)52] BURMA LAW REPORTS. 267
. authorisation under the City of Rangoon Municipal S.C
lY52
. .\ct The order called upon the applicant to l1ave the
U Ko Ko GYI
s tructure removed by the 23rd September 1952. v.
ENGINEER
On the 17th October 1952 the applicant, who some IN-CHARGE,
!{ANGOON
. Low had managed to put of the day for the demolition CoRPoRA-
:under the order served on himt applied to this Court TION AND
ANOTHER.
(for directions in the nature of certiorari and prohibition.
The respondents do not specifically plead .in their
: objections that directions in the nature of certiorari
and prohibition are not the appropriate remedies in
the circumstances. But the 1st respondent Engineer-
inCharge, Buildings Department of the Corporation of
Rangoon, pleads in paragraph 13 of his affidavit that
11
the applicant is entitled to other remedies and could
have sought relief in the inferior Courts".
At the hearing the learned counsel for the applicant
was asked to direct his attention primarily to the ques-
tion whether the Engineer, in directing the applicant
to remove his structure with the alternative of having
it demolished; was or was not acting in a judiciaf
or quasi-judicial capacity; for unless the officer in
question acted or purported to act in such capacity no
'directions of the nature sought can be issued by this
Court.
We have heard U Khin Maung at length. He con-
tends that' whenever a person's rights are infringed or
attempted to be infringed otherwise than in due course
of law, such person is entitled to seek relief before this
Court. This is going too far. There is no provision
in the Corporation of Rangoon Municipal Act which
requires the Engineer-in-Charge in issuing an order of
the kind challenged in this caseto act in anything but
an administrative:or executive.capacity.
Fromwhat has. b~e~ said before us by the learned
couns~l Jor ..the applicant and from what we }?ave often
268 BURMA LAW REPORTS. [1952

S.C. heard in other cases it seems to tis that the decision of

1952
this Court in U Htwe v. U Tun Ohn (l) has been
u Ko ~oGYI misunderstood. At page 550 of the report ~he late
E:!IGINER- Chief Justice of the Union said:
IN- CUA.RGF.,
RANGOON
CORPORA- ''Therefore, when Atkin L.J., used the phrase ' having the
. .Tto'N AlolD
- AN'OTHER. du~y .to act judicially ' we must in relation to the Constitution
consh:!le it as' having the duty to act according to law'."
e<
This state ment read apart from its context appears to
-h~ve Fesulted in a good deal of misapprehensi0n. The
t~xt of ". having the duty to act according to law ",
take~ by itself, is not sufficient. Everyone is under a
duty to a~t according to law but failure to act accord-
in.g to~~.~ will not in every case give rise to a right in
the injured party to seek directions in the nature of
certiorari or prohibition.
In these circumstances the application must be
dismis~ed as not l?eing competent. The applicant will
pay the respondents costs. Atlvocatt:!'s fees eighty-five
kyats.

.....,...,_
._,....,...-.,. :,"-,:
. __
 BURMA LAW REPORTS

HIGH COURT

1952

Containing cases determined by the Hi gh Court

at Rangoon

MR. B. W. B A TCN, M.A., LL.B. , Bar.-at-Law, EnnoR.

U TUN ON.'s.A., B.L. (Advocate ), R EPORTER

Index prepared bY- U TUN MAUNG, B.A., B.L., Bar.-at-Law.

DR. MAUNG MA UNG, ~.L. , LL.D., Bar.-at-Law.

fablished under the authority of . the President of the Union of

Burma by the Superintendent, Union :Government! Printing
and Stationery, Burma, Rangoon, -'

[AU rights reserveaj.

 NAMES OF THE JUDGES AND LAW
OFFICERS OF THE UNION

HIGH COURT
CHIEF JUSTICE
The Hoi).'ble Maha Thiri Thudhamma U TUN BYU,
M.A. (Cantab.), Barrister-at-Law.

PUISNE JUDGES
The Hon'ble U ON PE B.A. Barrister-at-Law.
'
The Hon'ble U SAN MAUNG, ' B.Sc., I.C.S. (Retd.).
The Hon'ble U AUNG THA GYAW, B.A., B.L.
The Hon'ble Maha Thiri Thudhamma U THAUNG
SEIN, B.Sc., I.C.S. (Retd.).
The Hon'ble Aiaha
.
Thiri Thudhamma U Bo GYI'
B.A.,B.L.
The Hon'ble U AUNG KmNE, M.A. (Cantab.),
Barrister~at-Law.
The Hon'ble U Sr Bu, B.A., B.L. (from 1st January
1952 tq 20th February 1952).
The Hon'ble U BA TROUNG, Barrister-at-Law (from
21st August 1952 to 6th November 1952).
 LAW REPORTING COUNCIL

PRESIDENT
The Hon'ble Justice U TuN BYu, Chief Justice of the
High Court.

MEMBERS
The Hon'ble Justice U ON PE.
The Hon'ble Justice U SAN MAUNG.
The Attorney-General, Burma.
DR. BA HAN Barrister-at-Law Advocate.
U TuN MAUNG,' '
Barrister-at-Law, Advocate.
Rai Bahadur P. K. BAsu, Editor.
U BA SEIN, Reporter.
U MAUNG MAUNG, Secretary from 1st January 1952
to 20th March 1952.
U SHu MAUNG, Secretary from 21st March 1952.
 TABLE OF CASES REPORTED

HIGH COURT
PA GF.

A. Divan v. Dost Mohamed 23

Ahmed Murad v. M.A.L. Chettyar Firm 66
Anwar Khan v. The Union of Burma ... 331
"
.;B . K. H alder v. $. K. H. Chelliar Pillay and others... 340
Ba Boo and others v. The Union of Burma 83
Bin Hong & Co,. v. Munshi Meah 230
Chandmal Birla and others. v. Mrs. Leon Won Kee
(a) Daw ~a Htwe and others 274
D. N. Lobo v . J C. Webster 235
Daw Hnin v. U Kyaw and others 1
- - H nin v. U Kyaw and others 101
- Thet Pu v. Saya Khin 245
- Thi v. Daw San Mya 45
Dr. Chit and others v. Daw Ohn Yin ... 176
Gaw Shan Soot v. E. C. Madha Bros.. .. 136
-- 'Fun Shwe' v. Ma Kyin Aye 254
Gor Kyin Sein v. U Kyaw Din and .others 162
Govindaswamy and others v. N. Ch"inaTambi 8
Hajee Ajim Cassim Jeewa v. Momin Bibio 312
Haji Rahim Bux v. Shaik Mubar ak Hussein 186
Hla Maung and others .v. The Unioh of Burma 262
John William Cree v. Violet Elizabeth Cree 53
Ko Ba Tpil Tin v. Daw Pwa . 334
- Kyi Myairig v. Daw Mai Shein 47
- Mya Din and another v. Ko Bin. Nga 240
-San Bwint and another v. Ab He~. 96
-Tin v. Ko Kyin Thein an~ one 37
viii TABLE OF CASES REPORTED

L. N. Letchumanan Chettyar Firm v. v. M. Firm and

others ... 225

M.. R. Arumugam Chettiar v. A. Muthia Chettiar ... 14

M/S. U Tharrawaddy Maung Maung Agencies Ltd.
v. S.M. Bholat 51
__ Kalidas & Sons v. Kholi Rahman 203
Ma Mya Sein v. Lwee Kim Han 315
__. Sim T f and others v. Saw Maung Pu and others 344
Maganlal Pranjivan Metha v. Mrs. Champakunvar
Ratilal. Mehta and others 192
Maung Ba Yi v. Ma Sein Myint 293
-- . - Nyi and one v. The Union of Burma 282
- - Par (a) Maung Pasi (a) Maung Myo Nyunt
v. U Tun Hlaing and another .. . 32
-. - - Shwe v. The Union of Burma .. . 350
- - Tin Maung I v. Union of Burma Airways ... 80
-Maung
Nyunt Maung_ v. The U mono
. . f B urma 251
.Maung Hla Myint
Mohamed Khan v. Damayanthi Parekh and others 356
Municipal Corporation of Rangoon v. The Sooratee
Bara Bazaar Co . Ltd 134

Nana Meah v. Nirendra Kumar Seal (a) .,Devndra

Kumer Seal 289

Paduwat v. ..,The Uni9n of Burma 91

.P o Saw (a) Saw Maung v. The Union of Burm1 379
Pyon .Cho v, The Union of Burma 381

S.K.A.R.S.T. Chettyar Firm v. P.S,A.P: Alagan and

others ... 59
. S.R..M.N.N. Ramanathan Chettiar v. ~a~aish Pillay 51
Sin Tek and. another v. Lekha.QY BroS 180
Sobika Rahman v~ The Union: of Burma 385
.v.
Sutva Nath :Singh Shio Karan Singh . 39Q
 TABL E OF CASES REPORTED IX

PAGE

T. M. Mohamed Cassim v. M f S. A. C. Martin & Co.

Ltd 197
The Moolla Hashim Family Endowment Wa9f
Estate v. M. E. Dawoodjee and another 74
The Union of Burma v. Ebrahim Suleman Variava 6
- - - - -- - v. Boh Sein Tun 206
- - -- - - v. U Khin Maung Lat and
one (S.B.) ,,.. 114
- - - -- -- - v. Ma Ain Kywe 104
v. Mohamed Eshaque a nd
others 107
v . U Saw Lwin and others 394
v. Sein Po 397
Tun Tin v. The Union of Burma 403

Union of Burma Daw Tin Tin

v. ;-;--:----;:-;;--- 306
Daw Tin Tin Union of Burma

U Law v. Maung Ba Pe .. . 310

- Maung Maung v. Ma Aye Bu 406
-Po Thi and one v. Maung Kyaw Sint 410
- Yewada v. M aung Aung Thein and one 413
 LIST OF CASES CITED

A.M. Hashim Isphany v. N.A.P.K. Chettyar Firm,

(1915-16) 8 L.B.R. 427 at 431. followed 170
Abdool Razack v. Aga M'ol1amed Jaffer Bindanee~.
21 LA. 56 at 64, referred to 363
Abdul Latiff Saheb and others v. Bathula Bi Bi
Ammal, A.I.R. (1914) Mad. 360... 29
- - Jabbar v. Daw Thein Khin and others, Civil
1st Appeal No. 27 of 1951 of High Court 337
Adjai Coal Co., Ltd. v. Pappalal Ghosh. A.I.R. (1930)
(P .C.) 113 ; 57 Cal. 1341. referred to 278
Ali Asghar v. Mi Kra Hla U, 8 L.B.R. 461.
referred to 378
Armstrong F<mndary, 6 Wall 766 210
Ashanullah v. Trilocban Bagchi. ( 1886) 13 Cal. 197.
referred to 71
Baba Mohamed v. Webb. 6 Cal. 786 .. . 28
- - Naya v. King-Emperor, . 5 Ran. 817 &
Applicable 93
Baidyanath Mullick v. S. M. Radharani Dassee,
(1945~46), C.W.N. 394 at 397 ... 166
Baksho and. another v. Piaro and others. A.I.R.
(1920) Sind 120 ~291
Balkrishna...Waman Kbarkar v. Sakharam Babaji
Mestry, (1'936) 60 Bom. 70 166
Bhagwan Din and others v. Emperor, A. I. R. (1934)
Oudb 15 L referr~d to 286
Bhavirisetti. Gopa1krishnaya . v. Pikanati Pedda
Sanjeev.a Reddy and another, AJR. (1920) .
Mad. -145 .. 167-169
Boidya Nath Adya and pthers. v. Makhan LalJ Adya,
.. (1893)"17 cat..680 . .. t42
XII LIST OF CASES CITED

Brigstock Edulti & Co. v. Gaguji Devji and another.

A.I.R. ( 1930) Sind 221, followed 205
Budha Mal v. Rallia Ram and others. (1928) 9 Lah.
418 at 423 145
Burberrys y. J. c. Gording & Co. Ltd., 26 R.P..C. 693 249
Burdick v. United Stat~s. 236 U.S. 79 210
Bushell v. Hammond, (1904). 73 L.J. (K.B.) 1005 at
1007. ~ollowed 31
Byramjee Cawasjee v. Vera Somabhai Motibhai and
another; (1915-16) L.B.R. 561 157
Carlisle v. United States, 16 Wall. 147 210
Cellular Clothing Co. v. Maxton and Murray, (1899)
A..c. 326 249
Chellam Naidu v. Ramasami, J.L.R. 14 Mad.
. 379 236
Chhotalal Lallubhai v. Nathabhai Bechar and
anoth~r. 25 Bom. 151 236
Chivers and Sons v. Chivers & Co. Ltd . 17 R.P.C.
420 . 249
Chor Mal Bal Chand v. Kasturi Chand Seraogi,
I .L.R. 63 Cal. 1033, referred to ... 373
Chunilal 'Kastu..rchand Marwadi v. Dundappa
Damappa Nagalgi. 52 Born. L .R. 660, ~eferred to 375
Companhia De Mocambique v. British South Africa
C~mpany-De Sousa v. Same, (1892) 2 Q.B.D.
358 at 394, refetred to .... 3.75
D . Weston and o~hers v. Peary Mohan pas, 40 Cal.
898 at- 900 328
Damodar Venkatesh v. Bbavanishankar Mangesh,
26 Born. 4.23 324
Dava Ram v. Sita Ram and others. A.I.R . (1925)
All.206 . 99
Daw Yin. v: U Sein Kyi and others, 1st Appeal No~
56 <>f '-t949 . .. '97 .98,99
Dayabbai Hw~nd~s.a~d others\' A.rM:M M.urugapp~
Chetfi~r . -13 Ran. 457 . ... w 194.
 LIST OF CASES CITED x:n

Dayalal and Sons v. Ko Lon and one, I.L.R. 6 Ran.

657, followed 417
Debi Radha Rani v. Ram Dass. A.I.R. (1941) Pat.
282 35
Desaibhai Khushalbhai Patel v. Emperor, A.I.R.
(1938) Bom. 50 304
Dharameshwar. Sarma v. Lakhvadhar Borgohain,
A.I.R. (1950) Assam 107 .. 99
Doe v. Bridges, 1 B. & Ad. 847 at 859 259
Dr. Hori Ran Singh v. Emperor. A.I.R. (1939) F.C.
43 195

Edna May Olivia Hardless v. Harold Richard

Hardless. A.I.R. (1932) All. 536... 326
Elavarthi Paddabba Reddi v. Iyyala Varada Reddi,
I.L.R. 52 Mad. 432, dissented from 391
Ellis Enas Pavlo Gharry v. Kitter Philip Gowrya and
another, 46 Born. 226 29
Emanuel and others v. Symon, ( 1908) 1 K.B. 302,
referred to 373
Emperor v. Gunga, A.I.R. (1930) Lah. 64. referred to 400
v. Bateshar, 37 All. 628 304
Empress v. Husen, I.L.R. 5 Bom. 262, referred to 400
Ex parte Blaim, in re Sawers, (1879) 12 Cb. D.
522 at 526, applied ... 376

Fakirchand Nandram and another v. The State, A.I.R.

(1950) CM.;B.) 76 (F.B.), referred to . 355
Fouldes v. Willoughby, Meeson and Welsby's Reports
VIII. 54.0 at 548 279

Gaekwar Baroda State Railway v. Habib Ulla, I.L.R.

56 All. 828, referred to . .. 374
O~w _
K an Lye v. Saw Kyone Saing, (19-39) R.L.R_. 488 247
. . . . . . ' ' .
Girdhar Damoda~ .v. Kassigar Hiragar, (189.3) 11
. : Bom. -662 at 665; aPp~ied . 37~
Oopal. Chunderv:
. Gunamani_ Dasi. (l892)
. 20 Cal. 370 . 69
xiv LIST OF OASES CITED

P .~GE

Gulab Chand v. Kamal Singh and another, 44 All.

424 35
Gunga Narain Gope v. Bali Gburn Goala, I.L.R. 22
Cal. 179 98
Gurbachan Singh v. Jos. E. Fernando, (1950) B.L.R. 1 189
Gurdit Singh and others v. The Crown. 5 Lab. 30 l 236
Harihar Banerji v. Ramshashi Roy, 46 Cal. 458 179
Hommel v~ Bauer & Co.. 22 R.P~C. 43 249
Horlick's Malted Milk Co. v. Summerskill, 34
R.P .C . .63 249
Hussain U nwar v. Fatima Bee, (1872-1892) S.J.L.B.
368, referred to 378
Hyman v. Hyman and Goldman, (1904) L.R. Prob.
Div., 403 at 406, referred to 57
In re Gowleru Kotrappa and others, SO C.L.J. 83,
referred 106
- - V.K.P. Chockalingam Ambalam v. Maung
Tin and others, I.L.R. 14 Ran. 173 at 185,
referred to 412
In the Matter of Guddai Mutavalu, 7 Ran. 660 232
- -- - - Kalka Prasad, AI.R. (1939) All. 707 232
Indian Starch Products, Limited and another v. The
Controller of Rents, Rangoon and another,
(1950) B.L.R. 64 . 188
Jennings and another ..v. Kelly, .(1940) A.C ..2Q6 at-229 197
John Knote v. United States, 95 U.S .. 149 206,213
. .
K.S.A.V. Chettyar v. Mahmoo, 13 Ran. 87 226
K.V.A.L. Chettyar Firm v. M.P. Maricar, 6 .Ran.
621 at 622 165
Kalumal Tolaram v: Ahmad Nur Mahomed, A.I.R.
(1931) Sind 107 167
Kay v. 'Goodwin, (1930) 6. Bing. 576 4
Keshwar v. Sheonandan, .; A.I.-R. . (1929.) Pat. 620 -... 98
Khan Baha:dur Hajee .Gula~. Slierazee v:: . The
King,. .(194-1) R.L.R. 599 . ... . 304
 LIST OF CASES CITED XV

PAG E

Khaw Taw and one v. The Union of Burma,

(1948) B L.R., 310 ... 267
King-Emperor v. Maung Po Saw, 13 Ran. 225,'
referred to 111
v. U Damapala, I.L.R. 14 Ran.
666, followed 402
Kiran Bala Sbaha v. Suniti Brabha Shaha, (1939)
Vol. I Cal. 373 at 375 ~ 166
Kunhammad Haji, I.L.R. 46 Mad. 382, referred to 342
Kuppuswamy Goundan v. Cbinnaswami Goundan,
A.I.R. (1928) Mad. 546, referred to 99
L Jhangi Ram v. L . Ram Saran, A.I.R. (1944)
Pesh. 42 167.169
L. P. E. Pugh v. Ashutosh Sen, 8 Pat. 516 at 524-525 278
Lamplugh v. Norton and others, (1889) 22 Q.B.D.
452 . 259
:Lancashire and Yorkshire Rly. Co. v. MacNicoll,
(191 8) 118 Law Times Reports, 596 279
.Liquidato~s. Janda Rubber. Works, Ltq". v. Collector
of Bombay anc} another, A.I.R~ (1950) East Pun,
204 . 260
M. Abdul Hussain v... Mohamad Ebrahim Riza. A.I;R.-
(1939) Nag. 205 313
Ma Ein Thaand one v. King-Emperor, 5 L.:a.R. 13-f,
referred to 388
- Kyi Kyi v . . Ma Shwe and another. (1900-02)
1 L .B.R. 154 256.257 ,
260
...
- Kyin Myaing and others v. Hoe J,-an and others.
( 1949) -B.L.R. 352 . . . 141
. .
- Mya and others v. Ma Mya, U.B.R, (1897-1901)
229 . distingu~~h.ed .,. "346
-Tin Nyunt v: M~ Kyi K;yi ilnd others, (1950).
B.L.R._'33, distil)guished . ... 97
MacMillan ~ :bent. (1907) tCh: 107 at 120 f68

. 5
xvi LIST OF OASES CITED

PAGE'

Madan Mohan Lal v. Kanhai Lal, 17 All. 284 257, 25S:

Mabadeo .Ram v. Raja Mohan Vikaram Sah. 12 Pat.
665 167. 168
Mabalinga Nadar v. Ganapathi Subbien, 27 ~ad. 528 ... 256, .257,
258.
Mahomed Kala Mea v. Harperink and others,
( 1908-09) 36 I.A. 32 at 37 170
Mary Lilian Hira Devi v. Kum'\'ar Digbijai Singh.
21 C.W.F. (P.C.) q37 325
Maung Ant Bwe and one v. The Union of Burma.
(1948) B.L.R. 863 ... 332
- - Aung Min and three others v. Mutu Curuppan
Chetty and two others. ( 1907) 1 B.L.T. 50 . .. 201
--Chit and another v. Rosham N.M.A Kareein
Orner & Co . 12 Ran. SOQ 19
- - H a n and oth~rs v. The King, (1947) R.L.R.
371. followed 388
- - Mya U v.. Sun Singh, (1897-1901) U.B.R. 368. 324
- -- Myo and one v.. Maung Kyan, 8 L.B.R. 415,
referred to 407
~ Sein Gyi ~. J. Maneckjee. '8 Ran. 44 326
- Z a w v. Maung Hla Din, 12 Ran. 161 12
Maxwell on Interpretation of Statutes, 9th Edition.
pag~ 45 ... 3i
Md. Oziulla v. Beni Madhab Chawdhury, A.I.R.
(1922) Cal. 298, referred to 88
Mebr Chiragh Din v. The Crown. 4 Lab. . 359 304
Mir Ghawas v. Emperor. 37 C.L.J. 470 105
Mohamed Gbazi v~ U Tun Kywe and others, (1939)
,' R.L.R. 2~4 . . 329-
Mohammad Baqar v. MQhammad , ~asiro~ 7 Luck.
. . 601 .. ..... . .. 3f3
Moham~ed Yaqoob Ally v. CJ:thotey Lal. ~.I.R.
(1939) Pat. 2i8 .... . 98
 LIST 0~ OASES CITED X Vll

PAGE

Moolcband Motilal v. Ram Kishen and others. 55 All.

315 at 323 145

Mr. v. Tin Byu U. (1910-13) U.B.R.

50 ~24
Mt. Tariff Begum and another v. S.'Raziuddin. A.I.R .
(1935) Oudb 219 ' 291
N.P.L.S.T. Muthaya Chettjar v. RM.A.RM. Chettya~
Firm and one. (1948) B.L.R. 855 147
Narayanasami Naidu and others v. Rangaswami
Naidu and others. 49 Mad. 716 ... 29
Narendra Lal Khan v. Jogi Hari, (1905) 32 Cal.
1107 at 1121 70
Nasrullah Khan v. Wajid Ali and another, A.I.R .
(1930) All. 81, 31~

Nawab Syed Kazim Hussain v. Seth Pearey Lal,

A.I.I~... (1939) Oudh 277 291
Nazir Khan v. Ram Mohan, 53 All. 114 20
Neelakanda Pillai v. K. A. Kunju Pillai. A.I.R.
(1935) Mad. 545, referred to 375
Nga Thein Pe ~The King, A.I.R. (1939) Ran. 361,
followed 355
Nicholson v. Fields, (1862) 31 L.J.Ex. 233 31
Nihal Chand-Gopaldas v. Pritam Singh and another.
14 Lab. 1 ... . . 166
Nim Chand Baboo and others v. Jagabimdhu Ghose.
22 Cal. 21 256. 257~
258.
Noor Jehan Begum . v. Eugene Tiscenko, A.I.R.
(1942) Cal. 325, referred t.o 377
Paboodan Goolabchand v. M. J. Miller and another
. . (1938) M.L.J~ 688 ... !.: 228
.Pa'llonji Merwanji v. Ka'llabhai Lallubbai and
: . . another, 12 'Born. 85 323 .
 :xviii LIST OF CASEs CITED

PAGE
.Parashram v. Balmukund, (1908) 32 Born. 572.
referred to 69
.Payton & Company v. Snelling Lampard & Company.
(1901) A.C. 308 at 31 t 157
l>endyala Basawanjanagulu and others v. Lingamullu
Damalingayya~ A.I.R. (1938) Mad. 115 290
:Perry v. Trufitt, (1842) 6 Beav. 66 at 73 149
.Phagu Sahu and another v. Emperor. A.I.R. (1916)
Pat. 29 304
:Phillips v. Eyre. (1868) L.R. 4 Q.B. 225 and (1870)
L.R. 6 Q.B. (Ex. Ch.) 213
:Po'.<\Lan v. The King, (1947) R.L.R. 379 332
tQueen-Empress v. Somir Bowra, 27 . Cal. 369,
referred to 402
v. Nga Shun, Selected Judgments,
L.B.R . (1872-92) 617 . 238
R. v .. Purchase, (1839) 4 State Trials (N.S.) at 93, 94,
referred to 87
R. B.B. Saran Singh and one v. Ch. Mujtaba Husain
and others, I .L.R. 16 Luck. 742, referred to... 377-378
R.M.M.R-M. Perichiappa Chettyar v. Ko Kyaw Than,
(1949) B.L.R, 64 at 70, re(erred to and followed 61
Raghunath Das v. Sundar Das Khetri, (1914) 42
Cal. 72 68
:Rajeridra Baksh Singh v. Bahu Rani and another,
A.t.R. (19:28) Oudh 260 ... ... 142
- - - Kumar Bose v. Brojendra Kumar Bose,
A.i.R: (1923) Cal. _5 01, distinguished 347
:Rakusen v. Ellis Munday and Clarke, (1912) 1 Ch.
D. 8Jl . 324.
Ra1n Tawakal Tewari v. Mt. Dulari and others,
A.I.R. (1934). ~11. 46?, t:eferr,ed to 377
::R,amachandra Ganesh Khadkika"I: v. Emper-or, A.I:R.
(1933) Bom: 58 (S.B.)~ folloWed 384
Ramch'andra Modak . v. King~inperor. s P.a-t ~u o.. : 299
 LIST OF OASES CITED xuc

PAG:

Ramasami Pillai v. Murugiah Padayachi and another,

59 Mad. 268 19
Ravinadan Prasad v. Jagarnath Sahu and Ajudhia
and others, 47 All. 479 .. . . 16T
Re. Athlumney, (1898) 2 Q.B.D. 551 at 552,
referred to 56
- C1,1tts, (1867) 16 L.T. 715 324-
-- Muhammad Alam, (1939) A.I.R. Sind 311.
referred to ..... 363
- Plani Gownden, 15 C.L.J. 472. referred to 105, 108'
Reddaway v. Benham, 13 R.P.C. 218 ... 24&
Richards v. Sanders & Sons, Butterworth's
Workmen's Compensation Cases, Vol. V . p.
352, referreq to ... . 81.
---v. Swansea Improvement and Tramways
Company, (1878) 9 Ch. D. 425 at 431 182
- - - v. Swansea Improvement & Tramways Co.,
(1878) 9 Ch. D. 425 at 431 338
Rousillon v. Rousillon, (1880) 14 Ch. o.' 351. referred
w TI3
S. B. Thakuram v. Mrs. F. A. Savi, 12 Pat. 359 329-
S. I. Abowath and five others v. T . H. Khan, (1950)
B.L.R. 308 39.40:
S. L. Barua v. S.M. Abowath, (1950) B.L.R. 404 ... 39,41
S. M. Bashir v. The King, (1946) R.L.R. 306 303.
S.P.M. Muthiah Chettiar and . othe~s v. Muthu
K.R.A.R. Karuppan Chetti and other.s, 50 Mad.
786 at 797 143.
S. R. Raju v. The Assistant Controller of Rents,
Rangoon and two others, (i950) B.L.R. 10 ... .188, 189
' .
Saharanpur Grain Chamber Ltd. v. Maharat Singh,
I.L.R. ( 1940) All. 262 . 311.
Sahdeo Pandey v. Ghasiram, (1893) 21 Cal. 19 69.'
Sandow Limitecj.'s Application, (19 i4) 30 Law Times
394 . . . .1 5.8.-
S~nkaran Nambiar ~ .Kana~a Kurup; l?Mad. 182 . .. 2&.
XX LIST OF CASES CITED

PAGE
Sarat Chandra Chakrabati v. Forman and another,
l .L.R. 12 All. 213, referred to 364
Secretary of State v. Madhu Sudan Mukherjee and
others, A.I.R. (1933) Cal. 260 .. . 179
Seixo v. Provezende, (1866) 1 Ch. Appeals 192 at 196 149
Se'thurama Sahib v. Chotta Raja Sahib, A.I.R.
(1918) Mad. 751 29
Shadi and others v. Ram Ditta, A.I.R. (1936) Lah .
. 842 (. ... 30
Shfiik~Niamat v. Shaik Jalil, A.I.E,. (1928) Cal. 715 30
Sheik Akbar v. Sheik Khan, 7 Cal. 256 20
SJ:ieo Karan Lal v. Bandi Prasad, I.L.R . 21 Pat. 778.
applied ... . 392
Shyam Mandai v. Satinath Banerjee, (1917) 44 Cal.
954 at 961 68
.Sin Tek';and another v. Lakhany Bros., (1952) B.L.R.
180 338
Singh v. Burma Railways, (1938) R.L.R. 641 204
Sirdar Gurdval Singh v. The Rajah of Faridkote, 21
T.A. 171. clistineuish('ld 371
Sr~ Rajah Ravu Venkata Mahipathi Gangadhara
Rao Bahadur Garu. Yuvarajah of Pithapuram
and another v. Province of Madras represented
by the Collector of East Godavari, Coconada,
A.I.R. (1947) Mad. 135 at 136 ... 145
Sultan Mohamed Rowther v. Moha~mad Eusoof
Rowther and others.A.I:R. (1936) Mad. 476 229
: - - - v. The King. (1947) RL.R. 337 308
Surat Lall Mandai and ot!J.ers v. Umar Haji and .
others, 22 Cal. 877 279
Swaminathan Chettiar v. VB. N. K. RM. V. RM.
Somasundaram Chettiar and others . A.I.R.
(1938)' Mad. 741. referred to .. . 375
T. C. Dhar and others v. T. L. Ghosh and others.
(1939).R .L.R. 514 ... , :326
.T. H. Khan'v. Dawood Yusoof Abowath and others
. . (1947) R.L.R. 354 .:. . 18.;3
 LIST OF CASES CITED XXI

PAGE
Taber Saifuddin v. Emperor. 58 Bam. 302 313
Tan Swee Kyu v. Chan Chain Lyan. (1947) R.L.R.
107. followed 407
Tha Nge Gyi and Maung Mya v. The King, (1946).
R.L.R. 229, followed 388
The All-Indian Railwaymen's Benefits Fund Limited
and another v. Ram Chand and another, I.L.R.
(1939) Nag. 357 167, 169
. King v. Maung Po and others, (1946) R.L.R~
4J 301
Narayanganj Central Co-operative Sale and
Supply Society. Ltd. v. Mafijuddin Ahmad, 61
Cal. 796 at 808 141
Public Prosecutor v. George Williams. A.I.R.
(1951) Mad. (1042) .. . 253
Queen v. The County Court Judge of Essex and
Clarke, (1887) 18 Q.B.D. 704 259
- Union .of Burma v. Ma Ah Mar, (1951) B.L.R.
1 (F.B.), followed ... 383
Tribhovan Hargowan v. Shankar Desai, (1943) Born.
431 98.99
Tukaram v. The King-Emperor and others, I.L.R.
(1936) Nag. 92, referred to 396
U Ba Pe and another v. U Ba Shwe and others,
A.I.R. (1933) Ran. 40 142
-- Ko Ko Gyi v. U San Mya, 8 Ran. 446 ... 326, 327
- Wa Gyi v. The Union of Burma, (1948) B.L.R. 652 305
United States v. Klein. 13 Wall 128 210
Veerappa Chettiar v. P. G. Sundaresa Sastrigal,
A.I.R. (1925) Mad. 1201 325
Vertannes and others v. Robinson and another,
I.L.R. 5 Ran. 427, followed 416
Vithalbhai Shivbb,ai Patel v. Lalbhai Bimbhai,
I.L.R. (1942).Bom. ()88, referred .to 373
Vitia Kamti v. Ka1ekara, 11 Mad. 153 : 257
Walvekar v. Enip.eror, (_1926) 5.3 -Cal. 11~ at -728 70
 GENERALI:.JDEX
OF

CASES HEPORTED IN THIS VOLUME

(H IGH COURT ).
ACTS:

AOAPTATIOl\ OF LAWS 0ROER, 1948.

ARBITRATIOIS ACT, 1944.
BURMA DIVORCE ACT, 1948.
- -- GENERAL CLAUSES ACT.
-IMMIGRATION (EMERGENCY PROVISIOI\S) ACT, 1947.
---INDEPENDFNCE AcT, !947.
Cll'Y CIVIL COURT AcT.
CIVIL PROCEDU i. E CoDE.
- - S U P PLIES :V!ANAGEM~.NT AND Ct>NTROL OllOEH, 1<;47.
CONSTITUTION OF BURMA.
CoNTRACT AcT.
CouRT F'EEs .AcT.
CRI'\{INAL PROCEDU!IE COOE. V""

EviDENCE ACT.
Gi':NERAL CLAlSES AcT AS AMENDED BY ..\cT II oF' 1945.
GUARDIANS AND \VARDS AcT.\./"'.

HIGH COURT TAXATION RULES.

INDEMNITY:AND VALIDATING ACT, 1950.

LIMITATION ACT,

MAJORITY AcT.
MARTIAL LAW 0RDINAl\CE; 19~8.
MOHAMEDAN L\w,
MUSLIM \VAKF VALIDATING ACT.

OPIUM ACT .

PENAL CoDE.

RANGOQ:-1 CITY CIVIL CoURT ACT .

SPEC~AL CRI!<fES (TRIBUNAL) ACT, 1<;v.

---Juqo~ s Act, 1946:
SPEC{FIC REL!~If AcT,.
xxiv GE\"E!VI!, U\Di3:X

PAGE
ACTS : (con.cld.)
SUGAR CoNTROL ORDER, 1948.
SUITS VALUATION ACT,
SUPPREZSION OF BROTHELS AcT.
- -.- --CORRUPTION ACT, 1928.
THE ' LIABILITIES (WARTDIE AOJUSTENT) ACT, 1945.
T~&'ISFER OF. PROPERTY AcT.
- -- -IMMOVEABLE PROPERTY (RESTRICTIO~) -ACT1 1947.
UNION CITIZENSHIP (ELECTION I ACT, 1948.
"
---JUDICIARY ACT, 1948.
vRBA:-1 RENT CONTROL ACT.
'WoRKMEN'S COMPENSATION AcT.
ABEniENT 251
ACCUSEU PERSON'S fl!GiiT TO HAVE DEFE:-ICE WITNESSES SUMMONED
EVEN IF TEMPORARILY OUT Or I~RACH OF PROCI,SS OF L.\.W 262
ACQUITTAL ORDER IN A TRIAL U:>WER SPIJ:CIAL CRU!ES (TRIBt;NAL)
ACT-Wf!ETHER API'EALLIES ... 114
ADAPTATION OF LAWS 0RDER,l9l8 DELETING THIRD SCHEDUL~ AND
S. 49 OF THE ARBITRATION ACT 1
ADMISSlO~ OF A' COUNSEL 136
ADVANCE, REPAYMENT OF, WHEN ArdSES 197
AovoCATI'.S-Objectio1~ to appeara11ce of advoeates-PriIZCij;les
applica.ble-W/t.ether advocate beiug cited a$ witness a bar to
appearance. An objection was taken by the plaintiff to the
appearance of S.T.L. as advocate for the orposile party. 'Ihe
affidavits disclosed that Mr. L had been assigned tl;le role of
mutual friend of the parties in the dispute, that he had thrown out
a suggestion that there should be an amicable settlement, that
the defendant later engaged the said advocate and that Mr. L
would probably have to appear in Court in connection v.'lth the
making of a particular Will ~nd Codicil and gift, if the plaintiff
thought it necessary to her interest. When the said Will was
produced forMr. L's inspection the pjaintiff might have said
many things which might have left an impression in h_er mind
that she had been di\'ulging secrets of great importance. Mr. L
was never professionally consulted in respect of the very matter
in dispu:e, nor was an' formal consultatiot:~ made in regard to the
validity of the Burm-ese Will producedfor inspection. 'The objec.
tion by the plaintiff was based on two ~rounds, vie. : (1) that the
advocate had hecorr.e pDssessed of information ol confidential
nature regat ding matters in dispute between the parties and (2)
plaintiff feared that this mi!(ht be used to her prejudice and that
wil_h reference to the validity of the Burmese Will which was
denied by the plaintiff, the advocate's evidence was ncrcessary.
Held: That the legal profession is a noble one and Advocates will
do .well tO' avoid any conduct which is.reasunablycapableof being
nlisunderstood. If a pleader advises or acts for- a client he should
not app'e ar against him in a subsequent proce~ding, if he feels that
he might even uncon;;ciously use the inforiiJatiorl gained from his
fo~mer clic:nt. It is_the dutypf. the legal practitioners to avoid
even suspicion that they ~nay possi~ly use information received.
 GENERAL INDEX XXV

PAGE
in their professional capacity against the client from wh om the,
received it. Pa'llonji Merw111zji v. Ka'llabhai Lallubhai au;l
on1, I.L.H-12 Born. 85; Maung .l!ya U v. Suu Siugh, (ll\9; -1901)
U.B.R. 3(>8 ; Damodn1 Venk:rt~s!t v. B1tavanislu1t1kar Mangeslt,
I.L. R.:?bHom.~23; Re. Crilts,(lt;67Jl6 L.T.71S; Mr . . . . v.
Tin BYu U, (1910-l3) U.Blt ~0; Rc~husetJ v. Ellis, Munda:/ and
Clarke, (1912) 1 Ch.D. 831 ; Mary Lilia1t Hira Devi v. Kunwar
Dtgbijai Siugh, 21 C.W.N. 1P.C.I 11.~7; A.I.H. !l92iJ Mad.
1201. referred to. The High Court cf Rangoon had held in
Marmg Seiu Gyi v. J. Mmzeckjec. 8 Ran. 44 and U Ko Ko Gyi v.
i1 Satt Mya, 8 Ran . ~6-that the Court will nut allow an
advocare to change sides if such conduct is likely to cause mischief
Or reasonable misapprehension in the mind of the late client.
Even if the party ref\lSC$ tn retain him in a case in whi~h he
would be eml>arra~secl in the discharge of his duty by r~ason oi
.such confidence reposed in him, he ought not to ;rp;'ear. To
prevent counsel from appearing he must have a definite retainer
with a fee paid or must have recci\'Cd such confidential informa-
tion which would lllake it improper for him to appear. Edna
May Olhia Hardless v. Harold Ri.:hard fla.rdless, A.l.!~. il932/
AIL 536; T. C. Dltar aut/ others v T. L. Ghosh aud others,
(19j9) R.L.H. 514, refer:~.d to. Object!on on tl1e ~r.,uncl that.
the advocate might be a witness in the case has receiYed judicial
attention in D. Weston and otllc1s v. Peary Mo!ta11 Das~. l .L.R.
-40 Cal. 898 at 900; S. B. Tltalwrain v. Mrs. F. A. S,ll'i, I. L.R. 12
Pat. 359; Moltumcd Gl1at i v. U Tun Kywe ll11d o!!ter.<, (1939)
H.L.R. 224; Veemppa Chetli,Jr v. P. G. Srmdaresa Sastrigal,
A.I.R.\1925) i\fad.l201. No positive rule was laid down inlhe~e
cases that the mere p;ospect of being called a witness would
disquahfy a coun-sel from appearing for one of the partie~. but the
advocates:s condc.ct must be guided by a proper appreci;~tion of
the principles of professional condrct approved and acc.:pted in
the various courts.
MA MYA SIN v . LWEE KIM HAN 315
AGE OF CONVERT 356
- - - VALID CONSRNT TO SEXUAL INTERCOURSE 379
AGENT-POwER OF, TO BORROw M_ONEY-Powerof-altortrey 110t
produced-S. 187, Contract Act- Wltetller cat~ be relred on-
DescriPtiO!! of priucipal as money-lender whether e111powcrs
borrow11!g-Ratification-KtiOulfdge of principal. The appel
!ant's case was that one Therumani Pillai as agent tnder a
Power-of-Attorney of the Respondent Nv. i borrowed money
from him \vhich was entered in the boO){S of account, cop;es of
which were sent to the pri::lcipals and the same had not been
challenged. The Appellants contended that the Respondents
are responsible dther as having r.atified the loan transaction or
the bu~iness being. one _of mo~ey-lending it is a necessary
incident for an agent to borrow money. Held: Thnt the Power
of-1\ttorney which would define the authority of the Agent had
not been produced and had not been shown to be in the posses-
sion or c~:stody of the Respondents. In the absence of the
production of ::uch <m authority the Respondents cai)Jlot be
made liable. Thoul<(h thu Respondents described themselyes as
mc.ncy lenders and the business pf a chettiar. is mor:eylending,
this does not mean that a business, like that of the Rtspondents
Could not ha\"e existed independently Of. f.he poW~fOfattorney to
borrow. Thoogh it may be tme that, the loan .f:1ken by the agent
was entered in the books o! account there is nothing to .show
xxvi GENERAL INDEX

PAGE.
that they reached the hands of tl.e principals. No Qutslion of
restoration of an till lawful t-en<: fit arises. Wh, re the agent was
acting beyond the scope of his po~' er, th ere can be 110
question of ratification as the princpal had no kt'owledge <>f
the a~cnt having acted in e1:-:l>s or his authori tv. K.S.A . V.
Chettyar,. v. Malt moo, 13 Ran. 87 ; P.1boodan Goola/;chancl v.
M. J. Mitlcr al!d nuotller, i\I.L.j. (1938) 688; Sultan Mal:omed
Rowtfzcr v. Mohammed E !tSOOf Ro!dher a11d otl:en, A.I H. (193()
Mad. 4i6, referred to.
L. N. L>.TCH UMANAN CHETTYAR FtRM v. V.M. F'JRM AND
OTHERS 22~
AGENT OF NECESSITY 59
' AGGRIEVED ;ERSON ", MEANil\:G OF 235
A~!END~UoN'r OF PUINT 136
AMNETY AND PARDON 2C6
- --,RIGHT OF-110\V TO BE EXERCISED 206
---ORDER P!JBLISHEO IN POLI('E II BRANCH NOTIFICATION
No. 370, DATED 10TH MAY 1\!50 OF MINISTRY OF H OME
Ar'iAIRS HAS NO LEGAL rFFECT 206
ANSWEH GIVEN IN CROSS- EXAMINATIO:-; A~O VOLUNTARY STA1'EMENT,
OISTINt.'TIO~ 390
APOSTASY 356,
APPEAl, FROM CONSENT ORDER 8:
- .AGAINST ORDER OF COMPENSAT[O~ fOR IN1URY SO
- AND'l\EVISION-ANAl.OGY 289
APPLICATION FOR COMMISS!O);-INTERFERRNCE IN REVISiON 4~

APPLICATIO~ I OK CO}nfiSSIOX-Disc.et i01~ oft rid C,lUrl-lltler.fcrcli c,;

it~ rc;;l'sioii - -S, 115 of tlie Code of Civil l'rocedure. Whether
a commission for examinaticn oi a witness should be issued or
not is a mat!c:r within the c\i$Crelim of the Court, ha1in~ regard
to the circumstances of each case. \Vhen the Lower Court has
duly considered the <:ircumtbnce$ an>l the law applicable, the
High Court will .not interfere, e\,en though the tlecision is
erron,e<>ut. Fut Chong " Maung Po C!to, i I.L.l-1. R;:n ~39 1
referr~<l to. "
Ill{S. U TH:AI{RAWADDY MAUKG l\lAU NG AGENCII>'S LTD. 'II.
S. M. BHOLAT 42'
ARBITRATION AcT, 1944, s. 39 12)- Appeal against an 01der -Filing a11
award. Held: That where the Jt:d;!ti refus.;d to remit the
award lo the arbitrators and orclercd it to be f.led, no ap1 eal lit:s
aga'n~t such an order. .
MUNICIPAL CORPORATION OF RA:-. G~ON V . T HE SOOR I TEE
.. 13ARA BAZA-~R. CO. ~TO, . 134<
ARBITRATION ~CT, 1944-S,; '49-Prouidmg for repeal and amen.d-
ment- Tiiirtl Sclledtt~e amending Article 178 of Limitation
Act-Titird Scfudule 'and s. 49 of tlie Act deleted py Union of
Burmn AdaPtation' of Lrzws Order, 1948-General Clauses Act
 GENERAL INDEX xxvi i

I'AGJ
.as amended by Act 11 of 1945-S. 5A of General Clauses
Ac(-Its effect. S. 49 of the Arbitrati~"n Act pro,;ide;; fo: rq>cat
and amendment of certain acts. The Third Schcclalt: of tht: Act
amcnted Article 178 of tJ.e Litr.itation Act. Cnion oi P....mna
Adaptation of Laws Order, 194i dele:ed both s. 49 and the Third
.S~hedu;e.. 'fhe question ref..,rrt:d I<) ll:e F\tll Ben;;l> was what
was the effect of deleting of s 49 an:! Third Schedule or Jhe
Arbitration Ac.t, 1 9~4. Hcltl : S. 5-A d the Cen ~ral Ciauses
.Act int.roducea by <nma Act II of 1945 specifically provides lor
the questicn ret erred to. \VJ1ere an Act or reguhtirn repeals an
enactmt:nt by which the text Jf any other enacrmen w<S amend
-ed by express o:nission, insertion or su stitntion of any qtalt<:r
:then, unless :t differl'nt intention app~ars, the rc:pc:al shall not
affect t~.e continuance of any such amcucfment mace by the
.enactment so repealed and i11 t>peration at the timed su:h repeal.
S. 5-1 of tile Gl:'neral CJ;ta: es Act embodied the gener;d ~'rincip~e
-of law that the amendnl~t;!, nnce it becomes law, forms part of
the original ena:t .n<:nt, I hat it lakes :r.e place of rhe prol'isiC'n ror
which it was sub;tituted, and that o:dinadly an amending act
.cotnpletes all its function once it is enackd ; and it can altcr
wards be repealed 1\'Jthnut c:ffecting tbe operatio, of the new
proviions, which the amc:ndit'g act lla!l introduce<' Thr.: pcri,l d
of limitation for tbe purpo' e requil ed is t,> b.: c:tb:l;tted in
accordance with Arti:le 178 of J;e Fir~! S;hedule (o !he Linlita-
tion Act as amended by the Third Sc'1edn!e of the Arti:tation Act,
IS'44. Kay v. Goodwi1i, (19J0) Bing. 576, referred to.
:0AW HNIN v. U KYAW A:-1 0 OTHERS(F.B.) 1

.:'\UCT!ON PURCH,\SER NOT A PERSON" \\'JiOSE INTERESTS ARF. A!'FF.ClED

BY THE SALE 11 162
AWARD, FILING OF- LIMITATION '101

BAlL 25i
SORROWING MONEY, POWER OF AGENT 225
BUILDING-0LO BUILDING FOR P.ES!DE!H! AL PURPOSE, WHETHER :-; EW
BUILOl!'W MUST ALSO BE RESIOENTIAL 3:4

.BUROEN O F PROOF 59
.<BURl!A DIVORCE AcT, 1948~Drcree nisi fassed by the High Courl of
htdicature-Atp:ication for cot:firruatioltio th't Higll Court afier
IndePendence-Burma lttdePmdence Act ,19-17, s. 5 (31-Retro~-
pective rffect of statute-Effect of coufirma 'io11 of daree nisi.
V. E. Cree obtained a decree1#sifor divorce againstJ. W. Cree on
21st December 1941 un.er the Inciian rnd Cokni~l Divorce ft;ris-
diction Act, 1926 in the High Court of Judicatu"e at Rangoon. On
20th Jul y 1950, the husb~n:l applied in the High Co:trt, aangoon,
for a decree al:s >lute. The questi<m regardin)! :tnlhorityto p.:ss
such a dec ee w.1s referred to a Full Bench. J.!tld: That undt:r s.
2 Of tht: Burma Divorce Ad, 1948, the High c-ourt was not
competent to make decrees of dissolution Of m :rriagc except
where the partie~ to the marriage are domici led in Burma 'at the
ti'me when the p.e tition is presented, J. W. Cree was admil(edly
not ~~) domicil~d- an1 he C.)uld not hav.! applied :mder the
provisions of t!ie Burma Divorce Act as it ~tood befort thcamend-
ment madft it:i .194lf... 'Cndor s. 5 (J:~ of the Burma I ndependence
Act, 1947 it is provided that if by the law. of Burmaauy enactment
:Specified in the 2nd schedule to the :Act is continued on or after
xxviii GENERAL INDEX

PAGE.
coming into force of independ~:nce. it is part of the law of Hnrma.
No such l<!gisl~tion had teen m::de to continue the provision of
either the India and Colonial Divorce Jurisdidl. n Act, 1926 or
the lnd~an and Colo:1ia l Divorce Juris1iction Act, 1940. It is a
settled rule of construction that retrospective operation is not to be
given ~o a sl;llt;te so as to impai existing right, unless the language
.,of the enactment req:dres it. As th e previous Div.,rce Acts of
1926 and 19~0 were repealed. the High Court in l3urrr.a has no
power to act under the previous Jaw. He. Athlumney, (189F) 2
Q.B.D. SSt' :at 5~2. refe red lo. Itis really the decteeabsolute
which should be considered to be the final decree in the Divorce
Act. The deere~ nisi does 1101 alter the status of the parties.
Hyman V'. Hyn:att and Goldmatt, (19)4) Law Repo:ts, Probate
Division 403 at !'106, referred to. Decree nisi passed under the
old )aw cannot therefore be con firm~d by the present High Court.
JoHN WlLLIA}f CREE V. VIOLET ELIZABETH CREE S>
BURMA GENERAL CLAUSF.S Acr, S. 13 38:.
BURMA IMMIGRATION (EMERGENCY PROVISION) ACT, 19~7-S.IJ (1 ) -
Sulllmary cont'iction-lmtlicati;ms an/1 mean:ng- Reference to
High Crmtrt irz pending appeal by District Magistrate. Held :
S. 13 (11 of B:rma Immigration Act is couched in difficult
language. "Surrmary convic.tion " nted in that section is not
defined in rhe Criminal Procedure Code. The definition given in
legal dictionary i~ ' a conviction before Magistrate withont the
intervention of a J ury " . Burma lmmigralion Act is a special Act
and there is r.o provision therein suggestinganydepartorefrom the
usual procedure pre~cribed by the Criminal Prccedt1re Code for
!rial of cases. In the present case the Magistrate who tried it
was not imested with special powers under s 260 of the Crimin:~l
Procedure Code but he c:iid try it a$ a regular case, thot!gb no
charge was fr:1med; this defect was curable under s . . 537 of the
Criminal Pracedure Code provided there is no failure of jstice.
The onl y interpretation lo be lllt on the term "S~:mmary
conviction " is that an offence under s. 13 (1) may be tlied
s~tmmarily. 'Where a Magistrate has not been invcsled with
snmmary rowers, he mu~t t.y the case in a regular wnv. Kiug-
Emf>e1or v Ma11ttg PoSaw,_13 Ran. 22S,referred to. A Magistrate
is not competent to refer to the High Conrt under s. 438 ,:,f the
C:imin31 Procedure Code a point of law actually arising in a case
before him. Re. Palaui Gownde11, 15 C.L J. 472, referred to.
THE UNION OF.. BURMA v. SfOHAMED . ESHAQUE AND
OTHERS 107
BURMA INDEPENDENCE ACT, 1947, s. 5 {3) . S>
CAUSE OF ACTION, MEA~JNG OF-MUST BE ANTECEDENT TO J NST11U
Tl ON OF SU IT 410
- - - - - - ' -- ARISING WITHIN TERRITORIAL LIMITS . .. 356
CHARGE AGAI~ST ACCUSED WHETKER. MUST BE QUASHED BEFORE de
nolJO TRiAL BEGlNS . , 394-
C.HEATJNG- DISHONEST IN'l"ENTION A PREREQUIS11'E 114
CITY CIV,IL QoURT AcT, S, 25 AND ORDER '22, RULE j (4) ()F CIVIL
PROCEDURE.90DE ... ... . 289
CIVlL PROCEDURE CODE, s . llS .. . 42"
--.,.--., 0 RPER 2; ROL.E 2, lLLUSTRATI~ (1) 344
. .
- -- - --, ORDJ!:R 47; -RULE .7 (1) 192:
, ~
 GENERAL INDEX xxix:
PAGE

CIVIL PROCEDt:RE CO!)E, 0RDF.R 7, RULE 11-Cause of ac/iou.

meauiug of-.4 sine qua nun /, ncuplam:e of Plaint. Helrl :
"Cause of action mean~ e,ery (act which, if traversed, will be
necessa ry for the plaintiff to prove in orc!er to support his right
to the judgment or the Cou rt. '.i'11e cause of action must be
antecedent to the instituti"n o1 the suit. Wh en the plaintiff files
his suit for any relief befoe he is enlitled to it. his suit is bound
to fail !or want of a <'ause o( a::tion. Order 7, Hule II in very
clear terms lays down that the plaint shall be. rejected where it
does not disclose a cause <>f action. In re V. K. P. Chockatiu-
gam Ambnlam v. Maung Trn aud others, l.L.R. 14 Ran. 173 at
185, referred to.

U Po THI AND ONE 11. MAUNG KYAW StNT 410l

CrVIL PiWCEDURE CODE, ORDER 21, !<ULE 2-lls true irlt,rpr.:tatiou

-Margi11nl uote of au Act when can be rcferr~tl to.
Held: Owing to the c.;onBict of opinion on the interpretation of
s. 258 of the Code of 1877 the words 'of any kind' was introdt~ced
into the se.:tion and the section was r .:-enacted as Ord.-r 21, Rule
2 of the Code of Ci\ il P rocedure of 1908. If a dtcree pro\-ides
for payment of money as well as for other relitfs it comes within
the ambit of Order 21. Hule 2 of the C)de of Civil Proced1re but
this rule does not appl y when no money whatsoe' er is pa vablt:
un(ler the decree. Costs awarded by a decree must als o be
deemed as money payable under the decree ; sit can be satisfie.I
by payment into ('oJrt in the manner lai:1 down in Order 21,
Rule t ( AbdulLnti!f Sahib and . nctlter v. Bathula Bibi Ammnl,
A.I.R. (1914) M?d. 360: Stthtlrama Sahib v. Chotta Raja Sahib,
A.I.R. (19H) Mad. 751 : Narayanasami Nnidu atrd o/lrcrs v.
RungaS'Uinnzi Naidtt and ot/rers, 49 Mad. 716, follower!. Ellis
Enas Pavlo Charry v. Kilter Pllilip Gowrya twd allot her, 46
Bom. 226 ; Sltaik11 Niamat v. Shniklt Jatil, A.I.R. (1928) Cal.
715 i Slladi an.tothers v. Ram Dtll , A.!.R. (1936) Lah. 842, not
{ollowed. Baba Mohamed v. Webb, 6 Cal. 786: Sankaratz
Nambiar v. Kanara KurttP, 12 Mad. 182 referred to. Marginal
note may be referred to in aid of interpretation ; though it forms
no part oftl1e section. it is of assistance inasmuch as it shows the
drift of the section. Nicholso11 v . Fields, (1862) 31 L. J, Ex. 233;
Bushellv. Hammond, (1904) 13 L. J. (K.H.) 1005 at 1007, followed.
A, DIVAN v. DOST MOHAMED

CrvtL PROCEDJRE CODE, ORDER 22, RULE IZ:_Notice tinder-

Defect wllich goes to /he root of Jurisdidiou-Etidence Act,
s. 114-PresumPtion as t o regularity of official act-When arises.
On the 28th Nuvembcr 1'' 29 Respondent obtained a decree in the
High Court of Judicature at Rangoon against H.M.A. Rahim who
died. On the 9th July 1941 the decree-holder applied for
execution and the records were lost during the war. In 19~7 the
decne-bolder applied for r econstruction Of Civil Execution
No. 175 of 1941 said 19 be pending at the date of evacuation and
reconstruction was ordered. Aft~r reconstruction and permission
to execute the decree had been obtained the decree-holder applied
for sale of the pTopertr. Held: The application {or execution
of the decree having been filed in 1914, within 12 years was in
time, under Article 183 of the Limitation Act: The only question
that <1-rose was whether notices to the j~dgmentdebtors mu~t be
held to have been issued as required Ul)der. Order 22, Rule 12 of
the Code of Civil Procedure. Such a notice is essential to.give
.XXX GENERAL INDEX

PAGE

jurisdiction to the C.mrl to order execution. Sltymn liJ,wdal v.

Salin.ath Bane1}ee, (1917144 Cal. 954 at 9ol ; Rag/mll(r/lt Das ".
Sundar Das Kiletri, (1914) 42 Cal 72; Gop.tl Cliunde!' ,.. Guna 'llam
D.:si, (18J21 20 Cal 370; Sahdeo Patuiey v. Ghasiram, (18,3) 21
Cal. 19~ p.,rashram v. B,dmukuml, (19081 32 Bom. :-72, rdc::rrc::d
to. Then:: is 1110!hing in t.he r.co d to show that.s.ICh n tices l~ad
been issued. Thci ~sueof s .1ch notices cannot be presun:ed havtng
regard to s. 114 of Evidence Act. It is for the person who all:ges
that the liability has be<n inc:urred to pro,e that the con:llttans
p:escribed in the Act had been actually done. There i; no
p-esumption in law that any particular act had been done.
Narenda Lal. Khan v. Jogi Hari, (19J5) 32 Cal. 1107 at 1 t2l ;
Walvek$r v. EmPeror, ( 19261 53 Cal 718 d 728: Asl.a.tullaft. v.
Trilcclt.anBagchi, (Hl86) 13 Cal. 197, referred to.
AHMED MURAD V. M.A.L. CRETTYAR FIRM .. . 66
CIVIL PROCEDURE CODE, 0RDER . 21, HULE 9Q-Witose"inte1est ''
affected -by s.tle-Meaning of the word-Whether includes att
auct iOnPttrchaser - Rule for the interpretation of >tatutes-Court
sale-Mis-rety:esemalt011 w!:et her material fact .. H<ld: Auction-
purchaser is not a person whose int.:1ests are affc;.cled by the
sale" within the meaning of Order 21, Hule 90 (11 Code ot Ci~ il
Procedure. K.V.A.f-. Cltdtyar Firm v. M.P. Maricar, ll'J28)
I.L.R 6 Han. 621 at 622 ; Baidyanatlt Mullick v. Sm. Rad t arani
Dassee,( 1945-46) C.W.N. 394 at 397 ; Kiram Bala:d!talta v, Suniti
.Brabhd Shalta, t19.\9) Vol. I, caL ~eries, 373 at NS; Ni/t.al
Cha1-1d Gopaldas -:. Prilam Singh attd.another, ( 1932) 14 Lah. l ;
Halkrisltna .Waman Kh.w!.'ar v. S:t kharmn BabtJ.ii Mestry, (1936)
~0 B,ml. 7J; Kalum tl Tolatau v. Ahmad Nitr Mahotn!ld, .A.I:R
(1931) Sind 107, followed. Ravi11anlan P1asad v . J,,garnatlt
Sc~ltu and Afudllia M;d otltcrs, J.L.R. 11925. 47 All. 479; Blimi-
risetti Gopalkrislm 1yya v. Pa.kanati Pedda Stu,j.eva R<'ddy and
another, ,\,l.R. (1 920) Mad. 145; Mahade.J Ram v. Raja Molzan
Vikaram Sa!t. I.L.R li933J 12 Pat 665 ; The All india Railway-
mett's Bttzefit s Fiwd Ltd. aftd one v. Ra111 Cit and and tmotltcr,
I.L.R. (1939) Nag. 35 ; L. J/11mgi Ram v. L. Ram Sar,;n, .A.l.R.
U944) Pesh. 42. dissented !rom. It is quite proper and rcason-
able to examine .earlier decisions or p:evios Iaw relating to the
sa111e or s'mil~r subject-matter, in order to clear up any doubt
which might ar~e in the con~truction of an existing provi~ion
of an Act MncMillat. v. Dent, 11907) 1 Ch. lOi at 120; Craig's on
Statutes & Laws, (1936), Ecln 87, followed. In sales under the
direction of the Co;trJ lt is incumbent on the Courtto be scru-
or
pulot1S in tbe extr.:me a~d ver~ careful to see that no t:iinl to.,ch
of fraud or <i~ceit or misrepresentation is found in the condl!Cl
of its mjnisten. The slightest sus;Jidon of trickery or unfairness
must affect the honour of the Court and impair its usefulness.
It would be disastrot:~. an:i absolutely ~hocking, if the ('onrt
were lu enforce against a pur;:;haser misled by its dulv :tccredited
agents a. bargain so ill ,;so7y a, d so nconscientiotis as this
Maltomrd Kala Mea v. Harpcriuk ond'others. 11908-09) 36 !.A.
32 at 37: A.M. Has/tim Jsp.'talta 'Y " N.A.P.K. C!tettyar Firm,
{1915-16) 8 L .B.R 427 at 431, followc:d. Where the auction
purchaser "~as misled by the Bailiff of the Court into believing
.that the propertis belonged to the j~dgment-debtor and that
there was no encumbr tnce, and botli the statements were found
t .().beincorrec.t .the saJe.sho'ld be set aside, \1\l'hen a pu1:chaser
at a Court auction is not a citizen of the Union Of B urma he has
. ~o right to p:rirchase immov<'able property. Under $. 65 of the
Cod.e of Civil Ptocedure au'ction-purchaser will' be ' cteemecl to
 GENERAL INDEX XXXI

I' AGE

h:l,e a:qui retl interest in the i lll mo,eable pr o;erty porch;; sec! by
hi m from the date or the auction sale. Iu otJer words . by reason
of the pro l"isions of s. 65 the title in t he property rel ate~ oa.:k
from the date of the sale and if the purch~ser be a non-cit:zen of
the Cnion of 13ur~na, the sale would be YoiJ.

GOR KY!N .SFIN 1. u ' KYAW DIN ' AND OTHERS 162

( fl'/1, SUPPLIES MANAGEMF.NT AND CONTROL 0RDF.R, 1947 114

\,;OT.LlSlON BETWEEN TWO LORI<IES. NO P RESUMPT ION THAT E!TfiER
DRIVER WAS lUSH OR NF.GLWF.N'f 331

,
; Cor.OURABLE l)l!TATION-WHAT IT IS
.
<Co mUSSIOM, APPLICATION FOR
136
42
.CO~DfiSSIONER UNDER WORKMEN'S COMPENSATION ACT, MEANING OF :lJO
I
'
: - - - - - HAS NO JURISDICTION TO iSSUE COMMISSION t:NDER
f. WORKMEN'S COMP&NSATION AcT 203
k oNF.ESSION 385
i
- -- - - - O F ACCUSED RECORDED IN THE HF.ARING OF EACII OT.HER 282
;
~-----RETRACTED, EVIDENTIARY VALUE 282

~CoNFESSioN-COnvictiou ~nde1 s. 302 (1 , (b), Pe11al Code reatt with

' s. 34 - Retracted cMfcs.<~-Evidwliary v11111e-Recordiug of
confes>iOII by Mtlgistrates-Necessity for remota/ frvm
Police wfiuence-Recording of coujessio,l of accused in the
hearing of each otlte1- Gaps i11 Prosccutio11 evidence- Duty of
Prosewtion. Ap r ellants were convicted by Ute Sessions Judge,
Hanthawaddy sitting as a Special Judge . . The conviction rested
upon ctnfesslon by <:a<"h of the appellants and circurr.stantial
evidence of the conduct of the accused, wh0 were said to be
running away in a paddy field a mile away, half an hour after the
occurrence and the seizure of a dagger from the !\ppellant Maung
Tee when caught. The confessions were recorcted by a Magistrate
and llie 2nd accused was in a p .sition to hear the first confession.
Thev were placed before the Magistrate from Polic'! cust 1dy and
takEn back to Police cusrody. Held: That though an accuserl
p~rson can be lawfully convicted on his own confessll:>n even when
it bas been retracted the court must be satisfied of ts truth and
its voluntarincss. The accused had no mind to make a confession
and it was rea:;onahly clea: they did so to escape ill-treatment
which they thought they were bound lobe confronted with. It is
not in dispute that the appellants were taken back after llie confes-
sions were made to Poli.:.e custody and they were in the same room
when confessions were made by each of the appellants. The
confessions were therefore not voluntary and were recorded in
an illegal manner and no weight should be given to it. Bltagwmz
Din and others v. Emperor, A.I.R. (193-t) Oudh 151, referred to.
The incriminating pieces of evidence did not connect the
appellants with the commis~ion of the crime. There was no
evidence thatany one ~based. the culprits from the spot where
the murder was _committed to :the sce.oe where they were seen
running away nor was there evidence to suggest that the dagger.
recovered was used if! coromiltiflg _the murder. The gaps ia

5
xxxii GEN:ERAL INDEX

PAGE

the prosecution evidence had not been filled up and it is not for
the defence to supply such gaps.
MAUNG NY! AND 0::-IE v. T!~B UNION OF BUR.MA 2!!2
CONFESSOR TO BE REMOVED FROM POLICE INFLUENCE 282
CONFLIC'fBETWEEN I NTE!l~ATIONAL A !'ID MUNICIPAL LAIV 356
CONSIDEUATION, MEANING OF 32
CONSTITI!TION OF BURMA, S. 60-Right of anmes;y I101CJ to be
exercised- Dislittction between amnesty and pardon;- Princi-
ples on which it is based- General Clauses Act as amended by
Act XI of 1950-Ss. 21 (1), 22 a1uL 63 of the Co:Js /itutton-
Principle Ott which punishment is to be infticlcd- S. 562 (1),
Criminal Proc~dure Code . Held: Th 1t a notificatiou iss ,ted
by tbt: Gover;ltnent of the Union of Bnilna, Ministry of
Home Affair~, Police II !:!ranch Notification No. 370, dated
lOth May 1950 is no more lh?.n a promise l.>y the Government
not .to take any action against those who s .1rrender in terms
thereof and bas PO legal effect unless it has been implemented
hy an Act of Parliament. The word "pardon " includes
Amnesty. Burdick v. Unitet.l States, 136 U.S. 79 ; Knote v.
UmtedStates,95 U.S. 149, followed. Amne~ty . is a mo::lified
form l>f P.lrdon and may be granted before or a{te> a conviction.
There is nothing in the Cunstilution whi::h pr hibils the
Presiden) frOm cxtending a general pardon to offenders or
classes of offenders so long as it is known that thev have
committed offences punishable under the penal law 'C)f the
coun'try. Uncer s. 63 of the Constitution the powers and
functions conferred on the Pr<Sident by the Constitution shall
be exe-rcisable and performable by him only on the advice of the
Union Government save wh~re it is provided that be shJ.llact
in his own discretion and s. 60 which vests the right o pardon
in the President does not prodde that in exercising this right h e
shall act in his discretion. Th( refore the right Of pardon is only
exercisable on the advice of the Union Government. Though
s. 13 Of the General Clauses Act as amendt:d by the Act XI of
1950 enacts whereby an Act of Parliament or by any exi:::ting
law as defined in s. 222 of tl1e Con~titution any power is
conferred or :tny dJly imposed 0:1 the President of the Union,
the power shall be exercisable and the duties performable in his
name bY. the Government. But the power conferred on the
President by s 60 is not a power conferred on him by any Act
of Parliament or by any existing law. S. 121 (J) of the
Constibtion provides that all ext!cutive aetion of .t he Union
Government shaU be expressed to be taken in the name of the
President btlt t his does not rr.ean tl)al all acti<'n taken in the
name of the Presid;nt are iPso f acto exeCl~the actions of the
Union Government ass 63 of the Co:-stitution makes i t clear
that .tht: pvwers conferred on the President by the Constitution
shall t.e exercisable and periormable by him though of course
only on the addce of the Union Government. All execu.tive
action of the Unicr. Government m ust be in the name of the
President but all action taken in the name of the President are
not necessarilv executive actions Of the Union Gov~rni:nen t.
The A:nnesty Order is nothing more Uian a promis e by the
Government not to take an y action against .thos.e who
surrendered and as such notcognizabJe .by Courts of Law llnless
and until. the promise. contained ther.eh .is impletr.c;nt ed by an
ac_t o Legislature, Where the m?.in offender lias not been
prosecuted but has bee n allowed to serve the Goyernment the
 GENERAL INDEX XXXlll

C<'urt w~::icl be j tsti :led i n cxer~ising the powers und('r s. 562 t ll

of the C imina! Proce,l trc Co~! e. A a offence of theft cannot be
obliterated by I he sab~o:qtt cnt restitution of p~operty.
THE l!NI0:-1 OF Blill~iA v. 80H SEt:-1 TUN 206
CONTRACT ACT, S. 187 225
- - -- ----, SS, 172 AND 176 254
Co:-~rRACT AcT, s. 2 - Co11std.:rcr/lon-Mc miug of - \\'here a docu-
ment was exculecl by a snn and widow 0f a deceased per~on in
C)nStderation of certain debts du! by the deceased and the recital
did not show the creditor promised to give up any right, i.e., t o
do or abstain from doing anything. Held :That the do:.:uwent
was without consideration. Tne principle about settlement of a
disputed claim or forbe;uance fro:n suing has no application in
the p :esent case. Gul,,b Clz.md v. Kam:!l Smgh and rmdher,
I.L.R . 44 All.424; DebiRadl1a Rani v, Ram [)ass, A.I.R. (1941)
Pat. 282, di~tinguished .

MAUNG PAR (a) MAUXG PASI (a) MAUNG :MYO NYUNT t l .

U TUN HLAING A~D ANOTHEH ... 32
CONTRACT AcT, s. l:l9-.4.getll of necessity-Looting--Burden of
proof-Ratificatiot~. Respn.tdents ex, cutcd a promissory..note in
favour of Appellant whose agent l efl Burma before the British
P-Va;ualioo and no one \\'as appointed to look after t!;e affairs.
The 2nd defendant cl aimed that by payment of Rs. 1J ,000 on
1st September 1944 to one Veerappa Chet!yar the claim was satis-
fied and contended that Vcerappa Chettyar was an agent of neces-
sity. Helcl :That tlle authority under s. 189 of the Contract Act is
one granted by the law to a person acting in a partic:llar
transaction. s.,ch a person is not an agent e.'l: coutrac/'11 R.M.M.
R.~f. Perichit~PfaCheltyarv,KoKyawThau,ll9~9) B.L.R. 64
at 70, referred lo and followed. Ac<:cptance of Japanese currency
from the 2nd defendant could not be said to b(' a transaction in
the interest of the firm or for its benefit especially when there
was an endorsement of interest on the 1st April 19H and no
apprehension of the claim becoming time-barred. \;l,1hen
defendant relied upon a statement of fact that the paddy belonging
to the Appellant firm had been I<)IJted the burden of proof rests
on hinl and it had uot been sa~isfied in this case. No evidence
had been adduced in this case from whil'h an inferePce of
ratification could be reasonably made.
S.K.A.R.S.T. CHF.TTYAR FIR~! v. P.S.A.:P. ALAGAN AND
OTiiEI<S 59
CONTRAVENTION OF S. 193, CROIINAL PROCEDURE CODE Rt:NOEHS
TRIAL NULL AND VOID 381
CONVERSION, WHAT AMOUNTS TO -~74, 356
CO-<>WNER StiiNG A StRANGER IN POSSESS\ON AND CI.AJMIXG HALF
SH ~RE, WHETHER LIABLE TO llE DEFEATED AS FOR PARTIAL
PARTITION 344
COSTS, O!WER FOR-WHETHER CAN BE CHALLENGED IN EXECUTION 74
CouRTS AcT, 1950, s. 22 ... 45
COURT FEF.S ACT, s. 7 (4) ... 136
-SALE..,,
- 162
xxxiv GENERAL lNDEX

PAGE
CRIMINAL BREACH OF TRcsr-DISHONEST INT.I!NTION A PWE
RRQUIS!l'E 114
- - - - N ATURE OF Al:T AT THE "!"lME OF TRUL A:-10 THE CHIMINAL
N'ATURE OF ACT AT THE TIME OF ITS COMbnSSION, KKOW
L"Et.OGE OF-DtS1J:,(CTlO:-l 397
- - -PROCEDURE CooE1 s. 193GOVERNS METHOD OF 'rAKI:>~c
COGNIZANCE OF OFFENCES BY SESSJOJ);S
AND ADDITIO!\AL SESS!Ol\S COURTS . 381
- - - - - - - - - - - , s. 25, 331
- - -- - -- - . s. 257 (1 ) 262
---" I$, 417 114
1 S. 19!! 235

- - - - - -- - - . s. 562 (1) 206

- - -- - -- - - - --, s. 196 ; SANCTION UNDER 83
s. 4'38 ... 104
CllJMHIAt.. Pi<OCii:DUUE CouE, s . 341- Trial of Persons deaf or dul'ub
or insane-Correct procedure t .> be adopted by trial Court-
Fwding that ac(;used umlersfands 11ature of procceditzgs a11d
crimit'al character of act must be rccordetl before COII'IIicliott-
Distinction between tltldetsltrtLding the criminal 1'nttwe of tl~e
act at th~ lime of the trial and tfJe criminal nature of the act
at tlze time of its commissiott -Whethet an offence Puttislla ble
u11der the Penal Code has beetL committed must be decided by t he
rule emmciat ed i n U Damapala's case. Held: It was wrong on
the part of the Magistrate to have proceeded to pass sentence on
the accused when s. 341 of the CriminalPTocedure Code provides
that when <.:nquiry or trial results in a conviction, the proceet!ing
shall be forwarded to the High Court with a report of the
circumstances of the case for that Court to pass such or der as it
thinks fit thereon. It is essential for the Magistrate before
convi<:tiing the accused to record a finding !hat he had sulncient
;ntelligence to understand tl"te criminal character of his acl and
he nature of the judicial proceedings taken against him.
Emperor v. Gtmgal A.l.R. (1930} Lah. 64, referred to . Held .-
Normally, s. 341 of the Criminal Procedure Code is intended to
provide for cases where the accused is unable to understand the
proceedings through.deafness or dumbness or ignor;.111ce of the
language of the country and,i$ inapplicaRle where. the inability to
understane\ the proceedings arises from unsoundness of mind.
Emp ress v. H-usen, I .L R. 5 Born. 26'2 ; Queen-Empress v. Somit
Bowra, 27 Cal. 369, referred. to. Held furl her : As observed in
King-Emperor v. [ Damapala the test is not whether the accusei:i
has proved beyOhd all rea~onable doubt that he comes within
any of tihe exceptions to the Penal Code but whether there is a
reasonable doubt in the case for the prosecution whether the
accuse4 had cOJ:nmitted an oli"enc~ punishable under the Penal
Code. ln the circumstances pbtaining in the case, reasonable
doubt seems to exist.whether the accused wassane"enough to be
. capable of kn9wip~'the natu}.~ of his act or that he was doing
. what was either w,ong. or contrary_ to law. Ki11g Emp:ror y .
.U Damapala 1 I.L.R. '14 Rart~-666. followed.
397
 GENERAL IN DEX XXXV

PAGE
CRIMINAL PROCEDURE CODE, s . 350-Wircther /he trc~tous elL trge
agaiusl the accu,ed n11~l be IJII:rslzul before cotumcucrmttn' of
de novo trial. . Held : 'When a Magistrate exercises hi~ op.ic-n
Wlder s. 350 10 of the Crimintal Procedure Code of startiJl),! a
de trovo tri al and does not merely rehear the witnesses to the
extent demanded by the accused, the previous char;!<: is nv
longer in force and there is no need 10 quash it. Tulw1'a:11 \',
Tire Kit~&Emperor aurl. ot11ers, l .L R. (1936) Na~. 92, referred to.
THE UNJO)I OF BURMA v. USA\\' LWIN AND OTHERS 394
CRnllNAL PROCEDURE CODE, S. 412-P/en of gui/ly-Appeal ag(lins/
extent of smfcllcc-Rape-Pwal Corle, s. 3i6-Age of talid
consent. Held : The offence was rape only because the gir1 \\'as
13 years of age, the minimum age :~t which a girl can consent to
sexual intercourse with her bcinj.! 14. T11e circumst ances
obtaining in the c:~se are liUCh as to indicate that she \\'il~ a
consenting party. She was on terms of intim;rcy with the
appellant being his pupil. She admitted receiving presents from
him. After the alleged rape she did not tell her mother about it
till about seven days later. The sentence of seven years erred on
the side of severity.
Po SAW (a) SAW MAUNG v. THE UNIO~ OF BURMA 379
CRIMINAL PROCElURF. ConE, S. 43.' -AJ>Plicalion f<Jr rev1sion before
Sessions Judge-Dismis.erl / .Jr def,mll of apj:earmue- ProPridy
or C'J,ecltzess of Order. Held: Even if the applicant or his
advo~atc does not appear, it is the duly of the Sessions Jud!!e
to peru~e the Lower Court record and satisfy htmself as to tht:
correctness, legality or propriety of the order soul!ht to be
reviewed, a nd must dispose or the application on it s merits.
Held further: When a Criminal Appeal or Criminal Revision
petition is dismissed for default of appearance, there is no
decision on t he merits, and thert: is no proper disposal of it
according to law ; the o~der of dismissal is not a judgntent.
Kurzllammad Haji , I.L.R. 40 Mad. 382, refer red to.
B. K . HALDER v. s. K R. C HELLIAH PILLAY AND OTHERS 340
C ULPABLE H OMICIDE 91
DEAF, DUMB OH INSANE PERSON, TRIA L OF 397
DECREE ttisi-E FFE CT OF CONFIRMATION 53
- -- - PASSED BY HJGH COURT OF jUDICATURE AND
APPLICATION FOil CONFIR~UTION AFTER lNOE I"ENOENCE 53
D EFAlJAT!ON-S. SOO, Petal Code-Answer giveu cross-, xw,ina-
i 1;
Uou as tf.is fit'guished {rom a volutJlary statemeut -l'ri'Oilege of,
whetfre r absolut e or qualified-$. 132, Evidence A ..t-Ninlk
Ext:tptiou, s. 499, Pennl Code. Held: A witness is bound to
an~wer all relevant ques.tions even though the an.;wer may
criminate him. An answer so given is one which the witness is
" compelled to give" within the meaning of s. 132. Evidence Act.
Except for the offence of perjury he will not be liable to any
prosecution for making that statement. Elatart hi F<Uldabba
R eddi ,v. Jyyala Varada Reddi, I.L.R. 52 Mad. 432, dissented
from. Slzeo Karau /,al v. Bartdi Prasad, l.L.R. 21 P:~t. 778,
applied. Held f urther: As there has been a great deal of
litiga tion between the parties it would be safe to presume that
the remark~ . were made by the respondent bona fide in ,the,
protection o. 'his own interest. and as such he w<~uld also be
pr<tected by 'the Ninth ~xception to s. 499 of~~~ Penal Code
SURYA,Nli.TH S INGB v. SHlO K ARAN SI NGH - ~90
xxxvi GENERAL INDEX

PAGE
DEFAMATION OF W!FF., WHF.Tfi1~ HUSBAND CAN FILE ClniPLANT 235
DEPENDENTS<>F WORKMEN, l'\ECESSITY FOil DECISION 230
DESCRIPTIVE WO!W LOOTiNG ORIG!NAL~IEANING 245
DESCRIPTIO~ OF OFI''ICER OETEI~MINES THE CAPACITY Il'\ WHICH HE
'TillES THE CASE 381
DUTY OF PROSECUTION 397

EARNING CAPACITY- LOSS OF-BASIS OF CALCULATION 30

ESTOPPEL AG\IKST TEN -\NT .... 413
EVEl'\TS SUBSEQUEI'T TU IKSTI1'UT10l" OF SUIT MUST ALSO BE
CO:\S!OERED 356
EvmE)1CE AcT, ss. 25 AND 27-Confession-Value and admissibility
of Matemettls 111atlc to tl;e Police- Statcn~ent accomtau;, i11,g
disc-;vcry aml statentettf leading to disror ety, cotttro;t. Held :
A state1nent which admits a sub~tantial p01 tion of the facts wi.ir.h
cvnstitl!te the offence with which the appellant was charged is
a confession and having been made t., the Police is inadmissible
in e\'idence 11nc'er s. 25 of the Evidence Act. 111cttttt~ 'flan mzd
others v. TheKi11g, (1947) RL.R 371, followed. Held further:
S. 27 of the Evidence Act is inappl icable as statements alleged to
have been made ~y the. appellant are sta1ements which acco:n-
panied the discovery of the bundle containing the contraband and
did not lead to it~ discovery. Tit a Ngt G;,i a;:d IJfaung lJ1ya v.
The King, (19~6) R.L .R. 229, followed. Held also . There being
no other prcof of ownership a conviction for illegal posses~ion
cannot be sustained. lola EitJ Tlta and 01ze v. Ki1tgE111Peror,
5 L B.R 131, referred to.
SOBIKA R AHMAN tl. THE UNION 01' BURMA 385
EVI'DENCE ACT, s. 116-Es.tof>pcl agaiusf twa1lt-Gtfts of i111n:o~:t;
able trope,ty without re,;isferecl deeds Tenant o( origmal otcmn
atlorncd to s1~bseqnwf douces. Held: Althouj:!h Maung Aung
Thein had been in possession of the suit la~ds, his status was
never that of an ownet , but all throughont at different times he
had altorned himsl'lf as tenant to the original owner Daw Oh,
secondly t9 U Thuseilta and thirdly to U Yewada. He is
estopped from denying the title vf the r laintiffappellant.
Vertamtes and othtrs v. Robimot~ and another, I.L.R. S
Ran. 427; Dayalat' an<l Sons v. ko Lotz and one, I.L.R. 6
Ran. 657, followed.
U YWAOA v. M AUNG AUNG THEIN AND ONE 41$
EviDENCE !\CT, s. 132 390
- --- - -..s.114 66,350
. OF Di:-LIVERY OF POSSESSION WHS RE SAL!; OF LAND IS
FOR Rs. iS .,; 96
EXECUTION OF ,PROM1SSORY-N0'TE-Proniisicrynote not duly stamPed
aud so it~adm!ssil:Te in eiJid etzce- Right to f.all back OIL Hz e
origittal consideration. In settlement' of !.Doney. due o.n P,artn~l'
ship aceounts t.h e defendant execut~!la proinissory-note in favour
of the plaint!ff and that promiss'o ry-note was insufficilintly
stamped and as such we.s inadmissible in evidence. P laintiff filed
a st>it on the original considet:ation an~ defendanl.contend~d th!~-t
 GENERAL INDEX xxxvu

PAGE
the rights of the pl:-tintiii were restricted to the promissory-note ""d
as the promissory-no1e was inadmissible the suit sl10uld be
dismissed. Held: Tlnt the ques!ion whether plaintiff's right is
restricted to the document in question alone.and nothing else,. -is
a qaestion of fact to be determined in particular circ-. mstances
obtaining in a case. Where a promissory-note states tl1at it was
given in payme~tt, for instance, of goods sold and delivered or
for money due as here lor a sh:1re in partnership, the presumption
would be !hat the promissory-note was given by way of condi-
tional payment ; in St;ch C:IS~S the frOmi~sory-nOte not having
been paid on demand it may be treated as dishonoured and in
that case the original del:>t would redve giving right to plaintiff
to fall back upon the original con~ideraticn. Mmmg Chlf'and
auother v. Ros!ta~t N.il1 ..~. Kareem Omer Co., I.L.R-12 Ran. 500,
followed. RnmasamiPillai v. M14rugiah Padayachimzdauother,
I.L.R. 59 Mad. 268, distinguished. Sheik dkbar v. Sheikh Khatt,
l.L.R. i Cal . 256; Na:ir Kltan v. Ram .Vo!tan, I.L.R. 53 All.
114, not followed.
~~ .R. ARUMUGAN CHETTIAR fl. A. MUTiilA CHETTIAR 14
FATHER'S CLA!h! fOR CUSTODY OF MINOR ILLEGITIMATE CHILD 406
FINDING THAT ACCUSFD UNDERSTANDS NATURE OF PROCEEDING AND
CRD!I:-!AL CHARACTER OF ACT MUST BE RECORDED 397
FOR~IAL ORDER IN WRITING BY RENT CONTROLLER GRANTING PER
)!I$SION TO 1)\'S'riTUTE SUIT, IF NECESSARY 47
GENERAL CLAUSES AcT, s. 5-A 1

- - -- AS AMENDED l!Y ACT XI OF 1950 206

GIFTS OF IMMOVEABLE PROPEllTY WITHOUT REGISTERED DEED 413
GuARDIANS AND WARDS ACT, S. 25-Cusfody of mitwr illegili111ate
clzild-Leg.1l claim of f,1fher-Pnramottttf C01/Stderation the
interest and welfare of file mine>r. Held: It is the interest and
welfare of the minor which should h::ve paramount considera-
l!on. The rights of guardianship under the law to which the minor
is subject or on the ground of propinquity must be assigned lo a
subordinate position. Tatt- Suee K_yn v. CllatJ Chaitl Lyau, ( 1947)
R.L.R. 107, followed. Jlelct also : The father of an illegitimate
child cannot be said to have a legal claim to the custoc:t.y of such
minor. Matmg Mjo att.d otte v. Matmg Kya;z., 8 L.B.R. 415,
referred to.
U MAUNG MAUNG v. MA AYE Bu ~ 406
GuARDIANS AND WARDS ACT, S. 25-S, 47-tl.PJ>ealftOttiCOnSetz/ order.
Held: For the purpose of s. 25 of the Guardians and Wards Act
a child must be deemed to have l?een all the lime in the custody
of father. Even thoug!l tte child all the time was living with
mother and. on mother's death went to the custody of the
petitioners yet ~ - 25 applied to such cases. Mautzg Zaw v.
A-fatmg Hla Din, I.L.R.12 Ran .. 161, followed, No ~ppeal lies
against a consent order, When ti1e quc:stion of custo:ly of
a minor child comes before the Court the paramount considera-
tion must be the welfare of the rnjnor as a whole. The Cou'rf is
not so nl!:ch concer~ed with the feelings cf parents and natural
guardian ;.s with the proper welfart: Of the minor. When an
order fOr the return 'of the minor to the custody of the father is
based upon a compromise between the contesting parties it cannot
. xxxvii1 GENeRAL INDEX

PAGE

be assumed that the order is necessarily fOr the real welfare of

the minor. The compromise may be collusive between the
contesting parties. The Court should hold an enquiry before
custoqy of the child is given to the tather.
GOVINDASWAMY AND ANOTHER v. N. CHINA TAMUI 8
<kJJLTY, PLEA OF 379
HIGH CouRT TAXATION RULES, RULE 19 74
HJGH TREASO); ACT, s. 3 (I)-SPecial Ju{tges Act, 1946, s. 5 (1)-
Crimi1utl Proced11re Cocle, s. 257 (1)-Proceed-ittg to judgment
witJwu1 e:ramitJiltg cleje11ce wit"csses-Witen Permissible-Right
of accused persons to ll,ave defence wit11ess~s summoued e1e11 if
temporarily out of rcaclt of the process of law. Held :That in tria l
of warrant cases s. 257 (I} of the Criminal Procedure Code gives
authority tq Court for compelling p=odudwn of witn~sses at .t~e
instance of the accused. In the Special Judges Act,.1946 a special
procedure IS l;id down in s. S (1 . The Special Juclge tllay
refuse to summon any witness if satisfied that the evidence of
such witness will not be material and he shall not be bou11d to
adjourn a trial for any period unless such adjournment is
necessary in the interest of justice. In the present case, summons
could not be effectively served upon the defence witnesses as
they were r'esiding in area under the domination of insurgents
and beyond the Goveriunent's control. It i~ against the principles
of natural justice that an accused should be deprived of the rig'h t
of having defence witnesses summoned for examination even in
such circumstances. The Special Judge had not stated that the
evidence of these witnesses would not be material for defence.
The efun: I1e was wrong in having pissed judgi'rtent without
giving further opportunity for the sum.tnoning ofsucq witnesse:~
as defence witnesses. k"haw Taw and one v. The [Tnion of
Burma, (1948) B.L.R. 310, referred to.
HLA MAUNG AND OTH.ERSV. THE UNION OF BURMA 262
"HOUSE", MEANING ClF 180,334
INDEMNITY AND VAUO.ATING ACT, 1950, s. 3 (1), S. 3 (3)-Proclallta!iott
of Mar tia/ Ln.w Ordiuattce of 1948 by Presideut-Appointment
of ~fag(st rate by Supreme Milit(JrY Comma11der- Wltetl:r:r he ts a
Magistt ate rmder Ciminal Procedrot. Codc-Contmualiot~ of
1Jrcceedittgs by sam~ Magistrate aftet military admtnistration
w~lldrawn--Metlttiu.g of "arl order" i1t s. 3 {1) oflndemnitymJd
T!alidttliul! Act-Omission to examiue Comptflfttallf on oath and
~srdt;g ofproces.s- Wltetlter.,irreg!4larityor iUegality-ltJterferer~ce
byHiglt CoMt01L Retision. If~ld: That U Khin MaungLay was
appointed as a Magistrate; Mandalay by'the ~Supreme Military
Commander under s. 4 of the Proclamation ol Martial Law
Ordinance, t 948, the said area being proclaimed by the President
as having cvmc under Military Administration, and as a result
the jurisdiction of all Courts established by the Civil Government
;:;eased. Magistrates appointed under special powers under the
Ordinance exercise s'pecial powers i ncluding ~ummary trial and
x:ecordiiJ!?:" of evidence by way of memorandum only and also in
respect'of passing sentences. There is no appeal against their
judgments, tbougli they may be reviewed by superior military
courts appointed from time to time. The Magistrates appointed.
bj,.the Supreme Military Cotnm30.der are not therefore Magis-
tra~es exercising jurisdict!on ,under the Code of cr.i minal
 GENERAL INDEX XXXIX

PAGE

Procedure whose powers are defined in Chapl<!rs I I :tnd Ill of

the Criminal Procedure Code. The word '' :ll<~gistrate is not
defined in s. 4 01 the Code of Criminal Procedure. It must n ean
Magistrate appointed by the Government under the rruvis:~us cf
ss. 10, 11,12 and 13 of the Criminal Procedure Code:. S. 5of the
Criminal Procedure Code cnac1s tllat all offenC('S u11dcr the i>en.tl
Code must be dealt w:til according to the pro' isions ~:ontained in
the Code. Cognizance must be taken I>) a lllagistr;tt e appointed
under Ute Code. There is no provision in the Co<lc.: by which a
Magistrate can continue a case from the stage where it was te!
by another Magistrate acting under the provisions of the
Proclamation of Martial Law Ordinance, JQ.J8. Raw~~artdr<~
Modak v. Kmg-Emj)e1or, 5 Pat. 110 ; The King v. Maung Po
and others, (19461 R.L.R. 41. referred to and ditinguist.ed. The
contention that s. 3 {lt of the Indemnity and \'alidating ..\ct,
1950 validatecl the order of the Magistrnte issuing process under
the 'M ilitary A<lminis tr;;tion is fallacious. The wt d "order"
in s. 3 tl) must beinterpreted eJusdem '!trn:ris, with the words
"judgment and srnlences" in the sam e.: s~ction and the orders
referred to must be final orders affectin!! the rights ol the accused
person and not interlocutory orders relating to issl'c 0 proce~s.
etc. However the taking of fresh cognizanc~ of the same
offence by the Ma~istrate was valid and when ht: isS11ed notice
to the accused he took coguizance as a Magistr;'l(e under the
Crimi:1al Procedure Code. 'The omission lv exa mine the
complainant on oath is a mere irregulnrity under s. 537,
Criminal Procedure Code.: which did not prejudice the applicant
in any way. Emperor \'. Bateshar, 37 All. 628 : Pltagu Salw mtd
n,otlter v. Emperor, A.l R. (1916) Pat. 129: Maltr Cl1iraglt Din
v. The Crown, 4 Lah. 359; Dcsaibhni Klmshalbltai Pale/ v.
Emperor. A.I.R. (19381 Born. 50. referred to. The High Court
will not interfere in revision except in exceptional ca~es and the
present case did not come w ithin that category. Kha11 Bahadur
Hajee Gulam S!lerazre v. Th e Kim!, (1941) R.t.R. 599:
U W<l Gyi v. The U,iott of Burma, (1948) B L.R. 6!'2; S. M.Basltir
v. The Ki11g, (1946) R.L.R 306.

MAUNG BA YI v. MA SEtN MYINT 293

I NTERPRETATION OF STA'I'UTI!S 162
- --WHEN MARGINAL NOTE OF AN ACT CAN BE
REFERRED TO ..... 37
I NTEREST AND WELFARE OF ~II NOR PARAMOUNT CONSIOERATIOS 406
INTERNAT_I ONAL LAW A!'/0 MUNICIPAL LAW, CO:<IFLICT BETWEEN 356
I SOLATF.D ACT OF RECEIVING WAGES OF VICE 306
JOINDER OF DRIVERS OF DOTH LORRIES IN ON TRIAL WHETHER PIIOPEH 33l
J UDGMENT, WHETHER ORDER REJECTING REVIEW IS 192
}URI~DI?~ION OF COURT OVER NON-RESIDENT FOREIGNER 356 '

(\V'AR,TIME ADJUSTMENT) AcT, 1945, s. 2-Leate to

. L xABILI;r.J Es
execute-Jurisdiclioll. Under s. 2 Of the Liabilities {War-Tirne
Adj_ustmeot) Act, 1945, the Distri.ct Court or any other Cc.urt
designated by the High Court under rules made under s. 8 Of the
Act ca n grant permission to execute a decree. The debtor
xl GENERAL INDEX

PAGE
howe,er must reside within the local limits of the ju i, dict ic n or
carry on bt:siness or person~lly work for gain. If he lives wit; in
the jurisdiction of the High Court, the High Court alone grants
leave. In the present case as the debtor was not show n to be
residing within the jurisdiction of tl:e High Court but in
the Ramnad Oi >trict and there was nothing to show that he
c<arried on business or r-erson ally worked for gain ,,ittin the
jurisdiction Of the High Cm:rt, the High Court cannot gran t such
leave.
S.R.M.N.N. RAMANATHAN CHETTIAR v. R..UfAIAH Pu.L~Y .. Sl
LICE!'SF.E A~D.:TENANT, DISTINCTION 186
LIMITATION AcT, ARTIC!.E 178-As ame11ded by the TltirdSchedule
of the Arbit-ration Act, 19-14-Comnw!cement of the Paiod of
limil,ltion for filing of an awa1-d. Held: That timt: will begin
to nm from the date Of service of notice of the making of the
award and the period of limitation is 90 days.
0Aw HNIN -v. TT !{YAW AND OTHERS . 101
LIMITATION ACT, ARTICLES 36, 48
ANU 49-Wrongful amversion of
movc<~ble prop~rty-CompmsatiotJ for-Whether Artic/6 48
<IPPiics tva dishor1cst comersion or all tyf>I'.S of C?IJ11("rsio~r-Wilat
amounts to convcr~'iort. Plaintiff in the trial Court claimed
c.ompensation from the 2nd defendant for wrongfully detaining a
boiler which, it w.1.s alleged, he had converted to his own ure.
The suit was dismi~sed as barred tlnder Artide 36 of t!1e
Limitation Act. H eld: That Article 48 of the Lim'tation Act
provides for a claim for specific moveable property lost or
acquired by theft or dishonest misappropriation or cOII\er~ion or
l or t:ump~nsatlon for wrc.:ogful taking or de~ention. Th <!
starting point i~ when the person having the right to the
possession of the property first learns in whose possession it is.
The article is not confined to dishonest conversion of moveable
property but also applies to simple conversion. L. P. E. PtiFh v,
Ash11tosh. Sen, S Pat. 5.16 at 524-525; Adjai Coal Co. Ltrf. v.
Pappalal Ghosh, A.I.R. (1930)(P.C.) 113; 57~al.1341, referred to.
Conversion is the wrongful interference with goods as by t;tk!ng,
using or destroying them inconsistent with the owner's rir,ht of
possession. FDuldesv. Willoughby, Messon and Welsby's Reports
VIII, 540 at 548; [,al/casltire and Yorkshire ~ly. Co. v. MacNicoll,
(19181 118 Law Times Reports, 596; Surat Lt~U Mondal aud
others '" Umar Ha jivmd others, 22C'al. 877, referred to. The
claim in the pre,sent case is not therefore barred by lir?itation.
CHANOMAL BHILA A I'D ANOTHER v . . MRS, LEONG v.roN
KEE (a) DAW MA HTWE AND OTHERS 274
LIMITATION AcT, ARTICLE 57 APPLIES To SUIT FoR ENF"ORcz:w A
CHARGE oN MOVEABLES 254
120 254
---- - - - - - 178 1
"LrvF.s" INs. 7 (1J, SUPI'RESSION. oF.BI<oTHELS ACT 306
LOC.:AL LEGISLATION :rHt: GUID,ING I?ACT?R , 356
MAGISTRATE APPOINTED BY SUPRl::~m CoMMANDER ~HETilER A
MACHSTRATE UNDER THE CRIMIN.~L PROCEDURE \oDE 293
- -- - --To RE~fO:VE coNFBssoR F'Rq~r POLICE INFLUENCE 282
 GENERAL INDEX xli

PAGE

:\l.UORJTY ACT I NAPI'LICA:ll.l TO MATTTEJIS 01' RELIGIO:>: 356

MEDIC.~L CEHTIFICATE, \\"HETHER EVIIIEI':CE 80
l\Ji:\"OR lLLEGITIMA1"E <.:H ILD, CUSTODY OF 406
i\ilsREPRESENTATION \VIIETIIER GflOUI':D FOR SETTIN(; ASIDE COUln
SALE J62
tvioHAMEDM < L.Hv-Cout.-rsion. toliat amotmls to-Age of COIIVC!'/-
illinor tmd.:r 110 di;ability-lllnj ori!' .4cl iuapplicable to tll ai/<TS
of ,-eiigiou-1 urisdictiou of Court oter 11ore-resideut forcigue?'-
Causc oj ac/sou arising wltolly tC'ii!lin lc:rrdorial limits -C,u(iict
bcl<oCcll lnterunt iono/ mut Mumcipal Laws-Local legislhliou
lite guidiut factor-Effe ct of mbsequeul apo~tnsy on tllarriage-
Specific Rcltef Act, s. 42-Natu,e o{t&licf eulirely discretiona ry
-Ett,nls .<ubscquctll l o iust1fll tio11 of soil tii11St al!o br cousidCI'erl.
In riefence to a suit fired by plaintiff for a declaration of a legal
and subsisting marria~c: between him and U1eir daughter, U1e
1st defendant, and for an injunction prohibitinj! them from
preventing the return of his wife to his dominion, the 2nd and
3rd defendants, a Hindu couple, contended that as their daughter
was ur.der 18 years of age she could not become a convert and
embrace the Islam faith ; that she is a foreigner and now Jhing
in India, and the Cot:rt had no jurisdiction ; and that in I :1dia she
has been lawfully married to one of her own faith. Heltl: \Vhat
amounts to conversion to the Mohamedan faith is set out iu
paragraph 19 of Muila's Principles of Mohamedan Law. It is
sufficient if the person "ho embraces the new faith is shown to
have professed the Mohamedan reli,gion. Abdool Razack \-.
Aga Mahomed Jaffer Bindancem, 21 I .A. 56 at 64, referred to.
Helcl : S. 3 of the Majority Act fixes the age of a person
domiciled in Burmn at l ll ye;1rs, buts. 2 provides that this age o f
majori ty cannot affect the capacity of a person tn act in matters
affectiug religion. The Law has provided no age or majority for
a change of religion. The fact of a girl being t:l!der 18 years of
;..ge would not invalidate a conversion to another faith.
R e. M1~llat11mad Alam, 19 19) A.I.R. Sin(.) 311 ; Sc~ral Cllaudra
<;hakrahati v. Forman and n11ol/zet, I.L.R. 12 All. 213, referred
to. Held: Where local legislation exists authori si11g a Court
to ex-:rcise . jurisdiction in respect of absent foreigners, a
decree perfectly valid a~ far as the Court is concerned can be
p ronounced. S(rdnr Gurdtal Singh v. The Rajah of Faridkote,
21 I.A. 171, disHnguished. In a personal acti~ a forei~n Court
has jurisdiction in an internat ional sense in ce:tain circum-
stances; from this emergec the r.ule that cause of action is not a
general ground of. jurisdiction in International Law. Chor Mal
Bal Chand v. Kas/uri Clluud Seraogi, J. L.R. 63 Cal. 1033 ;
Vitltalbhat Shtflbltal Patel v. Lalbhai Himbliai. I.L.R. (1942)
Born. 6!s8 ; Rousllon v. Rousillot~, (181!0)14 Cb. D. 351 ; Emanuel
aud others v. Symon, 11908) 1 K.B. 302, refe.r red to. S. 20, Civil
Procedure Code and s. 15 of the Union Judiciary .~ct invest this
Court with jurisdiction Jo try a suit where the cause of action is
alleged to ha11e taken place with in its tenitori;;i limits. Gaekwar
Baroda State Railua:> v. Habtn l'lla , I .L._R. 56 All. 828 ;
Neclakatlda Pillai v. K. A. Ktmjn Pillai, A.I.R. (1~35) Mad. 545;
Swan;i11atl;atl Cllettiar v. VE.N.K.RM.Jf.RM. Son:asunaaram
Chcttiar and others, A.I.R. ( 1938) Mad.~ 741 , referred -to. The
question whether the' Conrts of a nation will or will not entertain
jurisdiction of avy dispute is .to be determined by the nation
itself, i.e., by its Municipal Law. If by express legislation the
C'o11rts are directed to exercise juri.sdic_tion, th ey must obey.
xlii .JENERAL INDEX

PAGE
ComPa11hia De Mocambique v. f?ritish South Africa ComparLy-
De Sousa v. Sa11tc, ( 1892} 2 Q.B.D. 358 at 394 ; Clmnilal
Kasturcha11d Marwadi v. Vuttdapfa Damappa Nagalci, 52 Pom.
L.R. 60, referred b. The question. before the Court is not
whether after a decree is passed a foreign court will reco~nise
it, but whether, having regard to s. 20 of the Civil Procedure
Code and s. 15 of the Union Judiciary Act, it can nssume
jurisdiction in the case and try it against a non-resident fordg11er
when the cause of action bas arisen wholly within its local
limits. It will be the duty of the Courts to give effect to local
s.tatutory enactments and it is immaterial whether the indgment
rendereg would be recognised by foreigu tribunals as consistent
with fnternational L:tw. Girdhar Damodar v. KassiJ!M
Hiragar, (1893) 17 Bom. 662 at 665 ; Ex p.rrle Blaim, re
S.twers, (1879) 12 Ch. D. 522 at 5 ?6, applied. The grant of relief
in-
under s. 42, Specific Relief Act is entirely discretionary ; a
Court hal? to take into consideration not only well establish,d
principles but als) the varying factors in each particular case,
and it must also take notice of the events which have happened
since the institution of the suit and to mould its decree according
to the circumstances as they stand at the time the decree is made.
Ram Tawakal Tewari v. Mt. Dulari .1nd others, A.l.R. (1934)
All. 469; Noor Jeltau. Begum v. E~tgette TisUIIko, A.l.R. 11942)
Cal. 325; R.R. B. Sarau Singh a.tllloue v. Cit. Mujtaba Husain
.wd others;!. L.R. 16 Luck. 742 ; H11ssain U11war v. Fatima Bee.
(1872-1892) S.J.L.B. 368; Ali Asghar v. Mi . K1a Fila U,
8 L.B.R. 461, referred to.
MOHAMED KHA~ v. DAMAYATHI PAREKli AND 'I'WO OTHERS... 356
!IIOVEABLES GIVEN AS SECURITY FOR LOAN-Peribd of limitation-
Arftcle 57, L..inutatiotl Act-Suit /or enforcing a charge-Atlicle
120-ControGt Act, ss. 172 a11d 176-Riglits of Pledgee-Whether
sui/ maintaitMblefor sale of pledged articles-Stared~cisis how far
aPplicable in the case . Appellant sued fo~ enlorcing a charge
on jewellery pledj!cd as secudty with him. The suit was
dismissed on the ground that it did not lie and that the loan had
become barred by limitation. Held: That the article of the
Limitation Act applicable to a decree for ordering defendant to
pay a debt is Article 57. Ma K:~i Kyi v. Ma Slt11Je a11d anuthtr,
(1900-021 1 L.H.R. !54; Nim Chand Baboo a11d others \'.
Jagab.mdhu Ghose, I.L.R. 22 Cal. 21 ; Mahaliuga Nadar v.
Gtmapathi Subbien, I.L.R. 27 l\lad. 528, referred to. The present
claim for the debt is (()early tiue-barred. Th~re is a conflict of
opinion on the question as to which article of the Limitatioa Act
is applicable for enforcement of payment of money charged upon
moveable property. Case law referred lo. Vitia Kamti v.
Kalekara, I .I..R. 11 Mad.153 ; Madat~ltfohan La l v. Kanhai Lai,
I.L.R. 17 All. 284, referred to. The rights of a pa~nor are
governed by s. 176 of the Contract Act. The plaintiff colld either
sue for debt retaining the pledge as collateral security or he
could sell the goods under pledge aiter reasonable notice.
Though the right of suit was barred his right of sale is a
statutory_ right and remained but no suit was maintainable for
enforcing such a right as there was no necessity for such a suit.
The language of s. 176 .of the Contract Ad states that the
pledgee .m,ay..selllhe thing pledged . .Where a Statute gives a
'power . to do 'a certain thin!! in a certain way, "the .~hinl! must be
done in.that'.wayornot at all. The Que~tl v. The County Court
Judge of Essex tlfid Clarke .- (18~7) 18 Q.B.D. 704; Lampluglt v .
Nor/on aud others, (1889) 22 Q.B.D, 452; Doe v. Brtd{!.es,
1 B. & Ad. 847 at 859; Liqttidators, ]11nda Rt~bber Works, Ltd. v.
 GENERAL INDEX xliii

PAGE
Co!leclor of Bombay and nuother, A.l R. (1950) East l'un. ZOJ,
referred to. Therefore the only way to enforces.<!c )i a rled!,4l'd
article is to exercise the rights under" 176 of tl:e Cofr:ll't Ad
and not in any othe: way as by s1 it. The qtesthn wl:elher the
co~!rt has jurisdiction to ente1 lai n su;:h a sui t was IICI dedde<!
i n Ma Kyi Ky1 v. M:1 Sllwt and ano/hcr, I (. H.R 134 auct
therefor e the r lile oi I arc decisis i~ not arp lkabk.
GAw TuN SHWE " ~1A KY Jto: AYE 2'5~

MURDER-Pe11al Code, s. 302 12)-Evidcnce Act - S. 1J.I-Presumt-

tio#- Possessio11 of traprrties belongi11g to t he deceased s/1< rlly
after murder. Held: There remains only the fact that shorlly
after the headman had been mt:rdered articlt:s telou!_!ing tn him
were found in appellant's pos~c,-siou. From lhis f<tl.'t alone it-
cannot be presumed thai appdlaut mu r c!ered th e h~ac!man ;' for
the highe::t pre.muption whkh can he drawn irom possession
of sto:c:l pro;,et~, il\' itself, is presence at the scene of theft."
Nga T/lcir1 Pt \'. Tltc Ktng, A.I.R. (19391 Han. 361, lollowed.
FaAirdnud 1\"ar~dram arnt tlnothcr ,., Tlte Statr, :\.1.1~. 119:'0;
(:\1.8 , 76 1F.B.l,'referred to.
MAUNG SHWE 'IJ, THE UNION OF BURMA 350
MUSLIM \ VAKl' VALIDATito:G ACT, S. 3-Deuial of W.:kf. - Wltetlter
Dis trict Court comteteul fo hold till enquiry tiS to e:ciste11re
of a vt~lid Wnkf. An application was made in the Additional
District Court ot Amherst tnder s. 3 of the Muslim W;~kf Act
calling on Applicant to prodtce a statement of accot:nt into Court.
The Apt~licant denied tha t the e w~s any ,alid \\'akf bu t the
\dditional Didrid Court hel d thai the pdilion was maintainable.
O n ro:vi~ion . Held: Tl1e Mt slim Wakf Act had not bee n
artistically dr,.fted in certain respects aud there are divergent
views as to whether the Courls can go into the qt:estion whdher
there is a ,a lie! WaJ.:f 01 nnt. ll'asmllah K/tan v. WQJid Ali a11d
another, A I.R. (1930) A ll .~; Taher SaifHddin v. Emperor, J.T..R
5!1 eom. 402; M.A. Abdul Hussain v. Mohamed Ebrahim Riuz,
A I.R. (1939) Nag 205; M~Jhnmm ad Baqt1r v. Mohammad Casim,
7 Lu~k . 601, refe rred to. 'l'hc balance of authority is in favour
of the view th at where a Wakf is d.mied the Court catulot hold
an enq:;i ry into i !~ existence.
H .UEE AHM CASS!M JEWA fl. MO~fiN BIBT 312

NOTICE OF I!JI!CniENT-lNTERPRETATION OF 176

- - - TO QUIT-CLAIM AT CONT~ACT RATE .. 37
--- U!'<DER ORDER 22, Ruu: 12-D.EFECT WHICH GOES TO THE
ROOT OF JURISDICTION 66

O aJ.ECTION To APl'.EARANC.K oF ADvOCATE 315

- - - - - - -- - - -PLP.ADER 310'
OFFENDER- MAIN OFFENDER I'OT PROSI!CUT.ED 206
OMISSION TO E XAMINE COMPLAI NANT ON OATH AlJD ISSUI NG PROCESS,
WHETHER IRREGULARITY OR ILLEGALITY ... 293
O PJU 'i\CT, s. 9 (a) -Possession and OwuerslliP-Whctlter two or OJIIY
011c sulletJCe to be iuflictcd if iu ,rddiliou t iJ possessiou, ownership
is' found pror;ed-Provis:J to s. 2 t2), Opium {Amc~ndmet~l) Act,
1949....:.Meatiing of, Held : The provi.so ins. 2 (2) of the Opium
 xliv GENERAL INDEX

PAGE
(Anendmcn!t Act me t::s that there shall be vnly one sentence,
and in th:tt s:nt.:m:e :1 term 01 rigoroug impri$on:nent not l ess
than six 111 nth~ shali be inflicteJ a~ nart of the pu!lish:nent ft>r
being the n\\' ner of th e opium. Two scp:nate sentences are not
allowed by the law on oae charge.
TUN 'fll\ v. THF: U:-:ION OF BUIIMA <103
OP~U}! A CT,s. (9) (I)( b) AN:> s . 9 (2)-5.438, Criminal Pr.;cedure Code.
Ht'lrl: That it i$ not th e f :nction of the High Court under s. 438 of
the Code of Crill1in?.l P : ot;edure to give opinions on q:.:estions of
Jaw raisec1 dudng the courte of proceedings in Lower Court.
Re. P<Jlatti Gowndcn. 15 .C . L.J. 472; Mir Gltawas ~. EmP: ror ,
37 C . L.J. 470; In f{-~ . Gnuleru. Koti,rppa atld others, SO C.L .J.
83. referN:d to.
THE UNION OF llull~IA v. \fA AIN KY\VE 104
ORAL SALE OF L,\:'\i> FOR Rs. 75- WHETHE!1 PROOF OF S!J CH SALE
AOMISSIBLE WHEX SALEDEEO IS INVALtO 96
ORDER FOR CO; TS IN DECREE-Docree not app,aled again;t- Wit ether
such order ca11 be ch.tllengcd in execul~J~t-Sclieme suit- Decree
for co;!s in favour of various P!ainti!fs-Higl Court Tt~xalion
Rules, Rule 1Y. Held: It i~ po;sible that various plaiutiffs in a
~cheme suit might have difference in minor aspects of the case
though they tnightagree ;~s t o the ne.; ssily of removal oftrus:ees.
There could also be differenc~s as to who should be appointed
new trustees and as to the partkul.~r scheme necessary. Conse-
quent! y it is possible in exceptil)nal cases to provide separat~ se s
of costs for advocate5 appearing fOr different plaintiffs in suc'1 a
suit. The Taxing Master, was bound to follow lhe di:cctious
contaiPcd in the judgment which is final. 11' the Ru le~ of lhe
High Court Taxation T<u les, Rule 19, the e is a direction to issue
notice to the opposite party." It refers to a notice to a party
in the suit or proceedings in which the costs were awarded and
not t -J the new Trustees appointed later. The new Trustees did
in tact appe<lr before the T:1xing Ma~ter and cannot be sai rl to be
prejudiced by non-issue of notices. The order which embodies
the dec ee as to costs is the final j;tdgn:ent in the origin::;! cas~.
No appeal having been instit uted against sucl1 judgment, it was
not competent to p eseat objections to the separate award of
costs in favo<~r Of vario; s plaintiffs in proceedings before the
Taxing M:tstc::r who is bound t o follow the decree.
TRE l\1ooLLA HASJ!Bl F"Ai\IILY ENuOW~IENT w AQF EsTATE
t:. M. E. DAWOO lJEE AND OlHERS 74
ORDER TO FILE AWARD-WRffi:TH'ER APPEAL LIES 134
ORIGINAL CONSIOERATIO~, RIGHT TO FALL BACK ON , 14
PARDO:-<, RIGHT o:, EXERCISABL:: BY TRE PRES1J.)ENT ON THE ADVICE
OF THE UNION GOVERNMJ.\Nr . .. 206
PARl'IES WHO ARE ORAl> SH9ULD BE REPRESENTED I N REVISION
P!WCEEOI~G 289
PARTIAL PARTI:noN 434
PENAL CODE,SS. 24, 409,-420 114
- --- - - ;s. 302 (I) (b) RE,\0 WI T H s . 34 2!32
 GENERAL INDEX xlv

I'AGE
PENAL ConE, s. 109 251
- ----. s. 302 (21 350
- -- - - . s. 376 379
- - - -- , S. 500 ANI> S. 499, NI~TH EXCEPTIO~ 390
PENAL CooE, s. 122 (1)- Crimiual Procedure Code, s. [.J(:-$ancl ion
under-Htr.u to be signctl-P1esidcnt's Notification No . 123-
Burma General Clauses Act , s. 13. Held: If a man join' rebels
he is guil ty of high tceas ;n. In rebellions it frequently happens
that few are le: into the real design, but yet all wh.>join in it a e
guilty of rebd lion. R. v. Furchaser, {1839) 4 Sta!e Tri:.ls (:'\.S.)
93 at Y4, referred t'> \Vhere sanc!h;n of the Presi,lent unde r
s. 196 Of the\. ri ;1 ina! Procedure Code issued f 0111 the Se:;rcL!ry
to the Government was signed by :mother offi:erfvr J1i .n and the
office: so signing w<.s an ac..:rcdrted ofli<.:er in whose nan:e orders
Of the umermren t can be issued, sanction is good t:ndcr
President's Notific::tion No.l23, dated 4th January 1948 al : orcle.s
or. instrmr.ents executed for the Union Govern rHnt slu;IJ be
expressed to be made by t iie order Of t!Je President and S l!l h
ord~r or instrument can be sigaed by the Secretary, Additional
Secretary, Deputy S creta y, Under Sec et ry or Assist;;nt
Secretary in the Ministry com:emed. Undl'r s. 13 of Bn:rna
General Clauses (Amendlllent) Act, 19.'>0 any i'OH:rs c lllferred
or duty irnpO$ed on the P:e~ident sl.all be exe:cisable or pe, fvrrn
able irr his name bv the Governrorent. As the office~ who a, tuall v
signed was authorised tv sign fJr th~ Pre$ident, the sanction i~
the case was therefore rightly i~sued. Jlfd. O;,iullalt v. Beni
ilfadllab Chawdhury, A.l R. (1922) Cal. 298, referred to.
BA Boo A~D OTHEr-st-. TilE UNION OF BURMA 83
PENAL ConE, s. 304-Penal Code (Amendmwt) Act, 19!-7 (Act
XXXll of 1947)- Effect of amendment. Ss. 302 :md 3('4 Of the
Penal Cocle have been amended by the Penal Code !Amendment)
Act, 1947. Held: Culpabl! h(,micid<', :~snow ;;mended, also
includes the doing of an act "with th : intention of ca.rsing
bodi iy injury as in iact is sufficient in t~e ordinary col!rse of
nature to cause deat11." \Vhere such an injury is in fact
sufficient as mentioned above and doe.s cause cle:tth, the offence
would be on; of murder unless it falls und"r the exceptions
mentioned ins. 299. The ruling in Baba Naya's case (reported
in 5 Ran. 8l7) is !bus no longer applic.tble to cases w:1ere death
. b:ts in fact ensued from an injury which is proved ro have been .
sufficient in the ordinary co1rse of nature to cause dt:ath. Baba
Naya v: King Emperor, 5 Ran. 817, not applicable.
PAOUWAR 11. TilE UNION OF BURMA 91 .
PENAL CODE, s. SOD-Defamation of 7e>tfe-Wiiether husla:1d
can j1le co!uplaint - Agg.rieted f>erson-ilfeaning-S. 198, .
Criminal Procedure Code. A husband filed a complaint uude.-
s. 500, Penal Code as a 'perso:1 aggrieved by his wi fe being
defamed. Uvon an objecti<ln being raised that the wife being
an adult .and sui }uris sho ~ld have filed the complaint personally
as she wll!' the only person com )etent to com_po~ nd snch an
offence. Held: That in the case pf a married woman the
husband is an aggrieved p~r~on . and therdo e he can make a
complaint under s . 198 of the Code;. CIJellan Naidu v;
Ramnsami,. I.L.R. 14 Mad , ~79. ; Chl:otalal Lalubhai \.
Nalhabltaf Bechar and anotlier, I L.R. 2S -13om. 151 : Gttrdit
Si:t!)1 and other,s v. The Crou)ll,. I.L.R 5 Lah: :3(H, referred to.
 xlvi GENERAL INDEX

PAGE
The t\9!! of the term "sotne aggrie,ed person" in the Cr;minal
Procedure Code i ~ d' lil'erate as" some <tggriev.:d rerson" need
not necessaril y b" on!y the person ddamed. The word
"aggrie,ed" in s. 198 of the Original Procedure ,Code must be
tre.ated :>s equiv<tlent to lhe" person injure,!" a11d a J,usb:u ;d in
.the circumstances of this case was so injured. Queen Empress v.
NgaSittt1h~Selected Judg ments L.B.R. (1872- 18921 6li.

D. N. L OBO v. J. C. WEHsTER 235

PLEA OF GU ILTY, APPEAL 379
Pr.EADER - 0/Jjtctiou to nppenrtwu of Ple<JritT- Circums ftwces j11st ify-
ing. U Law filed a power for defendant in the trial Court. An
objection was raised by the plaintiff to such appearance on the
ground that.;plaintiffhad engaged him and gave him instructions.
This was denied. The trial Court refused permission to the
appiicant to net in th" case for defendant. On revision : flelcl :
That no information of a confidential nature regarding the
dispute between the parties had been conveyed to the
advocate which could he u~ed ;~gainst the party in the litigation.
The objection to appearance was not therefore justifi('tl. Salta-
rant>ttr Grai1t Chamber l-td. v. Jlfaharaj Sitl{;h, 1 L.R. (1940! All.
Series, 262.
U LAW v. MAUNG BA PE 310
PLl:OGEB, RIGHTS OF 254
PLEDGED ARTICLES. WHETHEH SUIT FOR SALE LIES 254
POSSESSION OF PROPERTY BELONGING TO DECEASED SHORTLY Al<TER
MURDER-PRESUMPTION 350
- - - - - A N D OWNERSHIP UNDER OPIUM AC'l' 403
POWRROF-ATTORNEY NOT PRODCCBD-CANNOT BE RELIED ON 225
PRE>llsEs, MEANING OF ... 180
PRESIDENT'S NoTJFICATION No.123 OF 1948 83
PRESUllPTfON AS 'ro llEGULARl'i'Y OF OFFICIAL ACTS 66
PRINCIPAL, A MONEY-I.ENDE!l-WHETHER SUCH DESCRfPTION
EMPOWERS AGENT TO liORROW 225
PRINCIPLES ON WHICH PUN!Sl:MENT IS TO BE INFLICTED ... 206
PRIVILEGE 390
PROMISSOR'Y'-NOTE N01' DULY STA~PED, INADMISSIBLE IN EVIDENCE ... 14
' - -.- -----ALLEGED TO BE TAKEN IN SATISFACTION OF THE
CLAIM, BURDEN OF PROOF 197
PROMiSSORY-NOTE NOT DULY sTAMPED- De, ence that promissory-
1U!le was ta;ke1.' if! satisfaction l?f the claim- Tral7$fcr of
t%gllts a.tld lU+b1ltizes by parttt<~,rsltiP to a limited company-:
Whether transferee could sue on origi11al cause of action"'-
Cause of action-Repayment of advance when arises. ReJa.:
T.he. bnrden of establishing that a promissorynote .' W?.S
acce);)ted _in satisfaction of a debt is upon the party pleading to
that effect.. Since !be _party did not give evidence or examine
wib:Jesses on. this plea. it ~ould not be held that this plea w.as
 GENERAL INDEX xlvii
I' AGE

esta~lished.
11/aUilJi Chit and atWtlzer v. Ro;ltau N.M ..l.
Kareem Omcr & Cc., (1934) I.L.R 12 Ran. 500 ;tncl ~04,
referred to nnd followed. The Hcspondent, a limited compa11 y,
as the successors to the fircn of A. C. Marlin & Co. h;l<l t<~ken
over all the assets, rights nnd liabilities of the linn uudt r a
written agreement ; as sm:h they acquired the ril.!ht to li1~ a suit
on the original cause of action in favour of the fiTln. The firm
can haYe no right of repayment for adv<nces 111ade by tle firm
against supply of bricks by <tppellant until the appellant ~ eated
to sur.ply pricks. He so ceased to supply on the 12th April 1948
and -that was the first time when it could be ascertained th:tt
appellant owed money in respect o[ such advances. A suit
which was. instituted in 1950, was therefore within time.
Matmg Aung Mitl and others v. Mutu C11ruppau Clte~ty 11nd
others, '{1907), Vol. 1, B.L.T. SO, distin-guished.
T. M. MOHAMED CASSIM v. Mfs. A. C. MARTJN & Co. L'rrJ. 197

PROSF.CUTION EVIDENCE, GAPS IN ... 282

RANGOON 'CITY CIVIL COURT AcT-Stlit under s. 17 decrectl 011 tlte

basis that tlte occupant is a licmsee- Disfim;tion betwec11 a
tet1ant and a licetzsee-Urban Rent Control Act, ss 12 {1)
and 13. Held: That a suit against a licensee is maintainalle
under s. 17 of the Rangoon City Civ1l Court Act. The Urb;m
Hent Control Act does not apply to a licensee. S. 12 of the
Urban Rent Control Act contemplates peple whose right of
occup~tion depends on ten<\ncy's created by statute. One poi~ot of
distinction between a licence an.d a lease is that there mt.st
be exclusive possession in the case of lease and that element of
exclusive possession is atsenl in the case of a licence. Where
exclusi\'C possession is lacking a person cannot claim to be a
tenant. S. R. ' 'Raju v. ..The Assistant Controller of Reuts,
Rango_on and others, (1950) B.L.R. 10; Indian Starch Products
Ltd. and .ano_t[1er L Tl(e Controller of Rents, R1111goon and
another, (1950) B.L.R. 64 ; Gurbacltan Si11gh v. los E. Fernando,
(195ot B.L-.R. 1, referred to.
HAit' RAHIM.Bux v. SHAIK MUBARAK HussAIN 186
.
RAPE 379
RASH OR NEGl,LGENT DRIVING- Collisioll be/111een t1110 lorries-Bollt
drivers c!targed-Joi11der whet Iter Proper-s. 256, Crimini1l
Proted~re Cod~ as ame11ded 110t /ollowe(j.. A lorry driven by
applicant and another driven by the 2nd accnsed collided. Botl;l
drivers were charged of negligent driving. One was acquitted
andthe case proceeded against 'the other. He was sentenced
under s. 279, P.enal Code with a fine of Rs. 50. An appeal to the
Ses~ions c>urt was 'rejected as it did nCJt lie. . On revision to the
High'' Court : Held : A joint trial should not have been held .
when the prosecution case against two persons is mutuall)
excli.1sive, or when the two throw. the blame upon each othe.-.
PoLan v. The f(ing, (1947) R.L.R. 3711, referred to. Further the
mandatory provision of s. 256 of Criminal Pr<>cedure Code as
amended bad not been followed. On the mere fact that. there
was:a .- collision between two cars it must not be presumed tliat
either driver WjlS rash or negligent. M aung A 11t .Bwe and
one v: The U1~io'n of B1mua_, (1948) B.L.R. 863, referred to.

ANW,\R' KHAN .11. THE UNION OF BURMA 331

7
.xl viii GENERAL INDEX

PAGE
RATIFICATION... 59,225
Rr; FEHENCF- TO HIGH C01:1<T IN PENDING APPEAl. BY DISTRICT
MA: oiSTRATEINCO>IPE'I'ENT 107
. .,
RE'IROSPEC1'JVE EFFECT OF S'fATUTE 53
I~EVIE\\'-ij.ppea.l a:ainst vrdcr rejecting application for review-
Order 17. Rt~le 7 11), Code of Civil Procedure--S. 20, Union
h1dic1nry Act, 11J4S- Judgment - Whetltcr order rejecting
revit:W am01mts to. A preli;uinary mortgage decree was passed
by consent on I he Original Side. An appH(ation f.oF review
by Appellant was dismissed as lime barred. Tire Appellan-t
preferr..:d on ap;>eal and th<:: preliminary objection was raised
that an nppeal lay Held: Th;tt undE-r Order 47, Rule 7 U)
Code of Civil Pro.:eclur.., ;m order of Court rl:"jecting an appli.::a-
tion for review is n N :ppealable. The ~aid order does 110t also
amount to a juc_!!m nt within the me:ming oi s. 20 of tht Union
Judiciary Act, 1948. S . 20 is in the nature of a g<:neral provision
relatin:.! to appe:.tl$. But the special provision in the Cocle ef
Civif .Procedur'eexc!udcs appe:tl in s. 20. A juclgn.ent has been
<leliuecl ;.sa dect ee made in a suit whereby tht: rights of the
party are clctt"rn in~:d. Tht: word ''judgment" in s. 20 ot the
Uuion Judiciar)' Act, 19411. should not be accorded a wider
m(!aning than nncler the corresponding clause 13 of the
I ;mgoon Letters Patent. :\ decision given by the judge for
sufficient reason, even if erronem.s. cannot make it a decision
without jurisdiction, :mel an appeal did not lie in the E:ase.
Dayabhai Jiwandas .:nd otkcr:; v . A M.M. Murugappa Cltcttiar,
(1'135) 13 Rim. -+57; Dr. Hori Ram Singh v. EmPeror, u :.R.
(19Z<1) f.'. C. 43, followed.
MAGIINAL PRANHVAN MERTA v . 'MRs. CHA~lPAKUNViR'.
RATtJ.AJ. ME'l-ITA AND OTHERS 192
REVJSfO~ AI'PLlCA'TfOJI: OIS~IJSSED FOR DE'J' Al.ILT BY S:ESSJONS }UDG~
PROPRIETY O:R CoRREGTN.ISS 340
RRVISJON .UNJ)Ei? S, '2:i, CITv CIVIl. CouRT ACT-Death ojRcsf!<n!dlfnl-'-
Whdlter Ordrr 22, Rule: 3 (4). Code ojCitil Proceti11Yc applicable
-1!/'PMI a1.d Rc, isitm Held: There is a gr.e-af de:tl 'o f anatogy
bttwecu revision applications and appt:-al$ but llwy are not
identical. In an appe:~l !'he matteris one b<:twcen the tt.trties
and the parties must see that all necessary 1i1aterials are before
the Court for decision. An nrder in revision 1s made by t'r1e Cour(
of its own motinn. It is an c~sential 1>art of such jurisdiction thaf
no one should be prejucli'?~d by the Court passing orders wifhouf
hting heard. It is therdorc necessarv -that parties who are dead
should'be 1irope ly repre~qlled in revision proceedinj!s Pcndylda
Basnwa11jt111CI.gulu and others v. l.it&{!anlllllU Ramalingafyya,
A.f.R. ( i938i Mad.ll :i: NmrabSyed Ka. i1~1 Hussat1t v. Seth l'earelf
Lal, A. l .R tl9391 Oudh 1; 7 ; Bnksho a11d another v. Pirro an.d
others. A.! R (i920 Sind 320; Mt . Tariff Begmu andauotherv.
S. R. Razit.ddin,A.I.R. (1935J Oudh 219, referred to. it is desirable
that in applications undE-r s. 25 nf the Cib Civil Com! Act,-.recou~;se
should be had to the inherent powers of the Court to see that
legal represeil:tiv('s of de(:ea~ed-rcspondcuts ae re,prescnted.
NA~A MEAH v. NIRE:mriA _KUMAR SEAL (a~ 0RV~I'U1Ri\. &UMA:R
. . Sil:A'L 289
SANCTION TO PROSECOTE-HQW TO :SF. SIGNED 83
. ~CH~f>f?- SU'T , '" . .., 71
 GENERAL INDEX xlix
PAGE
SNTENCE T O UE AH' I,It:1' ED t'OR POSSES~IO~ MW 0\\'l'EISHII' OF
OPIUM .;QJ
SESSION5 JtJU<:es A:-i U Auol fiONAI. St:SSI t~S ]UU<:J S AI<~ SI'E IA L
j UDGES 3tll
"SHWENANTHEIN GI " \\'IIETHEil PROt:EL>U!lE OH vESCR IPTltrE O'l'
PLAINTIFF'S MEDICI NE 2~5

SPECIAL CRIM ES ( TRIBUNAL) ACT. 1947, s. 'd-Witeliler apfeal lie.l

against ~ h e or,/cr of acqultla/-5. 417 of lite Crimiual J ,ocedure
Code-Ss. 40J and -!20, i'enal Code ltl(red;cut s- Di:lionest
i11tention es.,e,tt al pre-retti~ite i11 ev11iem:e of cnmi11al breaclz
of trust as well as cheati11:;- S. 24, l'enal CC'Ie-Mea"ing of
the word "dishot~est ly " -Supar Control Order, IYIt'~, ,towers
under - Civil S11PPiie. Management and Control OrdeY, 1917.
s. 3 confers rzgltt of Purc/tase OIJ Commissioner . Held : In
order to ast:ertain the full i ntcathm ol the Ltgist 1turt: the
proper J,:Ours~ is to appl y the broad general rde of construction
that a section or enactu:ent mt st be constr. ed ;.s a whole, each
portiou throwing light, if ne~:d be, on the ru-t. \\'orc!s ol a statule
mu!<t be ~iven U1eir full effect an d where their meani1g i< plain,
it is the duty of t he court tc> exp>nnd them in acc<>rdance with their
plain meaning. Jetming a11d a11ot her '.Kelly, (1940, A C. 206 at
229. A proviso to a st-et ion mi~ht generally be co;osick red as
placing a restrictiort or limitation upm :tn othe wi~c ~en<..-ral
application of the provision of an Act to which it is allacht:d. A
proviso rdatcs as a rule, only to U1at portion of the Act to which
it isactull)' attachen. The main pro~iaion of s. 8, Special Crimes
(Tribun:~ l) Act refers to app~al f rum and confinr a lion of sentences,
and proviso (iii only provides a limitalion of apr.eal against con-
viction. The pro,io has no ~pplication to a case of acquittal, and
read with the main pro\isicn the proviso dnesnot preclude an
appeal from a:quittal. A dishontst intention is :tn , ss.ntial pre-
requisih buth in th e offence <>f a criminal br<:a< h ,,r II ust a~ w~ltas
an off~nce of cheating. It is the dishonest intc:ntion which c0n
verts the acts of a person into a cr iminal offerKe so far as these two
offences are concemed. Thenfore the primar) molive in tnakin~
payments i.n this case m 1st be clearly shown to he dh honest if
the acettse(l are to be con icted of crimin al torealh of trnst or
cheat'd.u~. The word " dishonestly is defined in . 24 of the
Pena.J' Code, tJia: '! V\'hoenr does anytl1i1~g with the intention
of pasiing wrongful gain to one person or wrC'ngfl'l loss to
another person is said to do that net dishonc~ tl y. Unl ess these
two 'ingredients, via., wrong moth e and wro ngful gain or loss are
cleatly established no offence of crin.inal breath of tru&t or
cheating is establish~d. SuJ,:ar h:s been declared to be an
esstntial eommoclity and, un der s. 3 of Chi! Supplies Manage-
ment .Order of 1947, Cllmmi:s<oner of Civil Supplie.~ has power
to pu-rch:.se esscnti!!l commodities requin:d for dis'ribulion to
the pnblk. Paragrarh 5 (11 JE U1e Su.:ar Control Order of 1948
confers power to re)!ulate and control the production and distri -
bution of sugar ; it did not confer on the Boac! th~ power to
purchase sugar which by the earlier order had vested in the
Conmissioner of Ci-:il Sl!PPiies. The power of the <'nJ.lmis-
sioner of Civil '>npplies to enter into c1ntract for the pun base
of sugar is allowed and is not restri.:ted by the Sugar Control
Or(lei of 1948. When it is n ot proved beyond reasonable doubt
that an. accused person has acted dishonestly or so reck.Jes$ly as
to imply <lishonesty on his part he-cannot be con\ ictud of cheating
or c~imin-.11 breach of trust.
'fHE l 1NIO:o! OF BURMA 1.1, U 'I{IIIN MAUNG L AT ANO ONE ~.. 114
 GENERAL INDEX

PAGt;:

SPECIAL Joo<:Es AcT,l9-t6, ss. 3 AND 5 !ll-All Sessi usludgesaud

A dcliliounl Scssious J ud[,;eS are by viri uc of offi ce Special
Judges-Dual ca,tacitY-Drstinc/ic-n iu. trial of cau-Crltlllnal
Procedrtre <;ode, s. 193 gov er11s melfrorl of taki,g cognrsat:ce of
. of!ei1CCS by <l se~sious ntrd Addiliouat Sessions Court-Contraven-
tion rcll.iers the trial null and voicl-Descripliou of officer
ttc.!crmiTus !ltc capacity iu wlticll !te fries the case. field: The
Jaw go\erning the cognisance of offences by a Court of Sessions
is l ~id dow:n in s. 193 of the Criminal Procedure Code. An
Additional Sessions Judgc C<~n only try such cases as the President
b, general or special order may direct him to try, or as a Ses~ions
Jud~e may. IJ.lake over to him for h ial. Where an offker holds . a
du;sl capacity. the powers and jurisdiction of the two officers
r~::main distinct and different so that the description of the oflker
must naturally determine the capacity in. which he! tries the case.
1hc Uuiou: of Burmrr v. Ala Ah Mar, (1951) B L.R. 1 (F.B.\:
Ra111ac/ta11dra Gauesh Kiladkikar v. Emperor, A.I.R. (1933)
13om. SR (S.B.), followed . .
\'YO.N CHO V. THE (iNION OF RURMA
. 38 1
SPECIAL JUDGES ACT, 1946, s. 5 (1) 262
---JUDGE WHEN CAN PIIOCF.EO TO JUD.GMENT WITHOUT EXAMINING
DEFENCE WITNESSES ... 262
- - - - HF.LlEF Ac.."71, S. 42 356
STANDARD RENT, FIXING OF-WHETHER EFFECT RETROSPECTIVE ,.. 37
S'l'ATRMENT MADE TO POL!CR, ADMISSIBtLtTY 385
- - - ACCO:IIPANYII'G DISCOVERY AND STATEMI!NT LE;\DING TO
DISCOVI!RY-COl>TRAST 385
SUGAR CONTROL ORDER, 1948 11 ~
'surr BY COOWNER AGAINST A S'I'UANGER IN I'OSSBSSION-Claim for half
sllm-e-Whctlter liaUe to be dcfmletl ttS for partial partiltOII-
Civil Procedm:c Coclc, Order Z, Rule 2,lllustratioll tl). Ueltl:
The general principle is that a p_artition suit should embrace aU
the joinl prop~rties belongi ng to the parties to avoid nlllltiplidty
or suit~. I n the pr~sent case, however. as tbe claim for a half
share is not a~,tinst a co-owner but agaiost ilrangers in
pos~ession. Held: The, suit is not a partition suil in. the proper
St:ll$e of the word ; it is in essence a clajm tbat, in s.pite of
several transfers in respect of the sui~ land, the plaintiffs' half
share remains intact """ separable from t.fle .share of.s.tranf{er-
traoserees in possession. Ma !Jfya ttu4 others v. Na Mya,
U.S.!{. (1897 - 1901) 229 ; Rajetrdra Kttmar Bos~ v. Br.oiendra
Kumar Bose, A.!.R (1923) Cal. 501, distinguished. .
MA SJ.N TI AND oTil ERs v . SAW- MAUNG Po AND ~THERs' 344
SUITS VALUATION ACT, s. 11 136
SUMMARY c o NvicTION, MEANING . OF 107.
SUPPRj;:SSION OF BR.O THr:LS ACT, s . S II}-" Lives" i~e .s. 7(1)-Proofoj
artisolalec~ acf of receiving wages of vice-Wii.elher sufficient.
H elrl : That the ~ssence of an offence under . ~ . 7 (11 of the
of
Suppression Brothels ~Ct consists in, the earnings of prostifu
tion, forming .the si1bsidence of the accused either wholly or in
part. The word '' l ives " in s. 7 (1) imports . continuity and
 GENERAL INDEX 1i
PAGE

regularity. Sultan v. The Kittg, (1917) R.L.I<. 337, referred to

and applied. The.: Bmma Act !I of 1921 has now been replaced
by Act XXIV of 1949 ami the words" any lllale person" in
the previous s. 7 has been changed in1o" any per:on i11, the
new section. All U1at had t-een proved in the ca~e was tha1 Daw
Tin Tin received earnings of n proslitule on a sin<!ie occnsion.
It does not amount to proving that she is lidng on the earning:;
of prostitution.
UNION OF Bt:RMA DAW TIN TIN
---::,-----=---==--- v. - . - -- --:::-'--
DAW TIN TIN UNION OF . BURMA 306
SUPPRESSION OF CORRUPTION ACT, 1928, s. 4 (I) (c) AND 4 'i;Z)-
S. 109 of t {1e Penal Code. T.he applica'nts were ch<~rge<l before
the Western Subdivisional Magistrate-, Rangoon, f,lr taking bribe
for releasing '(P. W. 3) on bail and for abe.tment unr'er s. 109,
Penal Code. Tl1e charge against U Nyunt Maung was lhat he
obtainecl for himself and also for the other applicant a sum of
Rs. 125 . as a pecuniary advantage for the release of Maung
Aung Khine . Held : That the charge disclosed no acts of
abt:\mt:nt against the other accused applicant. The evidence
also did not support any such case. The. charge again~t
Maung Hla Myint was quashed. Tlze Pu/tlic Prosecutor v.
George Witliams, A.I.R. 51 Mad. 1041.
MAUI'IG. NYUNT MAUNG
v. THE UNIOI'I OF BURMA 251
: MAUNG HLA MYINT

TENANT OF ORIGINAL OWNER ATTORNEO TO SUBSEQUENT DOKI'.ES 413

- - -- AND LICENSEE, DISTINCTION 186
THEFT, WHETHER OFFENCE CAN BE OBi,ITERATED BY RESTITUTION
OF ~ROPERTY 206
TRADE'NA'ME, QUESTW':'S INVOLVED IN 245
TRADE-MARK-Suit relating to - Valualiott of the suit for Cowr.f Fees
aud Jurisdiclt'on;_S, II of Suits Valualion Act-.AmendJJ,ztnt of
Plaint ......Colourable imitation-Wlzat it is-Functiotz of tlte
Judge-.Admi'ssicn of a coumel. Held : l:t i$ always diff.9ult lo
fix accurately at the .outset what actual damage would be, ~t is
even difficult to obtain a rough or reliable e~timate of dal'!ages
and owing to these difficulties Under s. 7 (4) of the Court; Fees.
Act Jegislatnre gave the plain liB' right of placin~ what vahie, be
considers suitable for the relief claimed. If the claim for-
damages could no reasonably be considereu illegal, palpably.
absurd, manifestly illogical or radically wrong, the Court wit~
not inter:fere with the plaintiff's valuation. Tile Nara.ra11ga1tJ
Ceutral .Co-aperatwe Sale and, SuPPlY So?it;.l Y.' Ltd. v. Maftjudin
A/w;ed, (1934) 61 Cal, 796 at 808 ; Ma .Kyilt Myai1zg and others v.
Hoe Lan mzd others, (1949) B.L.R. 358; Boteya Natlz .Adya aud
otlters v. M"kf1a11 Lal Adya, (1893) 17. Cal. -680 .; Raicndta Burkilsh
Singh v. Bahu Ranz and amther, A.I.R. ( 1928) Ondh 260; U Ba Pe
and amther v. U Ba Shwe and others, A.I.R. (1933) Ran. 40,
followed. Even if the claim ~or damages has been over-val!led
by ~e plaintiffs. u of the Suits Valuation Act will apply in :t4e
circumstances, and unlesl> it. could be shown thatthe val!J'atiori
b~s prej 1dicialy affected the disP.osal of the suit on its merits, the
AppElllate Court will not interfere. It is a general principle that
defect of-jurisdiction on .ter.r itorial and .pecuniary grounds are not
to render proceeding in a ca~e abortive, if such objection has 1~ot
lli GENERAL INDEX

PAGE
been taken at the earliest possible cppor.lunity and there is no
consequent failt, rc O{ justice. B11dlza Mal v. Rallia Ram ami
otlzers, (192S) lJ L:!h. 418 at 423; Moolcltand Molilal v. Ram
Kislten .md others, 1933) 55 A'L 315 at 323 ; Sri RaJah Rat'u
Venk"t(; MahzPtlili (;angadhara Uama Roo Bahadur Garu,
Yuvaraja!z OJ /' ilhapuram andanct!te r v. Prcvinc.;. of Matlras,
A.I.R. (1947i l\lad. 135 ;,t 136, followed. Where the ame~tdment
of a plaint has no-! iutrocluced any new cam<e of action or did
not bring in any inc)nsistent cau~e of action, the amendment is
in order. Further wh r ,. the amenclmeut is necessitated as a so: t
of rcjOind!'r to the ~llc~;:tions in I he written ~tatement, the
JudJ.!e in allowing lhe amend:rer: t did not act iJie~ally. N.P.L S.
T. Mut/myya .CIHtt,ar v R.fA.A.R.M. Chettyar Finn and anclher
0948} B.L.R 855, distinguish~d. It is noi uE:C<:'$~ary in or..dt.-r to
constitute a colo r;;blc imiJatiou that hvo marks should be
simiJa1' ~n every partie l~r, but it will be sdficient in law to
conS-tit ute a colourable imit<~lion if there exi~ts such similarit;y
beh~<!n the two tnark~ \\'hich cmlld, in the d"rcan~lancis of a
par tk.tl"T case be considered to be L'alcul:1.1ed to decdv!! the class
of p~rsGas for whom th(: goods are ordinarii or prima rily
intended. Perry v .. Trufitl, 118421 6 Beav. 60 at 73 j Seixo v.
Proven~mde, (18!!6) 1 Ch. Appeal 192 ?t 196,-followed. The
Judge Jookin11. at the exhibits before him ;,nd also p;n-ing d.ue
attenlioi::t to the evidence adduced must not surren-~r Jus ow.n
independent judl(n ent to th'at of iny witties." "The principle is
perfectly clcar-Ho m~n is entitled to seU his goods as thegoods
of another person. The diffict1ltylies in the applicatiop wheu it
is a case of colour:lble i:l'itation. It is <'e-~irable to bear !n mind
th:~t -no gen<eral rule can be laid clown to -w:hatis a c(!}.!ou:t:able
imitation or no . Each case must be dealt with as it arises,
regard being had to the circum~t:tnces of the !artlcu'idr- case.
The qtestion is not whether a person.lo.cJking at the tw.o trade-
mar~ ~ide hy side, would he ron fused. The question is whl:th.e r
the per~<m who ~ees the propo~td tr~de-mark in the absence
Of the other trade-mark, and in 'iew only of hi& gtHer.al
recoil ctiolt of what the nature of thl! other tr~demark was,
wonifl be linble 10 he decei,ed and to think that the trade ma~k
be(llre him is the same as the ol-her of which hce has a gen&al
reco11e.c tion. Payton a111f Co.- v. Snellin_t/. La111Pard and Co.
(190J) A.c. 308 at 31 1 : Sandow Limitecl's.a.PP'licatfon, (.1-914)
30 L.T. 394, followed. If an Advocate simplv stated .that J.te
had o-ver-valued 'lbe sdt -iu o-dtr to brillg it \\.H nin the
brispidi~n of the High Court: and the statE-ment WaJl not -in
connection with any' matter actually in dispLtte ;between .the
parti.e.s- -::1~ -1-he time of the tri:tl and the C:gestion of j. r isdictiGm
wall-ri<>l -raised and no i~sue wa.s franied, the :~lleged' :admis~iGn
sho~.1d be r eceived wi t h caution and sho, ld be considtred in the
lightolth-e cii'ct ms:~nres of the c;tse. S .P.M. Muthtah.el~ettiar
ana~f!l i~s v. M1dhu K:R. A.R.I<aruptan Cl:etti atJd otJrers,.( l 9.27)
SO Mad.- 7_~6 al 7-97, referred ~o.
GA-W oS'HAN SooT v. E. c. MADflA BRoTH'ERS . . .... 136
TRADEM>i~K-~rade 1'~m~uest,io)IS .itw~lved it,:....,.I nfrit,ge'-n,ent: o/
-" Shw:-ntJIItlleiJJ-gi" wfzelher_ prod)lt;e . or description of
Plai;~trlf,s medicitu:-Onus of -froof-Dcscr.iPtire w.orrl losittg
original mea1t-in8 . Plaintifi aiul defendant m.?,n!factur.ect b lood
puriliers. Each gave ih!! same riame "Shwe-nan-tlitingi '.' and
ex<;ep.t .for -the ~1ame men tio ned in the lab.el, the getups wer~
entir.el. differ~ht .. The plaintiff. . ap(ill!ed Jor an injun_c:tion
to :-r.estr-~n the dcfend.ant fr.om. using th.e : same name. T he
 GENERAL INDEX Ji i i

PAGE
defendant had been manuincturing and sellinJ.: mtclicine I'M the
last i5 years but uuly rcceu: ly re:,!iste!ed the tradc-tnark and
name. Held: Th;ll the rno>l important quc:stiun is \\'hcthe r the
name " Shwc-naa-t11eingi has acquired a npt:t.llioo~ in the
market ancf became associated with plainf>iff and \\'hethcr tJ .e
public have alway,; idrntificcl the same medicine by this name: A
trade-mark or nam" which is primarily descriptive of an article or
its compositiqn or mode of manufaclurt must be npeu to the tr<Jde
and caun,t be claillled for exclusive use by one trader. The
burden of )1rool of the contention th;tt the name has lost its
primary me:!l'fhl.! alld has acqtrited hy lnn)Z user a ~ccnmlary
rneatriog ittdi.:ating thnt the medicine sofd w:~s not merely
medicine of a particu!ar des-:riptioll but medicine made hy Itim,
lies heavih Oil the. partv ;t$$CT(illg it. The term rtsc:Jf 'was
nev~r mcant to be a t r:1de uame atrd was given to this typeof
medicine long ago iu :1 Burme~e Ro-yal P~lace. The proces~ at
manJfacture had :tlw been published in '' 'fse-k) an " ( Maleria
Medica). The Coms ;tre ven reluctant to conclndc that an
ordinary des:riptiv~: wore! has lost its orig.inal meaning and ha$
bc<:ome distinct!. e of the goods Clf a particular mant1facturer.
GaUl Kan Lye v. SMu Kyoue Saiu[!, rt9391 R.L.H. 488 :
Retltl-away v. Baul.am, 1:> RP.C. 218; Cellular Clothing Co. v.
;v.,~ton and :lfurray, (1899i \.C. 326; Chivers & Sons v. ChtVers
& Co. LM., 17 lU'.C. 420; Burbcrrys v. J. C. Gordin~ & C.. Ltd.,
26 R.I".C. 693; Horlicks ft!altetl Milk Co. ' v. Sun.nu:rskill, 34
KP.C. 63; Hommel \i, Bauer & Cu., 22 RP.C. 43 , referred to.
0AW THET Pu v. SAYA KHlN 245
TRANSFEREE, -WiiE~IIER CAN SUf: ON ORIGINAL Cl\USE OF ACT!O'JII ... 197
TRANSFER OF IMMOVEAaLE PROPERTY ('RF:STI'UCTJClN) Jli.CT, !947,
~s. 3 AND S -Union Cit~~if1tshiP Elect-iou Act, ss. 7 a,1td 8.
Ht'lti: That mere filing of an .lpplication under Union Cllizen-
ship Elc-~tion Ac;t' fur Ci.tiz<'nship in .B1:rma ami a,, Ct.quiry he.'~
are trot st1ffi'C'iwt to .make a rer.son citizen. A pcr.a<.n aW;tins, tlte.
status r1f a "'ilium ol1ly when 'he l)btains the Cetti~Wate ot Cilk~"'
shi("l a'fter teno uucing any other nationality or stlltus as citizen nf
any ft>r.eign Ount:ry. ll:ny tr.ansfer of inmovcable pl}operly
obtamecl by a forei~tler who has applied for citizenship but has
not: yet. obt.a-ined tl:re certificate w@t~l<i be \'Oid imder ss. 2. aAd S
of the Tra:ns[er nf ln:moveable: t"roperty ! Re~tricti0n} AE:t, 1!947:.
~0 MYA DIN ANO ANOTHER 11. Ko !$iN NGA 240
TRANSFER OF PROPERTY ACT, S.
. 106 WHF.N
.
INAPFLICABL'R 176
TRANSFER OF l'ROPE.HTY AcT, s. 106-.Lea~e-Notice to . quit,
sufficien.cy oj~Time of notice {iy legal ,teqtdrcment and tiitte of
tofice by agreement -Interpretation of notice; Pr'ini'ipl'e undet'-
lying. Held: It is dear tlt:~t thirty days' notice by eithc!r party
is the req: -irement to be c.omplie<l with- ;tccordipg to the
agreement entered into by the party ; h tl1e light of this
const.r-tK~ion the prv. isions cf s . 106 of t_he Tra sfer oi Property
Act -requiring Hfteep days ncti~e expiring with the end of the
month t>~theten_anc<:y is n0t al'plicable to the crse. Held also , In
interpreting au;bigttOt:S words in notices to quit the principle
whi~;,Q.sh0uld -guide the Cnurt is t_ o test -~hat the wor:ds would
mean f.e-.tenants convenraut with all the facts and circumst~~~~
of tl'le_tenancy. Uariht;Jrl}a~zerii v. Ramsh!Jslti R_?Y, 46 Cal 4~ ;.
Secr..etary of State v. M.a11tu Swfan ) M-uklter;ee and ot.hers-,
A.I.R (19.33) Cal.. 260, referred t o,
~~ U CHIT ~~D oN~ v, Daw QHf.! Y ~~ ... 176
liv GENERAL INDEX

PAGll.

TRANSFER OF PROPERTY ACT, S. 54-0ral sale for l?s. 78-WIIet iler

pyoof of sale admissible. Held: S. 54 of Transfer or l~re>perty
Act enacts that itnmoveable property of the value of less than
Rs. 100 may be transferred elther by registered instnunent or by
delivery of the property. As the sale-deed in this case w:~s un-
registerl:d, no evictence can be given to prove its contents. Held
further: _There is sufficient evidence to establish the fact of
delivery of pe>sse~sion given, which had its inception in a sale.
' Daw Yin v. U Sein Kyu and otheys, (1950) B.L.R. 119; Ma Tin
Nyunt v. Ma Kyi Kyi ancl others, (1950) B.L.R,. 33,
distin~ uished. Tribhovan Hargowan v. Shankar Desai, (1943 )
Bom. 431; GungaNarain GoPev. BaliGhunuGoala,l.L.R .22 Cal.
179; Mohamed Yaqob Ally v. Chllotey La!, A.l . R. (1939) Pat.
218; Kt!<ihwar ' Slteonandan, A.l.R. (1929) Pat. 620; Dav_a Ram
v. S1ta Ram and otllers, A.I.R. (1925) All 206; Dltaram~sh11ar
Sarma v, Lakhvadltar Borgoltain, A.I.R. (1950) Assam !07;
Kappuswamy Goundan v, Chinnaswami Goundan, A.I.R (1928)
Mad. 546, referred to.
Ko SAN BWINT AND ANOTHER "IJ. AH HEIN 96

UNION CITIZENSHIP ELECTlON ACT, SS. 7 AND 8 240

UNION C~TIZF.NJlHIP (ELECTION) AcT, 1948, s. 3-Necessary qualifica-

tions. Two conditions are nec~ssary to be fu lfilled before a
Certificate of Citizenship can be issued under s. 3 of the Union
Citizenship {Election) Act, 1948. The first i$ that the applicant
must be born within the territory specified and he should also
posses~ the residential qualifications prescribed in the section.

THE UNION ~F BURMA "IJ. EBRAHIM SULEMAN VARI!!.VA 6

UNION jUDICi.A,RY ACT, 1948, s: 20 192
'
URBAN RBNT CONTROL ACT, s, 11 {1) {a)-Fixitlg .of stattdard rent- .
Whether effect retrosPective-Notice' to quit - Claiming at .
contract rate Prior to such fixing whether valid. A contract of'
tease should be considered binding upon the partits until it has
been modified by agreement or bv operation of taw. Uplil th~ ,
Controller of Hcnts:issues a certificate fixing Standard Rent, the
original contract of lea~e cannot be said to be altered irr any wa y;
only such fixation alters the rate agreed upon originally. Where,
therefore, a notice of demand at the agreed rate for a period prior
to the fixation of Standard Rent i~ served and not complied with,
the landlord's notice cannot be said to be bad in law. The.fixa-'
lion of Standard Renl has no retrospective effect. S.!. AJ<Jwath
and.{ifJeothers v, T. H, Khan, Civil .Misc. Appeal No. l of 1950; .
S. L< Barua v. S. !4. Abowath, Civill 1st Appeal No.1 Q of ~950,
referi"~d to. ..
Ko T,IN 'V, Ko KYIN THEIN AKD ONE ... 37
URBAN RifNT CONTROL ACT, ss. 11 (1) (/), 14-A 11) AND22-For1nal
order in writing by Controller if necessary. No s.uit under
s . 11 (1) {/') of the Urban Rel)t Co!\trol Act should be entertained
.by any Court "unless the landlord bas been permitted b the
Controller by order in writing to insti.h1te such so.~it or proceeding
and b as pr9duced before such Court proof that such permission
has bee~ g<anted." The provisions of s. 14A (1) mu~t be read'
aubjecl'to the provisions of sub-~. {3) and of the. pro\isioiis of
s. 22 (1) of .the Urban Rent Control Act. Under s. 14-A (3), upGn
~n _applicati'on from the .IandJord1 the ~ontroller, after q1a~~ng
 GENERAL INDEX lv
PAG&
enquiry, should make an order in writing granting or rejecting
the application. This order is not final and is subject to reference
~d~r s. ~2 (1). The decision on referen,;e is final. The Judge
10 d!spos,n_e of the Rtference should follow as nearly as possible
the procedure for trial of reeular suits. When a decision is
arrived al-.by a ]11tlge on refe1ence, it'-entirely supersedes that of
the Contf.6ller. an.d it is not necessary-to refer the matter b::ck to
Contt~ller fol"issueof a formal order permitting the institution
of proceedings. Sub-s. (1) of s. 14-A, does nol say t!lat the suit
filed by the landlord must b<> accompanied b} the order in writing
of the r.;outroller, The landlord is only to prove that permission
has been granted. The only proof, in a case where there is a
Refetente-to''t.he Court, is proof of permission beinjZ granted by
the UlUmate" act hority dealing \Vilh the orders of the- Rent
Gont~lle;-. 'ThoJgH the appellate aittnotityin the case Old not
sp.ecificaUy say that pernission was granted to file a suit under
s. 11 Ia } (f) it ~an t-e inferred from the language of the order.
Ko KYI MYAING v. DAw MAl SUJUN ... 47
URBAN RENT 'CONTROL A CT, SS. 14-A (1) AND 22 {1)-WIIetlter Judges
mentioned in s. ZZ (11 are persona desi~nata-Cour/s Act, 1950,
s. 22. An aflpli<;ntion under s. 22 11) of the Urban Rent Control
Act to the Subpivisional Judge,l'r,:yingyan questioning the order
fixing Stand:lra Rent by the Assi~_tant Controller of Rents was
returned to the ap plicant. Upon re' ido:, to the High Court:
Held: That fhe Judges mentioned in s. 22 (I) of the Urban Rent
Control Act were {Jersona designata and s. ZZ of the Courts Act,
1950 had. no application to tb.: case before them. The words in
s. 22 refers to Courts of L:~w established under the CoUitS Act
and .not to P_ersonn_ desigtmfa~
D Aw 'I'IH v. DAw SAN MYA 45
URBAN RENT Co:o~TROL ACT DOES NOT APPLY TO A LICENSEE 186
---=-...,.-....-:-:--- ,ss. 12 {1) .AND 13 ... 186
- - - - - - - - - - - - - , 1 9 4 8 - NOTICE 01' EJECTMENT-
SoFFICIE:-<CY oF 176
URBAN RENTCOl-lT~ot. ACT, s. 11 (II (b) AIJO S. 14 . I11-Meanit1g of
appearing I"
the word "tremises ". Held: That the word "primarily"
clause (d) of $. :11 '(1) 'i:>f the Urban Rent Gontrol
Act,l'J48 must be read in the light of the expression "and..was
suhsegueutly let" which ioJlqws it. It could accordinll!lY be
consfrued as referring to order in tiine, meaning at first or
originally. A building to be erected on the site in question need
not be in the l);iture of a residential building. The expression
"house" in clause (d should be given its ordinary wide
construclioll' and would. inc;ludca place of ba:siness. "Hocse "
'does:not. mean -~~cers"rily .a ;:nere dw.clling house or a_ house
only used,-exdusivel~- or_prind-pally use~. for a residen'ce; the
word '~hOuse" inqludes a shop -or may consist ciT a shop ..
When~ tenancy -was determined by duenotice and a 'uectee Co~;
ejectment was passed but the de.eree was _-l ater nscinded, but
the Janc:Uord 'did not receive any rent frotn the tenant and he
filed 'a suit to eject the tenant unders. ll (I) (d) of Urban Rent
Conlroi .. Acrt toenabl ~ the landl ord 't0 bui:ld a 'hOLJSe on 'the land,
fresh -'notice-to quit was n'ot Qecessary. :."fihere is a dis,tinction .
between ' th'e qleanin.( of the word "ten;mt" in Urban Rel!t
Controi:'Aet . and meanin2- of tile .word "tenant" under 'the

8
lvt GENERAL INDEX

PAGE

Transfer of Property Act. A leaant holding over after the

detetmination of tenancy is a tenant within the meaning of the
Urban R.ent Coutrol Act bnt he is not a tenant under s. 116 of
v.
the Transfer of Property. Act. Richards Swansea Improvement
and Traf'tJways Co., (1878) 9 Ch.D. 425 at 43i; T . H. Kha1~ v .
Dawood . Y.usoof Abowath and others, (1947) R.L.R. 354,
. ~efe.rred . to,'
SIN TEK AND ANOTHER v. LAKHANY BRoS, . 180
URBAN RE~o;T CoNTROL ACT, SS. 11 (1) (e) AND 14-A 13)-0wner
requiri~&g building for re-erection (m.rposes- Olrl building 11sed
fo r res:d~tial purPoses-Whether new building must also. be re-
sirlenfial-" House " meaning of. Daw Pwa as owner of house
No. 60/7.2, Phongyi Street, applied for a permit under s. 14,A (Ji
read with s. 1J {1) le) of the Urban Rent Control Act for filing
a suit to e-ject ber tenants on the ground that she wanted to put
up a new building. The tenants admitted the building required
extensive.repairs and t he Corporation after inspection 3 year~
ba~ bad admitted that the building required extensive repairs.
The tenants obfected that the new.building must be resi'denli<H
building as otherwis~ the bond executed by the la1,1cllord woul d
be ~n!ircly useless. The Ja~dlord obtained. a decree tor
ejectment. On appeal by the tenants. Held : That the desire
of the landlord to put up a new building ;was in the ircumstances
justified. The cont~ntion that the new building. must necessarily
be a residential one had been negatived by a Rench of this
Court. A6dul Jabbar v. naw Tlteirt Kkin awl an.pllter, Civil 1st
Appe:~J No. 27 of 1951 ; Sin Tek atJ.d <m'e v. Lakhany Bros.,(l952)
B.L.R. 180, referred to. The word " house " in cl~use (d) of
s. 11 11) uf the Urban Rent Control Act ought 'to be given its
ordinary wide construction, including a place of business, in the
absence of anything to indicate clearly that it was intended to
be used in a more restrictive sense. Richards v. Swansea
Improvemmt & Tramways Co., (1878) 9 Ch.D. 425 at 431 ,
referred to and applied.

Ko BA TUN TIN r. DAW PWA 334

VALUATION OF SUIT FOR THE PURPOSE OF COURT FEE AND
JURISDICTI ON 136
'WA!l:F, DeNIAL OF. WHET,H.ER DISTRICT 'JUDGE CAN ENQUIRE 312
WHETHER ADV9CATE BEING CITEQ AS WITNESS A BAR To' . HIS
APPEARANCE 315
WORKMEN~s CoMPENSA'fiON AcT, 1923-Appeal . again.st order of
comPe11satwnor iniury-Basis of cf4culatwn oj'loss .of ear ning
ca~city....:..Medical Certificate in Co'mmissioner's Proceedings
111/tetl:er evidence~S. 4 (1) (c) of t-lze Act , One Maung Tin Maung
I sus'ained fracture of feft ~boulder .girdle ah~ 5 ribs on the left
side as a result of the injury which he received and the question
for de<:i:~ion was..the com'pes,sai\OIJ for loss of functional capacity.
The Commjss~ont-r award.ed 10 per. yent .a.~ ~~q!i loss, basiri.g it
on a,medical.certificate in the pruceeoings. I;Teld: 'The Medical
Certifi.:ate' is. not adinissibte in evid'er>.ce in ' the absence of the
evidence ~~ the' . cloct<?r .~ranting ~uc'h. ce'rtificate. Opinion
expressed in the certificat e is i.m idinissible ihevlrlence. Ric/Ja.-ds
v . Sa11dtr$.' & Sotis, B .ilterworth's workmen's Comp-ensation
Cases, VoC v, p. 3S2, ieferre!l to.. He~.jurtft.er : That . the
 GENERAL INDEX I vii

PAGE

injury snstained is not of the nature specified in Scheclulc I and

the workman was enti tled to such pcrcen::1g..: of compen~ation
as is proportionate to the loss of th e e~rning c:~pacity.

l'vfAUNG TIN MAUNG I v. UNION Of' BURMA AIRWAYS.

WORKMEN'S CO}!PBNSATION ACT, SS. 8 (1), 2 (1) (d)-De#~Jdants of

workme1t-Necess.ty for decision by Commissio1tc1'-RePort hy
flte Commissioner for Comtensatioll, Cl:it tagoni{-DL'/inition of
Commissio11er ins. 2 (1) (d). A Commissioner for Workmen's
Compensation while awarding Rs. 2,400 as d~mages did not
ecord the finding that the ctcceased died as a result of an
accident in the course of business. He acted upon the report
of Commissioner for Workmen's Comp<msati>n, Chi'ttagong ,
and awarded R.~. 2,400 as com:,en~alion fOr Respondent. Both
the.$e were challcnjled as illegal. Heltl : That though direct
evidence was Jacking, there is :nflicient evidence of the death
being the result Of an accident arising in the course of employ-
ment and there was nothing in AppeWm ls e\'idence to rebut
the presumption. The scheme of the Act under s. 8 (1) is tor
payment of money to the Commissioner t.y the emrJoyer for his
protection against claim and it is open t o the emplnyer to be a
party in the distribution proceedings and contest the statute of
the aiJeged dependant. There is a provision for repayment to
the employer of money so depo~ited. If no ncar rel:ttion exists
the money cannot be raid to a more <listant relation anc!
"dependant" has been defined in Ihe Act under s. 2 (1) (d).
T he report of any other Commissioner menlioued in s. 21 (d)
cannot include the Commissioner for Workmen's Compt>nsalion,
Chitta!(ong. It meaus a Commisi 111er otl'rointed under s. 20 of
the Act by the PresiCicnt of the Union or Rurma. The COma:t"
sinner, Chittagong is not such a Commis~iouer. The m1t1er
rel ating to act al payment In or distri~ution cannot be tramfer-
red to anothe r Commissioner under the pro\'iso to s. 21 (2).
The findings of the Commissioner are therefore illej!;:tl as he
had acted on no admissible evidence. 11, the Matter of Guddai
~lftdavalu, 7 R.m. 660: l1t tile Matter of Kaiku Prasad, A.l.R.
(1929) All. 707 , referred to.
BIN HONG & Co. 'II. MUNSHl M EAH ... 230
WORKMB N'S Co~fPENSATrON AcT, s 30 (I) (a)-Comnzssion wltet.'ler
can be issued. Held : In proceedinj1;s under the Workmen's
Compensation Act, th e Commissioner has no power to illlltle a
commission for the examination of witnesses. Siugh v. Burma
Railways, R.L.R. 641 ; Brigstock Edtt l}i a1t1l Co. v. Gaguji Devji
a11d one, A.I.R. {1930) Sind 2%1, followed.
Mfs. KALIDAS & SONS ~. KHOLI RAHMAN 20.1.
'WRONGFUL CONVt.RSlo~. COMPBN~A rJ0:-1 FOR. LUIITAT!ON 274

G.U.B.C.P.O.-No. SO, H.C,R., 1712-S~l,iSO IX.

 BURMA LAW REP,ORTS

FULL BENCH (~PPELLATE CIVIL).

Before U T11n BYt!, Chief Justice, U On Pe a11d U Sa11 Maung, JJ.

DAW HNI~ {A PPLICANT) H.C.

1951
v. Nov. 22.

u KYAW AND OTH!:!;RS . (RESPONDENTS).*

.A.,.bitnlli011 Act, 1944-S. 49-Providing for rep::al and a mendmet:t.,-Third

Schedule amending Artrcle 173 of Linritntiou Acl-Tilird Sdtedule and
s. 49 of tile Act deleted by U11i011 of Burma Adaptation of Lnws Order,
1943-Geteral Clauses Act as amended by A:t II of 1945-S. 5-A of
Generdl Clause5 Act-Its effect.
S. 49 of th~ Arbitratio:1 Act provides for repc::al and amendment of certain
.Acts. The Third Scheduleof the Ac_t am~nded Article 1 ?~ of: ~he L~mit~tio.~
Act. Union of Burma Adaptation of ~aws Order, 1948 deletecfbqth s. 49 iuid
ilie Third Schedule. The question referred to the Fun:a hcb ;~a;_ what w:as
.1he.effect of deleting of.s. 49 and Third Schedule of the Arbitra tion Act, 1944.
.He.ld ~ :s. 5-A of th.e ;Ge11eral Claua~s Act introduced by Burma Act II of
:I94.S specificaliy provides f<ir the questi!Jn referred to. Where an A,~t ~"r
. Rel,'ulation repeals an enactment by whkh U1e text of any other enactment was
iam.ended:by express omission, insertion or substitution ~f iuiy .matter then,
.unless a different intention appears, the repeal ehall not affect the cQntinuanc.e
. -~f a~y su'ch amendment made..bi t~e enact'inenl so repealed and in opera"iioq
:at the ti~eef s uch repeal:
S. 5-Ao(.the G'.!n~~at c:a.ls~s Act; embodied the gener:al prlnciple of ta\v
:thafthe. amend!lJent, oncE; i ~becomes Jaw, forms .patt of the o,:igipaH:na~tment
j~i. H takes Uie place'or the provision for which' it was .s~bstit~t;a, ~~ciitba;
-ordinarily an amending Act complete all its function once it is eiladeetvarid
-it can afterwards be repealed ' without effecting the o.pera.tion Df the iiew
:provisio~, .whi<:~Jhe- a.l.llen.c;ljng act has i_ntr9d.uced.
::. Th;~P~r:i.C?d ~f~~tatio~ for ~e pu~ppse requi(~d is to l;>e catc~Jate~Hn
~CC<?r<!~t:J.C~_YJ)Jh. A~cle..178 of ~e Fir~t S~~d':le to . t he . Limitation. Acf as
~mended tiy'tlteT~ird S.che~ule of the Arbitration Act, 1944.
';,:.
- ,
(a;~: Q~d~in, (i930) sing. 's76, referr~d t~.
:-: ... .'. .

' Civil Refet:~nce ~o. i 4of i95_1..

2 BURMA LAW REPORTS. f1952:
H.C. P. K. Basu for the applicant.
1951
DAw HNJN
v. N. R . Burjorjee for the respondents.
U KYAW AND
OTHERS.
The judgment of the Full Bench was deliv~red by

U TuN Bvu, C.J.-It appears that Daw Kyi Kyi, a

Burmese Buddhist, died leaving behind her five heirs,.
namely, the applicant Daw Hnin, and D<tw Shwe,,
Daw Ma'y, Daw Tint and Ma Than, the +th, Slh, 6th.
and 7th respondents. The five hdrs referred their.
dispute in respect of the estate of Daw Kyi Kyi to:
-three arbitrators, narnely, U Kyaw, U Mya Maung and
U Set Pe, who are the 1st, 2nd and 3rd respondents.
The arbitrators made their award on the 8th March,.
1948, but no notices in respect ther.eof were issued to.
the par~ies until the 6th October, 1948, with the result.
that their award was not filed in the District Court
until the 8th October, 1948. Daw May and Ma Than
contended, i nter alia, that the filing of the award was.
barred by the law of limitation ; and the learned
Di~trict Judge, in his order, upheld their objection
and declined to file the award.
Daw Hnin, the applicant~ next applied to the Highi
Court to reyisc the said order of the District Judge-
dated the _16th J~nuary, 1951. The learned Judge,.
before whom the revi.s ion application came "for
hearipg, h:1s referred the following question for
aecision ~

" in view of the recent ame.n dments made in the Arbih~tion..

Act; !944,-"by the Adapt:ation of Law~ Ord~r, 1948, what is riow
the period of !.imitation for the filing in : Court c-f an award in a
suit made in any matter referred to ar):>itration by the order of
th:~ Court, or of ~n a~'!ard m~~le . in ..any inaUer referred to
arbit~ahon . without. the inte~vention of a Co.u rt ; and the time'
rom whioh the period hegins to ru~ ? " '
 1952] BURM A LAW REPORTS. 3

We do not consider that it is necessary in this H.C

1951.
r eference to deal with the point referred to in the
DAW Hl'1IN
last line of the question propounded as it appears to v.
us that this point is a matter which ought properly to u ~v:~sANr
be decided by the learn ed Judge dealing with .the u T UN B YU,
r evisi on proceeding after the main questi0n has ben c.J.
answered in this reference::. The ord er of refefence
will therefore have to be deemed to be modified in
the sense in licated above.
The law of arbitration which appertains to the case
under revision is the Arbitration Act, 1944, and
section 49 of the Act reads :

" 49. (I ) The enactments specified in Part I of the T hird

Schedule are hereby repealed to the extent mentioned in the
fourth column thereof.
(2) The enactments specified in Part II of the Third
Schedtile are hereby amended to the extent and in the mann"er
mentioned i.n the fourth column thereof.''

And the relevant portion in Part l I of the Third

Schedule to tt~e Arbitration Act, 1944, relating to
Article 178 of the Limitation Act, reads :
~'(iii) fot Article 178 the following shall be substituted,
namely:

' 178. Under the Arbitratbn Ninety The date ofiservice.

Act,.1944, for the filing in day~. of the notice .of the
Court of an awar d. making of the
award'"
. . : .

S ection 49 of the Arbitration Act as

well as the .Third
Schedule were subsequently omitted by._the Union of
Burma (Adaptation _o f Laws) Order, 1948:
. The .q uestion before \IS res olves :iD,to, \~hat is. the
eff~ctof the .Union of -Bur~~ .<~4~~t?-tti_o_n_ o( _i~\vs.)
Order,
. 1948? The - leam.~. q ._Advocate
.. . . for the
4 BURMA LAW REPORTS. [1952
H.C. respondents has referred us to the observation
1951
of Tindal C. J., in Kay v. Goodwin (1), which reads :
DAW HNlN
v.
U KYAWAND "I take the effect of repealing a statute to be to obi iterate
OTHERS.
it as comp,\etely from the 1ecords of the Parliament a:; if it had
u Tu:-~ BYu, never been passed ; and it must be considered as a la\v that
C.J. never existed, except for the purpose of those actions whicb were
commenced, prosecuted, and concluded whilst it was an existing
law."

The Court was not dealing in the above case with a

simple amending act, but the entirely earlier statute
was repealed there.
The answer to the question propounded has
become very simple as the answer bas been specifically
provided for in section s-A of the Burma General
Clauses Act as amended by the Burma Act No. II of
1945, and it reads :
" 5-A. Where any Act, Regulation or Ordinance repeals any
enactment by which the text o{ any other enactment was amended
by the express omission, insertion or substitution .of any matter,
then, unless a different. . intention.;ippears, the repeal shall not
affect the continuance of any such amendment made by the
enactment so repe 1le:l and in operation at the time of such
repeal."

The abo_ve provisions in effect embody the general

principle of law that th~ amendment, once it becomes
law, forms a part of the original ..enactment, that it
takes the piace of the provision fdr which it was
substituted, and that ordinarily an amending act
.-completes all its function once it is enactep ; and it can
.afterwards be repealed without affecting the operation
of the . new pro"vision, which ~he amending act has
i.n troduced. The answer to ~he que.s tion propounded
as mod~fi:.ed by ~!?is that t_h~, peri~d o"f limitation for

!h (1930) Bing. at'576.

1952] BURMA LAW REPORTS. 5
the purpose required is fo be calculated in accord- H.C.
1951
ance with Article 178 of the First Schedule to the
DAW HNIN
Limitation Act, as amended under the Third Schedule v.
to the Arbitration Act, 1944-. Each party is t<> bear its u ~~~~s~No
own costs in this reference. U TUN Bvu;
C.J.
6 BURMA LAW REPORTS. [195 2

APPELLATE CIVIL.
Before U Ttm Byu, Chief Justice, aud U Si Bu, J.

H.C. THE UNION OF BURMA (APPLICANT)

1951
Nov.19. v.
EBRAHIM SULEMAN VARIAVA (RESPONDENT).*
UrziM c/ti;;eusltiP (ElecliOII) Act, 1948, s. 3-Necessary qualificn!iOIIS.
Two conditions are necessary to be fulfilled before a Certificate of Citizen-
~hip can be issued under s. 3 of the Union Citizenship (Election ) Act, 1948.
The first is that the applicant must be born within the territory specified and
he should also pl)ssess the residential qualifications prescribed in the seclion.

Tin Maung (Government Advocate) for the

applicant.
N. R. BU7jorjee for the respo.ndent.

The judgment of the Bench was delivered by

U TuN BYu, C.J.-Ebrahim Sul~man Variava
applied in Citizenship (Election) Proseedings No. 3019
of 1949 of the office of the Citizenship (Election)
Officer, Rangoon, for the issue of a certificate of
citizenship to him. His place .of birth was said to be
in Rangoon. However, he mentioned in his affidavit
that he was in residence at Rangoon from 1928 1938 to
and that he was in India from 1938 to 1948.
section 3 of the Un.ion Citizenship (Election) Act,
1948, requires that a person to whom a certificate of
citizenship is to be issued -should not only be born in
one of the territories which was included .iri His
Britannic Majesty's doininionsat the time of his birth
but that he spould also possess t~e ~e~idential qualifica-
tion ..prescribed in that section. : ,I.t will therefore be
Civii Reference No. l1 of J-951 against the order of the Citizenship
(Election) Officer of Ran~toon in Proceedings .No. 3019 of 1949.
 1952] BURMA LAW REPORTS. 7

necessary for Ebrahim Suleman Variava to prove that H.c.

1951
he was in residence in Burma at leas t for a period of TH E UNION
eight years in the ten years which immediately preceded OF BUR~!A
v.
either the first day of January 1Y42 or tl1e fc.urth day EBRA HUt
of January 1948. His affidav it, which has already Suu~MA N
VARIA VA.
been referred to, shows that his residence in Burma
U TUN BYU,
before he went to India in 1938 would at most amount C.Jr
io about seven years, and not more, and that his
residence in Burma between 1938 and 1'9 48 was
practically negligible and could not under any stretch
of imagination amount to even one year. This is there-
fore a case where E brahim Suleman Variava could be
said not to have possessed the necessary residential
qualification for the pu rpose of a certificate of citizen-
ship being issued to him, and t he order of the Citizen-
ship (Election) Officer, dated the 30lh March 1951 is
hereby set aside. We regret to add that the Citizen-
ship (Election) Officer concerned appears to have
dealt with .the case most casually in that he has not
.attempted to state what the facts of the case are and
h ow those facts could justify his order recommending
the issue of the certificate to Ebrahim Suleman Variava
The reference is accordingly allowed, and we do not
think we ought to award any cost.
8 BURMA LA'vV REPORTS. [1952'

APPELLATE CIVIL.
Before U Tuu Byu, Cltief lttst ice, aud U Si B11, ].

H.C.
1951 GOVINDASWAMY AND ANOTHER {APPELLANTS}
..,.
v.
Nov. 20.
N. CHINA TAMBI (RESPONDENT).*

Guardians a11d Wmds Acl, s. 25-S. 47-APPcal j ron1 conftnl order.

Held: For the purpoie of s. 25 of the Guardians and Wards Act a child:
must be deemed to have been all the time in the custody of father. Even
though the child all the time was living with mother and on mother's death.
went to the custody of the petitioners ytt s. 25 applied to such case!:'.
Maung Zaw v. Mautzg Hla Din, I.L.R. 12 Ran. 161, followed.
No appeal lies against a con~ent order.
When the question of custody or a minor child comes before the Court th~
paramount considl!r:ttion must be the welfare of the minor as a whole. The
Court is not so much concerned with the feelings of parents and natural
guardian as with the propcr welfare of the minor. When an order. for the
return of the minor to the cu~tody of the father is based upon a compromise
between the contesting parties it cannot be assumed that the order is
necessarily for the real welfttre of the minor. The compromise may be:
collusive between the contesting parties. The Court should hold an enquir}(
before custody of the child is given to the father.

Ba Tun for the _appellants.

Ba Tu. for the respondent

U Sr Bu, J.-This is an appeal from the order of

the learned District Judge, Thaton, passed under
section 25 of the Guardians and Wards Act. As the
order appeal~d from was a consent order, it is admitted
by the appellants that no appeal lay from . it either
~nder s~Ctl<:>~' 47 or under any oth_er section of the:

" Civil Misc. Appeal No 8 of l vSt : ~ . .

(,I.
Ii i 1
R N ,
0 1951
eVJSlOn . 0. 7"
f agamsl the order of the DJStTJct Court
. ofThaton in Civil Misc. No. 21 o.194.8:
1952] BURMA LAW REPORTS.

said Act. As, however, minors were involved, and we H.C.

1951
were anxious that the:r interests should not suffer we
G0\'11-IDA
have allowed it to be converted into a re\ision appli- SWA~IY ,\ND
cation and allowed the case to be argued as arevision AKOTH ER
v.
application. . K CHiNA
TAMBI .
The facts alleged are these. The respondent filed
an application against the petitioners in the District U S1 Bu, J.

Court of Thaton under section 25 of the Guardians and

Wards Act, praying for the return of his tv.~o minor
daughters to his custody. Tht: minors are now 16 and
14 years of age respectively.
Their mother died- in the year l<J41, and C'n her
death, their father made them over to their maternal
grandmother with whom they lived until her d eath in
1947. In the grandmother's house, there also lived the
aunt of the minors, who is a sister of their mother, and
her husband, wbo are now the present petitioners.
On the death of their grand mother, the father again
entrusted the minors to the hro p ~titioners, and they
have been living with them since then.
The petitioners opposed the application on the
following grounds:-
(1) That the respondent was living with
mistress ;
(2) That the minors were made over to them and
not to thegrandmother on the death of their
mother;
(3) That the respondent never visited the minors
and never contributed. anything towards
their upkeep;
(4) That the minors were receiving proper edu-
cation and were being maintained by the
p.e titioners at their expense ; and
(5~ That it would not .be for the welfare of tbe.
minors that they should by returned to the
cu.stody of. thei{ fa~her.
10 BURMA LAW REPORTS. [ 1952

H.C. The case was fixed for enquiry on the 23rd

1951
December, 1V49, but on the 22nd December, 1949, the
,s,~~~~No:~o petitioners' Advocate withdrew from the case with the
A~oTHER result Uk>at the case was taken up immediately, i.e. 1 a
'II
N. C HINA d~y earlier than was fixed origirally ; the respondent
TAMBI. was then examined and an ex parte order made for the
u Sr Bu, J. return of the minors to his custody.
On the 12th January 1950, the petitioners applied
$
to se~ as1de the e.:t' P<lrfe order and on the 26th January
1950, it was set a:.:.ide by consent and enquiry was
eventually fixed on the 26th July 1950. On that elate,
the petitioners intimated that they would not oppose
the application of the respondent and admitted the
respondent's right to the cust-ody of the minors. In
view. of the turn the matter took, the learned District
Judge sa\v no need for taking evidence and di1ected the
.return of the minors to the applicant.
On the 23rd August 1950, hvo petitions ;.yere filed
-one by the respondent i.e., the father, for the arrest
of the minors and the other by the applicants before
us" to cancel, alter and set aside" the.order directing
the return of the minors on the ground mainly that the
welfare of the minors had not been considered.
On the 2+th J::tnuary 1951, the applicants intimated
that they would not press their application of the 23rd
. August 1950, and it was -dismissed acc:ordingly . .
As regards the respondent's petition for the arrest
of the minors, whiGh was opposed, :the learned District
Judge passed an order on the 27th Janua.!Y 1951,
pointing out that the order he had made on the
26th July 1950 was a consent order and that so :
long as it remained good, the same matter could i
not be reagitated. He therefore allo~ed the :
~tpplication . . . ;._: . -~
. The r:esj:>Ondent then sa:id that he .dicl fiot desire toj
I?ress fo~ the arrest o~ th~ ~ihors . bu.f desired to . gi ve4
 1952] BURMA LAW REPORTS . 11

the petitioners a chance to produce the minors, and H.C.

1951
-consequently 22nd February 1951 was nxed for that GOVINDA-
purpose. Meanwhile, steps appeared to have been SWAMY
.AND
taken in this Court resulting in the stay of further ANOTHER
proceedings in the: District Court. , v.
N . CHINA
A preliminary point has been taken up hefore us TAMBI.

-on behalf of the petitioners that as the minors have USz Hu, J.
never been in the custody of the respondent, his
.application for guardianship of the minors does' not .lie
under section 25 of the Guardians and \/\lards Act and
that he should file a suit for the custody of the said
minors. Section 25 (1) of the Guardians and Wards
Act provides : .

" If a w~rd leaves or is removed from the custody of a

guardian of his person, the Court, if it is of opini.)n th.tt it will
be for the welfare of the \Vard to return to the custody of the
,guntdian, may make< ;tn order for bis return . . . ."

_ The learned Advocate for the petitioners argues

that as the minor~ bad all along been in the custody Of
the mother, and after her death in that of the pe1:i~
tioners, they could not be said to have left or were
~emoved from the. custody of their father and that
being the case, the . application does not
come within tbe provisions of section 25 (1) of the Act
and it should have l;>een dismissed.
In this connection, please see the written statement
of the petitioners Govindaswamy and Neala Ammal,
dated the 14th August'l948. . In paragraph (2) they
dearly state " . . . . and when the minors' mother
died, the petitioner(father) allowed the minors to stay
with the re!;)pondents ('petitioners before this_ Court)
being aunt and. uncle of the minors . .. . . From
that time till date~ t-he mi'n<?rs are staying .with the-respon-
dents, who have their children a's co~pariions." Tp'e
petitioners' admission ,that th-e y obtained custody of.
12 BURMA LAW REPORTS. [195Z
H.C. t he two minors from their father the respondent and
1951
GOVI NOA
their refusa~ now to hand over the min ors to the father
SWAMY AND dearly comes, in our opinion, within the meaning of
ANOTHER
v. "as removed from the custody of a guardian of his
N. CHI:-IA
person . ." in section 25 (1).
TAMBI.
It bas also been held by Page C.J., in the case of
U StBU, J.
Maung Zaw v. Maunf!. Hla Din (1}, that :
"Although at the time of the child's birth, the mother was
not living with the father, for the purposes of section 25 of tbe
Guardians and Wards Act. the child must be deemed to have
been at that time in the custody q the father, and in the circum-
stances of the case he was enti.tled to apply for and obtain
the custody of his child."

There are therefore no merits in the point raised.

The next point raised before us by the learned
Advocate for the petitioners is that the learned
District Judge has failed to apply his mind to the most
important' condition laid down in section 25 (1) of the
Guardians and Wards Act, namely, that the Court
should make an order under this section only , when
' ' it is of opinion that it will be for the welfare of the
ward to return to the custody of the guardian "
In this respect it is contended by the learned
Advocate for the respondent that, as the order passed
on the 26th July 1950 was a consent order, made as a
re~ult of an admission .on the part of the present
petitioners that the re~pondtmt had the right to the
custody of the mmors, and as the petitioners
ha9. withdra\ovn their objections to the application~
. petitioners cannot now challenge tha~ qr~er.
It is a well-established principle of law that in a
case of thi~ qat.ure; the. par.a mount consideration must
6e. ~l!e welfa~e of t'hi: minors a.s a whole. T~~ Court
js not so much eonc erned \\!ith 'the feelings of parents
. . . . . . : .
(aJ. Ii.R. 12 :R~.161.
 1952] BURMA LAW REPORTS. 13

and natural guardians as with the proper welfare of the H.C.

1951
min-.~rs . The fact that the order made fo r the return
GOV!:'<DA-
of the minors to the custody of their father is one based ~\\'AMY AND
A1\0THER
upo.~a a compromise between the contesting parties v.
does not necessarily indicate that such an order is N. CHINA
TAMBI.
for the real vvelfare of th e minors. Supposing, as .a
U SI Bu, ].
result of a collusive compromise arrived at between
the contesting parties, a fraud is practised upon the
minors or that their interest has suffered, covld it be
s aid that the . compromise vvas consistent with the
welfare of the minors ? Obviously not.
We t hink it highly desirable in the particular circum-
stances of this case that an inquiry should be held with
a view to ascertair: whether it would be for the welfare
of the minors to return to the c ustody of their father.
The minors are of a rc::asonable age and they must be
examined. .The lo\ver Court should also examine
other witnc~ses on this poin t, if available betore it.
For the reasons given above, we set aside the order
-of the D istrict judge dated the 26th July 1950 and
remand the case to the District Court of Thaton for
inquiry on the lines indicated above and pass such
order as it thinks fit and proper. Each party should
b ear its own costs so far incu rred, in the lower Court
and there will be no order as to costs in t his Cou rt
t oo.
U T uN BYu, C.J.-I agree.
14 BURMA LA'vV REPORTS. [1952'

APPELLATE CIVIL.
Bcfote U 011 P.: nnd U Thattng Stitt, JJ.

H.C. M.R. ARUMUGAM CHETTIAR (APPELLANT)

1951
'N(J'i!. 6. v.
A. MUTHIA CHETTIAR (RESPONDENT).~
Ptomissory-note - Excculion <'/ p,omissory not e-PromissorY1IO{e not d11ly
stamped a11d so iuadm1SSI{;le in widcncc-Right to fall bnck on tire
onginal cousidcmtio11.
In ~ettlemE>nt of money dut: on p:trtnership acco~:nts the defendant executed
a promissory-note in fa,our of the plaintiff atid that promissory-note was
insulliciently stamped and :l$ such was ioachnissible in ev idence. Plaintiff
fil~d a s.tit on the o:iginal consideration and def~ndant contended tb;tt the-
rights ol the plaintiff were restricted to the promi~sory-note ar.cl as the promis-
sory-n()te wa~ inadmissible the suit shQuld be dismis!<ed.
Held: That the question whether plaintiff's ri ~ht is restricted to the docu.
meut in question alone and nott.ing else, is a question of fact to be determined
in particular circumstances obtaining in a case. \Vnere a promissory-note
s~ates that it was given in payment, for instance, of goods sold and delivered or
for money due as herefor a share in partnership. the p;esumption would bt: that
the promi~sory-note was given by way of conditional p: yment ; in -such cases .
the promissory-note not having been paid on demand it may be treated as
dishonoured and in that case the original debt would re\.ive giving right to
plaintiff to fall back upon the original consideration.
Maung Chilaud fmotlt.;r v. Roshan N. M. A. K..trecm Orner Co., I.L.R 12:
Ran. 500, followed.
Ramasami Pillai v. Murugiah Padllyaclli at1d at1other, I.L.R. 5Y M.,d. 268,.
.distinguished. . ,.
Sheik Akbar v. Sheikh Khatl, I.L.'R 7 Cal. 256; N azir Klla11 v. Ram
Moha;1., l.L.R. 53 All, 114, nut followed .

P. N. Ghosh for the appellant.

P. B. Sen for the respondent.
The judgment of the Bench was delivered by
U ON PE, J.-This is an appeal against the j~dgmenf
and decxee of the 2nd Judge, Rangoon City Civil
Court in Civil RegtJ,lar Suit No.. 312 of 1948. that. In
~uit .the respondent claimed ~s. .5,610, being. Rs. 5,000.!
~ivil 1st Appeal No. 69 cif l950 agai~sf the decree of fh.e City Civii
Cou;t. Rangoon in Civil Regular No. 3 12: or't~~ .~ated 4th Septembe.r 1950:
' . 0
 1952] BURMA LA\V REPOHTS. 1S

due as principal on a document purported to be a H.C.

19.H
promissory-note executed in favour of the respondent
i\J.R.
by the appellant, and Rs. 600 as interest at 1 per cent AIWMt:GAM
per annum for one year and 6 days from 1st Aprii19.J.7 CHJ!TTIAR
'II.

to 6th April 1948. This promissory-note carl1e to be A. MunUA

CH ETTIAR.
executed in the following circum~ta n ces : -
U 0:-1 PE, J.
The appellant, the respondent, and one
N. Ramasawmi Naidu formed a partnership on the
24th March 1Y47 to carry on the business of J..,ime and
Grocery Shop under the name and style of Indo-Burma
Lime Company. The said partnership was embodied
in a duly registered document. The appellant and the
respondent in fact had been carrymg on the Grocery
Shop business together from 1st May 1946 with a
capital subscribed equally by each and N. Rama-
sawmi Naidu was only a working partner in the busi-
ness of the Indo-Burma Lime Company in which the
profit and loss were apportioned at 8 annas, 5 annas
and 3 annas for the appeJlant, respondent and
N. Ramasawm~ Naidu, respectively. For reasons which
we need not go into, the respondent severed his con-
nection with the partnership on the 3rd April 1947 on
the terms and conditions which were embodied in
a doeument ca_Ued, wrongly, a Deed of Dissolution of
partnership, dated 1st-April 1947. This document is
not by any means a Deed of Dissolution of Partnership
as there was no dissolution of partnership, the two
partners, the appellant and N. Ramasawmi Naidu,
having continued to carry on the -partnership after the
respondent retired from the partnership. The right of
withdrawal Jrom the partnership is provided in
clause 4 of the Partnership Deed of the 24th March
1947 and it reads as follows :

" 4. That the partnership shall exist and continue at will so

lo!lg as the partners wish to Clrry On jointly and an}; partner
16 BURMA LAW REPORTS. ["1952

H.C.:. witbdrm,ing from the partnership shall not utilise tile hu -;iJ;ess
1,51
name in any manner whatsoever.''
M.R.
ARUMt:GA~! It is also provided how books of accounts are t0 be
CtU:TTJAR
v. ~aintained and clause 10 of this Deed reads :
A. l\IUTHIA
CHF.TTIAR.
'' 10. That the Books of Accounts shall be maintaim:d under
1.: ON P.c, J. th'e direct and mutual supervision of the partners at the Head
Office No. 31-Best Street, Thingangyun, ancllhe accounts of the
bra nches shall also be incorporated into the above."
At the ~etirement of the respondent, as must have
happened in such a similar situation, terms and copcli-
tions were discussed which took shape as contained in
the document called Deed of Dissolution of Partner-
ship 1Exhibit 6) in the following terms:-
"The parties having closed the partnership accounts upto
<hte and having ascertained the 2nd party's share of Capital and
profit in the Partnership business as Rs. 10,000 the 1st party,
v:z, l\l.R. Arumugam Chettiar andN. Ramasawmi Naidu, jointly
paid Rs. 5,000 in cash this clay to 2nd party A. Muthia Chettiar,
the receipt of which is hereby acknowledged by A. Muthia
Chetti:lr aml further M.R. Aru nugam Chettiar No. 1 of the
1st party having executed a Promissory-note for Rs. 5,000 in
favour .of-the 2nd p:lrty A. Muthia Chettiar, payable in 5 monthly
instalments.'
The respondent, after having received. the Rs. 5,000
out of the Rs. 10,000, fa~led to recover the balance of
Rs. 5,090 and thus filed this suit.
_ The suit, when originally filed, was for recovery of
the suit sum the basis of the claim being as set out in
paragraph :3 of his plaint which is as follows :
" In pursuance of the promise aforesaid the Defendant
executed a document purported to ue a promissory-note in favour
of the 'Plaintiff promising to pay the Plaintiff Rs, 5,000 bearing
interest at one per cent per mensem. The .Plaintiff will, if
necessary: . produce the' document in evidence, but he is ~ot
basing his. cl~im on the .said .dqcument, but upon the original:
conside~at~on."
952] BURMA LAW REPORTS . 17
'his plaint was amended by an addition of an altern:-t- tt.C.
1951
ive prayer to the effect that if the Conrt were to
e-ofen the accounts then a decree for such amourrt as Aa~~~a.u
wy be found to_ be due on proper taking of accounts be CHE~~lAR
assecl A. MVTHJA
CHF.TTIAR.
T he appellant in his defence pleaded that there. -
as no settlement of accounts, that th ere was fals-ifica- u ON Pe, J-
on ot accounts, and that the promissory-note was
ccepted as an accord and satisfaction of his claim and
1erefore he was restricted to rights thereunder only.
le also counter-claimed Rs. 1,500 with the usual
ndertaking for payment of additional Court-fees.
The suit went -to trial on 5 Issues framed which are
; follows :
1. Is the document mentioned in paragraph 2 of
1e plaint duly stamped and, if not, is the suit
taintainab le on this doc.Umen t ?
1
2. Is the document mentioned in paragraph 3 of
1e plaint alleged to have been executed by the
efendant in plaintiff's favour for a sum of Rs. 5,000 a
romissory-note and is the plaintiff's claim restricted
this document and was it exec~ted in satisfaction of
1e plain tiff's cl!t im.?
3. Was the document mentioned in paragraph Z
: the plaint executed by the defendant .under cir cum--
ances a_s alleged in paragraphs 4 to 8 and 10 to 13 of
te written statement of .the defendant and was he
reed to sign this document as alleged by him under
tose circumstances: Eyen if he was forced to sign
lder those circumstances as al~eged by him, do.es it
>nstitute coercion under the law ?
4. Whether in the present s uit the defendant can
.ead that there was falsification of accounts by the
.alntiff ? -
5. To what ~-e~ef, u any, is the pla.intiff entitled ?

2
18 BURMA LAW REPORTS. [1952
H.C. Issues Kos. 1 and 2 were decided in favour of the
1951
respondent, and Issue No. 4 was decided that cc the
AR:.!~:~AM defendant can plead that there was falsification of
Clt;:nAR accounts by the plaintiff. " As regards Issue No. 3,.
~~~~~~:;' the Court held that there was no coercion as allegedj'
' - .. by th e defendant nor were there any circumstances l
U ON PE, J. wh'tch would warrant 1. t to come to t he cone1uswn
. tha f 1
the accounts should be re-opened between the -parties:
The ~uit was decreed for Rs. 5,610, with costs, and
further interest at 1 per cent per mensem on Rs. 5,
from the date of suit till the date of decree and at
Court rate from the date of decree till the date
realisation. Advocate's costs of five gold mohu
each on the three interlocutory orders were also aw
ded, while the counter-claim of the defendant
Rs. 1,500 was dismissed, with costs.
It has been urged before us that the claim of
respondent should be held as restricted to the
sory-note of Rs. 5,000, and as the said promissory-
has been held by the lower Court to be inadmi-s
for not being duly stamped and as the respond
himself has deliberately abandoned his claim on it,
suit should have been dismissed with costs. It is
contended, among other grounds, that even if it
held that the respondent can sue on the original con
deration, the suit should have been dismissed as
respondent's claim could arise only on the result
.the partnership accol!nts and on proof of settlement
accounts, which were not go~le into at all.
Th,e lower Court in disposing of Issue _No. 2
decided that the document referred to in paragrap
of the plai.n t is a promissory-note and that the
.not being duly stamped ~s inadmissible, but that
plaintiff-responden~ tould- recover the amount
back on the original consideration. This point
argue.d at great length. before ~s and evidently
 1952] BURMA LAW REPORTS. 19

'before the lower Court. \Vhat is deducible from the H.C.

1951
authorities cited on this point is that the question
M.R.
whether the plaintiff-respondent's right is restricted to ARUMUGAAI
the document in question alone and nothing e.lse, is a CHI!TTIAR
v.
question of fact to be determined according to the A . MtJTHTA
CHF.TT!AR.
p~rticular circumstances obtaining in each case. We
U ON PB, J.
consider that the Full Bench decision of this late High
Court in the case of M aung Chit and another v. Rvshan
N . M. A . Kareem Omer Co. (1), lays dDwn the
principles t0 be followed in a case as the present:

" N :mnally and prima faci' a lender is regarded as taking a

negotiable instrument only as conditional payment, and not in
satisfaction of tht! loan. Where the handing ov.e r of the money
.and of the instrument is simultaneous it does nol follow that the
instrument is the sole repository of the terms of the agreement .
.1t .is not the time when, but the terms upon which, the loan was
.made that m1tters, and that is a question of fact to be deter.
mined according to the particular circumstances obtaining in e::ach
case."

This Rangoon case was discussed in Ram.asami

Pillai v. Mw~u.~ia h Padayachi and another (2), a Full
~Bench case of the Madras High Court, where Beasley
;C.J., after pointing out that the view expressed in the
~ Rangoon -case that primdfacie a negotiable instrument
.was given as a. conditional payment for a loan is too
~c::nend, agreed " that in all cases the Court must
~be guided by what appears on the face of the promis-
ory-note, and that if it is expressed in such a way as
o l~ve what was intended by the parties in any way in
<:>Ubt, then the facts must settle the question. "
It follows from these principles laid down that
' here a promissory-note states that it was given in
ayment, for instance, for goods 'sold and delivered or
r money d~1e., as here for a share in a attnership, the
. . ' :

.(11 I.L.R 12 .Ran. .SOO. (2) I.L:.R. 59..Mad. 268

20 BURMA LAW REPORTS. [19S Z
H.C. presumption would be that the promissory-note was
1951
given by way of conditional payment. In such cases.
AJ<:~~~AH the promissory-note, not having been paid on demand~
CtrETTIAR
'fl.
may be. trea'ted as dishonoured, in which case the
~- M o T HIA original d ebt would revive giving the right to the:
C HETTI AI<.
plaintiff to fall back upon it. Holding tl)is view"
u ON PE, J. which is in accordance 'vvith the principles laid dm-r n
in the Full Bench case of the Rangoon High Court
quoted aoove, we agree that the lower Court was right
in not accepting the decisions laid down in Sheik
Akbar v. Sheikh Khan p), and Nazir ls..ha1-z v. l<am
Mohan (2)., both of which were dissented from in the-
above decisio~ of this High Court. In the present
case the circumstances leading to the execution of the
promissory-note leave no room for doubt that the-
promissory-not'e was given as a conditional payment
and does not ~mount to a new contract. A perusal of
the Deed of Dissolution of Partnership stren gthens.
thjs view. We, therefore, hold that the decision of th e
lower Court in allowing the plaintiff-respondent to falli
back, in the absence -of I he promissory-note, on the-
origi!lal. consideration is correct.
The next point which was hotly contested is as.
to whether the defendant-appellant can plead that there
was falsification of accounts by the plaintiff-respondent..
The lower Court has answered t~is Issue in the affirm-
. ativ~ after d1~cussing authorities quoted by both
sides. We do not propose to discuss the cases Cited on;
this point in .view of the lower Court's finding that

there are no circumstances in this case which would!
0

warraJ!t re- opening of the accounts between the p_a_rties ..

We have weig~ed the entire evidence in the case and
we cannot b~t .agree ~ith the. finding of the Io~ex::
Court that there wa:s no. falsification of accounts. I'f
should . not b.e','forgoHen that the plaintiff-res.pond<:m_t
(11 I.L.R. 7 ::cat ; 25~ .
 ~952] BURMA LAW REPORTS. Zl
,vas not an accounting party in this case as will be H.C.
1951
borne out by th e Partnership Deed which clearly
M.~
shows that the accounts we!l"e kept under mutual ARUMUGAM
CHETTtA'R
supervision. The evidence in fbe case also supports 11. '
this view. He was admittedly a retiring partner who A. MUTHtA
CHETTIAR.
was being paid off-:..circumstances which would dist~n
U ON PE, ]
.guish this .case from those where accounts were ordered
to be re-opened on discovery of importan.t errors in th~
accounts. There was no dissolution of partnership
for accounts to be taken in the sense as contemplated
in section 48 of the Partnership Act. Evidence which
could be relied on indicates that Rs. 10,000 was agreed
to be paid to the plaintiff-respondent at his retirement
as his share in accordance with the terms of the
partnership; Rs. 5,000 was consequently paid to
.the plaintiff-respondent who paid out of the sum so
.received the amount due toN. Ramasawmi Naidu, who
was a working partner, and under that arrangement the
,plaintiff-respondent was to receive a further sum of
.Rs. 5,000, which is.the subject-matter of the presentsuit:
'I:here C(!.n be .no doubt that the amouat of Rs. 10,000
-was arrive~f a;t after the matter \ivas duly con-s idered in.
:such manner as was thought sufficient in the circum-
:stances of the situation. It may be that the accounts
were not gone into as contemplated in section 48 of the
Partnership Act as there was no_oc~a~i?I?: .for it.
There was the contention that the defendant-
. f.

:appellant was forced to sign the document, viz., Deed

of Dissolution of Partnership but there is no proof for
it and the failure to substantiate this contention by
legal proof tends to lend strength to the plea s~t up by
the respondent that the accounts had been. settled
:amicably to the knowledge of N. Ramasawmi Naidu,
the working partper, and Karim, an employee who
'Wrotethe books of the -partnership, .who were available
hut not called by. ~he d efendant-appellant.
2'2 BURl\1A LAW REPORTS. [1952!
H.C. In the result the suit will be decreed for Rs. 5,000'
1951
without any interest. The defendant-appellant has.
M.R.
ARUMUG.Hi succeeded_on one preliminary issue which was decided
CHET1'IAR
:v. by the low.er Court in his favour by its order, datect
A. MUTHIA 29th March 194?, according to which no costs were
CHETTIAR.
awarded. I n respect of the order passed on another
'U ON PE, J.
preliminary issue, viz., Issue No. 4 on the 20th Septem-
ber 1948, the Court's order shows that there was to be
no order <as to costs. The order as regards costs on the
three interlocutory orders of five gold mohurs each
payable by the def_enda:nt-appellant does not appear to-
be sustainable on the f.aq~ of the orders themselves ancf.
must be set aside. I n .'v~ew of the partial success of the
def~ndant-appellant in this a.ppeal on the question of
interest and the costs of fifteen gold mohurs on the
interlocutory .orders, there will be no order as to costs.
in this appeal.
This appeal is dismissed, except that the judgment
of the lower Court is set aside in so far as the award of
interest claimed on Rs. 5,000 and that of fift e.en gold
m~hurs which is the cost on interlocutory orders.
payable by the defendant-appellant are concern ed.
 1952J BURMA LA'vV REPORTS. 23

APPE LLATE CIVIL.

A. DIVAN (APFELLANT) H.C.

1951
v. Nov. 19
DOST MOHA MED (RESPONDENT) .*

~ivil Pr.;cature Code, Order 21, Rule Z-Its t1 ue iuterprrtaliou-Mar~iual

~ uo!c of tw Act w/un can be reftrred to.
~ Held: Owing to the con Aiel of opinion on the interpretation of s. 258
of the Code of 1877 th.e words 'of any kind was introduced into the section
and the sect-ion was re-enacted as Order 21, Rule 2 of the Code of Civil
~rocedure of 1908.
~
If a decree provides for payment of money as well as for other reliefs it
~omes within the ambit of Order 21, Rule 2 Qf the Code of Civil Procedure bt.t
rule does not apply when no money whatsoeve~ is payable under the
. Costs awarded by a decree must also be deemed as money payable
the decree a~ it can be satisfied by payment into Court in the manner
down in Order 21, Rule 1.
A.bdul !.a tiff Sahib ,rnd another v. Batliula Bibi A.mmnl, . A.I.R. (1914}
. 360 ; Sethurama Sahib v, Cltol/a Raja Sahib, A.I.R. (191$) Mad. i51;
raa ..tlnas,,n, Naidu and ot hers v. Rangaswami ,Vaidu a11d others, 49 Mad.

. Eltis Enas Pctvlo Gharry v. Killer Philtp G,owrya and another, 46 Born.
; Shaikh Niamat v. Shaiklt Jalil, A.l. R. (1928) Cal. 715; Shadi and
ers v. Ram Dilta, A. l .R. (1936) Lah. 842, not followed.
. .
BabA Mvhamedv. Webb,(> Cal. 786; Sankara11 .Vambiar v. K l llliT:I Kurup
ad. 1!12, referred to.
Marginal note rna} be referred to in aid of inter pretation ; though it forms
part oi the section, it is of assistanc~ inas1nuch as it sh~ws the.. drift of the

Nicholsou v.Fields, (1862) 31 L.J. El". 233'; Bushell v. Hammond, (1904) 73

(K.B.) 1005 at 1001; followed.

N. Bose for t he appellant.

Aung Min (i ) for U~e respondent.

Civil Misc. Appeal 'lo. 5 of 1951 against tl'le order of the 4t~ Judge of
Civil Court, Rangoon in Civil ~egular No.1081 of 19-48, <{atep .24th January
24 BURMA LA.W REPORTS. [ 1952'
H.C. The judgment of the Bench was delivered by
1951
A. DIVAN
U S~N MAUNG, J.-In Civil Regular Suit No. 108
v. of 1948 of the City Civil Court of Rangoon, Do
DosT
MOHAMED. Mohamed, the resp')ndent irt the present appea
obtained a decree against A. !),ivan, the prese
, appellanf, for his ejectment from Room No. 4 of h
No. 117 in 42nd Street, Rangoon, and for payme
of Rs. 47-12 as costs of the suit. The suit being
under section 11 (1) (a) of the Urban Rent Con
Act, 1948; the appellant A. pivan was able to obtai
an order under sedioh i4 {1) of the .Act staying
execution of the decree on his paying t.he arrears
rent and costs of the suit in e-ight equal mont
instalments commencing from the 8th July, 1949,
ad~ition to the fu.h;tre rents as -t hey feU due. H
however, made a default in respect of the Novern
instalment resulting in the filing . of an applicat
for execution of the decree for- . ejectment. T
?ppiication was granted .on the 16th January, 1950,
the appellant A. Divan was able td _obtain a fu
sfay of execution on the 14th . March, 1950; as
offered to pay all the arrears due. His stay appr
tion was, however, ultimately di~inissed on the 1
March, 1950, as he was abs~nt on that date which
the 'day fixed for mentioning.whether or not the
:had been paid in f_ull.- On the 14th June, .195_0,
appellant: filed an application under Order 21, Rul
pf !he ~ivil Proc~dure Code asking -toe _Co_urt .
record . an adjustment of the qecre;e ~ll.~ged to h
been mad,e out of Court on the 16th March, 19
. on. the eve of the departure of the respondent
. l\fohan1.ed to. India. Par~gr~p~s.. 5 and 6 of
:_'a pplication read .as follows:

the
i: _'5 ./ On..fh~: :e~e of t_he ;de.cree-hPlder's 4epar.t;tiie. to I.
Judgment~debtor offered out of cou\t Rs. . 60Q . to .
~
1952] BURMA LAvV REPORTS. 25

decree-holder in full satisfaction of his chim against the H.C.

1951
judgment-debtor so far as the above suit i:; concerned. The
decree-holder accepted the offer and directed the jucigment - A. DIVAN
v.
debtor to deposit the amount with the decree-holclei's Advoc-ate D osT
through his bill collectqr. So the sum of Rs. 60J ,\\as left with . MOHAMED.

~the decree-holder's bill collector on the 16th ~la rch 1950. As U SAN
the said bill collector was busy on 16th March 1950 ror his MAVNG, J
.master's departure he could not take the judgment-debtor to
<the decree-holder's Advocate Mr. Modan before 20th March
1950. On the bill collector's assurance !h;Jt the judgment-
debtor's presence in the Court will not be reqt1ired on 17th
March 19: 0 the judgment-debtor did not appear in the court
On th'at date unde1 a bona fide belief that a compromise bas been
,duly affected between the parties.
6. Qn 20th March 1950 the bill collector brought t he
j udgment-debtor to Mr. Mocl:1n and handed over Rs. 60J in
terms of the compromise. The judgment-debtor then left u.nder
.a bona fide belief that the above decree was settled. ''

The respondent A. Divan in his written objeCtion

-denied the alle5ations con tained in paragraph 5. As
:regards paragraph 6 he stzted that Dost Mohamed
never went to Mr.. Modan at any time with anybody
but that sometime during the last week of March 1950
-one Mr.: K. Ahmed came to Mr. Modan and informed
him that the case had been settled and that he had
-come to pay aH the arrears and costs of the suit. Mr.
Modan then told K. Ahmed that he had no instruction
whatsoever from Dost Mohamed regarding the
settl'ernent and that en the contrary' his instructions
were .to ~ -execute the. decree as soon as possible.
However,_ Mr. Mod.a n agreed to .a ccept the money and ..
to fCfrain from executing the decree until such time
as Dost . Mohamed arrived and instructions- could
b~ obtained from him regarding . the matter. Mr. .
M'odan ealcufated th-e amounf'due and fou'n d that 'it
was : Rs.' 757-J2, . ~he sum of Rs. 600 p~id by
.}{: Ahmed was accepted as part payment as-K. Ahmed
promised . ta,c.,.bring back' : the - balance!: ' the :.next-'
26 BURMA LAW REPORTS. [1952:
H.C. day. This balance amount was n ever paid. Later,.
1951
when Mr. l'viodan found out that there was no s uch
A. DIVA N
v. settlement as alleged by K. Ahmed the sum of R s. 60{)l
DosT was returned to him.
MOHAW&D.
On the 'allegations contai-ned in the application and
u SAN
MAU!\G, J. in th-e written objection thereto the learned Fourth
Judge of the City Civil Court made an enquiry as:
to whether or not the decree had been adjusted out of
Cqurt as alleged by A. Divan. After the examination
of the appellant, his witness M. M. Anwar, the
respondent and his witnesses Pir Mohamed and
Mr. Modan, the learned Judge came to the conclusion
that there was no such agreement between A. Divan
and D'ost Mohamed as alleged by the former and that
therefore the compromise for adJustment could not be
recorded. Hence this appeal by A. Divan.
On the facts it is clear that A. l)ivan.' s allegation
that the sum of Rs. 600 was offered by him to
Dost Mohamed on the 16th March, 1950, and accepted
by the latter in full satisfaction of his claim
under the ejectment decree has been rightly rejected
by the learned Fourth Judge of the City Civil Court of
Rangoon: A. Divan contends that the payment of
Rs. 600 was accepted by Dost Mohamed himself
but that Dost Mohamed deputed his bill collector
Noor Hug to take the money to Mr. Mo.dan as he
{Dost . Mohamed) was on the eve of his departure
to India. In tHis he is supported by M. M. An war
'(PW 1) the War.d-headman, who. is a:I~o a co-tr.ustee
with Dost Mohamed of th~ .Bengalee Mosque.
However, both Dqst Moh~med.' ..and the bill coilector
Pir Moha.m ed denied thatNoor Hug was an .e mploye'e
nf Dost l\1ohamed. . They contend~d th~t N oor Hug
was a serva.n t.of .t be Mosque and that:)J:i s.;c:h,tty was, to
polle~t th;~ rents due only from .the . pous.e s belopging
to ::the Mosque. . This.contention. of, .Dost Molia,b-tea
 1952] BURMA LAW REPORTS. 27

and hi!' witnesses ha s not, in our opinion, been H.C.

1951
sufficiently contradicted by cogent evidence to the
A. DIVAN
contrary. Furthermore, if the story told by A. Divan v.
DosT
and M. M. Anwar be true there seems no reason "'by MoHAM ED.
the sum of Rs. 600 w;~s actually handed "over to u SAN
Mr. Modan by K. Ahmed and not by Noor Hu-g. MAUNn, ] .

Mr. Modan, who has given evidence for Dost

Mohamed, has stated specifically that it was K. Ahmed
who had h~nded over this sum to him .and his
evidence is borne out by the fact that when the money
had to be returned a cheque was made out in the
name of K. Ahmed. No cogent explanation is
forthcoming as to why K. Ahmed should come into
the picture at all. If as A. Divan had contended that
the sum of Rs. 600 was, in fact, accepted by Dost
Mohamed, who then delegated Noor Hug, to hand
over the money .to Mr. Modan there seems no reason
why the act of handing over this monev should
have been delegated by Noor Hug to K. Ahmed or
to any other person. Noor Hug has not been cited
as a witness _ to substantiate A. Divan's $tory and
this omission is fatal to his case. The story told by
Mr. Modan consequently stands -out in bold relief and
it strongly corroborates Dost Mohamed's denial of any
settlement having been arrived at between him and
A. Divan on the 16th March, 1950, as alleged. What
Mr. Modan stated was that sometime during the last
week of March 1950 some two or three pers.ons, of
whom K. Ahmed was one, came and told him that
they had settled the matter relating to the ejectment:
decree with Dost Mohame.d and that on his replying
that he had received no instructions on the . matter
pre~sed -him to accept . Rs. 600 promising to pay the.
balance . Rs: 157-.12 the next day. He accepted the
mq_n ey a~d under-too~ not to execute -the decree .until
such time .ilS Dpst Mo~amed retumed . from I ndia
:28 BURMA LAW REPORTS. [ 1952
H.C. when he would try and obtain fur ther instructions
!951
on the matter. On Do.st Mohamed's return l1 e was
A. DI\',!.N
'II. informe'd that there was no such compromise as
DosT
:MOHAMED.
alleged. Accordingly he returned the money t.o
K. Ahmed by cheque..
uSA:-<
_MAUKG. J. ,, Considering the nature of the :evidenc:e adduced
.and the fact that the learned Fourth .Judge of the
Rangoon City Civil Court, who has had an opportunity
of seei.ng the witnesse$ and appratsmg their
credibility, has rejected the story told by A. Divan and
his witnesses we see no sufficient reason for coming to
a finding contrary to that arrived at by the learned
Judge.
. As regards the point of Ia\:r.' involved it is not of
much significance as th e decree obtained by Dost
Mohamed against A. Div!ln is not only f.or ejectment
but also for costs. It is a composite d~cree of the
kind contemplated by Order 2 I, Rule 2 of the Civil
Procedure Code, regarding which rule some difference
of opinion prevaiis in India. In Baba Moha1w~d v.
lVtbb ( 1) which \vas a. d.ecjsion under the Civil
~rocedure Code, 1877, the High Court of Calcutta
l1eld that section 258 of that Code (corresponding
to Order 21, l~ule 2} applied to tbe adjustment of any
decree whatever may be the nature of the relief
granted by the decree. . The Madras :High Court in
Sarz:karan Nainbi.1.r v . .Kanara Kurup (2) was of a
dlfferentopinion. It held that s.ection 258 of the
.Civil Procedure Code, 1882 (co~responding to secti~n
258 .:of the Code of 1877) r~ferred only to execution of
decrees under which money is payable and therefore
not .appliCable to. decrees for possession of immoveable
property: fo.tef" the words ." of. any kind'.~ have b~en
insert~~ =lYY. .the cod~ of _1908 t?~ Madras Bigh Cour~

c2> 12 M;d. is2.

 1952] BURMA LAvV REPORTS. 29

held in Abdul Latitl Sahib and anoth :r v. Batiwla H.C.

1951
Bibi Ammal (1) that this amendment had th e effe::ct of
A. DIVAN
making the rule applicable to decrees of any kind ~.

under which money is payable and this decision is DosT

MOHA~I0
followed in Sethuram..t Sahib v. Chot.'a R?zja ::>/tllib (2).
u SAN
The Bombay High Court, on the other hand, held in MAU!\G , J..

Eths Enas Pavlo Gharry v. Kilter Philip Gowrya and

auulher (3} that the provisions of Order 21, Rule 2
were not confinf'd to money decrees, but extonded to
any kind of decre.e and that the principle of the
rule was that the Court executing the decree should
not be troubled with any disputes between parti~s
with regard to any payment or adjustment unless
the same had been duly recorded and certified. In
the year 1926 the Madras Ht!!h Court in Narayanasami
Nai1tu ant others v. Rangaswami Naidu and olhtrs (4)
went exhaustively into the matter and held that Order
21, Hub 2 of the Civil Procedure Code, referred to
a decree under which mone y was payable, whether
there were other reJi.efs granted by the decree or not,
and that the words " money payable under a decree "
in that rule 'did not mea~ money which the party might,
if he had chosen, pay, but money which was recoverable
by a party in execution against the par:ty liable to
pay it. Irr coming to this conclusion emphasis was
laid upon the article '' the " appearing before the
word "decree" in sub-rule (1) of Rule 2 as pointing
to the fact that . the de.c ree must be of the nature
mentioneJ in the first clause namely a decree under
which money was payable. The learned Judges of the.
Madras High Court also held that the addition of
the words "of ,any kind " after the word " decree " in.
that cl~use merely meant that the. decree might be
of any _kind provided that I?Oncy was . payable
(I) A.I.R. (11)14) Mad. 36:>. (3) 46 Bom. 226.
(2i: A.i,.R. (.918) Mad: 751. (4) 49 Mad. 716. :
.30 BURMA LAW REPORTS .

H.C. thereunder \Vhether or -not there were other reli c~

1951
granted as well. This decision of the Madras Hig~
A. DIVAN
11.
Court was dissented from and that of the Bombay High
DosT Court already mentioned was followed, by the Calcutta
:MoHAMED.
High Court in Sha1kh '' iamat v. Shaikh]alll (1) where
u SAN
.MAUNu, J. th~ learned Judges observed that to hold that the rule
had no application to decrees other than decrees for
payment of money would be to leave disputes with
regard t-o adjustment of other decrees open for
discussion, for as long as three years after the passing
of the decree and that this could not have been
coritempfated by the legislature. . The Lahore High
v.
Court in Shadi and others Ram Ditta (2) followed
the Bombay view and dissented from that of Madras.
In our opinion, the view taken by the Madras High
Court is preferable to that of the other High Courts
in India. If the legislature had intened that Order 21,
Rule 2 should apply to all decrees whether or not
money is payable thereunder nothing could have been
simpler than to have redrafted it in 1908 Code as
follows:

''Where any money payable un\ler a decree of any kind

is paid out of Court, or a decree is otherwise adjusted in whole
-or in part to the !?atisfaction of the deet:.ee-holder, the decree-
llOI:ler _shall certify such payment or adjustment to the Court
whose duty it is to execute the decree, and the Court shall record
the same accordingly.''

The use of the article " the . , instead of "a'' before the
word (( decree , in sub-'r ule (1) is significant and
can only be interpreted as meaning the . decree of
the kind mentioned in the first clause, na-mely a decree
of any kind under which money is p~yable. This
.Cox;clusion
.
is also justified by. the .place ~hich.
' : . .
Order 21 1

(1) AJ.R. (1928) cai: 715. (2) A.I.R. (1936) L-on.-'84'2.

195ZJ BURIVlA LAW REPORTS. 31

Rule 2 occupies in the Code ; it is the second of H.C.

1951
the t no rules appearing under the caption " Payment
A. Dt\'AN
under Decree. " 1'.
The marginal note may also be referred to as an aid DosT
MoHA~tEo.
to interpretat ion, as observed in MitJ.well on
U SAN
lnterprt:iation of Staftths, at page 45 of the Ninth !\1AUNG, J.
Edition:
'' But, as regards marginal notes, the rule regarding their
rejection for the purj::oses of interpretation is no\\ of imperfect
obligation. For the purpose of interpretaticn a marginal
note was used by l\hrtin B. in J\'ich':'lson v. Fields ( lJ and by
Collin l\LR. in Bushell v . Hammo11d (2), the latter learned Judge
saying, in Bushell v. Hammond (2 J, ' the sicle-no :e, although it
forms no part of the !;ection, is of some assistance, inasmuch as it
shows the drift of tbe section."'
The marginal not~ to Rule 2 which is in these
terms 1 viz., " payment out of Court to decree-holder"
undoubtedly indicate~ , that the decree contemplated in
that rule is one under which money is payable.
For 'these reasons we are of the opinion that if
a d ecree provides for payment of money as. \Vell as for
other reliefs it comes . within the ambit of Order 21,
Rule 2 of the Civil Procedure Code but that this rule
does not apply where no money whatsoever is payable
under the decree. However, costs awarded by a decree
must also be deemed as money payable under the
decree as it can be satisfied by payment into Court in
the manner la~d d~w.n in Order 21, Rule 1.
For all the above reasons we hold that while
an application under Order 21, Rule 2 of the
Civ~l Procedure Code fodhe adjustment of the decree
in this case is maintainable in law it has been
rightly r~jected on the facts:
In the result, the appeal fails.and must be dismissed
with costs ; Advocate's fee~ three gold mohurs.-
. ' ---
(lJ !1862) 31 L.J. Ex. 233. (21 !19()J) 73 L.J. (K B) 1005 at 1007.
32 BURM A LAW REPORTS. [ 1952:

APPELLATE CIVIL.
Before U On Pc aud U Sau!Jf.u~ug, JJ.

H.C. MAUNG PAR (a) MAUNG PASI (a)

1951 MAUNG MYO NYUNT (A.PPELLANT)
Nov. 19.
v.
u... T UN HLAING iND A~OTHER
(RESPONDENTS).*

Coutract Act, s. 2-Cotz>irlrration-Mcaning of.

\Vhere a document was executed by a son and widow of a deceased persorl-
in consideration of certain debts due by the deceased and the recital did not :
show the creditor promised to give up any right, i .e., to do or abstain from.
doing :~nything.
Held :That 1he document was without C4lnsideration .
. The principle about settlement of a disputed claim or forbtarance from
St.in~ has no ~pplicalion in the presenlcas~;.

G11lab (,hand v. Ka111<1l Sir1gh aud aJlOlher, l.L.R. 44 Alf 424 ;:

Debi Radha Rmzi v. Ram Dass, A."I.R: H9HJ Pat. 282, diS!inguisht:d.

Ba Nyunt for the appellant.

S". K. Narayana Aiyar for the respondent 1.

P; N. Ghqslz. for the respondent 2.

U ON PE, J.-The suit out of which this appeal has

arisen was brought by the 1st respondent U Tun Hlaing:
for the rec0very of a sum of Rs. 3,000 .against the
appellant Maung Par and the '2nd r espondent
Daw Tin. Kyi (a) Daw Tin Sein, who are the son
.and widow, respectively, of ~he d:eceas.ed U Heinr
.personally as well as in their c,apadty .as heirs and legaL
~epresentatives pf U Rein .

* Civil 1st Appe~.{ No; 70 of t 950 agai:1st the decree of th~ ~r~: J1,1d.ge, City-
Civil. Court, I~iingoon. in C~vi\ Regular su!t _No. 892 o"1~49; datec!' 25th Augnst
19$0.:.
1952] BURMA LAW REPORTS. 33

The admitted facts are that U Hein and H.C.

1951
U Tun Hlaing were the Treasurer and Secretary,
MAUNG P AR
respectively, of the Phayre Street Con cos, that as (a) MAU~C
PASI (a}
Trea surer U H ein held monies belonging to the Concos MAUNG MYO
deposited by the Secretary U Tun .tllaing and ,that the NYU NT
v.
monies so deposited totalled Rs. 3,500 on the 17th July tl TUN
HLAING AND
1949, when U Hein died. T he b<Sis ofthe claim in t'he AXOTHER.

suit against the two defendants is a document -~

U ON PE,J.
(Exhibit C', which is an agreement execu ted by the
defendants, as set out in paragraph 5 of the pl.tint:

"5. That on the 17th day of July 1949 the defendants

ad~itted the liability of tile said sum of money and executt:cl
an agreement undertaking to repay the same on or before the
31st August 1949 since they have spent the same."

In answer to the plaint, the material plea set up by

the 1st defendant is set out in paragraph 5 of her
written statement which reads :

" 5. That with reference to . paragraph 5 of the plaint,

this defe1idanf snbmits that the agreement dated 17th July 1949
was executed. i~ the following circumstances and is void. The
late U Hein "died at about 10 a.m. on the 17th July .1949. T he
same night the plaintiff came to the funeral house bfinging with
him a written . agreement on a stamped paper and by fraud ,
coercien and undue inHnence forced this defendant to sign
the same wit hout any conside~ati?tz at a spot a few feet away from
where the corpse of U Hein was placed." .

The 2nd d~fendant Maung Par has a~mitted having

executed the agreemenf to p~y the debt in his capacity
as an heir
.
and legal representative .of his father U HeinJ
but not in his personal capacity, and averred that under
.
pressure. - ~~ . had to pay Rs. ~100 out of the proce-e ds
of the sale. of 'hi~
. own properties.
3.
34 f3URl\.1A LAW REPORTS. L1952
H.<.:. The following issues were framed in the case :
1951
MAU)):G PAl~
1. Whetb er U1c plaintiff entrusted the sum of
ia) MAU~G Rs. 3,500 with the late U Hein before his d eath ?
PASI (a)
Tvl:AU:O.G l\fYO 2. If so, ...vhether the defendants are personally
NYUNT
v. liable ?
0 TUN
HLAING AND 3.' Wheth er the defendants executed the
ANOTRER.
agreement as alleged in paragraph 5 of the plaint ? Or,
UON PE, J. under fraud, coer<..:wn and threat, as alleged in
paragraph 5 of the written statement of the 1st
defendant ?
. 4. Was the sum of Rs. 500 paid by the t<.vo
defendants or by the 2nd defendant alone?
5. To what relief, if any, is th e plaintiff entitled ?
The lower Court has decreed the suit for Rs. 3,000,
with costs, against the defendants personally and also
in their .capacity as heirs and legal representatives
of U Hein.
The present appeal is by Maung Par only. The
main grounds urged before us are that no personal
decree can be passed against the appellant, and that the
.a greement executed on the day U Hein died (Exhibit C)
was obtained. illegally and under undue influence
ari~ withot~t consideration. The substantial question
I

f<;>r con:sideration in this appeal is whether the

agreement, as contended by the appellant, is without
consideration.. We do not propose to go into the"other
. .questions raised inissue No.3, 1Ji;:., fraud, coercion and
thr~at, in view of the fact that the question of
consideration would suffic'e to dispose of_this appeal.
T~e decisiop Of:l the question of cons_ id.eration rests on
whether the agreem~nt conta.i ned a c9ntract which is
s~pporte.d by considerati~n. For that we shall have to
see. whether tl:re recital contained any co~sideration
moving from U Tun. Hlaing fo.r.~l~e agreerri.e nt to pay up
1he 'liability of t_h e deceased by Maung Par and
1952] BURMA LAW REPORTS. 35

Da.w 'iin Kyi. T he agreement (E xhibit C), which is H.C.

1951
in Burmese, in effect says that " the amount deposited
l\IAUNG PAR
with the deceased having been spent on his (U H ein) {11) MAUNG
PAS! (nl
sickness, the two executants Daw Tin Sein and MAUKG Mvo
Maung Par, promise to pay back the amount in question :-;vuNT
11.
'b efore 3lsl August as they are not i~ a position to pay U TUN
HLAING AND
back now." Reading this recital, we do not see ANoTHER
.anything in it which would suggest that U Tu n Hlaing u ON PE, J.
has promised to give up any right, tbat- is, .to do or
.abstain from doing anything.
What is'-;, consideration " has been brought out in
the case of Gulab Chand v. Kamal Singh and another
(1), where it is held as follows :

" 1 a person \Jelieves that he has a bona fide claim to en force ,

his forbeaonce hom trying to put that claim in courf and to have
.it decided will be a good considetation for a contract, howevet
.the claim, if brought, may be decided.''

The same pr inciple is followed in the case of

JJebi Radha Rani v. Ranz Da~s ( 2), where it is held as
follows :
'' Where a wife who is. ready to sue her husband for
maintenance allowance has foreborne to sue on husband's
a~reeing to pay her monthly ai!O\\'ance by way of maintenance, .
the contract is supj)orted by consider.1tion as wife's forbearance
to sne amounts to 9onsideration for husband's agreement
fe.-payment of rr1aiulen:tnce al!owance."

In th.is case there is nothing which would amountto

a contract supported by consideration on the part
-of U Tun Hlaing to do or abstain from doing anything.
The claim was for money du e by the deceased U Hein,
and not by the appellant, and there can be no question
ihatthe cause of action for recovery of the suit. amount
w ould be against the deceased's estate _? hly.' . It is not
(H I.I~.R. 4~ AU. 424. (2J A.I.R. (1~4J j Pat. 2S2.
 BURMA LAW REPORTS. [ 195Z
H.C. material how the money in question had been disposed
1')51
of, although in this case, it is in evidence that the:
~:,u~Au~~R money had been spent on U Hein's sickness, for which
PAsi 'al
M AUNG MYO
the liability must fall on his estate. The lower Court,.
Nvu~>r in giving the personal decree against the defen dants, has.
uTUN erred in taking the view that personal liability had
H~!~~~E~~o arisen out of the agreement, relying on paragraphs 3 and
u ON PE,J. 4 of the agreement showing-the defepdants' undertaking-
to pay tl1e money personally. The lower Court also
relied on the fact that the second defendant Maung Par
had paid Rs. ~ 00 by selling his properties, but this fact.
is, in our view, immaterial as the document in question,
(Exhibit C) is without consideration. Both in law and
in fact, we are satisfied that the agreement entered into-
by the defendants was witho_ut consideration and must.
be held to be void. It follows that the . claim based on
it must fail.
In the result this appeal is allowed in so far as.
the decree passed ag_a inst the appellant personally
is concerned, with costs. The decree against the-
appellant as heir and legal representative : of the
deseased U Hein will stand, but without costs in the:
lower Court.
U SAN MAUNG1 J.-1 agree ..
 19521 I:H I RMA LAW REPORTS. 37.

APPELLATE CIVIL.
Bcf,rc U Still Mnuug, J.
H.<. .,
KO TI N (APPELLANT) 1951
v. Nov. $,.

KO KYIN TH F.:IN AND 0:-.J E ( RESPO NDENTS). *

f() rbtw Rent Coutrol Act , s. Il t l ) (a)-Fixing of stuudard rwi-Witelller cffcd

ret rospeclire-Notice to q"ti- Claimiug at coutra.;/ rare p rior /1) such
fi.-riu g w hellle1' valid.
A contract of lease should be co nsidered binding upon the parties until it
~as been modified by agreement or by operatio n of law. Vnti l the Controller
of Rents issues a certificale fix ing Stanclracl Rent, the original con tract of lease
.cannot be said to be altered in any way ; o nly such fixation :~Hers the rate
agree d upon originally. W here, thert:fore, a notice of dem;ulcl at the :~greed
rate for a period prior to the fixa tion or Slandanl Rent is served and not
complied with, t he landlord's notke cannot be said to be bad in law. T he
n xa tion of S tandard l~ent has no retr ospective effect.
S. I. Abow nth nnd five IJtllers v. T. H. Klla1z , (1950) B.L.H. 30~ ; S. L. Btrrun
"' S. M. Abowath , (1950) B.L.H. 404. referred to.

Khin M aung for the appellant.

Ba Hpu for the respondents.

U SAN MAUNG, J.-In Civil Regular Suit No. 989

-of 1950 of the City Civil Court, Rangoon, the plaintiff-
-appellant Ko Tin sued the defeQdant-~respond ents
Ko Kyin Thein and Ma Than Kyi for their ejectment
from the premises in suit namely, one room in house
No. 29 of 1st Street, Old Race Course Qwethit,
Rangoon. The suit is one under section . 11 {1) (e)
of the Urban Rent Control Act and th e plaintiff
-alleged that rents for _the months of May, Jun e and
.July were due at the time the ~ uit was filed on the
. . .
... C..:ildllst Appea l N o. 60 of. 1951 against the decree of the City Civil
C ourt. Rangoon, in c ivil ~egular St1it No.: 989 <>f 1950; datea the
Sht May 1951:
 BURMA LAW REPORTS. [1952'
H.C. 4th September 1950, and that notice to quit under the
1951
Transfer of Property Act, as also the requisite notice,.
KoTtN
v. under section 11 (1) tal have been duly sent. T he
Ko KYIN
T!IF.IN
defendants in their written statement denied that
A>I'(D ONR . rent was due at the rate of Rs. 20 per mensem as the
u SA:-! sta-ndard rent had been fixed at Rs. 12 per mensem
MAUNG,J.
by the Controller of Rents, Rangoon, in his
Proceeding No. 445W of 1949-50 and that they had,.
in reply to the plaintiff's notice, offered to pay Rs. 12
which was the amount due after setting off the
amounts which they had already paid in excess of
the standard rent. Two issues vver e framed by the
learned 4th Judge of. the City Civil Court as follows :
" 1. Did the plaintiff refuse to .accept the rent at reduced.
rates ? If so \;hat is the legal effect ?
2. Is the notice bad in.law as the standard rent bas been..
fixed at Rs. 12 ? "

After examining the parti~s in the case the learned

Judge held that the notice was valid as the standarcb
rent'had not yet been fixed at the da,te of the notice
but that the defendants should not be ejecttd as only
Rs. 12 was due after adjustment of the excess rent.
paid by them as provided for in sec.ti on 17 of Urban
Rent Control Act and. the offer to pay this sum was.
refused by the plaintiff's Advocate. I.il the result the-
suit for the ejectment of the defendants -was dismissed!
with costs. H ence this app~al. Now; it is clear that.
the learned 4th Judge of the City Civil Court has.
entirely misconceived t.he law when he held, as he did,,
that the fixation of the standard rent by the Rent
Controller had a retrospective effect. The s~andard
rent was only fixed <10. the 18t1l August 19$0 as.
admitted b'y the defendant M~ung ..Ky~n Thein -in his
eviden.c e. Therefore r'e nt due .for the: period.prior to:
th~13th \. 1 ~ Ht 19 50 was the cQn.trp.ctual re~t. In
 1952] rlUR.MA LAW REPORTS. 39

this connection , the observation of a Bench of this H.C.

195 1
High Court in S. I A bowol h and five olfurs v. T. H. KoT!N
!(Jan \1) is apposite. T here the learned ,. Judges v.
Ko KYIN
observed : THEIN
AND OK&,
" It seems to us that a contract c lease. which has been
agreed upon between the parties, sbouiJ be considered to be U SA N
MAt:NG, J.
binding or ~nbsisting, until it has been modified !1y agreement
between the p:trties or by an operation of law. v\'e are unable
to undershnd how the original contract of leMe made between
the parties could l>e said to have been altered or modified in
this case un~il the Control!er of Rent had issued the certificate
fixing the standard rent. I t appears to cs that until the
Co11iroller of Rent issued a certificate fixing the standard tent
nothing could be said to have been done or to h:lVe occurred by
which it might be said tbat the original contract of lease which
tbe parties have agreed upon had been altered, so far as the
rate at_ which the rent is to be paid is concerned."

No doubt in Abowath's case (1), the standard rent

fixed by the Controller of R ents was higher than the
contractual rent. However, as pointed out by another
Bench of this Court of which I was a m ember, in
S. L Banta v. S. M. Abowath (2), there is really no
difference in principle between the case .where the
contractual rent is raised by lhe Controller of Rents
in fixing the standard rent and that in which the
contractual rent is redu ced by the Controller in
exercising his powers under section 19 of th e Urban
Rent Control Act. The following observation made
by us in that case may b e usefully repeated. We
observed:-
'' Now section 5 !II of the Urban Rent Control Act, 1948,
provides that subject to the provisions of the Act, where the rent
of any premises bas been intreased prior to the date on which
t~e Act c~me into force or is increased during the contiriUance
of the Act above the standard rent, the amount by which such
increased o:ent exceeds the standard rent shall, nc;>hdthstanding
. .
(1) (1950) S.L.R. 308. (2) (19501 S.L.R . 404.
40 BURMA LAW REPORTS. [1952
H.C. any . agreement to the contrary, be irrecoverablE'. The refore 1
1951
where the slaudarcl rent has been fixed by the C:ontroller uf
KOTIN
v. Rents under secticn 19 of the Urban Rent Control Act or is fixed
Ko KYIN by law uu.der clause (11) cf the definition of 'sta n clar cl rent 1
THY.I N
AND Ol\E.
occmTing in section 2 (f ). any rent in excess of the stanc'anl rent
is"a rent which is not lawfully r!ue. In thE' ab!'enc e of any
l1 SAN
MAUNG, J.
standard rent having been fixed under section 19 of the Urban
Rent Control Act or under clau~e (II) of the definition ,' the
contractual rent must be deemed to be the lawful 1ent1 a s it
cannot b~~ said to exceed the 'standard rer.t 1 which is non -
exil>tent. In this connection we agree \dth the observations o
a Bench of this Court in S. I. Abowath and others v. T. H. Khan
(1) where the l~arned Judges said :
' It seems lo us that a contract. of lease, which has been
agreed upon between the parties, should be consi~ erecl to be
binding or subsisting, until it has been modified by agreement
between the parties or by operation of law. We are unable to
understand how the original contract of lease made between the
parties could be said to have been altered or modified in this
case until the Controller of Rents had issued the certificate fixing
the standard rent.' It appears to us that until the Controller of
Rents issues a certificate fixing the standard rent nothing could
be said to have b_e en done or to have cccurreci by which it might
be said that the original contract .of lease which the parties
have agreed upon bad been altered, so far as the rate at which
the re11t is to be pai.:l is concerned .' "
Therefore when by a notice, dated the 8th August
1950 the plaintiff demanded rent fr0in the defendants
for _t_htee previous months at the rate of Rs. 20 per
~ensem, it was not sufficient for_ the defendants, in
reply to that notiCe, to offer to pay rent for these three
months merely at the rate of Rs. 12 per mensem and
also to dedtict therefrom excess rent said to have been
paid {or the moP,ths of February; March and April
1950. Furthermore, .w hen the lan_d lord refuses. to
a<;ce_g t any .rent referred to in dause la) of sedi~n 11
(1)~ the prope~ course which a teiltant's~ould a<i6pt is
. ~0 deposit SUGl~ rerit with . the Controller as provided
(1) (1950) B.L.R 30~.
 1952] BURMA LA\V RE PORT S. 41

for in section 14 (b) of the Urban Rent Control AcL H.C.

195 1
This bas not been done.
KoTo;
It may perhaps be asked of what use is s<.:ction 17 v.
Ko KYI~
of the Urban..-.Rent Control Act, if the fixation of the THEIN
\fil
standard remt: has no retrospective effect. Howe:e r, ANO O~E

.as pointed out by us in S. L. Baru!t v. S.M. Abozcalh USAN

1\fAUNG, J.
ll) the contractual rent remains th e lawful rent in the
.absence of any standa.r d rent having been fixed by the
Controller under section 19 of the Crban Rent
Control Act itself. i.n cases coming under clause (II) of
the d efinition of stand ard rent given in section 2 of
the Act. There may be cases where a tenant may
have been paying more than the standard rent fixed
under clause IJ of the definition or whtre he has
been compelled to pay or through ignorance had
been paying rent in excess of th e standard rent
fixed by the Controller under section 19 of the Act.
In such cases, section 17 ll) of fbe Urban Rent
Control Act cotrld be r esorted to.
For these reasons I would set aside the order of
the 4th Ju.d ge of the City Civil Court dismissing the
plaintiff-appellant's suit and direct that the defendant-
respondents be eje cted from the suit premises as
provided for in section 11 (1) of the Urban Rent
Control Act for non-payment of the arrears of rent du e
from th em. . The defendant-respondents sha ll pay the
costs of the plaintiff-appellant in the. City Civil Cour't
as. well as in this Court. Advocate's fees in this Court,
two golq mohurs. I woul~- further .. add that it is still
open to th e defendants t.o make an application to the
City Civil Court qnder sectjon 14 of the Urban Rent
Control Act for the resci~sion of the decree upon the
"fulfilmerit of such t.e rms ' and .conditions as may be
i~posed l,lpon the"rn: by -that Court .
42 K U Ri\lA LAW REPORTS . [195.Z

CIVIL REVISION.
Before(.. Aung Kltiue, J.

H.C. ~/S. U THARRAWADDY M.-\UNG MAUNG

1951
AGENCIES LTD. (APPLICANTS)
Nev. 14.
v.
S. M. BHOLAT (RESPONDENT).*
APPlication for cvmmission-Discretinll of trial Cot<rt-flltcrferetrce in
ret'ision-S. 115 of the Code of Civil Procedure.
Whether a commission for examination of a witness shold be i!\sued or not
is a matter withiJ'! the discretion of the Ct>urt, loaving regad to the nrcum-
slancesof each case. \Vhen the Lower Court has duly considered the circum-
stances and the law applicable, the High Cou I will not inlet fere. c::...-en tllough,
the decision is erroneous.
Fut Chong v. Maung f'c Clw, I.L.R. 7 Ran. 339, ,referred to.

N. R. Rurjorjee for tbe applicants.

Aung Min (1) for the respondent.

U AUNG RHINE, }'.-This is an application in

revision by the applicants Messrs. U 1 harrawaddy
Maung Maung Agencies Limited against the order of
the 4th Judge, City Civil Court, declining to issue ~
commission to examine the General Manager, Indian
Overseas Air Lin.es Ltd., of u Mayfair" Churchgate~
Bombay. The applicants are the approyed Sales
Agent of the International Air Transport A~sociation .
In:] une 1950 the respondent S~ M. Bholat of 'Rangoon
or1 his jo,u rney to India wanted a 1eturn .air passage
from Bombay to Calcutta ar1d f~r that purpose applied
to the applicant.. firm to secure~ ticket for him .. The
applicant accepted Rs. 1S5 ~nd issued ari exchange
order addressed to the indian Overseas Airlines Ltd.t
Civil Re~i$ion No. 61 of 1951 against' tbe. order of the 4th Judge, City
Civil Court, Ra~goof!, irt case No.$Sl .of l9Sl, dated lO'th August ,1951.
 1952] BURMA LA\V REPORTS. 4J..

Bombay, requesting the latter to issue a single ticket H.C.

1</51
for travel from Bombay to Calcutta. The respondent
~1/S .
reached Bombay and when he applied for his ticket U THARf.tA-
\\"AL>IJY
for the return journey producing the exchange order MAI.:~G

at the said airline office, he was unable to obtain it. 1\ILUJ:\G

AGENCIES
It is now stated that the Indian Overseas Airlines LTD.
v.
has gone into liquidation. On his return to Rangoon S. M.
BHOLAT.
the respondent approached the applic~nt and
demanded the refund of Rs. 185 paid by him for his U AUNG-
KH1Nf1 J.
passage from Bombay to Calcutta. The applicants
having failed to refund the amount, the respondent
filed his suit for the recovery of the same.
It is the contention of the applicants th at they
remitted the amount mentioned in the exchange order
to the above said airlines company and that thty are
neither responsible nor are they liable fo r the respon-
dent not securing any passage from Bombay to
Calcutta. They desired to have a comm ission issued
to examine the General Manager of the Indian Over-
seas Airlines L td., Bombay, to show that the money
had been remitted lo the said airli rrc company by
th em and also to show reasons why the said airli ne
was unable to afford an air passage to the respondent
from Bombay to Calcutta.
The Lower Court considered that the above
points are npt necessary to be proved for the proper
d etermination of the suit and declined to issue tl:le
commission as desired hy the applicants.
The question as to whether a commission shou ld
b e issued or not is a matter left entirely to the discre-
tion of the Court having regard to the circumstances
of each particular case. It is settled principle of law
that where the Lower Court had duly considered all
the pros and con s of the respective cases of parties
and the law applicable thereto, the High_Court will
not interfere in revision-although the dec!s~on may be
44 BURMA LAW REPORTS. [1952
H.C. erroneous. [See Fut Chong v. M aung Po Ch o ( l) ].
19Sl
The applicants no doubt will be able to place before
l\1/S.
'UTHARRA the Court sufficient material to prove that they had
WADl!Y
MA U::-.!G remittec;l. the money to the airline company concerned
MAI.: Kv
.AGE!\:CJES
and therefore they will not be entirely deprived of the
LTD. opportunity to furnish the necessary proof in support
;_I .
S.M. of their claim. The main question in this case is
BHOLAT.
whether the applicants are the agents of th e said
U AUNG airlines, and if so, whether they would be liable to
J:{H l="E, J.
reimburse the amount they have accepted from the
respondents and which they state they had remitted to
the airline concerned. Since the Lower Cnurt has
considered the matter careful.ly and pad appreciated
the pritH.:iples involved, I cannot say that it had not
~xercised its discretion pro peri y.
Under the circumstances, I see no reason to
interfere. The application is dismissed with costs .

.,. --- -. ---~. --~---~-----..,.---

fl ; q-.R:-7 Han. Series, p. _339.

 1952] BURMA LAW REPORTS. 45

CIV IL REVISI ON.

Before U S.w .l1attng, J.

DA\tV THI (APPLICANT) H.C.

11)51

v Nov. 15 ..

DA w _SAN MYA (RESPONDENT}. *

Urb,1uRentCo1ztrolAd,ss. 14-A (1) alltl22( 1)-Whctfl<r /1ttfg~smc-ntiv11Cd
ins. 22 (I) are persona designata-Courts Act,1950, s. 22.
An application under s . .2:? (1) of the Urban Rent Control Act lo the Sub-
divisional Judge, Myingyan questicning the order fixing Standard l{ent by the
Assistant Controller -of Hens was returned to the applicant. Upon n:vision
to the Hi!(h Court.
Hdd: That the Judges mentioned in s. 22 (J , of lhe Urban Rent Control
Act were fcrsorta desit;n.dtl and s. 22 of the Courts Act, 19501had no applica-
tion to the case befqre them. The words in s. 22 refers to Courts of Law
establish;;d under the Courts Act and not to perstma dcsignflta.

Hla Sein for the applicant.

Hla g~i:nlJ . for the respondent.

U SAN MAUNG, J.-This is an application for
revision by Daw Thi against the order of the Sub-
divisional Judge, Myingyan, returning her application
under section 2i (1) of tbe 'Urban Rent Control Act
questioning the decision of the As'sistant Cc>nfr~lle r or'
Rents, Myingyan, fixing . the standard rent, and his
order under section 14-A (1), granting permissio~ to the
landlord to file a suit for ejection against the applicant.
It i.s contended .that the learned Subdivisional Judge
erred in law in holding that .he had no jurisdiction to
entertain a reference under section 22 of the Urban
Rent Control Act.

Civil R~vi~ion No. 41 of 19.51 against the order of the Subdivisionar .

Jud_ge's Court of. M~ingy~n in Civil Misc. No~ 2 of. 19.51, dated 18th Jurie
1951:
46 BUR J.\fA LAW REPORTS. ( 1952
H.C.
l95 ! \1\Tbat really happen f'd was this. The order of the
Assistant Controller of Rents sought to be questioned
DAW '1 HI
t' . was passed on the 13th of April !951. By tktt tine
. D.\\V SAN
MYA. t he Courts Act, 1950, had already come into force so
uSA:<
that As~isf<~nt Judges were replaced by Subdivisional
.MAUNG, ]. Judges. However, Lands and Survey Branch Notifica-
tion No. 366, dat ed the 3rd of December 1948 still
r emained unamended so that the Judge appointed by
the President for the purpose specified in section 22 t1)
of the lirban Rent Control Act still remained the
Assistant Judge, lVIyingyan, although there was no
longer any such Judge in existence. The matter was
only rectified when the Subdivisional Judge of
Myingyan was appointed to be the Judge before whom
references against the decisions or orders of ibe
Controller should be made. This. was a tew months
.after the .Subdivisional Judge had dismissed the
application of Daw Thi on the ground that he had no
jurisdiction to entertain the same. As the Judges
mentioned in se ction 22 .(1) were .pcr~01'la designata,
section 22 of the Courts Act, 1950, had n(:) application
to cases before them. The words (9')q;:~:) occurring
in that section refer to Courts of law established
under the Courts Act and not to Persona designata
:such as those appoi nted under section 22 (1} of
the Urb~n Rent control Act. The application for
revision : is .t herefore dismissed. T here will be no
order as to costs.
1952] BURMA LAW REPORTS. 47

APPELL ATE CIVI L.

n.[or.: U ~.w Mmmg,J.

KO 1\.YI MY.-\.ING { A.PPELLA~T) H.C.

1951
v. l<:ov. I S.
DAW l\IA I SHEIN (l~ ESPONDENT) . *
<Jrban Retzl Contr.;l Act, ss.lJ (l) 1(},14-Aill anrl 22-Fv rrnal order inwr!littg
by Con/roller if 1tccessa1 y,
No suit under s. II Ill lfl of the Urblltl Rent Coutrol Act should be enter-
tained by any Court" unless the fan.:!IMd has been perauitled by the Controller
by order in writing to instih,te st ch suit or pr<x;ecding and has produced
before such Court proof that such permi ~ion has been ~r.,n!cd." The proi
sions of~. 14- A (11 mllst be reild subject lo tt.e provi~ions of sub-s (31 and of
the provisions of~- 22 Ill of UtefUrban Rent Control Act. Under s. 14-A (3),
upon an application from the landlord, the Controller, after makin~ enquiry,
should make an order in wriling granting or rejecting the application. This
order is not final and is subject to reference u11.der s. 22 (l). The dec:ision on
reference is final.
The Judge in disposing of the Reference should foiJow as nearly as possi-
ble tbe procedure for trial of regular suits. When a decision is arrived at by a
Judge on I~eference, it entirely supersedes th:~t of the r.ontroller, and it is not
neces~ary to rtfer the matter back to Controller for issue of a formal order
permitting the institution of proceedings.
Sub-s. (l t of s. 14- A docs not s:~y that the suit filed by tbe landlord must be
accompanied by the order in writing of the Controller. 1'he la:Jd!ord is only to
pro,e that pennissiQn has been grautcd. The only proof, in a case where
there is a Reference to the Court, is proof Clf perm is~ ion being granted by the
ul timate authority cleating with the orders of the Rent Controller.
Though the appellate authority in the case did not specifically say that
permission was gralited to file a suit under ~. 11 (a) 1/1it can be inferred f; om
the language of the order.

N . C. .Sm for the appellant.

Thein Moung for the respondent.
U SAN MAUNG~ J.-I n Civil Regular Suit No. 16 of
195 1 of the F irst $ub ordinate Judge, Bassein which
was later conver ted into Civil Regular Suit No. 41 of
19S l of the To\.~nship Judge, Bassein W~st, the
Civi~2nd Appeal No. 43 of 1951 against the decree of th~ Additional
District Coartof Bassein in Civil Appeal No. 12 of 1951, dated 2nd June 1951.
48 BURMA LAW REPORTS. [1 <:JSZ
H.C. plaintiff-respondent Daw Mai Shein sued the defendant-
1951

Ko KYI
appellant Ko Kyin Myaing for his ejectment fr om the
MYAIN G premises i11 suit. Th e suit being one under clause (f)
'IJ.
DAW MAl of sub-section (1) of section l! of the Urban Rent
SHEIN.
Control ,Act, it could only be filed with the permission
U SAS of a competent authority . . Therefore a preliminary
MAU:\G, J.
objection to, the maintai~ability of the suit was raised
by the defendant on tbe ground that there was no
order in writing by the Controller permitting Daw Mai
Shein tocfile the suit and that the suit was therefore
liable to be di~missed for non compliance of the
provisions of section 14-A (1) of the Urban Rent
Control Act. This objection was upheld by the ~
learned trial Judge v:ho accordingly dismissed the '
plain.tiff-respondent'.s st1it. On appeal to the Addi- 1
tional District Court of Bassein, the learned Judge ~
of the Additional District Court held 1hat the order of .~
the Assistant Controller of Rents dismissing the appli- j
cation of Daw Mai Shein for permission to file a suit -,1
:igainst Ko Kyin Myaing under 5ection 11\1) (J) of th~.:~
Urban Rent Control Act having been set aside by the.J
Assistant Judge, Bassein [who was a. Judge appointed ~
under section 22 (1} of the . Act to deal with the ;
references against the order of the Rent Controller] on,:
the ground that the pr~mises in question was required~
by Daw Mai Shei~ bona fide for her own residence., ;.
no formal order of the Controller of Rents permitting
Daw Mai Shein to file the suit was necessary. He ~
accordingly set aside the judgment and .decree 6f the;"'
trial. Court. dismiss~ng the plaintiff-respondent's stiiC.
a.nd. remande.d th.e suit to the trial Cou~t for its ~,
d.ispo.sal on the merits . . This. ~emand is apparently
under order 41, Rule 23 of. the. Civil Procedure Code>li
~hich P.t~vides tbat whe~e ~he .. G6urt from . \~hos~ .
:deciee a~ appeal is prcferrerl has disposed of the suiil-
'up6n, a 'p.rellmipai-y point and th'e decree 'is revet~'se(f
 1952] BUR ~1A L AW REPORTS . 49

in appeal, t he Appellate Court may ren,;llld tlH.: case H.C.

1951
\vith directions to rt-acin1it the suit under its original
Ko KY!
number in the register of Civil Suits and to proceed l\!YAI!'(G
v.
to determine the s uit. Th erefore an appeal lil's to this DA\1" li:!A[
SHEJ!:\.
Court against the order of remand, zidc Clause lu) of
Rule 1 of Order 43, Civil Procedure Code. u S AN
l\IAUKG, J.
In appeal it is urged that th e Lower Appellate
Court erred in Law in ho lding that th e tria l Court
could have h eld that the plaiotiff-responqent had
obtained permission to file the suit under sec-
tion ll (i) (!) of the Urban Control Act ; and that
section 14-A (l) of the Act is specific on t he point that
no sui t under sedion 11 (1 ) (/) shou ld be entertc1ined
b y any Court, 11 unless the landlord has been permitted
by the Controlle r by an order in writing undci su b-
section (3)_to in stitute such su it or proceeding and has
produced before such Court p roof that such permission
has been granted." .
Irr my opinion, in a case like the present a formal
order in writing by the Controller permitting the
landlord to institute the suit is quite unnecessary.
The provisions of section 14-A {1) must be read subject
~}}~.provisions of sub-section \3) of that section and
o.f section 22 of the Urban Rent Control .'\ct. It is
clear from the provisions of sub-section \3) of sec-
'tion 14-A that on receipt of an appli~ation from the
.
landlord who desires to. obtain from him an order
referred to in sub-section (1} the Controller should
.

afte~ making such enquiries as may be deemed

necessary make an order in writing granting the
application or rejecting the application as the case
may be. This order is, however, not final. It is
subje_c t to referen ce to the authority specified in
sub.-sectjon {1) of section 22, and section 5 thereof
en~~ts that the decision of such .an authorit-y shall
b e. fi.Dal. Sectio~ 23 provides tha~ in disposing of
4'
so BU RMA LAW REPORTS. [1952

H.C. references from the decision of the Controller,

1951
thy Judge concerned may in his discretion follow as
Kt> J.: \ t
nearly as possible the procedure laid down for the
..
1HYAtl' G

DAW :11 At
trial of regular suits . However, it does not rule
SIIE!N. out the possibility of his m(\king use of the evidence
u SAN re-corded by the Controller for the purpose of coming
MAUNG,J.
to ' a decision. When that decision is arrived at, it
entirely supersedes that of the Controller. Therefore,
it is unnecessary to refer the matter back to the
Controlle:r for th e purpose of issuing a formal order
permitting the landlord to institute his suit.
In this connection it is important to note that
sttb-section (1) of section 14-A does not say that the suit
iiled by the landlord must be accompanied by the order
in writing of the Controller. All that it says is that the
landlord must produce proof before the trial Court that
permission had been granted by the Controller.
Therefore where the law allows, as it does, the super-
session of the order of the Controller by that of the
authorities specified in section 22 (1) of the Urban Rent
Control Act the only proof that is n~cessary to be
produced before the trial Court js that of the fact that
the necessary permission has been granted by ~~~
ultimate authority, namely, tbe Judge whose duty it is te>i
deal with the orders of the Rent Controll~r questioned~
before him. :
No doubt the First Assistant Judge, Bassein, who~
had to deal with th.e r~ference against the orcier <?f the:
Rent Controller did. riot in. his order -s pecifically say;
that permission should
.
be granted .to .Daw Mai Shein
.
to's'
file her suit urider section 11 (1) (f) of the Urban Rent~
Co.n trol Act but it .must be necessarily inferred frorn .
~
"'l
the language o.f hi~ order that he held that Daw Mai :
Shein sho.uld be permitted to file the "suit. .
. In tl~e result the appea~fails and ~ust be- dismissed~
with costs; Advocate's fees three gold mohu~s. .
 1952] BURl\fA LAW REPORTS. 51

ORIGINAL CIVIL.
i;cj,,,.,. lJ Bo Gyi, J.

S.R.M.N.N. RAMANATHAN CHETTIAH H.C.

1951
(PLAINTIFF)
Nov. Zl.
v.
RAMAI AH PILLAY (DEFEND.\ NT). *
f Tf1e Linbililirs (WarTimt Ad.iust men!) Act, I<NS, .~. 2-I.cavc to
eJ.CCIIle- ht1'iSdtciiOII.
f
' Under s. 2 of the Liabilities (W;~r-Time Adit16llllcnt) Act, 1945, the Dist rict
i Court or any other Court designated by the H igh Court under rules made
t undc:r s. 8 of the Act ca n graut permission to execute a decree. The debtor
- however must reside wiUtin the local limits of the jurisdiction or carry on
i business or personally work for gain. If he lives within the jurisdiction ol
t-tbe High Court, the High Court alone grants leave.
r' l n the present case as the debl<r was not shown to be residing within the
jurisdiction of the High Court but in the Ramnad District and there was
nothi ng to show that he carried on business or personally worked for gain
. within the jurisd iction of the Hi gh Court, the High Court can not grant such

R.]agmJathan for the plaintiff.

R. Basu. for the defendant.

ORDER.
U Bo <;:ivi, J.-This is an application by S.R.M
.N. Ramanathan Chettiar under th e Liabilities (War-
ime Adjustment} Act, 1945, for permissi on to execute
e decree obtained by the firm against S. R. Subbiah
illay for the sum of Rs. 1,369 in the Rangoon City
~vil Court. The judgment-debtor S. R. Subbiah
nay is dead and the application mad e is against his
n and heir Ramaiah Pillay. The application is
' posed by Ramaiah Pillay on . the ground that th.is
, urt ha.s no jurisdiction to grant the pe!mission. ,
Civil Mics. No. 143 of 1951 of the High Cou rt, Rangoon.
52 BURMA LAW REPORTS. [1952

H.C. Tbe Court. which can grant the pcrmi~sion tc}

1'.-51
execute the decree is mentioned in section 2 of th
~.[c\\'!.N.:".
lt\~!ANA
Liabilities (vVar-Time Adjustment) Act, 19-lS, acco
THA~
Ctu:TTt,\R
ing tc which, in the case of a money decree, it is t
'/1. District Court, or any other Court designated by t
f~AMAIAH
PILL -\Y. High Court by rules made under section 8 of the Ac
t: Ho Gvr, J. within the local limits of whose jurisdiction the deb
ordinarily resides or carries on business or person
work; for gain, that can grant the leave. Vnder
proviso to the section, if the debtor ordinarily resid
or carries on business or person<llly worJ.;s for g
within the local limits of the ordinary original juri
tion of the High Court, it 'is th_e High Court that
grant the leave. Here, in this case the debtor
shown as residing in Ramnad D istrict, India, and
is nothing to show that he carries on business
personally works for gain within the local limits of
ordinary original jurisdiction of the High Court.
It must be held, therefore, that this Court
grant the leave applied for, and the
accordingly dismissed, with costs.
Advocate's fee one gold mohur.
 1952] BURMA LAW REPORTS. 53

FULL BENCH (A PPELLATE CIVIL).

Before U 1"1111 Byu, Cltfe/ Jus/tee, (J 1!11 111; 1\friu,; 11 11tf U Si Bu, J J.

JOHN vVILLIAM CREE (A PPLICANT)

H. C.
1951
v. lJcc. 12.

VIOLET ELIZABETH CREE (HESPONDENT).*

Burma Divorce Att, 19-IS-Decrce nisi tnsscd by the High .. Court of

]ltdicat u-re-AJ>PlicatioiJ for cou{irmation to llc Hi",!!J Court .1/tcr
Inde# 11de11ce- Bttrma l11dct e11dence Act, 19-17, s. 5 (3) -Netrospect he
effect of stdtutc-Effect of ccnjirmatio11 of decree nisi.
V. E. Cree obt:tined a decree nisi fo~ div.-,rce against I . \V. Cree on 21st
December 1941 under the I ndian and Colonial Dil orcc Juri:;di~tion Act, 1926 in
the Hi~h Court of Judicature at Rangoon. On 20th J uly 1950, tht: lmsband
applied in the Hi~h Court. Rangoon, for a decree: absolule. The question
regarEiing aulbority to pass such a decree was referred to a Full Beuch.
Held : T hat unc!er s. 2 of the !Surma Divorce Act, 1948 the High Coi!lt was
n ot competent to mak<: decrees of disso)ution of marriage ex::ept where the
parties to the marriage are domiciled in Burma at lbt- time when the petition
is presen ted."
]. W. Cree was admittedly not so domiciled. and he .:ould not have applied
under the provhions of the Burma Divorce Act :IS it stood bdurc the amend-
ment made in J948 .

Under s. 5 (3) of th e Bnrma Independence Act, 1947 it is prvviclcd that if
by the law of Burna any enactment spc-cified in the 2ud Schedule to the
Act is continued on or after coming into force of independence, it is part of
tqe law of !:Surma. Xo si.lch le;!iS!alhll1 had been Jl\ade to continue the
provision o f either the Indian ancf C'o!t.nial Divorce Ju risdiction Act, 1926 or.
the Indian and Colonial. Divorce Jurisdktion Act , 1940. It is a settled rule of
construction- that retrospeclive ope!JU.ion is not to be given to a statute so as
to 'impair existing rights unless the language of the enactment reqt1ires it.
As the pre,ious Divorce Ac.ts of 1926 and JQ40 w ere repealed, the High Court
in 'nurma has no power to ::ct under the previous law.
Re. Atl;lumucy, (1898) 2 Q.B.D. 551 at 552, r eferred to.
It is really .the decree absolute which should ue considered to be the final
decree in the Divorce Act. The decree 1~isi does not alter the status of the
parties. .
B1man v. Hyman and Goldmnn, (1904) Law Reports, Probate Division
403 a l 406, referred to.

(;ivil Reference No. .2-1 of 1951 being rcferen~e made by the Wgh Court,
Rangoon :u ilo Gy( J) in Civil Regular No.
198/H, dated 7th September
1951. .
54 BURMA LAW REPORTS. [1952
H.C. Decr ee u i s1 p assed under the ol d law ca nnr,f therefor e be con fi r med by
1951 th e present Hi;:h Cour t.

JoHN G. Honochs for the e:1 pplicant.

\Vt LLIAM
CRE E
v.
L. Choon Foung for the respondent.
VtOLET
ELIZABETH The judgment of the Full Bench was delivered by
CREE .
U TuN BYu, C.J.-:-Violet Elizabeth Cree obtained,
on the 21st Decembt:r, 1941, a decree nisi, under the
Indian and Colonial Divorce Jurisdiction Act1 1926,
for the~ dissolution of her marriage with John William
Cree, \vhose domicile was in the British Isles. Viole.t
Elizabeth Cree, as \Yell as Jo hn William Cree,
evacuated to India, and they apparently remained in ,
I ndia during the Japanese milita ry occupation of;
Burma. Violet Elizabeth Cree next applied, on or_;
about th e 1st September, 1942, to the High Court o.1
!
Judicature at Fort William in Bengal, to have the .!
decree nisi, which was obtained in. Burma, made ~
.absolute, but her application \\'as rejected on the 1'
grbund that it was not a matter which the High Court~
of Judicature at Fort Vv"ipiam had jurisdiction to1
deal ~itb. 4
On the 20th July, 1950, John \.V illia~1 Cree applied:J
for the decree nisi passed in Civil Hegular Suit No. 198~1
qf 1941 of the High Court of Judicature at Rangoon,
instituted by Violet Elizabeth Cree, to qe .mad '
absolute. The learned Judge, b~fore whom the~
application to make the decree nisi absolute. came fo~
hearing, _ has referred the following question5 for
decision .: -
1, Can a decree uisi passed _by the late Higf
Court of Jud icature at Rangoon under the lndian an
Colonifl.l Divorce Jurisdiction~ -Act, 1926, be con.fin:ne<;t,
by the . H igh Court ? '
2: If so, und.e r \-vhat-' enadn1ent can ~he deer-e
nisi be confirmed ?
 1952] BURMA LAW RE P ORTS. 55

The Indian and Colonial Divorce Jurisdiction Act, H.C.

1951
1926, and the Indian and Colonial Divorce Jurisdic-
j O H~
tion Act, 1940, were, however, repealed by the Burma \\' tLLIA M
I ndependence Act, 1947. The High Court in Burma CHEF.
t .
no longer possesses a power to act under either :he VIOLET
ELIZ.4.8ETH
I ndian and Colonial Divorce Jurisdiction Act, 1926, or CRF.E.

the I ndian and Colonial Divorce Jurisdiction Act, 1940, t: TU!:\ BYU,
unless a legislation had been enacted to enable this to C.J.
be done ; and this becomes oovious when we consider
the provisions of sub-section (3) of section 5 cf the
Burma Independence
. .
Act, 1947, which read :
'' (3) The enactments l':pecifiecl in the Second Schedule to
this Act are hereby repealed as from the appoin ted day to the
extent specified in tl~at Schedule :
Providecl .tbat, if by the law of Burma, any such enactment
js continued on or after the appointed clay as part of the law
of Burma, nothing in this repeal shall be tal~en to prevent the
recognition outside Burma of that enactment as part of the law
-o f Burma.''

No legislation had, however, been made in Burma to

-continue the provisions. of either the I ndian and
. Colonial Divorce Jurisdiction Act, 1926, or the Indian,
.and Colonial Divorce Jurisdiction Act, 1940.
Admiltedly, John William Cre.e was residing in
I reland '":hen his application to make the decree nisi
absolute was filed in the High Court on the . 20th July
1950 ; alld he is still living in 'Ireland.
The application of J<?lm Wi~liam Cree was made
u nder the Burm~ Qivorce Act, as subsequently
ame nded, and it has been conten ded on his behalf
that the application fo r an order to make .the decree
nisi absolufe is competept in view of the subsequent
d.e letion . or repeal of a .portion of section 2 . of the.
;~urma Divorce Act, whi.c h .required the padies to be .
.domi~iled in Burma . before they could. ~nstit~te.
pioc~edings for d-ivorce imde~ the -Burma -Diyo)ce Act. .
56 BURMA LAVJ REPORTS. [1952

H.C, \Ve ought to mention here that the learned Advocate

1951
,,ho appeared on bebal of John vVilliam Cree had
}OHN
\Vxur.nt been most candid in his arguments and he did his
CREF:
v. best to place his arguments most fairly before this
VJOLF.T Court.
EUZAijETH
CRER. The question which arises in this reference is
'J '!'UN l3YU, really, \\"hat is the effect of the amendt:nent of section Z
C.J. of the Burma Divorce Act, or, to be more precis~,
whether the amendment has, in law, the effect of
allowing the High Court in Burma, after the
Independence, to make a decree nisi absolute in the
circumstances obtaining in the present case ? It is
a rule of interpretation of statutes that an Act is not
to be construed to have effect retrospectively, unless
it is clear that it should be so construed, at least by a
clearor necessary implication. In Re. Atlzlunwey \1),
V\Tright J., expressed the rule as follows:
"No rule of construction is more firmly established than
lhis : that a retrospective OJ::eratiot1 is not to be gi\en i.o a shitute
so as to impair an ~xisting right or obligation, otherwise than
as regards matter of procedure. unless that 'effect cannot be
avoided wiq10ut doing violence to the language of the enactment.
If the enactment is expressed in language which is fairly capable
of either interpretation, it ought to .be construed as prospeclhe
Only."
What is the effect 'of the amendment of section 2
of the Burma Di~or.ce Act, as referred to in the earlier
portion of this judgmenf? It seems to us to be obvious
that the a-mendment has the effect of enlarging the
ri-g ht of a party to institute a divorce proceeding under
the Burma Divorce Act. A party is no longer required
to be domiciled in Burma before he can institute a:
proc~eding for divorce .-[n :J3urma, and this amendment
cannQt, therefore, be o~sidered . to r-elate solely to a.
matter.of procedure.. . .
(I) (1'898) 2 Q.~ .D. 551 at 5S2.
 1952] BURMA LAW REPORTS.
I i.C.
A dPcrec 11isi does not have lite effect of altering l'JSI
the status of the parties. It of conrse confers a right
Jt fl :-.:
on the parties to apply to the Court subsequently for .\\'11.(.1.\)1
CHE E
an order to mak e the decree nisi absolute ; but the
VIOLET
..
Court also has power, for proper reasons, (o set El.lZAI\ETH
aside !he decree nisi. Thus, it is really the decree CHEE.

absolute which should be considered to be the final U 'ft;;o.: BVU

C.J.
decree in a d_ivorce suit. It was observed m Hy11um
v. Hyman aud Goldnw n (1), as
follows :
'' . . . It very frequently happens, although I cannot
cite at this moment any specific authority from the books, that
the King's Proctor bring!! to the knowledge of the Court
adultery, for instance, committed after the date of the decree
nisi, which in the absence of anr special citcumstances, has the
effect, not only of stopping the decree from being made absolute,
but of setting aside the decree 11isi. When one considers the
matter, this must_ be the logical effect, because the decree
absolute is the only fitnl decree in the suit. . . . ."

This is accordingly a case which must be considered

in the light of the provisions of the law which existed
prior to the amendment of section 2 of the Burma
Divorce Act effected in 1948, and the relevant portion
of seCtion 2 of the Burma Divorce Act, which \Yas
deleted in 1948, reads :
" 2. . . . or to make decrees of dissolution of
marriage, except where the parties to the marriage are domiciled
i~ Burma at the time when the petition is presented. . . . "

It is, therefore, clear that no Court in Burma could

grant a decree for the dissolution of marriage under
the Burma Divorc~ Act before the amendment mape
in 1948, unless the parties to the marriage \:vere
domiciled in Burma at .the time.when the petition' for
the disso~ution of marriage W<:ts.":!ristituteci in . Court.
!11 (1904) Law Rep.on~. Probate. Division, 403 at 406.
58 BURMA LA\rV REPORTS. [1 952
..
.:
H.C.
195l
It follows that John William Cree, whose domicil e i ~
admittedly outside Burma, could nqt have resorted t~
JoHN
\VrLLIA~f
the provisions of the Burma Divorce Act, as it stood:~
CRr.E before the amendment mack in 1948, to aid him ir~
v.
VIOLET his ap'plication to have the decree nisi made absolute~
Er.rZABTH
CRr.r.. Section 31 of the Union Judiciary Act, 1948, als~
:U TUN J3YU,
cannot help him in that it cannot be utilised to reviv~
C.J. either the Indian and Colonial Divorce Jurisdictioq1
Act, 1~26, or the Indian and Colonial Divorce Jurisdic~
tion Act, 1940, both of which were expressly repeale .,
by the Burma Independence Act, 1947 ~ The provis_:.
to sub-section (3) of !Section 5 of the Burm';
Independence Act, 1947, indicafes quite dearly tb
what was intended to be done was tha:t the I ndia;'.
and Colonial Divorce Jurisdiction Act, 1926, and th~
Indian and Colonial Divorce Jmisdici\on Act, 194.0'
were no longer to be considered as being in force j' .
B)Jrma after the Independence, unless tJle,re \\"aS ala ~
in.a de in Bur:na to allow them to continue to be i "
force after the Indepe.ndence of Burma ; and no sue
law had been enacted 111 Burma.
For the reasons which we l1ave set out above, th
answer to the first question which has been propo~nde'.
will have to be answered in the negative ; and in vie
of our answer to the first question, it will not 1:1
necessary_to ans\J.'er the .s econd question ..
 1952] BIJR!\IA LAW REPORTS. 59

APPELLATE CIVIL.
Bcfor~ U Tu11 8yu, Clt ie/ JusliCf, mul U Si Bu, J.

S.K.A.R.S.T. CHETTYAR FIRM (APPELLANTS) H.<.;.

1951
v. D : c. 10.
P.S.A.P. ALAGAN A:-.10 OTHERS (RESPOKDENTS) .*
.
t.C'Jnlract .-let, s. 189- .lgent of necessit y-Looting-Bu1rleu of procf-
Rttli,'icatiou.
l~e$pond<:nt:> executed a proru i~sory note in favour of Appellant wlose
agent !cit Burma before the British ev:tcuation :tnJ no one wa~ appointed ro
fool; after the affairs. The 2nd defendant clain1ed that by payment nf
Rs. 11,000 on Jd Sep~tmber 1944 to one Veerappa Chettyar the~lairn was
satistied and contended that \'cerappa Cheltya r was an agem of necessity.
Heltl :That the authority under ~ . 1!\9 of tle Contract Ad is one
.gra nted by the law to a per:;on acting in a pa rtic ular transaction. St:ch a
j)erson is not an agent c.r routracfu.
R.M .M .R.!Jf. /'e1 iclliatta Chrlly111 v. 1\o Kym11 Tltnn, (19~9) ll.L.R 64 at
;-o, referred to ;~ nd followed.
~ cceptance of Jap;mese currency from tile 2nd clefendant could not be
:said to be a transaction in the interest of the firm or for its benefit e~peci:tll_v
when there wa~ an endorsement of in terest on the Jst April 1944 a nd no
.apprehension d the claim becoming li me-barred.
\1\'hen defendant relied upon a statement of fact that the pac!dy belonging
io the Appellant firm had hecn loo ted the burdt-n of proof res ts on him and
H hnd not been satisfied in this case. !\o evidence had been adduced in this
-case !rom which an inference of ratiticatlon cou ld be reasonably made.

K. R. Venkat1-am for th e ap-pellants.

N. Bose for the respondents.

U :r~ BYU, C.J.-The three defendant-respon-

-dents P.S.A.P. Alagan, P.S.A.V. Pichan and P.S.A.A. L.-
..:>uri executed a pro.nissory note, on the 2nd August,
1949, _in favour of the plaintiff:-appellant S.K.A.R.S.T.
Chettyar Firm for a sum af Rs. 15,000, \.vith an interest
* Civil 1st Appeal No. 40 of1949 against the decree of tllis Court in Civil
suit No. ZO of 1947, dated 20lli J une 1949.
60 BURMA LA vV REPORTS. [1952'
H.C. of 9 an nas per centum p er mensem. A considerab le
1951
sum was still due to the plaintiff-appellant firm in
S.K.A.RS.T.
CHETTVAR respect of the said promissory note when the Briti ~h
Fllm
'l/.
evacuated Burma early in 1942. The agent of the
P .S.A.P. plaint.iif~appellant firm had left Burma sometime
AL.-WA~
AND OTNEllS. before the British evacuation of Burma ; and no one
U TUN BYO, had been duly appointed to look after the affairs of
C.J. the plaintiff-appellant firm in Burma.
AfteF> the Japanese occupied Burma in 1942, some
relations of one Chidambaram Chettyar, who was a
sen ior parlner of the plaintiff-appellant firm, r equested
one Veerappa Chettyar, who had previously held a
power-~f-attorney fwm Ch!idambaram Chettyar. but
who had ceased to be employed by the latter more
than a year before the Japan ese invasion of Burma, to
assist in saving the properties of the plaintiff-appellant
firm and to look after its affairs. Vcerappa Ch ettyar
was asked to do so, becaul'e he had previously held a.
power-of-attorney from Chidambararn Chdtyar and in
that the power-of-attorney, which was withdrawn from
him, was stm at the premises of the plaintiff-.appellant
firm in Hangoon. We accept the statement of Karup -
paih, who was an employee of the plaintiff-appellant
firm, that Veerappa Chettyar <1ssisted in looking after
the affairs of the plaintiffappeJlant firm during the
Japan e$C occupation of Burma and that Kailas<~mr
who was an employee of the plaintiff-appellant firmr
also as.s isted in looking after the affairs of the plain'tiff-
appellant firm during the Japanese occl_j)ation of
Burma. Lakshmanan Chettyar, th e prese~ agent of
the plai~tiff-appellant firm also gave evidence to simi(
lar effect.. The Exhi~it A7, written by :Veerappa
Chettya.r, also suggests that Veer~ppa Chettyar
assfsted i-n .,l9oldt?g after . the affairs. of tl1e. plaintiff-
:a.ppellant firm .during the . -Japanes~ occupation of
Burma.
1952] BURMA LAW REPORTS. 61

On the 1st September, 1944, the second cldendant- !i.C.

1951
respondent P .S.A. V. Pic: han repaid a s um of H.s. 11 ,000
~.K.,\.RS.T.
which was still due by him on th e said promi:-sory <.:HET'CYAf~
FIR~f
note ; and this m c ney was borro\\'ed from \ 'ec rappa
Chettyar . The learned trial Judge on the Orig)nal ~-ide P.S.A.P.
AI.AGAX
held that Veerappa Chettyar was, in the circumstances A:--1 > OTHER!'.

-of this case, an ' agent of necessity" within th e mean- l.' Tt.:x BYU,
C.J.
ing of section 1s9 of the Con tract Act in r espect of the
r epayment of the loan made on the 1st S(;ptember,
1944; and he also held that the plaintiff-appellant firm
had also ratified the action of Vecrappa Cll ettyar in
accepting the repayment of Hs. 1 1,000, in Japanese
currency, from P.S.A. V. ,Pichan.
The two questions which arise in this appeal are
whether the act of Vecrappa Chettyar in accepting
the repayment from P.S.A.V. Pichan on the 1st Sep-
tember, 1944, could, in rhe circumstances of this case,
be properly comidered to fall \Yithin the pnrvie" of
section 189 of the Contract Act, and if not, \.\'hctber
the transaction, \Vhich took place on the 1st September,
1944, cou ld be said to have been ratified by the
plaintiff-appellant firm. Section 189 of the Contract
Act reads:

" 189. An agent has authority, in an emergency, to do all

such acts for the purpose of protecting his principal from loss as
would be ctone by a person of ordinary prudence, in his own
case, under similar circumstances. "

In R.Mvfv!.R.M. Perichiappa Chettyar v. [{o [(yaw T!Jan

( 1) U E'' Maung J., in delivering the judgment of the
Supreme _Court, observed:

" It, therefore, follows that the auth<;>rity of the so-called

agent .under se~tion 1~9 .q the ContraCt Act is an authority
whicl~ the. law has granted to a person who was' acting, not as
(1) (1'94?1 8.L.R , p. 64 ~t p. iO.
62 BURMA LAW REPORTS. [1952'

H.C. an ag:cnt ex contractu, :>o far as th:-tt particular tra nsact ion f\\':1s
1951 concerned, but oulsiclc th e scope o f his employment b y the
S.K.A.RS.T. principal. Sta tus, ancl no t con hact , is the determ ining fa ctor in
CHE'l" fY AII b oth cases."
F !llM
'V -
P.S.A.P. \Ve rcsl"ectfully agree that t he Court has to co nsider
ALAGA:-1
,\ NO O r H EIIS.
each :
transaction in its O \.Vll pec uliar circumstan ces as.
to whether th e act of an agent ca n be said to fall wit h--
U TUN Bvu,
C,J. in tb e ambits of the provisions of section 189 of tlle-
Contract Act. It '<Vill be observed tbat in order to
come within tbe provisions of ~ection 189 of the Con-
tract Act, it will also be necessary to establish that th e
act or transaction was do_n e or made for ilfe purpose of
protecting th e principal from loss.
Three creditors of the plaintiff-appellailt fi r m \\'ere-
admittedly re paid the sums du e to them by tbe
plaintiff-appeHant firm in September, ~944, and those
three repayments had undisputedly been accepted by
the plaintiff-appellant firm . . It is al~o clear that the
repayments in the Japanese currency to the three
creditors of the plaintiff-appellant firm in September~
1944 were transactions made in the interes t or for th e
good of the latter, because the Japanese currency was:
depreciati~g very rapidly in value at that time. It wilJ
be necessary to consid er whether tl1ere was any
connection between the three repayments made to the
creditors of the plaintiff-appellant firm in September,.
1944 arid the repayment, which P.S.A:V. Pichan m~de
tcwards the debt due by him on the i~t Septemb.er~
1944. We have been taken thro.ugh the evid.ence in
this case, and. we have nor been shown any evidence
which will indicate that there must have been some.
connection bet ween the three_repayments made to the
creditors of the plaintiff-appe}Jant firm anc~ the repay-
ment made by P.S.A. V. Pic han for the aruount due on
tlie: pr~missorv.r note executed on the 2nci.Aug.~s.t; 1939;
and. unless
. : ; some sort of . connection. is established
1952] BURMA LAW REPORTS. 63

beh.\ 'een the two sets of repayments it <.: ouid not, 111 :~i_;;-
our opinion, be said that the accept;I!H.:e of the J<lpancse s.K.A.K:'.T.
currency from P.S ..-\.V. Pichan was a transaction mad e Cll t_-~ : v ..w
in the intcresl or for the good of the plaintiff-appellant I~;:''
firm. There is a lso no ev idence to indicate th;~t the l'. s .A.l'.
AI.AG.~:-i

creditors of the plaintiff-appellant firm, who \\'ere. ANIIuTtil"~ti.

repaid in September, 1944, would not have accepted c 1~3vc,
-a ny of the three ~cpaymcnts, unless the plaintiff- c.J.
appeliant . firm had also accep ted the repayment of
l~s. 11,000 from P.S.A.V. Picllan. W e arc also t~nable
to find any evidence on the record which \\'ill indicate,
more or less clearly, that Vecrappa Chcltyar and
Kailasam~ who \\ere lool<ing after the affairs of the
plaintiff-appellant firm during the Japanese occupation
of Burma, could not have repaid the sum of Rs. 18,000,
in Japanese currency, to the three creditors of the
plaintiff-appellant firm in September, 1944, unless they
had accepted the repayment of Rs. 11,000 from
P.S.A.V. Pichan on the l stSeptember, 1944.
f According to Kailasam, who v\'as examined on
tcommission, about 40,000 to 50,000 baskets of paddy
:were collected by them and that the paddy had been
old. Veerappa Chettyar, who was also. examined on
~commission, also stated that they collected about
: s. 20,000 to Rs. 25,000 from the outstandings due to
he plaintiff-appellant firm. In the absence of any
evidence to suggest that the money obtained by Veerappa
_ hettyar and Kailasam on b ehalf of the plaintiff-
ppellant firm had been utilised in 'discharging other
iabilities of the plaintiff-appellant firm, it is only
easonable to assume that at least a part of the sums
o.IJected by them on beha.lf of the plaintiff-appellant
was still available for use in September, 1944.
.t has been urged on behalf of the defendant-respond-
'nt~ that the evidence of Kailasam shows that some of
he paddy belonging to the plaintiff-appellant firm had
c4 BURMA L AW REPORTS. [1()-
. ;) iJ
-.
H.C. been looted during the Japanese o<.:cupation of Bmma,
J95l.
There is no evidenc~.:, ho\YC\'cr, to show how much cf ,
S.K.A.R.S.T.
(.;Hr;T1'YAI~ t he paddy was actually looted, and it will not be'l
FmM proper, in the circumstances , to assume that almos..: '
v.
P.S.A.l'. all the 40,000 or 50,000 baskets of pfldcly belongin
ALAr..~:-:
ANU OTHEH~. to the plaintiff-appellant firm must have been loo

U TuN lh~:, The burden of proof, on this point, rests on tl;

C.J. defendant-respondents; and \re \\'Ould have expect
either. Veerappa 0r Kailas<:m to have been
examined about it, if the suggestion made before u
was true. It could not therefore be said that ther
could not h~ve be~n sufficient money mailable
repay the sum of Rs. 18i000 to the three creditors
the plai ntiff-appellant firm in September, 1944, witb
the money which was received from P.S.A.V. Pich
on the 1st September, 1944. There is also no eviden
to support the sugge~tion that unless Veerap
Chettyar or Kailasam had accepted the repayment
Hs. 11,000 from P.S.A.V. Picban, the properties 0f
plaintiff-appellant firm, or some of them, \\"Onlc'! b
been seized or confis~ated by the Japanese M iii
administration.
As regards the question of ratificatiot:~, it h<>s b
contended on behalf of the defendants-res~;ondet1
that' the. fact that the plaintiff-appellant firm a,..,,,.. ,...,""~
of the three p~yinents to their creditors made
September, 1'944 clearly implies that the plai
appellant. firm also approved . of. the repay~ent of
debt due to them. by. P.S.A.V. Pichan. It has to
remembered that those h vo sets of payment
distinct transactions; and no eyidence has. been add
en which such in'ference . can reasonably be
It has been urged that P.S~A.V. Pichan's e
S'hows that dmands were made fc r the
the promissor-y not~ due by hiin by Kailasan1
.others during the Japanese q~cttpation of' Burma.
19521 BURMA LAW REPORTS. 65
will not b e proper in the circum!>tan ces: of thi s ~,;ase to H.C.
1951
accept P.S.A.V. Pichan's e\'idcncc in this respect
S K.A.RS.T.
without some corroboration. Keither \'eerappa Chet- C t iiTTYAR
Fm~t
tyar nor Kailasam had been questioned in this matter.
Moreover, even if the demands for payment \\'aS made, "
P.S.A.P.
.\LAC.AN
it will not absolve the defendant-respondents fro!TI ,11\IJ OTHERS

.establishing that Veerappa Chettyar came within the 1.: T!!r-< 8Ytl,
provisions of section 189 of the Contract Act in C.J.
accepting the repayment of the debt due on the
promissory note executed on the 2nd August: 1939.
The third endorsement made on the reverse of the
promissory note also sho\\s that a sum of Rs. 1,000
W:J.s repaid as interest on the 1st April, 1944, and no
apprehension about the prom i-ssory note being time-
barred could have arisen at the time the repayment of
Rs. 11 ,000 \.va_s received from P.S.A.V: Pichan on the
lst September, 19-l4.
T he appeal will, for the reasons already stated, be
allowed ; and .the judgment and decree passed in Civil
Regular No. 90 of 1947, will be set aside, and there
will be a decree for the payment of Rs. 13,000 by the
defendants-respondents to the plaint iff-appellant firm
with interest at 6 per centum per annum from the date
of decr ee until date of realisation, with costs in both
.Cou rts.

I
I
66 BURMA LAW REPORTS. [195:?

A PPE L L ATE C IV IL.

U Tull B)u, Chief Justice, <z1ul U ..lung Khi11e , J.

H.~. AHMED MURAD {APPELL~NT)

1952
]a;; . 15. v.
M .A.L. CHETTYAR FIHM (RESPONDENTS).*
<
Code of Civil l'roccdtsre, Order 22, Rule 11-Noticcs ttl'ldcr- Defcct whicl~
~ocs to the root of juri~id iou-Etidr:ucc Act, s. 11+-Presum PLion as t.J..
regularity of official act- W.'ten arises.
0 1\ the 28t h Nnvember 1929 I<esponde nt obtai.ted a decr ee i n the !i ig!~
Cun rt of Judic.at11re at Ran ~:oon again~! H. ~I. A. Rahi m who died. On the'9tii:
Jnl" 19H the decree-holder applied for execution and the n:cords were lo5t:
dm:in~ the war. In 1947 the decee-holrler applied fo rC<'Ol1Str uction of Chit
r~:xeculi >n No. I 75 of 1941 said to be pendiug at th e date of evacuation and1
reconstruction was ordered. Aft<=r recomtrudion and per:nission to cxecuttS
ii;e tiec:ee had been obtained the decree-holder applied for sale of the prorcrty~
Jf eld: T he appli<i,ation for execution of the decree ha,ing been fi led in 1941:
within 12 years was in time, un der Arli~ le ! 83 of .t he Limitation Act. Th~
only q!:estion that arose \\':IS whethtr notn:e.s to the judgment-debtors must b~
held to have been issued as required under Order 22, Rule 1::! of the Code of:
Civil Procedure. Such a notice is c>ssential to give jurisdiction to the Court tO:
order execution. i
S!lyam Mandal v. Sati11ath Batterjee, (1917) 44 Cal . 934 at 96l; Ragilu11at!f
Dns v. Sundar Dns Khetri, !191.;) 42 Cal. 72; Goj~al Clmuder v. Gunanuwf
Dasi, (1892) 20 Cal. 370; Sa/Ideo 1-a,dey v. Ghasiram, (189i) 21 Cal. 19;
Pa1'ashram v. Ral1111tkund\ (190!!) 32 Bom. 57Z, refe rred to.
There is nothing in the record to show that such i1otices Jtad been issued!
The issue of such notices c:mnot be presumed having regard to ~. 114 of
E vidence Act. It is for the person who all eges that the liabilit v has beer(
incurred to prove th:tt the cond itions prtseribed in t he. Act had b~en actuall}~
done. There i~ no presumpion in law that any p articular act had been clonej
Nar ettdra Lal Khan v. Jogi Hari, (1905) 32 Cal. 1107 at 11 21 ; W,tlvekar
v. Em Peror, . (1926) 53 Cal. 7 18 at 728 ; A silaltUl/ah v. 2'rilocT;,m Bngchi~
i1886l : l 3 Cal. l 97, rd e rred to:

Tun Sein for t he .appellant.

G. Horroc ~s for the re.s pond ents.
<~Civif ~fisc. Appeal No. -4 of 195 1 ;~ga~nstthe order of .t~e Qri.ginal .Side~
H igh Co~rt; Ra ngoon in Civil Execution No. 25 o.1950, dated 1.7th January 1951~
. . ~
1952] BURMA LAW REPORTS. 67

li.C.
Tht: judgment of the Coi.lrt \\a,; <kii\erecl by 1()52

.\i i~IIW

U TuN BYn, C.J.-A d..:cree was passt:cl, on the

28th November, 1929, in fa WJUi" of the respondent
..
l\IUIAll

:11.!\.L.
C.;;-:rT YAR
l\I.A. L. Chettyar Firm <tgainst llaroon 1\is~a Bibi and F!IOI -
Hajee ~'hmshi Abdul Rahim in Civil Hegular No. 639
of 1928 of the High Court of Judicature at Rangoon.
Hafiz Bibi, Mohamed Murad and Ahmed Murad were
the legal representatives of Hajee ~Iunshi Abdol Hahim
who died subsequently. It is said that Haroon Ni:;sa
Bibi, Hafiz Bibi and Mohamed ~J urad are also dead
now, but this fact is of no importance, so far as the
present appeal is concerned, in view of the provisions
of Order 22, Rule 12, of th e Code 0f Civil Procedure.
On the 9th July, 19-1-1, i\I..-\.L. C!Jdtyar Firm
applied in the High Court of Judicature at Hangoon for
execution of the afortsaid decree in Civil Execution
No. 175 of 1941, and the records of the original suit as
well as those of the Civil Execution proceedings were
subsequently lost, due to circumstances arising out of
the last Great vVar. M.A. L. Chettyar Firm applied,
later on, in Civil Miscellaneous No. 218 of 1947 for the
reconstruction of the relevant portions of the records
of Civil Execut"ion .No. 175 of 1941, :which it W<\S
said was still pending at the date of the evacuation
of Burma in 1942 ; and an order, allowing the
reconstruction, was passed on or about the 7th March,
1949. .
_M.A.L.. Chettyar Firm also applied for and obtained .
permission in Civil Miscellaneous No. 92 of 1949,
~nder The Liabilities lWar-Tiine Adjustment) Act,
1947, to execute the decree they obtained in Civil
Regular. No: 639 of 1928. Thi.s permission was granted
on l~th December; 1949; and on the 10th F e.bcuary,
1950, M.A.L. Cheft.yar Firm applied for the sa~e of the
property, which was said to have been .attached m
68 BUHMA L.~ \~ REPORTS. [195Z

H.C. Civil Execution No. 175 of 1941. Paragraphs 1 and 5

195 2
of their application show that it was not a new appli-
~~~~::~~ cation but that it was an application requesting the
v. Court to continue to proceed wilh the old execution
:\'I.A.L.
CHETTY~R procee5ings of 1941. The fresh proceedings, known
fo'IRM.
as Civil Execution No. 25 of 1950, must in the
u T~\Bvu, circumstances be considered to be a continuation of
the old Civil Execution No. 175 of 1941.
The. application for execution of the decree in
Civil Regular No. 639 of 1928, having been filed in
1941, was clearly filed within 12 years of the date on
which the decree was granted ; and it must rtccordingly
be considered to have . been macle within time, as ;
prescribed in Article 183 of the First Schedule to the
Limitation Act. We must say at once that we are
unable to appreciate how the question of ''revivor'
arises in the present appeal, in view of the fact
Civil Execution No. 175 of 1941 was the first and th
only application v,rhich M.A.L" Chettyar Firm filed for
execution of the decree passed in lbtit favour, an
when it is cle~r from the wording of the applicati
which M.A.L. Chettyar Firm filed on the lOt
February, 1950, that v'vhat was being done \Vas
to request the Court to continue with the old
proceedings of 1941 .
. It is not disputed that the application for
which was filed in 1941 was made more
3 year~ afterwards, and that, in the circumstances,
provisions of Order 21, Rule 22 of the Code of
Procedure apply. It was observed in Shymn M
v: Satinath Banerjee tl) :
.,
: ". It was pointed. out. by the Judicial Committee
. ~~aithunath Das v. Stind~r Das Khetri (2) that the
_- ~escri~d. by section 248 of tb'e Code o: 18~2 (now replaced

l 1: (1917) 44 Cat. 954 at 961, 421 i19!4t 42 COli. i'l.

 1952] BURMA LAW REPORTS. 61)

Order 21. Hole 22) is necessary in order that the Court :;hould H.C.
1952
obtain jurisdiction to proceed agaima the property o f the
judgment-debtor by wny of execution. The omission to give :\H~IEO
i\ICUAI.l
notice, as required by the rule, is not a mere irregularjty \Yhich ....
makes the proceeding voidable, bul is a de fed which goes to the ~J.A.L.
CHE11'YAI{
root of the Pl"OCt:Cding and renders it void for want of FI RM.
jurisdiction : Gopal Clnmdc:r v. GmiGI/ttlni Dasi (1), Sahdeo Pa11(ley
v. Ghasiram (2), Parashrant v. Balmukmtd (3)." U Tu~ BYU,
C.J.

It becomes necessary to consider whether it could,

in the case now under appeal, be said that the notices
to the judgment-d ebtors were or must have been issued,
as required under Order 21, R ule 22. Paragrap h 3 of
the affidavit of N.V.E.N. Narayanan Chettyar, an
attorney of M.A. L . Chettyar .Firm, dated 20th
D ecember, 1948, shows that. a sum of Rs. 2 had
b~en incurred as stamp fees for the application for
execution, and that an additional sum of Rs. 5 was also
incurred for attachment of the property mentioned in
the application for execution in Civil Execution No. 175
of 1941. An extract from an account book of the
Chettyar Firm had also been filed, a nd it was to
the same effect. W e are, however, unable to see
anything in any of the records, which are now before
r us, which will indicate that a fee for the issue of notices
~. to the jlldgment-debtors, as required under Order 21,
1 Rule 22, had beeu pftid into Court; nor has th e a ttorney

t or the clerk of the Chettyar Firm made any sta tem ent
Jto that effect. T here . is also' nothing in any of the
records to show that the notice~ had been issued by t he
Court to the process-server . Thus, nothing ha s been
brought out to enable the provisions of section 114 of
he E viden ce Act to operate in the present case .
.t will not be reall correct to presume that the notices
ust have been issued upon the judgment-debtors
Iii 118~2i 20 Cal. 370. . t21 (1 893) 21 Cal. 19.
!3) (1908) 32 Bom. 572.
70 BURMA LAW REPORTS. [ 1<JSL:

H.C. unless at least there is s0mething to prove that the s tamp

J95Z
fee required for the issue of the notices to the
AH)IED
MUI~AIJ
judgment-d ebtors had been paid into Court, or that
v. notices ,had in fact been prepared or issued by the
M.A.L.
CHF.TTVAl~ Court to a process-server for service on ti11e juclgment-
FIR~!.
d~ b1:o rs. Tt will also not be safe or proper to assume
{1 'fUN BYIC,
C.J. that a: well-known firm of lawyers must have followed
the procedure prescribed in Order 21, Rule 22, of the
Code of 'Civil Procedure, to enable the attachment to
be issued in accordance \Yith la\Y ; and in any case we
do not consider that there is proper material before
the Court on v.-bich it might reasonably be presumed
that the notices required under Ordtr 21, Rule 22 , must
ha\e been issued by the Court. '.!Ve cannot c0nceive
how a Court can properly presume that the 1iotices
required under Ord er 21, Rule 22 must have been
served on the judgment-debtors in the absence at least
of something to indrcate that steps bad, in fact, been
taken for the issue of such notices to the judgment-
debtors. Woodrofft! J., stated in Na.rendra Lal [(han
v . ]ogiHari(l), in connection with clause;(c) ofst:ction
.114 of the Evidence Act, as follmvs :
'' The mean in~ howeYCI' of that provi~ion is that if an of-ficial
act is .p1ovecl to have been done, it \dll be presumed to have been
regularly . clone. It does not rai~e any presmnption that ap acti
was don~, of which there is no evidence and the proof of which:
I ~

. essential for
is . a plaintiff's case." i
,1

G.hose J., in vValvelu1r v. Em.p eror (2), had alsol.

observed : . t
"The meaning of that provision is that if an official act ~~
..proved to ~ave ueen done, it \till be presum.ecl to have been re~~~
larly done. ln other \\'ords, as had been la1d -down by Mr. Jush~
itter, where, under an.Act, certain things =1re required to be don~
before any liability attaches. to any person in respect of any rigl .

(1) {i905) 3~ Cal. 1"107 at llZJ. 1ZJ (1926) 53 cal. 718 at 728.
 1952) BURMA LAW REPORTS. 71

or obli:.!alion, it is for tl:e r erson " ho all~ges that that liabili ; ~ H. C.

1952
has been incurred to prove that the i hing:s prescribed in the A..::
han:: been actually done-see Aslu111ullaft v. Trilocltau Bt~.~clzi 11 ). A H ~;r.v
!\Jt:RA(J
There are various other authoritic~ to thi~ effect, and in my !'.
opinio n unles:> the Ja\1 expre!'sly says that no proof .-t;hall be lii..4. L.
CHETTYA!I
required, evidence ough t to he tequired [n every c:~~e of this d~s FIR~!.
cription that tlte essential pre limin:~ries precedent to the issue of
U T eN Bn;,
such a \rarrant have been complied \\'ith." C.J.

The above observation was made in connecti~n with

the provisions of section 46 of the Calclltta Police Act,
but the principle expressed fherein applies appropri-
ately to the presumption which is sought to be
raised in the case now under appeal on behalf of
M.A .L. Chettyar Firm. It must accordingly be held
that there is n o material in this case on which it could
-properly be assumed that notices must have been
issued or served on the judgment-debtors in
ihe case now under appeal, as required under the
provisions of Order 21, Rule 22, of the Code of Civil
Procedure.
There is also not sufficient material on the records
-o n which we can . reasonably conclude that Civil
Execution No. 175 of 1941 of the High Court of
Judicature at Rangoon was, or must have been,
pending at the time of t!Je evacuation of Burma early
in 1942. It is tr~1e that Narayanan Chettyar has
stated -in his affidavit that the execution proceedings
were still pending _a t the time of the--British evacuation
of Burma, but-we do not think it will be safe to act on
this statement in the circumst-ance_s of the present case .
.He does not mentio11 in which month the order to keep
the exectition ptoceeding pending was passed. Hi$
!'lffidavit does not disclose wliat had exactly been done
after the application for cxecutiot} . w~s filed .. on the
.9 th july? 1941 ' n_o r is there anythiilg ~11 the record to
Ill (~886) 13 Cal. 197.
72 BURT\Lo\ L -\ \\' REPORTS. [1952
H.C. indicate what exactly the attorney or clerk of
1952
l\.l.A.L. Chettyar Firm did, from time to time, after the
AHM!;Il
i\JI~I{Ail execution applicatio n was filed. There was no mention
v.
M.A .L. anywhere in the affidavit, which had been filed on
~
CHET'fYAI~
Fnm.
bF- half of M.A.L. Chettyar Firm, of any expense having
been incurred for making searches in the relevant
U TU:-.l BY U,
C.J. registers for the purpose of having the sale proclamation
prepar((,d. The offices of the High Court were
functioning for about 6 months, if not more, after the :
execution application was filed on the 9th Julyr '
1941,. and if the application for execution had been
attended to regularly, we would have expected either
the attorney or clerk of M.A.L. Chettyar Firm to give a
more detailed account of what took place after
the execution proceedings were instituted, particularly
when the point of limitation had b~en raised in the
affidavit of Athurunissa Begum, dated 10th October,
1949. It was contended on behalf of M.A.L. Chettyar
Firm that paragraph 5 of the Stat~ment of Facts filed in
the Memor~ndum of Appeal shows that the appellant
had, in paragraph 5 thereof, admitted that the execution
proceedings were still pending at the time of the;
evacuation in 1942. The learned Advocate wbol
appeared on behalf of the appellant, however, submitte~
t_hat p~ragraph ..5 of. the Statement of Facts in th ~
Memorandum of Appeal ought. to be read wit .
paragraphs .5, 6. and 7 of the Grounds of Appeal, and f
that were done, it would be clear that' what he meant i fi
paragraph 5 was that the execution . proceeding
were alleged to be pending at the time of the evacual
tion, and no more. We accept the explanation of tif
,learned Advocate appearing for the appellant in tl '
respect, and we hold that paragraph 5 of the State me
of F<;~.cts in the Memorandum of Appeal did not purpq
to be an adtnission' t.h at the execution proceedings we;
in fact pending. at the time of the evacuation.
1952] BUR.MA LA\N REPORTS. 73
F or t h ~. reasons which ,,.c h<t\"C stated abon :, II.C.
1952
we also hold that th ere is not sufficient and reliable
.\ti.\I EIJ
material or. which the Court might properly conclude ;\ [ li i<.\IJ

that Civil Execution No. 17 5 of 1941 was still pending M.!\.L.

in Court at tb'e time of the British evacuation of Burma l'III'.T 'fY.\R
FJIIM.
early in 1942. This appeal must be allowed, with
U Tu:-: 13Yu,
costs, Advocate's fees five gold mohurs. The order C.J.
of the learned Judge on the Original Side dated
17th January, 1951, is th erefore se t aside', while
the order of the D eputy Registrar, dismissing the
application of M.A.L. Chettyar Firm, dated 10th
February, 1950, is restored. Th e appelh_m t will be
entitled also to costs, as Advocate's fees three gold
mohurs in the hearing before the learned Judge on the
Original Side . .
 BURMA LAW REPORTS. [1952

APPELLATE CIV IL.

Btfcre U Tun Byu, Cl:ie/ lt1stice, and U On Pe, J.

H.C. ~ THE
MOOLLA HASHIM FAMILY
1951
ENDO\iVMENT vVAQF ESTATE \APPELLANTS)
.!1111. 23.
i .

M. E. DA vVOODJEE AND OTHERS (~ESPONDENTS).*

Order Jor costs in decree-Decree t10l appealed against-Whether such order
can be cflal/wgcd in e:.:eeuttoa-Scl!cme suit-Decree for cost.s in fanJ~r
of V<uious Plaimijfs-Hit:.l~ Coutt Taxation Rules, Rule 19.
Held : It is possible that various p laintiffs in <1 schcine suit might have
diHerence in minor aspects of the case though they might agree as to the
necessity ol removal cf trustees. . There could also be differences as to who
should be appointed new trustees and as to the particular scheme necessary.
Consequently it is possible in exceptional cases to provide separate sets of costs
for advocates appearing for different plaintiffs in sucl1 a suit.
The Taxing Master was bound to follow the directions contained in the
judgment which is final.
In the Hules o the High Court Taxation Rules, Rule 19, there is a directi<"n
to issue notice to the" opposite party". It refers to a notice to a party in the
suit or proceedings in which the costs were awarded and not to the new
Trustees appointed Jatc::r. The new Trustees did in fact appear be~ore the
Taxing Master and cannot be said to be prejudiced by non-issue or notices
. The order which embodies the dc:cree as to costs is the final judgment in
the original case. No appenl having been instituted against such judgment it
was not competent topresent objections to the separate award or costs in
favou r of variou! plaintifis m proceedings befo_re the Taxin~ Mas ter who is
bound to follow the decree.

P. B. Sen f or the appeliants .

M. M. R(lji for tl1e respondent 1.
K. R. Jlenkatrant fo r the respondents 4 and 5.
U Tu~ Bvu, C.J.-Ibrahini Mohamed. Seedat. a nd
Hashim Mohamed Kanamiya institut ed a suit known
as. Civil
.
Regular
..
N.o. 619 of 1933...of the High. Court of '

~Civil Misc. Ap.peal No. 11 of 1951 agaimt th~ order of t~1t; Original Side,
High Court, Rangoon, in Bilt No.4 o f 1950, dated 9th F.e brua.ry 1951 arising
ont of Civil Regular No. 619 of 1933.
1Y52 j BURMA LAW REPORTS. 75
H.l!.
Judicature at Ra ng oon, for the remoYal of th e Trustees 195 1
and for :u;<.;ounts, a;1d also for !he framin g of a ne\\' THE ill Ool.l .A
Trust Scheme for the Moolla Hashim Family Endo\v- HAS Hnt
FA~IIl.Y
mcnt Trust. Hashim Mohamed 1\:anamiya, the 2nd E~DO\niiYr
\V ,\Q :'
plaintiff, died .afterwards ; and Moolla Azim Moolb ESTA'fl
Dmroocl, who \vas the 8th defendant in the above suit, t'.
l\1. E.
was tr<1nsposed and brought in as the 2nd plaintiff in DA\\' OODJIE
AND OTHEf<S.
the said suil. The 3rd defendaut MooJla Ahmed
lvloolla Dawood was an old Trustee of the aforesaid u TuN C.J.BY t:,
Trust. It is said that some of the defendants were
added in the said suit only after the suit was inslituted.
A prelimmary order for accounts was passed, and the
O fficial Referee subsequently submitted his report
thereon. All this took place before the last Great
War broke out. The records of the proceedings were,
however, lost in circumstances arising out of the last
Great War ; and the records were allowed to be
reconstructed subsequtntly with the available materiai.
On the 8th April, 1950, the learned Judge on the
Original Side approved of the amended scheme, and
he formally removed the 3rd defendant Moolla Ahmed
~colla Dawood from the Trusteeship, and appointed
the three appellants as n ew Trustees under the new
amended scheme. The last paragraph of his judgment
:reads:
'' T he parties will bear thei1 own costs.. T he costs of th~
Advocates appearing in this suit will be taxed and will come ont
of the estate. The Advocates will file their bills before the
Taxing. Master. The Official Receiver, before paying out the
money in his hands to the trustees, will keep in his bands a
sufficient su~ of money to meet the Advocates' fees."
TheAdvocates, who ar~''the respondents in the pre-
sent appeal, sitbsequently lodged their bills of costs \.\'ith
:th~ Taxing Master although at ~iffe~ent times. On the
24tli Ju.ly; 1950, the three new Trustees appeared
before the Taxing Master, and they \vere permitted to
76 BURMA LAW REPORTS . [1952

i~ii file their objections, which tiH:y ciid on the 7th August,
T HE
-M
OOLLA
1950. On the 14th December, 1()50, the Taxing Master
HAl;lln passed his order on the object ions raised therein. The
EN~~~~.~)~-~x-r matter. "vas next brought bef0re the learned Judge who '
::;;~; d.;livered the judgment, dated 8th Apri1,"1950, whereby i
v. costs were awarded to the Advocates appearing in the
DA~~;;,JBE case. The learned Judge upheld the decision of the ;
AND oTHt::IIS. T
axmg Master on the points decided by tbe latter..'
U 'fUN BY U, 'fh e l e;hned Judge observed, 111 connection with the
C.].
first point which was raised before the Taxing Master~
m the following te:-ms : -

~As re~arcls the first point raised before the Taxing Master.
I ;Jm in no two minds about the effect of my order regardin1! the
costs of the suit and the learn ed Taxing Master has coJrectly
interpreted my intention. My intention was tb~t the parties.
should not claim costs as against each other, but that theic
advocates should get their respective fees and costs out of the-
trust estate. The directions given by me should be read as a.
whole and not piecemeal."

We entirely agree with the interpretation placed by th<1.

learned Judge, anq it is, in our opiniop, correct. We
have carefully perused the \.YOrding of the last paragraph
of the judgment delivered on the 8th April, 1950, and
it is clearly, and reasonably, cnpable of the construction
wh1ch the learned Judge .expressed in his order, dated
9th February, 1951.
It was next submitted on behalf of the appellant-
Trustees that the learned Judge acted against a
fundamental principle of justice when he awarded
separate costs to the Advocates who appeared for the
plaintiffs in Civil Regul~r No. 619 of 1933. There is,
in our opinion, no substance in this contention. In the
case now under appeal; oolla .Aiim i\1oolla Dawood.
a
was otiginal~y defendant '; and h'e . was ~ubsequently
transposed arid brougli.t forward as 2nd plaintiff in the.
1952] BURMA LA W REPORTS 71

s uit after t he death of the original 2nd ph1intiff Has! rim ~rit
Mohamed Kanamiya. It is, therefore, not impossible -
. 1\ , THI. ~luo l.l, \
in the circumstances for Moolla A zrm lVloolla Da"ood HA~H~
to have dr"ffere d an
. cer t am
. mmor
. aspects of t I1e <:ase E:"'l>t;wwnT
FA\fii . Y

from the 1st plaintiff Ibrahim Moham ed Sccclat, E~~~~.~~

although they agreed on the main issues, naruely, tlt5tt 1 .

it was necessary that the old Trustees shou ld be o.~,~~o~;j~"

removed and new Trustees to be appointed, that the A~>u onu.<s .
.accounts of the Trust properties should be gone into, u Tu ~ nvv.
C.J .
and that an amended scheme should be frame d. It is
possible for Moolla Azim Moolla Da.n-ood and Ibrahim
.Mohamed Seedat, in the circumstances, to hare differed
as to who should be appointed as new Trustc-es ar.d in
some of the details in \rhich the old scheme should be
amended . vVe are , therefore, unable to subscribe to
the suggestion made on behalf of the appellant-Trustees
that it was not possible, in any circumstances whatso-
ever for the plaintiffs in a case instituted under
section 92 of the Code of Civil Procedure, to be pro-
perly represented by separate Advocates. It appears
to us that it is possible, in exceptional circumstances,
to award separate costs for Advocates appearing for the
'<iiffereht plaintiffs.
The learned trial Judge had obviously exercised his
discretion when he awarded costs to the different
Advocates who appeared in the case, and no appeal had
been instituted against the judgment in which the
costs were awardt:d. The Taxing Master was, therefore,
bound in law to follow the direc~on contained in the
judgment, which had become final. We cannot
.conceive how he could act otherwise. The appellant-
Trustees could n,o t accordingly question the legality or
correctness of the judgment of t~e learned trial Judge
in the proceedings before the .Taxing Master. The
costs a\varded to the Advocates:. must,. in the c ircum-
stances of ~he case, be considered .to be ~ood and valid.
7o 13URl\'IA LAW REPORTS.
H.C. It was ai:;o urged on behalf of the appellant-Truske::~
1951
tiJ~,l the pru~c~..:ding:-; befon: ti:e '1 axi llg Master shvidd
'hiK .i\lQOLI.A
H.'>:>HIM be considered as invalid on the ground that the Taxing
'FAMiLY
ENDOWMENT Master had not issued any notice to the new Trustees
WAQ~'
ES'I'ATE
who \.~ere interested in seeing that no lo,ss or waste was.
'V. :it<1curred unnecessarily by the Tru~t Estate. Rule 19 of
i\1. E.
DA WOOOJ!;E the High Court Taxation Rules prescribes for issue of
ANI) OTHERS.
notice to the "opposite party ". The new Trustees
u T~tYu, were admittedly not a party to Civil Regular No. 619
of 1933, where costs were awarded to the different
Advocates appearing in the case, and they could not:
therefore, be properly described as th e c opposite
party" in so far as Civil Regular No. 619 of 1933 was.
concerned . The. expression cc the opposite party.,.
refers clearly to a party in the sui t or proceedings in.
which the costs ~sere a\.varded.
We are also of opinion that there is no force in the
contention that the T axing Master was bound, under
Rule 22 of the .Hjgh Court Taxation Hules, to issue
notice to the ne\.v Trustees \lvho were not a party to the
suit in which the costs \\:ere awarded. Rule 22 gives.
the T axing Master a discretion, and it foilows that the
fact that the Taxing Master has not thought fit to
issu e notice to the new Trustees could not be
considered to have vitiated the proceedings before
him. Moreover, the new Trustees did, in fact, appear
before the Taxing Master, and they were allowed to file
' 0

their objections. Thus, the new Trustees could not'

strictly be said to hav~ been .prejudiced by the non- ;
issue of :notice tb themby the. Taxing Master. ;
' A preliminary objection had, moreover, been raised ;
on behalf of the respondents that the appeal was in- ;;
co~pctent. The order of the learned Judge dated 9th j
February, 1951, which upheld the:( de~cision of the l
Taxing Master, was; in our opinion, n~~an appealable J
order; and heither was it a .judgment. It.has~ however~ ~
1952] BURMA LAW RE PORTS. 79

been ar~u.ecl on behalf of the appd!:: nt-Trus te<,s that <!ll : ~J;_
appeal lies in that the order of the learned Judge d ated . .-
- . . . f ~I h i\l OOI.LA
9th F ebruary, 19::> 1, was an order a \r:l.rcltng costs m a sm t H .,~ lll .\ 1
and that an important principle was involved in the 1.;~::~~~~~;:-n
case. vVe are un~ble to see any merit in t his contention ;:;.,TAA~.~~
because it is the judgment passed on th e 8th April, 1950, v.
~L l~ .
which awarded the costs to th e different Advocates DAWI~ll:JiiE
appearing in the suit, and not the orcier of the learned
Judge passed subsequently on t he 9th Februan, 195 1, :; T C.J. u:o: HYI!,

as the latter order merely upheld the d ecision of the

Taxing Master on the law points raised before th e
latter on behalf of the appellant-Tmslees. The question
whether the Advocates who appeared for tl1e ph1intiffs
in Civil Hegular.Ko. 619 of 1933 ought to be allowed
separate costs, could properly arise only in an appeal
against the judgment passed on the 8th April, 1950.
No ap peal had adm ittedly been instituted against
the judgment dated Sth April, 1950. The appeal now
b efore us must th erefore be considered to be incompe-
tent in that it sought, in effect, to modify the judgment
passed on the 8th April, 1950, which had become final.
The appeal, is, therefure, dismissed, with costs ;
Advocate's fees to be two gold moh urs for each of the
respondents in this appeal.
80 BURMA LA\V REPORTS. [ 1952

APPELLATE CIV I L.
Bdore U OtL Pt" aud U Sn11 Jl[,, u ,~ . fl.

H.C. ~1AUNG T I N MAU NG I (A.I' PELLA NT)

1<>52 ..
Jan. 2.
v.
uNION OF BURMA AIRWAYS ( RESPO!\DENTS) . 'I!
Tor~111dti's Compensation Act,1923-.4pp,,al against order of c.omp.msatiou
for inJ:1ry-Bas1s c;J ca./.culation of l .>ss of 'aruin.g cnPacily-/Jlcdical
c:,tificatc in. Commissioner's Proccetliugs whctltc1 e<lit.lcnce- S. 4 (I) (c) of
tile Act.
One Maung Tin l\iaung I sust<}ined fracture of left ~hottlder girdle and
5 ribs on the left si3e as a re~ult of the injury which he recP.i\:ed an d the
qoeslion fnr decision w;:~s the compensation for loss of functional c.apacity.
The Commissioner awarded 10 per cent 2s such loss, basing it on a medical
certificate in the proceedings.
Held: The Me,!ical Certificate is not admissible in evidence in the absence
of the evidence of the doctor granting such certificate. Opinion expres~ed in
the certificate is inad1nissible in evidence.
1il
Richards v.S:mders & Sons, Butterworth's Workmen's Compensation cases,
Vol. V, p .352, referred to.
Held ftl r llul : That the injury sustained is not of the nature specified in
Schedule 1 and the workman ;vas entitled to such percentage of compensation
as is proportionate to the loss of the eluriing capacity.

Ba Kyaw for the appelfant.

Choon Foung for the respondents.

U SAN M AUNG, J.-This is an appeal under

se ction 30 of the W o.rklJlen's Compensation Act, 1923
by Maung T in Maung I against . the order of the:
Additiomtr Commission er for Workmen's Compensa-
tion, Rangoon, awarding him Rs. 336 as com p ensation;
on the basis that the inj'ury sustain ed by him resulting'
in a perman ent disabh:ment and loss of earn ing capa-::;
city equivalen t to 10 p er cent of the loss o f earning~
. . Civil !\Hsc. -Appeal No . . J9 of 1951 :against the order of the Court ofl
Additional Coril)lliss ione ~ . for Workinen's cOmpensation, Rangoon in Case:.
No. 20 of 1950, dated 29th ~arch 1951. , '
1952] BURMA LAW REPORTS. 81

capacity resulting from th e p<.: nnanent total clisable- ii. l :.

l '.'.'i:!
meut of his limb. T he appellant in his memorandum
lllAt:X< T ss
<>f appeal contended that the c0mpensation granted to :.r.ws G l
c.
him should be calculated on th e basis that his loss of L"I'IO:\ O<'
earning capac,ity \>\as at least 75 per cent. There is B llil): A
:\il!\I"AY!s
now no dispute regarding the liability of tht: employer
l ' SAN
namely the Union of Burma Airways to pay compensa- l\JAt' )( G , J.
tion to Maung Tin Maung I. There is also no
dispute regarding the fact that Maung Tin .Maung I
sustained fracture of left shoulder girdlt and 5 ribs on
the left &ide as a result of th e injury which he received
on the 26th February, 1950. A~ already observed the
real dispute is as regards the percentage loss of
functional capacity of his limb for the purpose of
<:omputing the quantum of com pensation payable to
him. There is in fact no real admissible evidence on
-r ecord on which the Additional Commissioner for
vVorkmen's Compensation, Rangoon, could have
arrived at the finding that the perce ntage loss of
Maung Tin Ma~mg's earning capacity was only 10 per
cent. The medical cerlificqte signed by one Dr. Dutta
filed at page 11 of Proceedings No. W.C. 2J/50 of the
office of the Commissioner of Workmen's Compensa-
tion, Rangoon is in fact not admissible in evidence.
See Richards v. Sanders & Sons (l) where the Court of
appeal held that the medical certificates admitted by
the trial Judge who awarded compensation to a painter
claiming compensation for a strain~d lteart, \\'ere in
fact inadmissible in evidence and that a new trial was
necessary as the certificate must have influ'e nced the
mind of the trial Judge. Dr. Dutta should have been
called as a witness, as it is only by exam ining and
cross-examining him before the Commissioner for
vVorkinen's Compensation that tbe latter could have
: arriveq at correct finding as to the loss in the earning
~
(lj Butterworth's Workmen's Compensation Cates, Vol. V, p. 352.
6
82 B URl\fA LA 'vV REPORTS. [195:?

~9~2 capacity of Maun g Tin ~Iau n g I resulting from thL

.. injury sustained by him. T he opinion expressed
M AI: SG l iN .
1\JAu:-:1; I m t l1e cer t'1fi' cate a 11 uc1e d to a1)O re .ts no t on I y madmi
. .s-
u :-: r~~ o F sible itl. evidence but also does not afford sufficient
A~~~~~t.:.<;. data upon which the Additional Com~:ni~sioper ior
workmen's Compensa~ion could have formed his own
u SA:-<
Iht; )<~, J. opinion regarding this matter. Section 4, sub-
section (1), Clause (c) of the vVorkmen's Compensatio n
Act reads as follows :
~

" Where permanent partial clisablement results from tilt-

injury-
(1) in the ct=~ se of an injury specified in Schedule I, such
percentage of the compe1~sahon which would haYe
been p::~yable in the case of permanent total disable-
ment as is specified therein as being the percentaj.{e
of l he loss ci earning cap:lcity caused by tl at
injury, and
(2) in the case of an injury not spe~ified in Schedul.e I,
such percentage of the compensation r::ryable in the
case of permanent tot<_~l disablement a~ is propor-
tionate to the loss of earning capacity perma~:entl~- .
caused by the injury ; " J
. . i
As the injury sustained by the appellant l\1aung. '
Tin Maung I . is not of the nature specified in .
Schedule I, he is entitled to such percentage of !
compensation payable in the case of permar:ient" total" ;
disablement as i:=; proportionate to the loss of ' e~rning.
. capacity resultinf(from th e injury sust3ined by 1\~aung:._
Tin Maung I. For these . r easons we would set aside:>
the . order of the Additional Comrriissiotier fo
Workmen's Compensation awarding Rs. 336 a
compensation to ui.e appellant f\{aung Tin Maung .
and di.rect a retrial on the issi.1e regarding the percen..:~
tage Io'ss-in the earning capacity of ,the:. appeilan t;
There will be no order as to_ cost of this .~pp.~al.-
 BURMA LAW REPORTS. 8:3

APPELLATl::. CIVIL.

H.C.
B.-\. BOO AND OTHERs (APPELLA:-;Ts) 1932
Jau. 25 .

THE t'NION OF BURl\lA (RE~Po:-;DE.NT).'

Ptual Cod.-, s. I:ZZ (1)-Cri111inal Procedure C rk, .<. 19."-SaudiOII 111/der-

Now to be sig11cd-Prcsidmrs .VJtifim~iuu .\'o. 123-/Jurmn (;cllcral
Claus,:s Acl, s. 13.
Hrl,l: If~ man joins rebels he is guilty of High .T reason. ill rebellions il
frequently lla ppens !hat few arc lei into the r<al design, but yet all who join in
it arc g uilty of rebellion.
R. v. I'Hrchascr, ! 1839) 4 St,1te Trials ( \ .S.) 93 at 94, referred to.
Where san<:tion of ihe President under s 196 of the Crin1inal Procedure
t:odc issued from the Secretary to the Goverumcnt was si~ncd by anothe1
officer for him and the officer so signing was an accredited officer in whose
n~me orders of the Go.vernment c::~n be iss~ted, sanction is good.
Under President's Notification ?\o. 123, dated qth January 19-lS all orders
or instruments executed for'the Union Government shall be expres~ed 16 be
<made by. the order of the President and such order or instrument can be.
~signed' by the Secretary, Additional Secretaty, Deputy Secretary, Under
(Secretary o; Assistant Secretary in the Ministry concern ed.
~ Under s. 13 of Burma General Clauses (Amendment! Act, 1950, any powers
fo~ferred or dutr intposed on the President shall e~ exercisable or perforn-
f'.lble in hi s name by the Goyernment. As the officer who actually signed was
~.utbori~ed to sign for the President, the sanction iu the case was 'therefore
~ghtly. ~sued. . . . .
~~. ~d. OaiuU.1h v. Eeui Mat/flab Clrawd.ltttrY, :\.l.R. tl922) CaL 298, referr~d
lo.
[(yaw Htoon for t-he appeHants.

Clzoon Foung for th_e respondent.

..
lJ ON .f:'E, J.-Ba Bo<), Aung Shwe, San Bwint and
a .Lin ~were all convicted under section 122 (1) of
~ri:ni:i~I.Appeals Nos. 598, 59.9, 600 .and 6~1 ~f
1951 being appeal from.'
rder of Special Jud!'le of Thaton in Criminal Regular Trial No. H of ~'JSO.
S4 BU RMA LAW REPORTS. [ 1<J52

H.C. the l?enal Code and sente n~ed to suffer death by t he

952
Speci:tl Judge, Tbaton , in his Criminal Sessions Trial
iBA B~lO AN D
OTHF.l!S !\ o. 11 of 1950.
v. Th.e facts are simple and are within a narrow
.,flllc U:-IION
O J-' BUR~IA. compass.
u ON Pl'. J. The offences alleged against the appellants relate
to an incident \Vhich took ptace at about 4 a.m. on the
morning of 11th June 1950 at the village of Thayagone
in Thilon District. There was statio ned at the said
village, a platoon or troops known as the P.V.F. under
the command of Bo Myint Aung (PW 4) and an .
engagement took place at the aforesaid time on the
day in question between this force and the insur~ents ;
in which all the appellants were captured and two of ;
the insurgents were shot dead. At the time of the
Capture, Ba Boo was armed witQ. a sten gun which had
to be snatched from his hands by Bo Myi11t Aung who
threw a hand-grenade and shouted at him to surrender,
while lhe rest of the apr1ellants had no arms.
ever, four rifles were recovered from the creek nE
with the help of the villagers, one of whom is Maung _
(PW 9) wbo deposed to the_fact that he dived fct~ an
recovered one rifle from inside the creek. The p
tion story is that the KNDOs, numbering about 5
attacked this village and that, near dawn,. by way
strategy the eastern gate of the village was openedwh
the insurgents rushed into it, wher~upon the y """''"",..
suuounded the village resulting in the insu
being routed to be hotly pursuedby the Union
'From the evidence of Hai B~e ( PW 8), who is
_B engali and M'.lung. Pyu (PvV 9) who is a Zerbardi,.
is disclosed that they lived near tl1e said easter11
that the attack v.ias :h earlded by the usua1 war cry
the KNDOs, '-' Htaw ' Htaw ,; and that they. saw
. a.ppellants.being captured ~h tb~ cou~se of .their
froin a nearby place. : It is in evidence also that
 19:.2] BURMA LAW REPORTS. 85
H. C.
was anothe r Governm ent F or ce at N aunggalar, a place 1952
in the neighbourhood where Bo Chit Thein, Tat-khwe-
hmu, (PW 10) vvas in command. According to him
a soldier from . Thayagone Village came about 4 a.m. THE 'UNION
.

on the day in ,question informin g that an engagement t>F BURMA.

was taking place at Thayagone, whereupon he sent bis I: 0:-.; PE, J
yebaws to h.elp in the operation which lasted about
half an hour after their arrivaL
Th e case of the appellants is that they v.r,ith four
others came on tbe day in question from Thingangyaung
to proceed to Thaton to surrender their arms with
San B wint acting as guide to show the way to T haton,
that they were fired upon by the force wh ich the
appellant Ba Boo, call ed "B.T.F. P erson nel " who
were at the gate of the village and that without making
any resistance allowed themselves to be arrested .
Ba Boo admits that he was then armed with the sten
gun and Aung .Sinve and Hpa Lin each with a rifle and
that the other four companions had thfee rifles among
them. Aung Shwe admits that he threw down the
rifle into the creek. . San Swint admits that a hand-
grenade w as thrown at them that day, but no one was
injured. It .has also been contended by their counsel
that the story of the insurgents being 50 in number is
not borne out by the evidence in the case, in that the
analysis of the eviden.ce in the case would sho\:v that
the number of the people opposed .to th e Gover.n ment
Force was eight as discl0sed in the eviden ce of the
appellants.. Th is contention will not, in our view, help
the defence case materially. for whatever may be the
number, the fact established would show that the fight
lasted for about two hours in which the throwing of the
hand~gre.nade ..and the .c oncealing of the rifles in the ,
.cr.eek admittedly took place-circumstances _w hich
would strongly discredit-the defence story. Moreover,
the appellants did n ot say. aword.on the spot that they
86 BURMA LAW REPORTS. [19~2

-8 .C. CaitH.: 'to !:ilinender <u :d their act in throwing the guns
'1952.
into the creek must be said to haYe been done with an
DA Boo .\:-:n
OTHKRS intention which was consistent only with their guilt.
v.
THF. UNW:-i
On the eviden ce before us, we must hold that the
OF 1'\ lJ Rl!A. appellants \.Vere there at the scene o{ fighting and
U 0:-: PE, J. engaged in a skirmisla in which they had been over-
po\\'ered. The story of their being on the spot to
surrender will find its own refutation, in that the time
and the,,spot where they were found and their number,
assumi ng it only to be eight, would hardly support
such a story: In any event, the fact remains, on their
O\vn showin.g, that they belonged, at the .time mate rial
to the case, to the rank of the insmgcnt5. They have
made no secret that they were in the same camp with
t_h e insurgents. Ba Boo says this :
"When insurgenls' left Papun they forcibly took. me along
and so I have to go along with thern."

Aung Shwe ~ays : .

. .
"Over a year ago our village was in lhe hands of insurgents.
The insurgents before Hier left fo,:cecl me to come along with
them and so I hacJ to go along."

Hpa Lin says this::

. . ."About a year ago \rhen Papnn was under insurgents, they
forced 1~e to foin the{n as a cooiie . . '1' had to come aloi)g \~ith
them .to BiJi.r1 and from thei1ce to Thitchndaung." .

San _Bwi11t says this : .:~

- . ,
1
''Whilst l wa~ then staying at. .Oanu insurg~nts entered soon_:t!:
' .
af~er and caught hold of 111(,!, .beat me Vlhich - resulted in fracture)
of my 'hrin'ds and I was t!1ei1 trealed at their hospital. . . . 4
:.r \yaskept with i:!;em ancl asked to cooldood fo~; .t~em." . . . l
. . . .. .
. . .T he prin~ipl e. as to. how tl~e 'g uHt of high .t.reasonas
-c:on.templated. un;<;ler se.ciion l.:Z2. (l). o'f.the Penal Code
 1952] BURMA LAW REPORTS. 87

is to he fixed is well established, what has been laid H.C.

1'15 2
do\\n in R. v. Purchaser (1) may aptly be quoted:
OTII F.IIS
We are of opinion that if a m1n knowingly join \Yith others ...
.in breaking the peace, and actually fights the gu<~rds in their THE l"NJ0:-1
OF Bt;ii~IA.
defence; if in tl1at breach of the peace they were rebels, be is so
ioo, "hether be kne\\: them to be s o or not. ti Ot> PE,J.
In rebellions it is freq10ent that few are Jet into !he real
clesif.!n, bnt yet all that join in it are guilty_of the rebellion."

In this view of the case, we must hold that th e

.prosecui ion has established its case in proving that the
:appellants participated in tLe attack by instu-gcnts
:against the Union F orce and thereby committed high
ireason.
A point of some nicety has been raised in this case
regarding the sanction required by section 196 of the
Criminal -Procedure Code and ~onveyed in the letter ~
Exhibit A, the contention being that the same has not $
been duly proved. Tl~e letter Exhibit A is a copy of
letter with this letter head :
' ' FR0M
Thray _ Silht~ U CHA ~ Tl:fA,
Secretary ,to _U11ion Gover11mwt,
Ministr:>' pf Home Affairs."

-and is signeq by one '' 11ya JUi.in . for Secretary " and
the relevant passage accompanying the sanction reads
:as follows:

'' I am directed to convey the sanction of the Prel>ident

under section 196 of th~ Criminal Procedure Code ancf etC."

This le.tter has been ch~llenged on the ground th_<tt

:tl~e. signature ~s not. that of the Secretary and there is
nothing to. show in what capacity : the ."signatory,
.U Mya Khin, . sign.e d and that as the' same does not
(1.) (18.39i. 4 State Trials (N.S.} ,at. pp. 93..9~.
88 BURMA LAW REPORTS. [ 1952'
H.C.
l<J52 purport to have been signed or certified by the head of
B .\ HO.> AN I> the department 1 it could not attract the presumption
...
arising under section 79 of the Evidence Act. 1 ne
TllR l'NI0:-1 case of M d. Ol!:iullah v. Beuz.i M adhab Clzazf.dhury (1)'
01 B c r~MA .
has in Support of their contention been quoted. In
u o~PE ~ J.
that case it has been held as follows:
'' A copy of a letter of sanction, headed from the Chief
Secretary to the Government of Be11gal and signed by an offlcer
for the CI'iief Secretary cannot be reg1rdecl as a certified copy
:mder section 76 of the Evidence Act 1ior can it attract the
presumption unde1 section 79 of the Act, as .it does not purport
to have been srgnecl or certified by the head of the depart men t."

It has been argued that in the present case, too 1 !here

is nothing to show in what official capacity U Mya Khin
signed the letter and that t.heref~re the exhibit letter
conveying the sanction could not be said to have been
: issued by proper: authority. There is some substance
in this contention and the omission to describe the
official capacity in which U Mya Khin signed the letter
has unnecessarily given rise to the objection raised on.
the point. Had he signed Exhibit A in his official
capacity, the objection could not have been raised, for
he was one of the accredited officers in whose name
orders . of the Government can be issued. . See the
order issued by t he President by Notification No. 123,.
dated Hie ~th .January, 1948, which.reads :. '
.,
- .i l
"No. 123. The following order is published for general.,
inforni~tion : -
1
'
.. i;
ORDER No. ~- OF 19~8. '-'
~
. 1. S:t~. Shwe. Thaike,
. . . President of. tl~e. Unio:l of Burma, in~:
u
ex-ercise of the powers conferred by section 121 of the Constitu-:"
tion of tl1e Onion of. :..Burn1a, make the. following rules Jor the~
~
. (1.) ;\.I:R (1922) Cal. p. 298.
 1952] BURMA LAW REPORTS.
authentication of orders and otber instruments made a11d exec uted H.C.
1952
in the name of the President : -
BA B CJt> .I~U
( 1) All order's or inslrume nb made or executed by ord er vr i iEII:;

or on behalf of the Union Government shall be expressed to he , ..

C:-;lo~
Tu.l':
made by or by orde1 of the President. OF Bt: IOI A .
(2) Save in cases ,,h~re :1n olficer has ueen specially
U ON 1-'J-:, J,
empo1rered to sign an otder or ins trument of the Union Gove;:n-
ment, every such crder or instrument shall be signed by either
the Secretary, the Additional Secretary. the Deputy Secretary,
the under Secret:1ry or the Assistant Secretaty to tl~~ Union
Governmerit in the i\Iinislry concerned and such signatures shall
be deemed to be the proper :1u thentication of such order or
instrument. .
SAO SHW THAIKE,
l'rc. i:leul."

The next point raised against Exhibit A letter is

that as the sanction was issued by the President, this
letter should have been signed by someone authorised
for the President and not by Secretary to the Unio'n
Government. The answer tv this objection is to be
found in section 13 of the Burma General Clauses
(Amendment) Act, 1950, which n:ads as folbws :

" \Vhere, by an Act of the Parliament or any existing law as

. defined in se<;:tion 222 of the Constitution, any power is conferreclr
! or any duty itnposed, on the President of the Union, .then that

:,power shall be exercisable, cr that duty shall be performablet

~ in his name by the Governme11t.''
~ .
[The order conv~ying the s~nction of the President in
;this case must be held, in the light of this provision of
[law, to .have been rightly issued by the Secretary to the
povernment. .
f In the. result these appeals fail a nd are accordingly
[di_sfi.lissed. Death .s entences passed on thema~;e there-
ore confirme~-:. BefQre we .leave this case, we feel

l hat we. should: bt:ing to the notic;e of the ~uthorities

oncerned that in : this. case theie are circumstances
<;O BURMA LAW REPORTS. [ 195i

H.C. which c all for sympath dic consideration in fcnour 0!,

1952
a ll th e appellants. Alt llougll we hav e pass ed th e sen-:
BA Hon A N il
ont r.r~s
tence of death, there being no other alternative se ntenc~
v.
TH F. {.J N[()X
under th e law, we cann ot shut our eyes to the redeem~
<ll" BUR) rA. ing fea tures in this case, namely, th e fact that t hi.;,
U Ox PE ,J. appellants had been pressed into their service by th ~
insurgents about which \Ye are not in doubt and th4J
fact that nothing in th e way of damage or casualfj
was calised by their action at their encounter with th~
Goveniment forces.

U SAN MAUNG, J.-1 agree.

 1952] BURMA L AW REPO RTS. 91

APPELLAT E CRIMINAL.
Bt-jo}rt (.' Tl1a1111g Seiu, 1.

~PA DU vVAR (APPELLANT ) H.C.

1951
v. l>a. 13.
T HE UN ION OF BURMA (RESPOKDE~T).~''

Peua/ Code, s. 30+-Pcual Code (.4me~tdwenl) Acl, 19+7 (Act XXX ril OJ lli47)-
E!Jrct vf mnend meut .
Ss. 302 and 304 of the Penal <.:ode have been :unended by the Penni Code
(Amenchl'ent) Act, 1947.
H eld: Culpable homicide, as now amended, als6 includes tt. e doing of an
act "with the intention of causing bodily injury as in fact is sufficient in the
Crdinary course of nature to cause death'', Where such an injury is in fact
sufficient as mentioned above and docs ca use dea th, the offence \\'Ould be one
Of murder unless it falls under the exceptions mentioned in s. 299.
The ruling in Baba. Nayas case (reported in 5 Ran. 817) is t hus no longer
applicable to cases where death has in fact enst:ecl from an injury which is
pro\-ed to have been sufftcient in the ordinary course d n:tture to cause death.
Baba Naya v. /{in!; EmperCir , 5 Ran. 817, not applicable .

.Khin M aurz,g for the respondent.

.. .
U THAUNG SE-IN, J.-- T oe appellant'. P ad t:nrar has
'bee n convict eel by.th e learned Sessio ns Judg<;, Maubin ,
r.(U Ba .Swe), of . a n offe nce und er se.c tion . 30.4 . of the .
t P enai.Code and orcl er e.cl to be ~letained at the Borstal
tSchool for a period of four years on the following
acts:-
On the morning of. the 23rd D ecember, 1950, the
: P.Pellant an c.l one Maung .Hla Gyaw were busy carting
, addy s heaves from the field s to the talin outside the
' iUag e of Wadaw i n Ma.u bin District. It a ppears that
'he appellant left his fully laden. cart .near the t alin and
'nyo ked the bu11ocks. to give th em a rest. . Meanwh ile
'1e car t dri ven by Ma 'Jng Hla G yaw arriveq at the talin
' ~ri.1 trina! Apj)e.d. No. 503 .of i951 ~gainst lh(! 'order 'or
t:he Se~si~1;s Judge,
:lttbin, cl:ltc!l 2~th . A ugust 1.951 in Specia! Tudt!e T rial No. 5 of 1951.
92 1:3 U RlVIA LAW REPORTS. [195Z
H.C. and . dCJ.shed into the sfationary cart. The bullocks
1951
attached to Maung Hla Gyaw's cart were somewhat :
I'A I. UW,\1~
v. unmanageable and so .~reat was the impact th;!t the 'i
TH E UNIO~
OF Bull~f'\..
appellant's cart rolled over to its side and was badly}
damaged. Needless to say, the appellant was ~nno~
U THAU~G
SEJN, J. wi-th the accident and a dispute enst~ed between hi
and Hla, Gyaw. Several persons, who were at
scene, were dra\.vn into the dispute and amongst the
was one, Maung Than Maung (PW 1), the brother
the deceased Hla l\1aung, who apparently sid
with Hla Gy.a w. From thence the appellant an
Maung Than Maung came into the village and th
quarrel continued at thatplace. Maung Than .Maun
was joined by his brother, the deceased Hla .Maun
who came along the village path armed with
rifle. As far as can be gathered from the evidence
record the deceased Hla Maung advanced tmvards t
appellant, who was coming from an opposite directi
and shortly before they met the latter, picked u
a stick which was lying by the road side. As soon
they came within striking distance of each other th
appellant attacked the deceased Hla Maung with th
stick while the latter struck back with the bl.1tt end
his rifle It is not clear from th e evidence on rec
whether the deceased attempted t.o fire at the appella
but some of the witnesses deposed to having hea
so.unds which suggested that the bolt of the rifle
manipulated. The learned trial Judge has,
disbelieved these witnesses and I would accept
appraisal of- their evidence. As pointed out by '
there \vas "hard swearing on both sides'' and
J
trial li.dge~ who saw and heard the witnesses,
-always in a better- position than the appellat'e Court
gauge the ' vera~ity of \~itnesses. . .
To con.tirii1e with the sequence of events tQe fi
between : the appeilant and the diceased. enqe<i
1<JSZ BURMA LA \V REPOHTS. 93

tl te latter fell on the gr ~> ttnd and the former fl<:d from H.C.
1CJ51
the scene. Many persons n-ent to the ass istanc<.: of the
}'A I) !; WAll
deceased and found l ~im lying unc o n sc i ou~ \\ith two v.
THF. UNICN
wounds on the face <wd head and there was profuse o~ HtRMA.
bleeding frQm the nose. He n-as rush~d 1o the
[ i TIIAt:NG
i\laubin Hospital but died on the way \\iLlfout ::if'JN.J .
regaining consciousness. A rost-mortem revealed
a wound lt'' x t" on the head with a fracture
-of the skull and death was the direct resuH of this
injury which has been described by Dr. Sanvan Singh
(PW 14) as sufficient in the ordinary course of nature
to c:lllse death. There \\'<IS one other injury over the
1dt eye which was apparelltly caused by tile fall on the
ground. T bat tht fatal injury \-\'as caused by the
-appellant is btyond all reasonable doubt. The
.question that arises is what offence has the appellant
.committed by causing the death of Hla .Mavng. The
learned trial Judge referred to the ruling in Baba Naya
v. King-Emperor (I) which lays down as follows:
"If one pe1son causes the death of another, then if his
intention was to cause death or to c:wse bodily injury sufficient
in the ordinary course of nature to c1nse death, the offence wou}d
be murder, even though death remlted in a \\-ay different from
that expected by the assailant. As to the intention to be
presumed in cases of blO\\'S on the head \\'ith a stick, instinct at
least, if not l<nowledge and experience, tells every man that to hit
another huunn being any violent blow o~ the head may possibly
or
result. or is likely to result will probably result in serious injury
to 'the person s!mck; bi1t knowledge, belief or expectation of the
amount of injury. that m::~y bP. caused must depend upon what is
used ii1 inflicting the blow and the force with which the blow is
delivt".red. Repeated blows or even a single blow forcibly
delivered with a heavy weapon would make the offence a murder,
bu~where a sudden blow is struck with a stick that is not. heavy,
the offence would. he culpable homicide not .amounting to
murder.".

. (1) 5Ran.817.
94 .BURMA LAW REPORTS. [ 195:2
H.C This was a rul ing under sections 302 :::.nd 304 (I f tht:
1').51
Penal Code as they stood prior to tbe amendment by
.. the Penal Code (Amendment) Act, 1947, (Burma Act
THE t.:~IO:>I
0 ! BI:R\IA. No. XXXIII of 1947). Before the amendment section
U 'l'HAU:SG 29 'of . the Pen;1.l Code defines culpable homicide as
SBIN, ]. f O!lb.\MS :

"vVhoever causes death by doing an act with the intentior,

of causingcdeath , or with !he intention of causing such bodily
injury as is likely lo cause death, or with the knowledge that he
is likely by such act to cause clea~h , commits the offence
of culpable homicide.''

Culpable homicide was held to be murder .,, if the act

by \vhich. the death is caused is done '"ith the inten-
tion of causing death" or with the intention of causing
such bodily injury as which is sufficient in the ordinary
course of natuie to cause death provided the act did
not fall within any of the exceptions in sectioh .300 of
the Penal Code. In other words, in order to bring
J1omc a charge of murder under section 302 of
the P~nal Code it .. was essential to prove that the
accused intende.d to 'cause the death of the deceased .
or to inAict an injury sufficient in the ordinary course ;
of nature to cause death . As pointed in Baba Naya' s.
case (1) where only one blow is struck on the head
with an ordinary ~tick it is difficult to impute the ~ to
accused the intention to cause an injury "sufficient in j
the ordinary course of pature to cause death." . But ~
with the amendment of sections 299 and 300 of the ~
Penal Code the old definitions of culpable homicide]
have been replaced by the following: . I!
'' 299.. Whoever causes death hy doing an act with the
,intention of causing death, or with the intention of caw:.ing such ;.
bodily injury as in fact is sufficient in the ordinary course of
. -
(1) 5 R:ui. gl7.
 1952] BURMA LA\V REPORTS. 95
nature to ~.:1use death, ~ommits tit: off~n~e of culpable homi~ide i I.C.
1951
110t amounting to murder in 111~ of the follo\\'ing cases.
300. vVhoenr, in tile.: ;dl:il! llCe o f any circum stance which !',l.t: \\'.\U
makes the act one of culpable h(midde not amounting to murdtr, "
Till. I]:O. ION
c'auses death by doing an a~i with the intention of causing Or Bu r~ .''"
death, or with thP, intention of c:using bodily injury as in f.lct i:; C TH.\l':'iU.
sufficient in the ordinary course of nature to cause de;-tth, St:1x, ].
commits the offence of murder."

The introJuction of the \\'Ords "\\'ith tbe int<~ ntion of

-causing bodily injury as in fad is sufficient in the
ordinary courst of nature to cause death" in the
definition of culpable homicide:: is significant, and
where any injury is in fact sufficient in the ordinary
course of nature to cause death and does cause the
death of the deceased, the offence would be one
of murder unless it falls within the exceptions
enume::rated in section 299 of the Penal Code. The
ruling in Baba Naya's case ( 1) is thus no longer
. applicable to cases where death has in fact ensued
; from an injury ~vhich is proved to have been sufficient
in the ordinary course of nature to cause death .
~ In the case now under cons.ideration the appellant

l
would certainly have been guilty of murder but for the
fact that the death of Hla Maung occurred during the
~heat of a sudden quarrel. There can be little doubt
~that both the appellant and the deceased were in a
uarrelsome mood a_nd that they exchanged blows
reely during a sudden fight. In other words, the case
ails wit{lin Exception (D) ~o se::ction 299 of the Penal
. ode and hence the app~Ilant was rightly convi.c ted
nder _.section 304 of the Penal Code. The appellant
as been found to be ~g years of age by the learned
ial Judge and the order sending him to the Borsfal
_c hool was appropri~te. Th~ appeal is dismissep.
(1) 5 Ran. 817.
96 BURMA LA\\ REPORTS. [195?

APPEL LATE CIV IL.

F:t/t>rc U Si Bu. J.

H.C. Ko sAN BWINT AND ,\NOTHEl~ (A__

PPELLA:--:Tsl
19:>1

Dec. 2-1 i'.

AH HEIN (RESPONDENT) .*

TranS'j' cr of Prr>Pcll y A ct. s. 54-0ral snlc for Rs. 75- HTflctlw proof
of sale admiss-ible.
li eld : S. 5~ of ihe Transfer of Proper tv Act enads that im1no,e:~ble:~
property of the value or less than Rs. 100 . ma y be transferred ei ther by~
registered instnuuent or by delivery of the property. As the sale deed in t)1i ~
case was unregistered, no evi<!ence .can be given to prove its cont<::nt~.
Held futtfl er: There is sufficient evidence to establish the fact of de liveN
of posses~ion given, which had itS inception in a sale.
Daw Y in v. U Sei11 [(yi fll:d o/ll~rs, 1st Appeal No. 56 of 1949
Ma Til Nymzt v. Ma Kyi Kyi aJUl others, (1950) B.L.IL 33, distingui~hect.
Tribho~m" Hargo7c-all v.Siu111kar Desai, (1943) Bom.43 l ; Gu11 ga. Narai
Go:Pe v. Bali Ghum Goa/a, I.L.R ZZ Cal. 179; Mohammed Yaqoob Ally i
Chho/ey Lal, A.l.H. (1939) Pat. 218 ; J(eslmar _v. Shcol!tWdan, A.l.R. (192 .
Pat. 620 ; Data Ram v. Sila Ram amt others, A.I.R. (1925) All. 206
Dlmramcsh~oar Sanna v. Lak!tvadltar Borgohain, A.I.R. (1950) Assam 107 ~
KwPPuswa111y Gouudan v. Chm1tns-.c(l1ni Gouudau, A.I.R. (1928) Mad. 5~@
re(C;rre<l to .

[{ymo Ii toon for the appellants.

Ba Shun for the respondent.

U SI Bu, }......-This ~sa. suit for possession of a p

of land of a value of less than Rs. 100 and to
Rs. lsoas
mesne profits.
The plaintiff-respondent's case is that he pur
the suit land for Rs. 75 some twenty years ago
obtained delivery of the property ; and an unregis
deed of sale was executed, but as it is lost it
now be prbduc~d ; after purchase, he erected a
tound the lar:1d. and made i t over to his neph
" Civil 2nd Appeal No. 67 of 1951 against the decrP.e of the
cot1rt of Meiklila in Civ.il Appear No.5 of 1951, datecl 11th July 1951 :
1952] BURMA LAW REPORTS. 97

fon Sha for the purpose of breeding pigs, etc. ; on H.C.

1951
the eve of the Japanese occupation of this country, he
I<o SAN
left for China leaving the l<lnd in charge of Headman BWIXT

u Po Naing ; presumably, h is nephew too ~eft the AKOANOTKER

t .
land soon afterwards ; on his return to Burma, . he AH HElN.
found the land in the possession of the defendants and U Sr Bu, J.
hence the suit.
The case of the appellants-defendants is that they
purch<lsed the land from the respondent's "nephe\v
Ton Sha some 17 years ago and that in any case,
they have acquired title by adverse possession.
Both the Courts below have disbelieved the case
of the appellants and have held that they are mere
trespassers. The trial Court has decreed the suit and
the District Court has, on appeal, confirmed it.
The principal ground of appeal before me is that
the deed of sale being unregistered, proof of sale was
not admissible even though the land was of a value
less .than Rs. 100.
Section 54 of the Transfer of Property Act says
that the transf.er of immoveable property of a value
less than Rs. 100 may be made either by a registered
instrument or by delivery of the property. As the
deed of sale was unregistered, no evidence can be
given to prove its contents and so, the only question
for determination is whether there \\'aS delivery of the
land by the seller to the respondent and whether such
delivery can be traced to a sale'.
hi his plaint, tl~e respondent has pleaded that
there .was delivery- and both the Courts below have
found in his favour on fhat poin~. .
The lea rned Advocate for the appellants has
referred me.' to two cases of this C0urt Dm.t) }rin v.
~U Sein Kyi cmd others (1) and Ma Tin Nyurtt v.
:M a Kyi Kyi -a.nd othe':s (2).
--------~----~~----------~-------------
(11 1st Appeal :-~o.' 56 ~f 19~9. . (2) (1950) B:L.R. p. 33.
7
98 BURMA LAW REPORTS. [1952

H.-:. "JP.ither of these cases affects the present appeaL

lYSl
as tlle facts on which they were based were cliiterent
Ko S AN
BW.DIT from the facts before me. In so far as the first o ne is
..
Jll\1) J\);OTHI\R
concerqed, I cannot do better than quote a relevan t
AH HF.l 'i . sentence from it.
l! St Bu, J.
'' ,She never suggested in her pleading, at the time of
settlement of issues or in tile course of her evidence, that the
sale was l1Y delivery of posst>ssion."

Therefore, the plaintiff clearly based her claim on :

a sale by a document. There was not even a sugges-
~ion as to delivery of possession and since the deed .~
was not admissible, there \ras nothing else to establish 1
the sale.
In the 5econd case too, thert vvas no reference to~
possession havin g been given. But, in . the presend
.c ase, there is a statement in the plaint . as to delivery ~
of possession-although there is also a reference to an:l
unregistered instrum.ent and what is more, the C<?Llfts..~
below have found in respondent's favour on this poinL~
In the case of Daw Yin v. [! Sein Kyi andj
others (1), reference bas. been made to- . Triblzovatt :,
Hargowan v. Shanlwr Desai (2), therein, it was held : :;
" Merely because there is an unregistered sale deed which.
cannot he used for proving the Iitle to a property of value of les
't han Rs. 100 the vendee is not precluded from prov~ng the sal .
by the delivery of the property."

Similar views have been expr~ssed by

J-Iigh Courts of Calcutta, Patna, Allahabad an..
Assam. (Please see Gunga N drain Gape v. Ba ::
Ghurn Goala (3), Moh.am med , Yaqoob Ally vi:
Chhotey Lal (4), Keshwar - ~ . Sheoriand~n (5Y
(i) 1st Appeal No. s6 of 1949:': . (3)' I.L.R. 22 cat'.. 1.79.
(2) (1943) Bom. 431. : . (~) .A.I.R. '( 1939l:Pat. 218:
. (5) A. I.R. (1929) Pat. 620.
 1952] BURl\fA LA'vV REPORTS. . 99

Dava Ralll v. Sila Ram alld olha., (1), and H.C.

1~.' 1
Dharames/n,,m Sarma v. Lak!tvadhm- Borgohain (2).
Ko SA.N
The next question to be cotL:>idered is whether Bwf~T .
there is evide_nce of sale. {) Po Naing, e.r-H~adman 'A~? A:;oili~R
who appears to have =impressed the learned t:-ial .\H i-H.IN.
Judge says that it was he who purchased the land for us, Hr, r.
the respondent. Presumably the unregistered deed
between th~ seller and th~ buyer . follm.~ed later.
Ma Lay Bu, the daughter of the vendors says that her
mother (since deceased) told her that the suit land had
been sold to the respondent.
There is therefore sufficient evidence to establish
the fact that d~livery of possession given to the
respondent had its inception in a sale and not in a
mortgage or lease.
It is tnt~ that in Daw Yin v. U Sein _K ,,i a7'ld
'J!hers (3), reference is made to the Madras case of
Kuppuswamy Goundan v. Chin uas7ca11li Goundan (4),
where it was held that : -
" The moment the parties reduce the terms to writing,
it is the writing that thereafter must be regarded as containing
and etting ont the terms of . the contract and it \\onld not be
an apt or correct description of the transaction to call it a sale
,by delivery of property.''
But the point was left undecide~ because-as is stated
therein-it did not arise. It is useful' to mention tha~
the Madras case was not followed in the case of
Tribhovan H a1-gowan v. Sh.ankar Desai (5) the learned
,udge remarking-
"With respect, I prefer the ratio decidendi of the other cases
at where there is an unregistered sale deed, which cannot be
ed for proving the title, the party in question is not precluded
orn p:oving the sa1e by the delivery 0 the property."
(1) A.-I..R. (1925) All. p. 206. (3) lstAppeal No; 56 of 1949.
(2j A.l.R (1950) Assam p. 107. 14) A..i.R. i1928) Mad. p. 546.
(5) (19431. Bom. 431. ..
 BURMA LAW REPORTS. [ 1952

H.c. In the two case!:' of this Court cited aboYe, there

1951 . . .
- was no queshon of delivery and no suggestion even of
13 ~~:-:;~~o. delivery having been made. In the present case the
A:-!OT!IER
v.
plaint StateS it and there iS a COnCurrent ,finding by the
AR Hw:. Courts below on that point. In addition, there is
us' P.u, 1. evidence to show that such delivery of possession is
traceable to a sale.
In the resu lt, Lhe appeal fails and is dismissed with
costs ; Advocate's fees five gold mohurs.
 1952] BURMA LA\V REPORTS. 101

CIVIL REVIS ION.

Be/on U At~ng Kltine, J.
H.C
.DA vv H NIN (APPLICANT) 1952'

v. ]au. 3.

u KYAW AND OTHERS (RESPONDENTS).*

Limitation A ct, A rticle 172-As amended b,v lite Thirtl Scllequle of ll;e
ArbilmtiM Act , 1944- Catllntencemwt of the terkd of limilnt ion for
filing of a1: award.
Held: T hat time will be~in to nm from the d te of scr"ice of noti ce of the
maki n~ of. the award and the period o limitati<..n is 90 days.

P. K. Basu. for the applicant.

N. R. Burjo'rjee for tile respondentS.

U AuNG KHINE, J.-One Daw Kyi Kyi , Burmese

Buddhist, died.in Mandalay leaving behind her 5 heirs
namely (1} Daw Tint, (2) Daw Shwe, (3) Daw May,
(4) Daw Hnin and (5) Ma Than. There was a dispute
amongst the h eirs and on :.th F ebruary 1948, they
referred the matter to a Board of Arbitrators composed
of the follow ing nat~ely, (1) U Kyaw, (2) U Mya Maung
and (3) U Set Pe. The arbitrators made their award
on 8th of March i-94~. Notices were issue<? to the
parties on 6th October 19~8 and a_fter that the
arbitrators themselves made an application in the
. District- Court of Mandalay on 8th October, 1948,
together with their proceedings praying that the award
made by them may be filed. Objections were raised
by Daw May and Ma Than against t he fili ng of the
award pleading that the ~pplication was barred by the
law of limitatiOI~. The learned District Judge accepted
.Civil Revision 1\o. 19 of 19.>1 agaim t the order of th~ District Court of
Mandalay in .Civil ~isc. No. 48 of 1948, dated 1"6th January l 951.
. . . .
J02 !BURMA LAvV REPORTS. [ 1952

H.C. their plea and held that under provisions of Article 1;-8
1952
of the Limitation Act the application made by the
DA\\'H:->1~
v. arbitrators was out of time. Hence this rev1s1on
U Kv.-\w
AND OTH"l~S.
application in this Court. The Arbitration Act of 1899
U AUNG
was repealed by the Arbitration Act of 1914 and in this
{{HI~~. J. lattf.r Act, Article 17'i:., as lt appeared in the law of
limitation, was substituted by an ame'ndm~nt which
appeared' in the Third Schedule. In the Union of
Burma (Adaptation of Laws) Order, 1948, which came
into for9e on the date on which t6e constitution of the
Union of Burma came into operation, section 49 of the
Arbitration Act, 1944 which governed the Third
Schedule q.nd the Third Schedule itself were omitted.
In view of tbis recent amendment made in the
Arbitration Act, 1944 by the Union of Burma
(Adaptation of Laws) Order, 1948, I found it necessary
to refer this matler to a Full -Ben_ch of this Court for
an answ er as to what is now the period of limitation
for filing i.n Court of an awarq in a -suit made in any
matter referred to arbitration by the order of the Court
cir of an award made in any matter referred to-
arbitration without the interventi'on of a Court. The
ai:tswer to the question propounded is that the period
of limitation for the purpose required is to be
. calclllaled in accordance with Article 178_ of the
First Schedule to the Limitation . Act as . amended
under the !hird Sc~Jcdule of the Arbitration Act, 1944.
For the filing in Court of al) award, Article 178 had
been amended and now the time will begin to nin from
U:ie date of service of the notice of .the rna}dng of the =
~ward, and the .period is 90 days. The. order. of the .
)earned D istrict. Judge must therefore be set asid.e . :
_The d<i_te of service . qf the notices . on ,the partieshas:
. rrot been. established in the lower ~ourt ; the . notices i
' w~re i~sued . on. the 6th October . 1948, an<;l --a:s th~,1
. application to file the-award was n"la<;le two days later:-]
1952] BURl\1A. LA\V REPORTS. 103

by the arbitrators, I presume, it will be well within H.C.

1952
time. Civil Miscellaneous No. 48 of 19-1-8 of the
DAw HN!N
District Court of Mandalay will therefore be remanded v.
l" KYA \\"
.and the District Judge will now proceed to determine AX Il OTHE RS.
the applicatio,n made by the arbitrators on its merits. U A U!' G
The costs in this revision application shall be the costs KHINE, J.
-in the cause. Advocate's fees three gold mohurs.
104 BURMA LAW REPORTS. [1952

CRIMINAL REVISION.
Before U Tltaung Scin, J.

H.C. THE UNION OF BURMA (APPL;ICANT)

1952
Jan. 7. v.
MA AIN KYWE tRESPONDENT).*
Opium ~ ct. s. 9 (1} lbl a11d s. 9 (2)-S. 438, Criminal Procedure Code.
Held: That il is not the function of the H igh Court u nder s. 438 of the
Code of Criminal Proced ure to give opinions on questions of Jaw rai~<: d
<luring the course of proceedin!!s in Lower Court.
He. Pala11i Gowndert, 15 C.L.J. 472; Mir G"a-.cas v. Emperor, 37 C.L.f.
470 : In Re. GO'I,leru Kotrappa amt ollti:rs, 50 C.L.J. 83, referred to .

.Jl!Jya Thein for the applicant.

U THAUNG SEIN, J.-The respondent Ma Ain Kywe

was caught -by ~n Excise Party while transporting 95
ticals of opium in a trishaw and on being sent up
before the learned Third . Additional Magistrate,
Toungoo, was convicted of an offence under section
9 (1) (b) of the Opium Act and sentenced to six months'
rigorous imprisonment. The learned Magistrate
referred to the proviso to sub-section (2) of section 9
of the Opium Act as inserted by the Opium (Amend-
ment) Act,' 1949, (Act No. XIII of llJ49) and held
that the -.respondent Ma Ain Kyw~ wasthe owner of the
opium in question and it was on lhis account that the
imprisonment was fixed at six months' rigorous.
imprisonment. The respondent then appealed to the
Sessions Judge, Toungoo, against the conviction arid
sentence. : It appears that the learn.e d Sessions Judge,.
is in doubt as to the legality of' the _s_entenc~ meted opt:
. *Criminal Revision No.' 7-.32 (M. o~ 1951 being r~view of the 0~9er ofj
. 3rd Additional Magistrate of .To!Jng'oo, date<! 29th September 1951 passedl
jn Criminal Eegular Trial ~o. 44 () 19Sl arising aut of the recommendatio~
m;tde by the Sessions }edge; Toungoo, in his Crimin.al ,Appeal.No.18 of 1_951 ~
 1952] BURMA LAW REPORTS. LOS

H.C.
to the respondent :tncl accordingly opened re\ision 1952
proceedings and submilled the case to the High Court TliJ; UNI0 :-1
with a recommendation that the abo\e sentence be OF BUR)IA
v.
altered to one month's rigorous imprisonment under J\!A AIN
1{\'\VJl.
section 9 (1}(b \of the Opium Act and "a fresh sentence
of six months'' rigorous imprisonment may be impos~ed U 'i'ILIU:-It;
Sl.l:--:, J.
under the proviso " to that section. In effect, the
learned Sessions Judge is seeking for interpretation of
the proviso to section 9 (2) of the Opium Act.
Presumably the appeal filed by the respondent is still
pending and will be decided finally after the High Court
has passed orders in the revision case. In other
words, the learned Sessions Judge has practically
transferred the appellate proceedings pending before
him for decisicp to the High Court. I need hardly
say that the provisions of section 438 of the
Criminal P'roc.edure Code were never designed to
enable a Ses.s ions Judge to get the opinion of the
High Court on a point of law arising in a case
pending before him or to transfer for the decision of
lhe High Coud a difficult question of law that may
have arisen before him. There are several authorities
which clearly lay down that a Sessions Judge cannot
adopt such a course. ln Re. Palani Gownde11 (1) it
was laid down t hat " a District Magistrate is not
competent to refer to a High Court, under section 438
of the Code of Criminal P-rocedure, a point of law
actually arising in a case pending before him. " Then
again, in .~rfir Gha1.e:as v. Emperor (2) the same view
\:>,~as ~xpressed in the head-note as follows:

'' Where an appeal was pending . before the Sessions Judge

from a conviction, ancl the Judge without deciding the appeal
referred the case to the High Court purporting to act under
.section 438, Criminal Procedure 'Code. .

Ill 15 C.L.J. 472. . (2) 37 ~.L.J. ~70.

106 BURMA L AvV REPORTS. rt9sz..
H.C. Held: T lnt the ptoceclure \\'as incorrect and that the
I<J52
reporting Court should decide the appeal, and if it considers that
'1'1-tr.. Uo-;JON it has been unable to do substantial justice, it may then report
OF I~UI'l~rA
v. the case on the revision side with recommendations as to
MA A IN suggested action which as an Appellate Court i t ,,as not able to
KYWP..
talce itse'lf."
t: TfiAc;:-;o
SEJ:-;, J. So also I n Re. Gowleru [(otrappa and others (1) the
Madras High Court laid down that -'' it is not the
function . of the High Court to give opinions on
~

question's of law raised during the course of proceed-

ings in a lower Court." .
I regret therefore that I cannot assist t he learned
Sessions Judge in the _interpretat ion of tl1e prodso to
section 9 (2) of the Opiuq1. Act as this is a matter
~vhich must be dealt with l?Y him in the appellate
proceedings pending before him. Let the proceed-
ings be returned \l,ith these remarks.

(1) SO C.L.J. 83.

 ...l 9'"?)
.)_ I3URl\It\ LA\V REPORTS . 107

CRIMINAL REVISION.
Bcfo;e U Thnung Sd11, I.

THE UNION OF BURMA (APPLICA:t-:T) H C.

1952
v. lu1i. 24.
'M OHAMED ESHAQUE AND OTHERS (RESPO:-<DENTS).>'(<

Burma Inzmit;rfotioll (E111crgency Provisio1~sl Act , 1947, s. 13 (I )-Summary

crmviclion-lmptic..t ions ::u.tl meani11g-Rejerc nee to Hi glt Court in
Peudiug aPPeal by District Matis! rate:
Htld: S. 13 tl) of Burma Imm igration Act is couched in diffict:lt language.
''Summary conviction" used in that section is not defined in the Criminal
Procedure Code. Tile d~finilion given in legal dictionary is "a conviction
-before Magistrate without the intervention of a fury. ' '
Burma Immigration Act is a special Act <~nd there is no provision therein
suggesting any departure from the csual procedure prescribed by the Criminal
Procedure C<.de for trial of cases. In the present case the Magistrate who
tried it was not invested with special powers under s. 260 of the Criminal P rc-
cedure Code but he did tr:Y it as a regular case. though no charge was framed ;
this defect was curable undet s. 537 of the Criminal Procedure Code provided
there is no failure of justice.
The only interpretation to be. put on the ter m" summary convictioh" is that
an offence under s. 13 (1) may be tried summarily. Where a Magistrate has
not been invested ~ith summary powers, he m:st try the case in a regular
way.
King-Empc,.or v. itfaung Po Saw, 13 Ran. 225, referred to.
A Magistrate is not competent to refer to the High Court uoder s..438 of
1he Criminal Procedure Code a point of J:lw actually arising in a case before.
him .
Re P11Iaui Gowndetz, IS C.L.J. 472, referred to.

. Mya .Thein for the applicant.

U THAUNG SEIN, J.-'This is revtston case opcn'e d

as a result of a reference by the learned Additionai
District M<tgistrate, Akyab, who has propounded the

Criminal Revision No. 137 (B) of 1951, being review of the orde~ Cf
Subdivision?.! Magistrate of Mmingdaw, dated 2nd J~ly 1.951 passed in. Criminal
.Regular Trial No.. 77"o( 1951 ari~iog out of .reference made by Additional
Magistrate, Akyab in Criminal Reg.ult\r Revision No. 318 of 1951, dated
12th Septembe.r:t951; .
'
108 BURMA LAW REPORTS. [195Z
H.l'. follo"ving questions for the opinion of tl1e High-
1952
Court:-
THE Cl'!ON
Of BURMA
1). '' (1) What is the correct interpretations and implicatir-ns of
MoH.un:u
ESHAQUI
the words 'Summary Conviction ' in ~ection 13 (1) of the .Bu:ma.
AND OTHERS. Immigration (Emergency Provisions) Act, 1947;
U THAUNG
(Z) Whether a Magistrate of first class 01 Subdivisional
S:ei::-l, J. Magistrate, not empowered to act unc'er section 2<.0 of the Code
of Criminal Procedure, can try the 0ffence under section 13 ( 1)
of the Burma Immigration (Emergency Provisicns) Act. 1947,
summariry in the procedure laid in Chapter XXII of the Code of
Criminal Procedure by vklue of the \\ord 'Sum1r.ary Conviction'
used in the same section; and
(3) \.Vhether an appeal lies in a case in \Yhich a Subdivisionaf
Magistrate of second class passes a sentence of Rs. JOO cn ly on
summary conviction of an accused person under section 13 (1) of
the Burma Immigration (Emt!genc y Provisic m;) Act, 1947."

These are questions which have arisen in an appeal

pending before the learned Additional District Magis-
trate and ordinarily no notice ~hould have been taken
of such a reference especially in view of th.e Ruling
in Re.. Palani Gownden ( l) which lays dowu lhal
"a District Magistrate is not competent to refer to
the High Court, under section 438 of the Code of
Criminal PrQcedure, a point of law actually arising in
a case pending before him." However, in tl1e pre~en1
case the reference is not from the appeal proceedin.~~
itself but from a revision proceedings opened suo motu
by the learned Additional District .Magistrate. S.ome
corpmon points of law and fact arose in both thes~
cases and it was on this account that the learned Addi-::
tiona! D istrict Magistrate chose to get an authoritativd
decisio~l by the H igh Court befor.e he decides th~
app~al pending before him. j
The r~ason. ~nd the fact~ giving .rise to the referen c~
are as follows :-The five ,:respondents, Mohamed
. ... . . ---
111 t? _c.L.J. 412:
1952] BURMA . LAW REPORTS.
H .L:.
Eshaque, Habibulla, Shrirazal Haqu e, Abul Bashar, 1"52
Nozir Rahman and o nl! Na:r.ir Ahmed, were se::nt up
THF. Cl\ IC:\
for trial before the learned Subdivisional Magistrate, <>F Bt:R~:.>.
1!.
Maungdaw, charged with offences under sectiop 13 (1) '\J O IIA~I[W
Es~rA~!ll.
.of the Burma Immigration Act, 194i, on the allegat.ion Al'l> ~ > THfll~.

that they bad entered Burma from Pakistan without a

u THo\tiN(;
lavvful permit or pass.. The learn ed Subdivisional SF.Ir-:, J.
.Magistrate, who is only a second class Magistrate, took
-cogn izance of the offence in accordance witl1 section
14 of the Burma Immi gration Act and eventually
convicted all the six accused and sentenced each of
them to pay a fine of Rs. 100 or in default, 3 months'
rigorous imprisonment. Of these six accusec, 0nly
o ne viz., Nazir Ahmed, preferred an appeal lo the
District Magistrate, Akyab, against his convict ion and
sentence. This appeal was dealt with by t he lerned
Additional Di(>trict Mag i~trate who found himself in
a quandary as regards the interpretation of section 13
(1) of the Burma Immigration Act and accordingly
opened revision proceedings in r.e spect of the five
accused, Mohamed Eshaque, Habibulla, Shrirazal
Haque, Abul Bashar, Nozir Rahman, who had not
appealed and made a reference to the High Court on
t he points enumerated earlier.
At the outset, I would say that I am in entire
agreement with the learned Additional District Magis..:
trate th<).t section 13 (1) of the Burma.Immigration Act
is couched in somewhat difficult language and reads
as follows:

''Whoever enters or attempts to enter the Union of BUJma

or whoever after legal entry remains cr attempts to remain in
the Union of Burma in contravention of any of the provisions of
this Act or the rules made thereunder or any of the conditions
set out in any permit or vis.'i shall be liable e5n s~mmary conviction
to imprisonment for a term not exceeding one year or to fine or
to both.''
 110 :BURMA LAW REPORTS. [1952'
H .c. The problem in this case is to find out th e meaning of
. 1952
the term '' su mmary conviction oc curring in that
.i H E t" ;\ In ~
>! .. Bt R,r .\ section. In this connection, I regret t o note that this
v.
M tlfi .t\M P.JJ
seCtion~ does not appear to have been drafted with. any
E sHAQt: E
44. ;\: 1) < ~ T !H:i\!) .
care and the learned Government A-dvocate, who
appeared for the Government of the Union of Burma r
U T HAr;-; G
SJN, J. has admitted t bat he is ala loss to explain bow such a
term crept into the Burma Immigration Act. As far as
he is a*-'are, this f~rm was probably copied from an
English Act but, he i:> unable to trace the Act in
question. I have also searched in vain for the Act
which might have served as a mode l for the legal
draftsmen. The term "~ummary conviction ", is not
to be found in the Criminal Procedure Code and I have
therefore searched several legal dictionaries for a
definition of the term and the only one t:vhich I could
trace, was in Nozley and Whiteley's Law Dictionary,.
5th edition, and reads as follows : I
"Summary convic:tion-is a convir.tion hefore :Magistrate:
without the intervention of a ju~-y. To this h ead may perhap~
be added the committa l of an offender by a Judge for contemp
of Court. '
Obviously, this definition is quite inapplicable to triah
before Magistrates in Burma as no juries are eve1
empanelled for such trials. The procedu~e to be
followed by ~'fagistrates in the tri.a l of cases is laid
down. in section 5 of the Criminal Procedure Code.
According to that section, all trials under the Penal
Code must be dealt with in accordan~~ with the
provis.io.n s of the Criminal Procedure Code. : With
regard to .trials Ufl:der' any special Acts, the ;proc:e-
dure prescrib.e d by the Criminal Procedure Code
must .be followed unless the Act in question, s.e ts
,auf:. ,aJ;i)(. oth~r form o_f procedure~ The .J?urma
Immigration Act is, o f course, a special A.ct. but,
there ;i s no provj$iOIJ. th~reil). . Which suggests any:
1952] BUR~IA LAW REPORTS. 111

H.<;.
departure from the usual proccd ure i'n:scri bed by 1952
the Criminal Proc~clure Code for the trial of cases. Till' LXIU:-1
\N"hat tben is tile meaning of the term " summary n F Jst: IIllA
conviction" occurring in section 13 U) of the .!3urma :\loUA)lEll
..
[:,;,,11,\QUl:
Immigration ,!.\tt! The learned Additional :.\Iagistr~te Axo crnn:r~:; .

is of the opinion that the trial Magistrate was under the c TI!AU:><G
mistaken belief thz.t he cou ld try t}:le case summarily :SE!.\",].
even though he had not been invested with pO\\ers
under section 260 of the Criminal Procedure Code.
This was due to the rather unu~;ual procedure adopted
by the trial Magistrate. For instance, the fiy leaf of
the proceedings is headed Criminal Hegular Trial
No. 77 of 1951 and the evidence of witnesses wer e
Tecorded verbatim as in a Regular Trial. But, the
J.u dgment '-'as recor d ed on F orm Cnm111a
. . 11-4 ( -Hecord
d - - t
1u gnten

of Summary T rial under section ~:! of the Code of

Criminal Procedure, 1898). It is interesting to note
t hat in th~ column ''serial number" of this Form, th e
case is entered as "C.R.T. No. 7i of 1951 ", i.e.,
Criminal Re~ular Trial No. 77 of 1951. From the
mere fact .that Form-Criminal 74 was utilized, it does
not necessarily follow that the Magistrate did, in fact,
try the cas~ summarily. H ad th e learned Magistrate
meant to try the case .summarily, he ~ou ld probably
have refrained from recording the evidence of witnesses
at length and the evidence. if any, so recorded should '
not have formed . part of the trial record, vide the
~u.ling in K~ng-Emperor v. Mau1~g Po Saw l1). There
is however, one noticeable d efect in the proceedings
riamely no charge was framed against any of th~
accused: Thi s-defect is however curable under section
537-.of the. Criminal Procedure Code provided there has .
b eeil.;no failure .:of justice,. by the om ission to frame ~
(1) 13 Ran. p. 2~5.
112 BURMA LAW REPORTS. [1952
H.C.
~952
charge. There is no hint or suggestion that this
THE Us10~
omission has occasioned a failure o. f justice in the
oF 13uR~r... present case and, on the C<;mtrary, five out of the six
ivJor~~Mr.o accuse,d are apparently satisfied with the judgment of
A~~s~~~~!s. th.e Magistrate and refrained from ap'pealing against
u THAU);<;;
their convictions and sentences. The omission to
s~:r:-:, J. frame a charge should therefore be deemed to have
been cured nnder section 537 of the Criminal Procedcre
Code. ~
. As far as I can see, the case was in fact tried by the
learned Subdivisional Magistrate, Maungda\;!,, in a
regular way. Had the case been tried summarily, it
. would have been void ab initio, vide section 530 {q) of
the Criminal Procedure Code, as the trial Magistrate
bas not been invested with summary pO\.VeFs and
cannot be invested with such powers as he is 'only
a second class Magistrate. The term ,, SUII!maiy
conviction'' cannot possibly be interpreted to niean
that the Magistrate, who is empowered t<? lak<
cognizance of offence under section . 13 (1) of- the~
Burma Immigration Act, is automatically invested \
with $umrnary p9weis under section 260 of the;,
Criminal Procedure Code. Surnmary powers are1
conferred on 'Magistrates under Chapter X~II of thc1
Criminal Procedure Code and no Magistrate can
exercise such powers until he has been invested
them under seCtion 260. Ftom the mere fact
certain cases may be tried summarily! it does
follow that the Magistr::ile trying it is automati
invested with summary powers. . In the present
t.he bnly reasonable interpretation to be put on
term "summary conviction", is. that an offence
section 13 (1) of the Burma Immigratiori Act 1nay~
.tried ~u~marily. In . view of the provisions of
260 (1) (a) of'the .Criminal Pz:ocedure Code such
. offence is triable sinn~~rily and there was then
 1952 J 13 U Ri\1A LAW REPORTS~ 113

any necessity for the use of the term summary m H.C.

1952
the section under consideration. It shoald be
remembered however that an offence wllich is triable THE U Nto~
OF Bl1Rli!A
summarily may also be tried regularly. Besir.les this v.
section 260 t2 \, Criminal Procedure Code, lays down ~~~-~~~~
that a Magistrate may, in the course of a summarytrial, ANo orHERs.
revert to the regular procedure and try the case afresh. U THAUNG
~EIX, J.
.To. sum up I would hold that the term ''summary
conviction ' ' in section 13 {1) of the Burma Immigra-
tion Act means that an offen ce under this section may
be tried summarily. In order to try an offence under
this section summarily, the Magistrate concerned must
have been invested wi.th summary powers under section
260 of the Criminal Procedure Code. Where a Magis-
tr~te -has not been invested with summary powers, he
must try the case in a regular manner. I have been
giv~n to understand that Government is taking
necessary steps to have this section suitably arr.ended
to avoid fu~ther troubles in the interpretation of
the. term" summary conviction".
.. The- above observations sh01~ld provide an answer to
th~ . first two questions propounded by the learned
~ddi tion'al District Magistrate. The third question
.r aised bihim is a uJ.atter which must be dealt with by
the learned Additional District Magistrate in hi~ appeai
proceedings and no opinion nor advice can be furn ished
by this Court. The learned Additional District
Magistrate has set out the facts of the case in his order
of reference and recommended that the convictions and
sentences passed on ~he responden ts be set aside. I
.desire to express no -opinion on the facts of the case
except to say that the respondent~ themselves have not
t hought fit to question the findings of the .trial Magis.-
tr ate. I do not propose therefore to interfere with the
conviction or sentence passed on any of the r espondents.
L et the proceedi~gs be ret~rned with these remarks.
8
114 BURMA LAW REPORTS. [ 1952

SPECIAL BENCH (APPELLATE CRIMINAL)

Before U Twt Byu, Chtef lusftce, U 01l P( a11t1 U Si Bu, J J.

H.C.
THE UNION OF BURMA (APPELLANT)
1951
v.
Sept. 10.
u KHIN MAUNG LAT AND ONE \HESPONDENTS).*

SP<'cialCrimes (Ttibu,~alJ Act, 1947, s. 8-Whelhcr appeal lies against/he otder

of acquittal-S. 417 of the Criminal Procedure Code-Ss. 409 a11d 420, Penal
Code-I11grcdic1tfs-Disllottest intenfiott essential Pre-requisite in tvidcnce
of crimwal breach of trust as well as c!tealing-S. 24, Pe1tal Code--
Meaning of the word "dishot!e.stly "-Sugar Control Order, 1948, powtrs
uruler-Civil Supplies Afa~tagemttll and Control o,liet, 1947, s. 3 confers
tight of purchase 01 Com111issiotter.
Held: In order to ascerb.in the full intention of the Legislature the proper
course is to apply the broad general rule of construction that a section or an
enactment ll1USl be construed as a whole, each portion throwing light, if need
be, on the rest. Words of a statute must be given their full el!fect and where
their meaning is plain, it is the duty of the court to expound them in
accord.a nce with their plain meaning.
J etmit~gs aml another v. Kelly, (19401 A.C. 206 at 229.
A proviso to a section might generally be considered as placing a restriction
or limitation upon an otherwise general application of the provision of :\D Act
to which it is attached. A proviso relates as a rule, only to tbat portion of the
Act to which it is actually attached.
The main provision of s. 8, Special Cri111es (Tribunal) Act refers to appeal
from and confirmation of sentences, and proviso (ii) only provides a limitnlion
of appeal against conviction. The proviso has no applicat~on to a case of
acquittal, and read with t11e main provision the proviso does not preclude an
appeal from acquitt:al.
A dishonest intention is an essential pre-requisite both in the offence of a
criminal breach of trust as well a~ an offence of cheating. It is. the di:>honest
intention which con\erts the acts cf a person into a criminal offence so far as
these two offences are concerned. Therefore the primary motive in making
payments in this case must be clearly shown to be dishonest if the accused are
to be convicted of criminal breach of trust or cheating. The word "dis-
.honestly" is defmed in s. 24 oF the Penal Code, viz.:
. "Whoev~r does anything with the intention of passin.g wrongful gain
to one _'p~rson or wrongful loss to another l?erson is said to do that act
dishonestly." .

.. Criminal Appeal No. Z40 of 1951 ag2inst order of the Special Tribunal Qf
lbngoon, dated 21st November 1950 passed in Specfal.Trial No. 2of 19~0. .
 1952 J BURMA LAW REPORTS. 115

Unle3s these two in).(rcdients, :Jit ., wron~ moti,e ami \\'rongfu l gain or Joss H.C.
are clearly established no offence of criminal breach r,t trust or cheating is 1951
established. THB UNION
Sugar has heen c!e;larcd lobe an essen tial commodity and. under s. 3 of OF EtiRMA
Civil Supplies Manage111ent Order of 1947, Commissioucr of Civil Supplies v.
l. l(HJX
has power to purch<tse essential commoditie~ re-Juired folr dislribdion to the
M .\t:NG LAT
public. Paral!raph .') (t) of the Sugar Con trol Order of tQ4S confers row.er to AND OXE.
regnlnte and control the produc tion and distribu tion of sugar : it did not
confer on the Board the power to purchnse sugar which by the earlier
order had vested in the Commissioner of Civil Supplies. The power
of the Commissioner of Civil Supplies to enter into contract for the
pt:rchase of sugar is allowed ancl i~ not restricted by the Sn~gar Control
Order of 1948.
When it is not proved beyond reasonable doubt that an accustd person has
acted dishonestly or ~o recklessly as to implv dishonesty on his part he
cannot be convicted of cheating or criminal bn:ach of trust.

Chan Tun Aung, Assistant Attorney-General, for the

appellant.

. T and '~ f or the respondents.

Paing
S em un J

U TuN BYtT, C.J.-The first respondent U Khin

Maung Lat was acquitted, in Special Trial No. 2 of
1950, by ..the Special Tribunal which was constituted
under the Special Crimes {Tribunal) Act, 1947, of the.
three cha rges that were framed against him under
section 409 of the Penal Code. U Kbin Maung Lat
was also charged in the alternative under section 420
of t he Penal Code in connection with the third charge,
and he w~s also acquitted of this alternative charge.
The second respondent U Tha Din was also
acquitted of the charge of abetment of the offences
framed against U Khin Maung Lat under the third
charge.
An appeal has been filed under section 417 of the
Cx:iminal Procedpre Code against the order of acquittal,
passed in f~vour of the respondents, by the Special :
Tribunal. A. preli111i.riary objectiQn has been taken on
b ehalf of th~ .two respondents that no appeal lies in
116 BURMA LAW REPORTS. [1952

H.C. view of provi"so (ii) to section 8 of the Special Crimes

1951
(Tribunal} .-\ct, 1947. Section 8 of the Act reads:
THE UNION
OF BURMA "Save as otherwise provided in this Act, the provisions o
v.
U KHIN the Code .~nd of any other law for the time being in force shall,
MAUNG LAT to sqch extent as may be applicable, apply to thals before the
AND ON~:.
Tribunal constituted under this Act, and to appeals from and
U TuNBYU, confirmations of sentences of such Tribunal, and all other matters
C.J. connected with or arising from such trials, as if the Tribunal was
a Court of ~ession exercising original jurisdiction :
Provided that-
(i) the provisions of sect.ion 526 of the Code shal I not
apply to the. proceeding held before the Special
Tribunal;
{ii) no !appeal shall lie in any case tried l:>Y the Special
Tdbunal unless the Special Tribunal passes a
sentence of death or a sentence of transportation or
imprisonment exceeding five years."
The observation of this Court made in Criminal
Revision No. 57B of 1950 * in which the present two
respondents were ordered to be retried should, in our
opinion, be read in the light of the circumstances
obtaining at the time that case was heard. This
Court did not, in the earlier case, discuss the effect of
proviso (ii) to section ~of the Special Crimes (Tribunal)
Act, 19471 as it was not necessary to consider the effect
of proviso (ji), for the purpose of dealing with the
matters which required consideration on the earlier
occasion.
A proviso might gen~rally be c'o nsidered as placing
a re~triction or limitatio.n upon an otherwise general
application of the provision of an Act to which it is
attached j and a proviso relates, as a rule, only to that
portion of an Act to which it is actually attached. . It
will be necessary to r.ead .provisq (ii) with the main
provisions of section 8, in \x;hich it appears, in order
to ascertain what the ~eal meaning and effect of
* Reported in 1950 B;L.R. 376 (F.B.}-Editor.
1952] BURMA LAW ltEPORTS. 1.17
H.<;.
proviso (ii) are. In] ennings and anotlur v. Kelly (1) 1951
it was observed : THE UXIO~
OF SORlot A

'' . . . . the proviso may simply be an exception out of Uo

U KHIN
what is clearly defined in the first part, or it may be some quali- MAUNG LAT
ANII ONE.
fication not in~onsistent with what is expressP.d in the' first part.
But in the present case, not only is the t1rst part of the settion UTUN BYU,
deficient in express definition, but the second part is complemen- c.J.
tary and necessary in order to ascertain the full intention of the
Legislature. The proper course is to apply the broad general
rule of construction, which is that a section or enactment must be
construed as a whole, each portion throwing light, if need be, on
the rest."

The words of a statute must be given their full

effect and, where their meaning is plain, it is the duty
of the Court to expound them in accordance with their
plain meaning. We must not, however, lose sig-ht of
the words in the main provision of section 8, which
refers to the appeals from and confirmations of
sentences ~ passed by the Special Tribunal, in
attempting to construe what proviso (ii) purported to
do. An order of acquitt<~J cannot properly be consi-
dered to be a sentence passed by the Special Tribunal
because in truth no sentence is, in fact, imposed, nor
any punishment inflicted wh~n the Special T.ribunal
acquits an accused person. We are .unable to agree
that proviso _(ii) was obviously intended to preclude an
appeal being filed against an order of acquittal.
Proviso (ii) purports to deal only with the cases in
which a sentence of some sort was passed by the
Special Tribunal, and not with cases where no
sentence was passed upon the accused person. This
-construction will also render the whole provisions of
.section 8, inclu~it:lg the p~qvisos, harmonious and
.consistent with the general purpose of sectien 8, which
Ill (1940) A.c:: 206 at 229.
118 BURMA LAW REPORTS. [1952

H.C. was to make the provisions of tb e Code of Criminal

1951
Procedure apply g enerally to the proceedings before
TAE UNION
OF BURMA"
the Special Tribunal, except what has been clearly
'IJ. excluded by the provisos to section 8 and in other
U KHIN
MAUNG LAT parts of the Special Crimes (Tribunal) Act, 1947.
AND ON!!'.
Provtso..(ii) cannot, in our opinion, be read disjunc-
U TUNBYU, tiveiy and apart from the main provisions in section 8,
C.J.
but it should be read with the words closely connected
with it, appearing in the main provisions of section 8
to whicht-it has been attached.
Cases which are tried under section 409 or section
420 of the Penal Code are not cases, where a sentence
of imprisonment above five years could not have b een
passed by the Special Tribunal. A perusal of section 8
shows that section 4 17 of the Code of Criminal
Procedure, which allows an appeal to be in stituted
against an order of acquittal, was made applicable to
cases tried before the Special Tribunal by reason of the
words "and other matters connected with or arising
from such trials, as if the T ribunal was a Court of
Session exercising original jurisdiction ," read in the
light of section 5 of the Special Cri.mes (T ribunal) Act,.
1947. Section 5 prescribes that the Special Tribunal
in taking cognizance of the offences mus.t follow the
procedure prescribed for tl~e trial of warrant cases in
the Code of Criminal .Procedure. I t seems to us that
we otigh~ to give that construction to proviso (ii)
w.h ich will make the entire provisions of section 8.as
comprehensive as it can reasonably be done for the
purpose of efficient administration of Criminal Justice
in this country, ~nles~ it is not possible to do so,.
without rendering the proviso ineffective, un i ntelligent
or tiureasonable. As a~ appeal against an order of
acqu ittal is. a common feature in case~ which ha\;e-
. been tried as warrant case, 'we would expect the pro:viso-
(ii) to be worded .more .e xplicitly,"if it was . intendeci
 1952 J BURMA LAW REPORTS. 119

to excludt! an appea~ being instituted agaiust an order ~5~.

of acqui Lta! passed by t he Special Tribun!ll. The
THe CX!ON
preliminan objection is therefor e overruled . m BuRMA
The Civil Supplies Department commen ced their 1: KHrN
Purchase of S!.!gar from the Ze)'av\addv Su~ar F actorv MAu..: G L.~T
, tl ~ .,~ A~DONE.

in 1946, butno formal agr eement \\';ts executed for the -

purchases for the years of 1946-47 and 1947-48. The u T'b~1 ~Yu,
sugar, which the Ci.vil Supplies Department purchased
for 1947-48, was said to have been of the value of oPe
and half crores of rupees.
Th e first respond ent U Khin Maung Lat b ecame
the Additional Commissioner of the Civil Supplies
Department in October, 1947; and, on the retiremen t
of U Hla Sh~in, he succeeded the latter as the
Commissioner of Civil Supplies Department in March,
1948. Th e second respond ent U Tha Din was posted
in the Civil Supplies Department muck earli er than
U Khin Maung Lat, and he was, during the relevant
period of this case, the Secretary to the Commissioner
of Civil Supplies Department. U Khin Maung Lat
and U Tha Din also held, at the same time, the posts
. of Additional Secretary and Assistant Secretary,
.respectively, i~ the Ministry of Commerce and
Supplies.
The Sugar Controi Board, which functioned under
th e Sugar C0ntrol Order, 1948, decided, on the 16th
October, 1948, to purchase sugar for the year 1948-49
at the rate of Rs. 1-6-0 per viss, e:X-godown. The
mode of. payment and the question of storage of the
sugar were left ~6 be decided by the Commissioner of
Civil Supplies Department and the Resident Director
of the Zeyawaddy Sugar F actory; and the Commis-
sioner was required. to rep~r t to the Sugar .G.o ntrol
~qa~d ~he decisions which he and the ~esident Direc- .
tor arrived at. No one apparen tly demurred against
the purchase of sugar for .the year 194~-49, at the rate
120 BURMA LAW REPORTS .. [1952

B.C. of Rs. 1-6-0 per vi.ss, ex-godown . The Zeyawaddy

1951
Sugar Factory was requested to commence the produc-
THE UNION
oF uuRMA bon of sugar for the year 1948-49 from the 1st
u ~-RIN November, 1948, and this vvas what U Ba Nyein, who
MAUNG LAT was the Secretary of the Sugar Control Board, stated.

AN~E. His stat~ment is supported by the minute's of an infor-

u T~~J~YU, mal meeting, Exhibit Z, held on the 20th October, ; 1948,
where U Ba Nyein and the Director of Agriculture,
who was also a member of t he Sugar Control Board
and the 'Rc:sid ent Director of the Zeyawa.ddy Sugar
F actory were present. Mr. Chhaganjee set out in his
letler, Exhibit 2C, dated the 4th November, 1948, what
he considered the terms of the contract for the supply
of sugar for 1948-49 should be. He said that he saw
both U Ba Nyein and U Khin Maung Lat soon after he
sent the letter Exhibit ZC, that at his interview with
U Khin Maung Lat the latter also urged him to
commence producing the sugar for 1948-49, and that the
Zeyawaddy Sugar Factory commenced to produce
sugar from the 20th November, 1948. We accept the
statement of Mr. Chhaganjee that he was asked by both
U Ba Nyein, the Secretary of the Sugar Board and
U Kbin Maung Lat to commence producing sugar for.
the supply of 1948-49 from the month of November,
1948.
The Zeyawaddy Sugar Factory sent a letter,
Exhibit 13, dated the 23rd December, 1948, to the
Commissioner dt Civil Supplies, who was the first
respondent, and paragraphs 5, 6, 8 and 9 read:
. .
"5. We will not accept less than Rs. i-6-0 per viss excise
paid for our sugar, ~x- Sugar House, Zeyawadcly. The risk of
sugar deteriorating in stock is entirely yours.
6. As the Banks will not risk loans to-us, to enable us to
carry on our busine~s and . p-~Y cul.t ivators for ti1ei.r cane, cur
fortnightly bills shoul.d be met.qn presentation as you will r~ceive
fro.~ us a daily production repoi~ ai!d a gociown report giving
 1952] BURMA LAW REPORTS. 121

the position of stocks in godowns and these statemlnts may be H.C.

1951
sij.!ned by your Inspector o f Movements a t the f actory.
8. A godown s tatement showing our !)resent stock will be THI:. UNI0:-1
OF B URMA
submitted to you and this stock should be paid for to allow us to v.
meet our immediate commitments and every subl!equent payment U KHIN
MAUNG LAT
be made on the 1st anr.l 16th of every month. AND ONE.
9. Pending set tlement of the agreement at an e?.dy date, we
would request you, in the meanwhile, to pay us for the year U TUN C.J.
BYU,

1948-49 stocks accumulated, on presentation of our bills, by the

. end of this mo nth."

The Zeyawaddy Sugar Factory intimated that they

desired payment for the stock of sugar accumulated in
the godown ; and they set out in paragraph 6 of their
letter reproduced above the reasons why they required
payment. On 28th December, 1948, the Zeyawaddy
Sugar Factory sent in a bill, Exhibit 8, for the pay-
ment of the twelve thousand bags of sugar that were
already in the godown. Their letter, Exhibit S,
indicates that the payment was to be considered as
provisional payment, as no formal agreement had yet
been executed.. On the 29th December, 1948, a sum
of Rs. 10,22,010 was paid, under t he order of the
Commissioner of Civil Supplies, to the Zeyawaddy
Su!Sar Factory.
The Finance and Revenue Ministry issued a
memorandum, dated the 6th January, 1948, restraining
large scale purchases, exceeding Rs. 50,000 in value,
without a prior approva,l of that Ministry, and this
memorandum was admittedly received in the office of
the Civil Supplies De.partm.ent: On th e 14th January,
'i 949, the Zeyawaddy Sugar . Factory presented a
second bill for payment.. Their letter, Exhibit T,
shows that they were requesting paymen t for the sugar,
which was already stocked in the godown. A sum of
~s. 11,07,176-8-0 was p<!-id . to the : Zeyawaddy Sugar
Factory on the 15th January, 1949, in ac cordance with
th eir bill, Exhibit.lO; and this payment was also made
122 BURMA LAW REPORTS. (1952:

H.c. under tbe order of the Commissioner of Civil

1951
Supplies. No sanction of the Finance and Revenue
~;EBUu~1~~'~ Ministry was however obtained for the payment of
v. Rs. 11,07,176-8-0.
U KH!N
MAUNG LAT On . the 31st January, 1949, the Zeyawaddy
AN);ONE. Sugar Factory presented a third bill, Exhibit P2 ,
u TUN BYu, for payment. Their covering letter, Exhibit P, of
C.J. .
the same date also discloses that they were asking
for payp1ent on sugar which had been stored
in the godO\.vn. There was a delay over the
payment of the third bill for Rs. 12,77,512-8-0
as the matter had to be referred to the Minist ry
of Finance and Revenue for approval, in view of
the restriction imposed under the memorand um,
Exhibit L, which restrained the Civil Supplies Depart-
ment from making any fresh purchase which exceeds
Rs. 50,000 in value, unless a prior approval of the
Ministry of Finance and Revenue was first obtained.
T he sum of Rs. 12,77,5 1 2-8~0 was paid, after the
approval of the Ministry of F inance and Revenue had
been obtained, to the Zeyawaddy Sugar Fact ory on the
22nd February, 1949.
A dishonest intention is an essential pre-requisite
both in the offence of a criminal breach of trust as well
as in the offence of cheating ; and it is the dishonest
intention which converts the act of a person into a
crimi nal offence, so far as these two offences are con~
cerned. The primary motive in making the three
payments required by the Zeyawaddy Sugar Factory
tinder their bills, Exhibits 8, 10 and P2, must be shown
to be clearly dishonest in order to constitute the offence,
either of criminal breach of trust or of cheating. The
word "dishonestly
. ", which is present both )n .sections ~
~

-49.5 and 420 of the Penal Code, has l;>een defined in'
se~t~on 24 of the Penal Code. It has been argued by)
the. learned Assistant Attorney-Gener al that ~he ~
 1952] BURMA LAW REPORTS. 123

respondents, in making th e 1hree payrm:nts in the H.C.

1951
circumstan c<.:~ proved in this case, must be co nsidered to
TH E L"i-:10:-\
have acted dish on estly, in that, t hey bot h fully reaEsed O F ~c...; ..,\
t,
that in making the payments to th e Zey<nraddy Sugar U K H I:-1
Factor y, they \voulct be depriving the Goverr)ment of MACNC
AND
!..AT
0 :>; ~; .

the use of lar'ge sums of money for some time atJ east.
U T ux Hvu,
I n other words, it was argued that there was a dishonest <.:.).
intention on th e part of the two respondents at the time
the payments were made to cause a temporary loss of
money to the Government. It is said that it' was very
fortunate in the present case that the Government
suffered no actual loss of sugar during the period
when the Karen rebels were in occupation of areas
round about the sugar factory at Zeyawaddy and that
this circumstance was immaterial and irrelevant for
the purposes of this case, as there had been a
temporary misappropriation of money belonging to the
Government.
The evidence on . the record is much more
complete now than when this case first came
before this Court on an earlier occasion. We now
kpow what statements the two respondents and the
Resi.d ent Director of the Zeyawaddy Sugar Factory
made in this case. Sugar has been d eclared to
be an e.s sential commodity, and paragraph 3 of
the Civil Supplies . Management and Control
Order, 1947, gives the Commissioner of Civil
Supplies. power to purchase essential commodities
required for distribution to the civil population. The
Commissioner of Civil. Supplies has therefore power
in law to enter into contract for the purchase of
sugar from the Zeyawaddy Sugar Factory, if the
purci1ase was within the budget allotment made. ~o
tl'j.e . Civil Supplies Departme!lt, vide paragraph 6 .
of . the Civil Supplies . Management and Control
Ord~r, .1947. The l~arned Ass'istant Attorney-General
124 BURMA LAW REPORTS. [ 1952

H.C. submitted during the argument that the power to

1951
purchase sugar given to the Commissioner of Civil
THE UNioN
OF BURMA
Supplise under section 3 of the Civil Suoplies

Manae-e-
<->

u ~~nN men t and Control Order, 1947, has been curtailed by
MAUNG LAT the Sugar Control Order, 1948, which. was issued
AND ONE
subs-~quently: as the Sugar Control Board, which
U TUN BYU,
C.J. was constituted under the Sugar Control Order, 194~,
had power to control the action of, the Commissioner
of Civil . Supplies, so far as the purchase of sugar
was concerned. We are unable to agree with him.
Paragraph 5 (1) of the Sugar Control Order, 1Y48,
reads:
"It shall be the duty of the Board to .regulate ancl control
the prodjlCtion and distribution of sugar in such manner as it may
think fit including the establishment and acquisition of s ugar
factories.''

It will be observed that the Sugar Control Board

was not assigned the power to regulate or control
the purchase of sugar ; and this omission was
probably intentional as the power to purchasP. sugar
had already been allocated to the Commissioner of
Civil Supplies under the Civil Supplies Management
and Control Order, 1947. We are unable to accept
the contention that the word "distribution " in
paragraph 5 ( 1) of the Sugar Control Order, 1948,
i ncludes a power to control the purchase of suga.r
'?Y the Commissioner of Civil Supplies, as we would
be placing on the word "distribution " a meaning
which it does not possess. It must also be remembered
that the word ,, purchase" had been introduced in
an earlier Order o.f the Civil Supplies Management
an~ Control Or~e-r, 1947, and we would . expect
that . w~rd to hav~ b.een introd~ced in a .subsequent
Sugar ControL . Order, 1948, if it was intended
to giv~ . the Sugar c6ritrol . Board also a power to
1952 ) BURMA LAW REPORTS. 125

purchase sugar or to control the pun h~se of sugar H.C.

1951
by the Commissioner of Civil Su p pJie~;. The iact
THE UNJOI'
that a sug<ll fund has been creaLeG under the Oc BURMA
Sugar Cont:ol Order, 1948, does no t help tp make v.
(; KHIN
the meaning - of the word ' 1 distribution" w~der, :tliAUNG LA'(
AND ONE.
because the Sugar Cont rol Board has power to
U Tor-: FIYO ,
establish or acquire sugar factories also, ior wh ich C.J.
a fund would obviously be required. Moreover, there
was a separate budget allotment allocated to lhe Civil
Supplies Department under paragraph 6 of the Civil
Supplies Management and Control Order, 1947, ~o
enable the Commissioner of Civil Supplies to purchase
sugar required by the Civil Supplies Departme nt.
The Commissioner of Civil Supplies therefore ha~, in
law, power to enter into contract for the purchase
of sugar, and this power has not been restricted
by anything contained in the Sugar Control Order,
1948.
The fact that the sugar for the year 1947-48 which
was stored in th e godown at Zeyawaddy could be
moved away to other places outside Zeyawaddy
between the 26th December, 1948 and the 3rd January
1949, suggests clearly that there was no real difficulty
in removing the sugar from the godown at Zeyawaddy
to other places or towns, at least before the 3rd January,
1949. It will not be unreasonable to conclude, in the
circumstances, that no reasonable business m an woblld
have thought that the sugar stored in the godown at
Z eya waddy was likely to be lost through the insur-
gents' activities at or abo.ut th e 28th D ecember, 1948,
at the time the first payment was made, especially
when the Karen rebellion had not commenced
U Khin Maung Lat could not, in the circumstances,
b e said to have acted dishonestly or recklessly in
accorQ.ing the payment desired under the Exhibit 8
bill, for Rs. 10,22,010, on the . 28th D ecember, 1948..
126 BURMA LAW REPORTS. [ 1952

H.C. It v.:as contended that t he Government would have lo

1951
pay ab out 0-5-0 extra per viss, which would amount to
T~!E UNION b h
oF UuRMA a cons1dera le s;.1m when t e purchase was made

u KHrN ex-sugar house by U Khin Maung Lat, and not

MAoNG LAT ex-g<:tdown, as decided by the Sugar Control Board on

AN~:. th<.: 16th D ecember, 1948 ; but as it was intended that

u T~~J~Yu, t he Government should have complete control of the
sugar as. soon as it was produced and when the
purchase e.'t'-sugar house would give the Government
full control over the sugar as soon as it was produced,
we do not consider it to be correct to. say that U K hin
Maung L at must have intended to act dishonestly when
he decided definitely to purchase the sugar at the rate
of Rs. 1-6-0 per viss, ex-sugar house. U Kliin
Maung Lat stated that he also consulted U B a Nyein,
Secretary of the Sugar Control Board, over t his matter,
and that it was only after his consultation with
U Ba Nyein that he definitely informed Mr. Chhaganjee
that the purchase was being made e.x-sngar h01.1Se.
It is probable, . it seems .to us, that U Kll i n M aung
Lat did consult U Ba Nyein on receipt of a
copy of the minutes of th e Sugar Board marked
Exhibit 2B.
We find it difficult to appreciate bon U Khin
Maung . Lat could properly be said to have acted
dishonestly wlien he verbally agreed to purchase sugar
for 1948:49 at the rate of Rs. 1-6-0 per viss ex-sugar
house in the month of November. 194 8, after t he
Sugar Control Board had decided to purchase sugar
from . the Zeyawaddy Sugar Factory at t he rate of'
Rs. 1.6-0 per viss, and when. it is clear from U Ba
Nyein's statement that the Sugar Control B oard was
anxio1,1s to have a complete control of all suga('a.s -so01i.
as it .wa~ produced. and when that obje~.f .c ould
only be a.chi~ved by making the purcha~e. ex.:.~ugar
house..'
1952 J BURMA LAVv REPORTS. 127

The note, which U Tha D in ma(te in connection H.C.

1951
\vith the letter, Exhibit S, which was sent along \Yith
THE l":.JON
the bill, Exhibit 8, reads : OF BUR~l.~
v
" CCS has anreed to this provi5ional r ayment and CAO may U KHIN
" MA Ul\G LAl'
now be instructed to do the needful. A copy of thi~ clocti~nent AND oNE.
will be kept in this office. U T ON Bvu,
C.].
(Sci.) THA Drr-<."
28111 December 1948.

According to Exhibit S letter, there were over 3,000

bags of sugar in the godown at Zeya\\'acldy in excess
of the 12,000 bags of sugar for which the Factory was
asking for payment ; and it was s uggested in Exhibit S
that the payment should be treated as pro\.ision::q
payme nt. W e accept the statement of U Tbi Han,
Assistant Controller, Civil Supplies Department, that
the payment made to the Zeyawaddy Sugar Factory
was, to use his own words, ((against delivery and not
in the nature of advance." The evidence shows that
there was sufficient sugar to . cover the amounts
.actually paid to the Zeyawaddy Sugar Factory on all
the three occasions which formed the subject of the
three charges that were framed against U Khin Maung
Lat. The date mentioned i~ E xhibit 3 CT, which was
a weekly statement sh owing the stock of sugar for
1948-49 that had already b ~e n milled and placed in
the godown at Zeya:waddy, clearly suggests that one or
more o.fficers in the Clearance andMovement Section
of the Civil Supplies f)epartment must have been on
duty at Zeyawaddy on or about the 26th December",.
1948. The Exhibit 3CI also shows that there were at
least 15,000 bags of s~gar on the 26th Decem~er, . ~ 948,
a statement which agrees with . what. Mr. Chhaganj~e
stated in his letter~ _E xhibit S. It has been ~rgued,
however, by th~ learned Assistant Attorney-General
128 BURMA LAW REPORTS. [ 1952

1~5?: that U Khin Maung Lat acted wrongly and dishonestly

in sanctioning payment of Rs. 10,72,010 without
THE UNION
oF BuRMA attempting to ascertain beforehand as to whether the
v.
U KHIN 12,000 b_~gs of sugar m entioned in the letter, ExhibitS,
MAUNG LAT
wer~. in reality in the godown or n::>t. We are
AI'D ONE,
unable to see any real force in this argument. We
U TUN BYU,
c.J. cannot concede that U Khin Maung Lat was not acting
like an ordinary business man when he accepted the
statement of M~. Chhaganjee in view of the fact that
Mr. Chhaganjee was a responsible business man doing
a very big business ::~,t Zeyawaddy, and when he had
made the statement in writing.
The Karen rebellion, as is well-known, broke out.
only towards the end of January, 1949 ; and no
evidence bas been adduced in this case to show that
there was no possibility of removing the sugar out of
Zeyawaddy before the Karen rebellion commenced ..
It could not, in the circumstances, be said that in
making the provisional payment of Rs. 10,22,010 on.
the 28th December, 194~, U Khin Maung Lat was
acting with the full knowledge that he w;:ts doing some-
thing which an ordinary business rna~ must \ have
realised would cause financial loss to the GovernmenL
We have also not been shown any evidence which.
will indicate that the rebels were about to occupy
Zeyawaddy at ab.o ut the time that the . first payq1ent.
was made to the Zeya waddy Sugar Factory.
The payme.nt of Rs. 11 ,07,176-8-0 to the Zeyawaddy
Sugar Factory on the 15th January, 1949, was admit-
tedly made after the Exhibit L memorandum from
the Ministry of Finance and R evenue was received in
the Civil S.upplies Depa~tment. we do not, however,.
.~ee 'how we could j~stly. con~~ude fro!Xl the . mere
fact that, because i.he payment of R~. 11~ 07,176-8-{}
w~s made \Vithout obtaining_ the pr:i.or san.ction of
the Ministry . of Finance and Revem~e, it must be:
1952] BURMA LAW. RE PORTS. 129
H.C.
considered to have been made dishonestly. The 1951
attitude of U Khin ~faung Lat was that the Exhibit L THE U~ION
memorandum referred to new purchases only, and not oF BuR~tA
1l.
to the purchase of sugar for the year 19:J.8-49, which U KHIN
MAUNG LAT
had been made by him prior to the receipt of AND ONE.
Exhibit L me'm orandum. Exhibit Lis in the following U TuN BYU,
terms:- C.].

''MEMORANDUM

SURJECT.-Purchases by Civil Supp!ses Department.

The Additional Secretary, Ministry of Commerce and Supply,
is informed that no fresh purchases on a large scale exceeding
Rs. 50,000 in each case, should be undertaken by the Civil
Supplies Department during January and February 1949 in the
first instance without the prior approval of this Ministry. The
question of extending the ban beyond .February 1949 or not will
depend on circumstances then prevailing and a further com-
munication to. you on the subject will be issued in due course.

(Sd.) AUNG MYIN'r,

Secretary."

We have italicised the words "no fresh pu,rchases."

T he Exhibit L shows that it' is possible to read it in
the manner which U Khin Maung Lat contended,
because he had already agreed with .Mr. Chhaganje~
earlier iri December, 1948, to purchase the whole of
the output of sugar from . the Zeyawaddy Sugar
F actory, for 19f8~49, at the rate of Rs. 1-6-0 per viss,
e~:-mgar house. The letter of Mr. Chhaganjee;
Exhibit 13, dated t.he 23rd December, 1948, where the
offer of U Khin Maung Lat to buy the sugar at the rate
of Rs. 1-6-0 per viss, e.t'-sugar house, was mentioned,
support~ U Khin M~ung Lat that he had decided to
purchase the sugar for the year 1948-49 in December,
1948. W e have obse.r ved .~~rli er t hat U Khin Maung
Lat had, in law, power to purchase sugar, so long as it
was within the budget alfotment ;and it has not been
9
130 BURMA LAW REPORTS. [1952

~~ proved th ~ t the purchase of the sugar, which he made,

was in excess of the budget allotment allowed for that
THE UNION
oF uun"1"' purpose. U Khin Maung Lat could not therefore be
u ~.uN said to have acted recklessly or disi1onestly in adopt ing
MAoNa LAT the view that the payment of Rs. 11 07 176-8-0 1 which
AND ONF.. ' I
~ he liDade on the second occasion, was i1ot in respect
c.J. BYU, o f a new pureh ase b u t that 1"t was pa1"d m
U TUN . respect o f a
rc ontract which had already been concluded.
U K_hin, who was the Secretary in the Ministry of
Finance and Revenue at the relevant" period of this
case, also stated that the ban which was imposed by
Exhibit L referred to fresh purchases only. T. R.
Fernandez, an officer in the Clearance and Movement
Section of the Civil Supplies Department, said that when
11e arrived at Zeyawaddy on the 19th January, 1949,
ther:e \:vere about 30,000 bags of sugar in tlte godown.
Mr. Fernandez in effect confirms the statement, which
Mr. Chhaganjee made in his letter, Exhibit T, that
there were about 25,433 bags of sugar stored in the
godown on the 14th January, 1949. .Moreover, the
.second payment was al.so made before the Karen
rebellion broke out.
The third bill for a sum of Rs~ 12,77,512-S.-0 which
fo_rms the subject qf the third charge against U Khin
Maung Lat, was presented for payment on the
31st January, 1~49, and this was also after the ban h
been imposed by the Ministry of Finance and Revenu
.It _was urged that as U Khin Maung Lat had no meai1
Gf verifying the stoc~ of sugar at Zeyawaddy, he
acting dishonestly, or at least recklessly, when
shid: 1 .

" The bill may be paid if CAO i~ :satisfied and jf

.-
.aqcr Hevenue Ministry agrees,"

especially as the Ka-ren rebellion . had

cotll!Ueli_ced. . It was contended that it . was
1952] BURMA LAW REPORTS. 131

unbusinesslike for U Khin Maung L:tt to han: asked H.C.

1951
the Ministry oi Finance and Reven ue t ' approve pay-
THE Ut;ilN
ment of the third bill after the Karen rl' bdlion had 01' B~R~! ;\
v.
broken out, and that U Khin i\Ia ung La t mu st ba\'e u KHIN
r ealised by the 14th February, 1<,1 49, that tl)c Civil 111AUKG L .\T
A NDO:); .
Supplies Department would not be able to mew ~ the
U TUN BYU,
sugar out of Zeyawaddy for some colisid erable time, C.}.
owing to the activities of the Karen i nsurgents in
the areas round about there. The approval of the
Ministry of Finance and Revenue for the payment of
Rs. 12,77,512-8-0 was obtained on the 22nd February,
19-4 9 ; but in view of the fact t hat U Khin Maung Lat
h ad power to enter into agreem ent for th e purchase of
sugar for the year 1948-49 and that he had, in
pursuance of that power, agreed to pu rchase all the
sugar produ ced at the Zeyawaddy Sugar Factory in
1948-49, we do not think that it could properly be
said t hat U Khin Maung Lat was acting dishonestly in
asking for the approval 0f the Ministry of Finance and
Revenue for the payment of the third bill for
R s. 1 i,77,512-8-0.
It is true that Mr. Ch haganjee mentioned in one of
h is letters that the insurgents were already active
round about the Factory as early. as October, 1948, but
we do oot consider that it Yvill be reason able to
conclude from this circumstance alone that U Khin
Maung Lat must have kno\:vn that the sugar, which
was stored in the godown at Zeyawaddy, v;ould b e
seized by the rebels. Some of the sugar bags were
taken av.;ay by the insurgents after Zeyawaddy came
under the control of t he Kare n rebels, but we an~
unable to see anything in tbis case which will S~'~gest
th at the insurgents inter1ded to seize the sugiir factory
at Zeyawadp.y or to take possession of the entire stock
of. su g;~.r .there. The Zeyawaddy Spgar Factory is
moreover o\yn~d ;by ~~.mbers of the In dian nation.ality:.
132 BURMA LAW REPORTS. [ 1952

H.C. Neither have we been shown anything on the record

1951
which will indicate that the Karens or any other rebels
';~I>B~~~~: had at any time contemplated seizing sugar wholesale
u ~HIN at Zeya waddy. U Khin Maung Lat could not, in
MAuNG LAT the circt.1mstances, be said to have acted dishonestly in
AMo QN E. askireg for the approval of the Ministry ofFinance and
u TugJ~vu, Revenue for th e payment of the third bill. Thus.
U Khin Maung Lat must be considered to have been,
riglm y giyen the benefit of doubt and acquitted.
It is alleged tfiat the note which the 2nd respon-
dent U Tha Din made in connection with the third
bill was misleading and untrue and that he should be
eonsidered to have abetted U Khin Maung Lat in
dishonestly inducing the Government to sanction
payment required under the third bill. U Tha Din's.
note reads:
II S.C.C,S,
The Civil Supplies Department is committed to pay a sum of
Rs. 10 lalchs for the ~of;t of ~ng;1.r pnrr.hilf;Prl from the Zt:yawaddy
Sugar Factory Ltd. Will the Ministry of Finance and Revenue
kindly concur ? .
According to the terms of agreement payments are to be
made regularly on the 1st and the 16th of each month, and this.
department has not yet made the payment which fell due on the:
lst February 1949. .
This may please be treated .a s ' Immediate.'
(Sd.) THA DrN,
for Aqdl. Secy. (Supplies)
Miuislry of C. & S.''
SECRETARY,
MINISTRY OF FINANCE AND REVENUE.

U Ba Latt, who was the Assistant Secretary in the

Ministry of Finance and Revenu~ at that time, con_:
suited U Ba Nyein, Secretary .'to: the Sugar Control
Board, before he made h1s Iiote recommending pay-
rnent. Thus it c.o uld .not be strictly said that ..it was
 1952] BURMA LAW REPORTS. 133

really the note of U Tha Din which induced U Ba Latt H.C.

1951
to recommend payment on the third bill presented by
THE U:-iJOX
the Zeyawaddy Sugar Factory. U Kyin, who was then OF BURMA
Secretary in the Ministry of Finance and I}evenue v.
U KHJN
stated: MAUNG LAT
. AND ONE.

'' vVhen I passed the order 'Concur,' I meant to say that U TuN Bvu,
I had the money to pay. I was not concerned with the noting C.J.
put up to me. If I had merely put my initials to the noting,
that would have amounted to my agreeing to what had been
written above. But, here in this case, I took care to p1ss orders,
and this shows, that I was not influenced by the noting put up to
me by 'my office."

Moreover, it is possible for a layman to assume, in the

circumstances of this case, that the Commissioner,
Civil Supplies Department, had entered into an
effective contract to buy sugar at the rate of Rs. 1-6-0
per viss ex-sugar house 1 and it could not therefore be
said that it has been proved beyond all reasonable
doubt that U Tha Din must have acted dishonestly.
In any case 1 as \.Ve have held that it has not been
proved beyond all reasonable doubt that U. Khin
Maung Lat acted dishonestly, or recklessly so. as to
imply dishonesty on his parl, we must also hold that
U Tha Din, who was alleged to have 'aided or abetted
U Khin Maung Lat in respect of the thircJ payment
made to the ZeyawadJy Sugar Factory, was 3l:--o
rightly acquitted.
The appeal is, therefore, dismisse~.
134 BURMA LAW REPORTS. [1952

APPELLATE CIVIL.
Befort! ll Tuu 8y11, Chief Justice, a11tl U Si Bu, I.

H.C. MlJNICIPAL CORPORATION OF ..RANGOON

1951
(APPELLANTS)
Nov. 28.
v.
THE SOORATEE BARA BAZAAR Co. LTD.
(RESPONDENTs) .*
.
Arbitration Act, 1944, s. 39 {2) - Af>teat agailt~i au orrler-F(li11g an mcm'd.
Held: That where the Judge refused to remit the :tward to the arbitrators.
:tnd ordered it to be filed, no appeal lies against such an order.

Myo Kin for the appellants.

C. A. Soonna for the respondents.
U S.r Bu, J.-This is an appeal from the order of
U Aung Tha Gyaw J., directing th~t an award made by
-a Board of Arbi.trators consisting of U Bo Gyi J. 1
Mr. Horrocks, Bar.-at-Law and U Lun Bavv be filed.
It would appear that the Municipal Corporation of
Rangoon had leased the Sooratee Bara Bazaar from the
Sooratee Bara Bazaar Company, Limited. A dispute
arose -subsequently between them as to the fair monthly
rent payable, and the rl:ispute was referred to the
Arbitration Board mentioned above. The Board was
unanimous in fixing Rs. 35,000 as the fair monthly rent,
and in doing so observed that they had not taken into
account the taxes payable in respect of the bazaar in
question because of.the extreme difficulty experienced
. by it. The Corporation occupies the dual rol~ of a
publ.i c aut'hority and tenant.. The Board left t~1e matter
oft..a..xes:.to
.
the parties .and expressed . the. .
hope'. 'that. they
..
.,Civil ~1isc. Appeal No. 35 of 1950 against the ~rder of the .High. Court;
in -Ci~il Misc. Case No.-219 of 1950, dated 25th Angust 1950.
 1952 J BURMA LAW REPORTS. 135

would resolve that matter with th e same cordial ity and H.C.
1951
good sense as they had sh own th roughout the
MtJ K ICIPAL
proceedings before it. An application \\as mad e, at CO !tP ORA-
TlO~ 01
th e it;1stance of the Bazaar Compan y, to file the award ; RANGOll~

and the Mu'nicipal Corporation entered an objection v.

to the award and wanted it to be remitted to the

THE Sooi~A
T EE BARA
BAZAAR Co.
Arbitrators on the ground that the Bazaar had been LTD.

assessed already and that the acceptance of the a\Yard U Sz Bu, J,

would entail a reassessment which the Corporation was
unwilling to do.
The learned Judge who heard th e matter has given
his reasons for not remitting the reward and directing
that it be filed. We agree with his reasons.
A competent Board of Arbitrators has, after ft
careful consideration, come to a defi nite finding ; and
we do not think that the mere fact that the Corporation
a
may have to make reassessment is sufficient for either
remitting the award or refusing to file it. The
Corp9ration apparently has facility for ascertaining what
the taxes would be . . This appeal is not in any case
co~peten t, vide section 39 (2} of the Arbitration Act,
1944, as it does not come under any of the clauses
enumerated in sub-section (1) of the said section. The
appeal is dismissed. Vve make no q,rder as to costs.
136 BURMA LAW REPORTS. [1952

APPELLATE CIVIL .
"'f<rc U 1uu Byu, Clue! Justice, and f.1 Si Bu, J .

H.C. . GA 'vV SHAN SOOT (APPELLANT)

1951
Nov. 28.
v.
E. C. MADHA BROTHERS (RESPONDENTS). *
Trade-mark - Suit relating to-Valuatio" of the suit for Cot.e.rt Fees a11d
Jurisdiction-S. 11 of Suits Valuation Act-Ame11dment of Plaint-
Co/ourable imitation-,W!tat it is- Functiot' of the Judge-Admission of
a couuscl.
Hetd: It is always difficult to fix accurately at the outset what the actual
d;nnagc; woulrl be. It is even diffi.;ult to obtain a rotlf:h or reliable estimate of
damage~ and nw:ng to these diff;culties, under s. 7'4i vf the Court Ft:es Act,
legislatur~ ),!an; the plaintiff ri.i:(ht of placing what value he considers suitable
for the relief claimed. If tl1e claim for cl~ma~e3 could not reasonabl y be
consitkrcd illegal, palpably ab5urd. manifesty illogical or radically wrong,
a Court will n vt interfere with the plaintiff's valuation.
The Naray.tuf!,anj Central Co-ope alive s,ze omt Supply Socicly Ltd. \',
Mafijudtliu Ah11rtrl, (193~1 61 C1l. 796 at 808: /11.7 !(yiiL Myning and - otl~ $1'5 1.
Hoe Lau aud others, (19 i9) 13. L.R. 358: Boidya Nat II Ad:y.r a-11d others v.
Makhan Lal ,1clya, (lll93) 17 Cal. (ISO; Rajendra '/Jakhsh Singh v. Bahu Rani
and anotlur. (1928) A.l.R. Oudh 260: U Ba Pe and another v. U Ea Shwe
atld others, (1')33) A.I.R. Han. 40, foilowed .
. Even if the clai:n for damages ha~ be<!n o ve r-valued by the plaintiff s. 11 of
the ::i!lits Valuation Act will <~rply in the circumstances,. and unless it .could be
shown that thtl valuat ion has prejudiciall.y aflected t he disposal of the SPit on
its merits, the Appellate Courl will not in terfere.
It is a general principle that defect o! jurisdiction on territorial and
pecuniar y gr(Junds arc not to render proceedings in a case abortive; if such
objedion h.1s not been taken at the earliest possib:e opportunity :111d there is
no consequent failure of justice.
Bud/ta .Mal v. Raltht Ram and others, 11928) 9 Lah. 418 at 423 ; Moolcltaud
Molila1 v.' Ram Kis!teu and others, (1933) 55 All. 315 at 323.: Sri Rajah. Ravu
Venkata MahiPutlti Gangadltara .Rama Rao Baltadur Garu, YtHarajall of
Pifhapuram and rrnotltcr '1(. Province of !Jfadras, A.I.R. (1947) Mad. 135 at
136, followed.
Where the amendment r>f a p1ain~ has not intmduced any new cause of
action or did not bring in any inconsistent cause of action, the amendment is
in order. Further where the amendment is necessitated as a sort of re-joinder
. io the allegations in the written .statement, the Judge in allowing the
amendment did not act illegally:

:' Civil 1st Appeal No.19 of lQ$0 against the .decree of the High Court in
Civil Regular No. 14 of 1948, dated Z~t.l} January 1950.
 1952] BURMA LAW REPORTS. 137

N.PL.ST. M11/ltarya Chetlyrr r v. RM.A.RM. Cltett)ar Firm and aaolher, H.C.

(19~8) B. L .l~ .
!!55, clisti n.~uished. 1951
It is not n<:CC$S:try in order to constitute a colourable imita tion that two
GAW SHAN
marks should be similar in every particular, but it will be sufficient in law to SOOT
constitute a colunr;~ble iinitatifln if there exists such si mila rity between the t-,,o z.
marks which could,, in the cin:umstances.of a particular case be c6'nsidered to E. C. l\L~OH.-1.
BRos.
be Cilltulated to deceive the cla~s of pers,llls for whom the goods are orc!i.narily
or primarily intended.
Perry v. Tmfitt, (18421 6 Beav. 66 al 73: SeiAo , .. Proveuzc1rde, (1886)
1 Ch. Appeall92 at 196, followed.
The Judge looking at the exhibi ts before him and also paying due attention
lo the evidence adduct::d must not surrender his own inde pendent judgment to
that of any witness. The principle is perfectly clear-no man is entitled to
sell his goods as the gJods of another person. The difficulty lies in the
application when it is a case of colourable imitation. II is d<.>sirable to bear in
mind that no general rule can be 1.1id down to what is a colourable imitation
or not. Each case must be dealt with as it arises, regard being had to the
~ircumstances of t he particular case. The questi:>n is not whether a person
Jooking at the two ~rade-marks side by side, would be confused. The question
'is whelher the person who sees the proposed trade mark in the absence of the
other trade-mark, and in view only of his ~entral r::colkction of what the
nature of the other trad.:-mark w:~s, would be :iable to he deceived and to think
that the trade1nark b.:lore him is the sa me as the othE:r of which he has a
general r -ecollection.
Payton & Co. v. Sudlli11g LamjJard & Co. , {1901) A.C. 308 atJJ 1 ; Byramjee
Co'lt'asJee v. Vera Somabhai Motibllai a11d another, (1951-16) 8 L.B.R. 561 ;
Sa11dow Limited's application, (1914) 30 L.T. 394. followed.
If an Advocate simply stated that he had over-valued the suit in order to
bring it withi n the jurisdiction of the High Cou rt and the statement was not
.in con:~ec tion with any matter actually in dispute betwe~n the parties at the
. lime of the trial and the question oi jurisdiction was not raise<i and no issu<'
was framed, the alleged :~dmi~sion should be recei\'ed"with caution and should
:be considered in the light of the ci ~cumstances or the case.
S.P.M. Muthiah Clttltiar anrt ollters v. Mutlm K.R.A.R. Kamppan .Chetli
.anrl others, {1927) 50 Mad. 786 at 797, referred to.

S. R. Chowdh?Lry, for the appellant.

C. A. Soonna for tbe respondents.
The judgment of the Court was delivered by
u TUN BYU, C.J.-Th e firm of E. c. Madha Brothers
instituted a suit, known as Civil . _R egular No. 14 of
1948, on the Origina-l Side of the High Court ag~inst
the New Asia So~p Fac tory, own ed by one Gaw Shan
So6t, for manufact.titing anci selling soap bearing a
138 l3 URMA LA'vV R E PO RT S. [L95Z
H.C. trade-ma rk1 whic h was said to h ave constitute d a
1951
colourabl e irr..ita ti on of the duck-brand soap of
01\W S!fAN
So oT E. C. Mad!m Broth ers, w hich was said to have b ee n
E.c. MADHA largel y .11sed by t he dhobies ; an d t l; ey obtained an
BRos. injuFlction restraining -th e d efend ant a n'd his agents
u T uN Bvu, ar{d servants from manufacturing soap with a trade-
C.J. rnark 1 which might constitute a colou rable imitation
of the duck-brand mark of E. C. Madha Brothers.
The defendant-appellant was also directed to surrender
~11 the soaps and wrappers bearing the mark com-
plained of ; with all the things used for impressing the
mark complained of, and to pay a sum of _Rs. 5 in the
form of nominal damages.
An objection was taken on behalf of the
defendant-appellant that the Original Side of the
High Court had no jur isdiction to entertain Civil
Regular No. 14 of 194_8 on the ground that the
New Asia Soap Factory was situated in Insein
District, and not in Rangoon an~a. It was also
urged that E. C . Madha Brothers had manifestly
and arbitrarily over-valued the amount of damages
which they claimed against the -defendant-
appellant, so as to enable them to have their
suit heard in H1e High Court. Admittedly, Gaw
Shan Soot lived at the relevant peri.od at No. 29.
Letkokpin, 'Kamayut. Letkol<pin quarter is on
the left side of the Rangoon-Insein Road as one
proceeds from Rangoon to . Insein, and it is on :
the south of . the bridge which divides Rangoon 1
. .'
area from Insein District. Exhibit F also gives ~
the address of the New Asia Soap Factory as j
No. 29, Letkokpin, Kamayut, Rangoon. It is also .
mentioned in Exhibit H agreement, executed betwee~:
the firm of E. C. Madha Brothers-and Gaw Shan ~oot;
prqprietor of the New Asia Soap Factory, that thi
factory was in Letkokpin, Kamayut, Rangoon, Il!eanin_:-
1952 ] BURMA LAW REPORTS. 139

that iht factory is situated on tlwt portion of Kamayut, H.C.

1951
vhic:h is in Rangoo.n area. Ti1ere is thu~ no substance
GAW SHA:-.1
in th e contention that Gaw Shan Suot \ras not residing SooT
v.
within the te,rritorial limit of th e Original Side of the E. C . IVIADHA
High Court. BRos.

There is a lso no reliable evidence to establish that U T uN Svu.

C.J.
E. C. Madha Brothers had valt1ed thei r claim for
dama~es at Rs. 10,000 arbitrarily and for the purpose
of bringing th eir suit within the jurisdiction of the
Original Side of the H igh Court. It has been urged
that, after the last Great War, Gaw Shan Soot recom-
menced his business only with a small capital of
Rs. 2,000 in October 1947, employing one or
two workmen , and that he could not have, in the
circumstances, made a large profit of anything
like Rs. 10,000 in the four months preceding the
in sti tu ti on of Civil Regular No. 14 of 1948
Gaw Shan Soot, however, maintained no b ooks
of account, and there was therefore no reliable
evidence to support h is above statement, or to
indicate what exactly his profits from month to
month wer e. It r.as been s-aid that a wit ness for the
defendant-appellant had also stated that Gaw Shan
Soot recommenced his business wifh a sma11 capital
of ~s. 2,000 only. We do not think it will be safe to
act on such verbal statement. Moreover, E. C. Madha
Brothers were claiming damages up to the date of the
judgmen t, and it is uot disputed that the New Asia
Soap Factory was manufacturing and~selling .soap with
the mark complained of until the judgment was passed~
t hat is, until t he 27th January, 1950. E. C. Madha
Brother.s were thus entitled, if th ey were successful in
their litigation, to claim damages up to the date of .
the decree passed in Civil Regular No. 14 of 1948).
which would he for a period ot 22 months . or so:
Kanjee . Nanjee, .
. factory manager of E. C. Madha
140 BURMA LAW REPORTS. [1952

H.C. Brothers, of course, stated that the defendant-appellant

1951
was manuacturing soap on a small scale in 194?,
GAW SHAN
SooT but that answer was indefinite. Those words might
v.
E. C. MAOHA have b~ en used relatively, in contrast with the
BRos. quantity of soap manufactured by E : C . Madha
U TUN BYU, Brothers. The fact that Kanjee Nanjee ' mentioned
C.J.
that E. C. Madba Brothers were not able to obtain
sufficient quantity of caustic soda in 1947 to
enable them to meet all the demands for their
sale does not also necessarily mean that E . C. Madha
Brothers were not selling much soap in 194~ and
1949. E. C. Madha Brothers were, in any case,
entitled to claim damages for the years 1 Y48 and
1949 also. Gaw Shan Soot stated that his average
production of soap was about 400 cases per month and
that he sold it at Rs. 16-8-0 per c::~.se, which meant that
he was selling soap to the extent of about I~s. o,600
in value per mon~il. Kanjee Nanjee, factory manager,
said that there was a decline in the sale of E. C. Mad ha
Brothers' soap, and E. M. Kola, salesman, also made
a similar statement. It could not, in the circum-
stances, be said that, in claiming Rs. 10,000 as damages,
E. C. Madba Brothers were valuing . their relief
arbitrarily Or that,the damage SO claimed was ma11ifestly
excessive or absurd.
It is difficult in. tl~e present case to fix accurately at
the outset what .the actual damage would be. In other
words, the amo~nt of damages to be dairned ih such.
a case cannot at first.be accurately estimated. It se.ems
to us that it would be difficult at the outset to obtain
a rough reliable estimat~ of the damages actually
suffered. It is p.robably b~cause of this difficulty that
the Legislature has thought .it fit under clause {iv). of
section t of .ti;J.e. Court Fees Act to leave it to the
plain.tiff the right of placing what val~~- he considers to
be suitable for the relief he. claims.
 1952] BURMA LAW REPORTS. 141

The observation of Mukerji J., in The N arayanganj H.C.

1951
Cen.tral Co-vperative Sale and Supply Society, Lintifcd CAW SHAl<
v. Majijuddin Ahmad (1) was: SOOT
t.
E. c MADffA,
'' l respectfully agree that, in cases of suits fallin~ \dtbin 8ROS.
sub-section (iv), of section 7, there must he, having .l'egard to
u TuN BYu,
their very natur~, a cettain amount of c-ption in the p!z;ntiff, C.].
because the value of the relid he claims therein would depend
not on its intrinsic value but on its value so far as he is ccncerned.
l also agree that, in many such suits, no real objective standard
would be possible or, even if possible, would be altogether
satisfactory . But such provisions as to valuation, as there
already are in the Act, do not als? disclose any very definite
principle on which tbey may seem to have proceeded, except
presumably the principle that the standards fixed :tre not
unreasonably high. And though it is true that, in suits of various
descriptions, no absolute sta!ldard at all would be possible, yet it
cannot be disputed that .reasonable stanclarcls may wi:h safety be
laid down ghing the plaintiff all legitimate option th1t he m1y be
reasonably entitled to and proceeding on the lines indicated by
the legislature in such standards as they themselves have laid
down. But I am clearly of opinion that, until such standards are
laid down by appropriate rules framed under section 9 of t)le
Suits Valuation Act (VII of 1887), it would not be possible for
the court to exercis~ thi~ power except in those classes of cases
falling under the clause in which the valuation made by
the plaintiff i.s illegal, palpably absurd, manifestly il!o~<ical or
arithmetically wrong."

We are unable to discover anything "in the case now

under appeq.l, which will suggest that the valuation
which the plaintiff-respondents have placed upon their
claim for damages could be reasonably considered to
be ''illegal, palpably absurd, manifestly illogical or
arithmetically wrong."
In the Full Bench case of M a Kyin Myaing
and others v. H oe Lan and others (2) the plaintiffs
valued their relief. at' Rs. 500 .only, although they, in
fact, sought for a de~larati~n th at they were the
(11 (1934) 61 Cal. 796 at 808. (2) (19491 . B.L.R. 358.
142 BURMA LAW REPORTS. i_ 1952
H.C. joint-owners of a lottery tick<:t, \\'hich had dra\~'n a pr ize
1951
of Rs. 20,000, and for possession of the lottery ticket.
GAW SHAN
sooT That was, therefore, a case \\here the value of t he
E. c. ~fAoHA relief claimed cou1d clearly be said t.o have been made
BROJ>. arbitrarily or that it was manifestly absurd. The
u Tu:-: BYu, cases o(Boidya Nath Adya and others v. .Mak!zan La!
c.J. Adya tl), Rajend ra Baklrsh Singh v. Balzu R,ani aud
q,notlzer (2), and U Ba Pe and another v. U Ba Slme
and others (3) were also cases, \<\'here the valuation of the
relief sought could be said to have been manifestly low
or absurd.
The court-fee has, under section 7 (4) of the Court
Fees Act, to be determ.i ned in accordance with the
value of 't he relief mentioned in the plaint, and the
damages in the present ca.se could be considered to be
recurring from day to day after the suit was institllted.
It was therefore not surprising that no questi0n about
. the jurisdiction of the Original Side of the High Court
to .entertain the suit was raised in the written statement
filed by the 'defendent-appellant: No issue was also
asked to be framed in this respect ; nor was any
argument advanced before the learned trial judge on
this point.
It ::~.ppears to us that, even assumin g that
E. C. Madha Brothers had over-valued their claim
for damages, the provisions of section 11 of the
S.uits Valuation Act will apply in the c~rcumstai1ces
obtaining- in this appeal, unless it can be sb6wn
that the valuation has prejudicially affected the
disposal,. of the suit on its merits. It is not possible
in the .pres~nt case to estimate with any real accuracy
the exact quantum of damages, which can be obhitied.
The learned Advocate for tfie defendant-appellant
'h as submittect that section 1:1 of the. Su~ts valuation
\1) ' {18931, 17 Cal., 680. 12). (l928) . A.t.R. Oudh, 26Q.
(3) (1933) A.t:R. Han. 40.
 1952 J BURMA LAW REPORTS. 143

Act is 11 0 l applicable to a case where the plaintiff H.C.

1951
has deliberately over-valued his relief, \\ith the obj t.:ct
of bringing his suit within the jurisdiction of a !::OUT
,.
Court \\"hicll . would not ordinarily have jurisdiction E.C. MAD!IA
HRU!;
to entertain it. There is however no reliable evidence
to suggest that the plaintiffs-res~oHknts' ~lai~n of U TeN BYli,
C.J
Rs. 10,000 as damages, was in fact made arbitrarily
or that it was manifestly too high or clearly absurd.
It is said that the learned Advocate who appeared for
the plaintiffs-respondents had clearly admitt.ed before
the learned trial Judge that he had over-valued the
1elief claimed in order to bring the suit witbin the
jurisdiction of the High Court.. The alleged admission
was not made in _connection with any matter actually
l.n dispute between the parties at the time of the trial.
It is . clear also from the pleadings that no question
-concerning the jurisdiction of the Court was raised,
and no issue was framed iri this respect ; nor was
any argument advanced before the learned trial Judge
on this aspect. The alleged admission of the learned
Advocate for the plaintiffs-respondents must tl~erefore
be received with great caution ; and the portion of
the judgment touching the alleged admission should
also be considered a.s a whole and in the . liglit of the
.circumstances. of this case. Looking at it in that light,
:the alleged admision of the learned Advocate for the
plaintiffs-respondents could not properly be con-
sidered to b~ conclusive, as indicating that the
plaintiffs-respondents had deliberately ov.e r-valued
tl~eir. claim for damages with the object of having
their suit heard on the Original Side of the High
Court We ought also to examine other circumstances
. of the case als.o.
. The case of S.P.M. Mutlziah Chettiai: and others -v.
lYiuf!~!t K.R.:4.R. Karupj)atL Chetti: anci others (1) wa;s
(I) 11927), SO Mad. 7l!6 at. ~97.
144 BURMA LAW REPORTS. [1952

H.C. cited during the argument, and it was argued on

1951
behalf of the defendant-appellants that the alleged
GAW SHAN
sooT admission of the learned Advocate for the plaintiffs-
E. c.~1AoHA respondents came within the fourth clause set out at
BRos. page 798, which reads :
U TUN BYU,
C.].
" (4) \Vhere in the course of a suit a counsel makes an
admission as to a collateral matter, or gives up a doubtful claim
which is not a subject-mattt:r of the suit, there is a presumption
th:~t the counsel acts under instructions if the admission or
the giving up of the doubtful claim is for the ben cfit of the
client."

We are unable to appreciate how the alleged

admission in this case could be considered to be a
matter collateral to the issuec:; on which the parties.
proceeded to trial on the Original Side of the
High Court. The question of jurisdiction had
not, at anytime, been raised before the learned
trial Judge, and such admission was therefore
unnecessary. We have also not been 4ble to discover
anything in the evidence, which will indicate that
th~ value placed by the plaintiffs-respond.e nts in their
plaint was manifestly wrong, absurd or too high ..
Moreover, it is the plaintiffs' valuation, which
ordinarily governs th~ jurisdiction or
the Court in a
case like the present, unless, of course, the valuation
could be shown to h~we. been made arbitrarily or
w~s manifestly abst.ud, wrong or too high. . It was
not possible fqr E. C. Madha Brothers to estimate
with any real accuracy what the damages would.
actually amount to, particularly when the defendant-
appellant contin.u ed to ma.nitfact.ure . and .sell soap-
with" the tfade-inark complained of up to the date
of judgment, . which. was deliver~d nearly two 'years
after the suit was instituted~
 1952 ] BURMA LAW REPORTS. HS
In nudlta Mal v. Rallia Ram a11d othe7'S (1) it \.\'aS H. C.
19."1
stated :
~ "'"' G .1\\"
::>uoT
' The o bject of the legislature in both cases is the s 1 me, v.
namely, that the defect of jurisdiction on territcria l OPpt!cuniaryE. C. )!J.L ~L\
flll<S.
!!rOunds should not render proceedings in a case abortive if. such
o bjection was not taken at the earliest o ppol"tunitr and there has TJ Tl.'N Bvt: ,
c.r.
been no consequent failure of justice."

It was also observed in Moolchand Motilal v. Ram

Kishen and others (2) :

" Having regard to the o bject for which section 11 was

enac ted, the conc lusion is clear t hat the mere f~.c t that there has
been under-valuatio n and t he case has been heard by :1 Court
which sh ould not ordinarily have heard it , should not be a llowed
to affect the decree if the re had been no prejudice in lhe proper
trial of a case on the merits."

There is a similar observation in Sri Rajah Ravu

Venkatn Mahipalht Gangadhara Ranza Rao Bahadur
Gmu, Yuvarajah of Pithapuram and another v.
Province of Madras, represented by the Collector of
East Godavari, Coconada {3):

" There can be no doubt that the sub-clause referred to does

lay down the condition that the appellate Co,~.nt must be s~tisfied,
foi reasons to be recorded by it in writing, that the under-
valuation has prejudicially affected the disposal of the suit on
the merits. In the abs~nce o! such a finding, it is not open to
. the appellate Court to decline to he ar the appeal merely because
the suit was under-vhlued. This is what section 11 says in
un~ist1kable terms."

The sub-clause mentioned above was sub-clause (b) of

section 11 of the Suits Valuation Act. The case 0f
Yuvarajah of Pi!hapur~m v. Province of Madras (3)

(1) ( 1928) 9 Lah. 41-s at 423. . (2) (19331 SS All. 315 at 323.
13) A.I.R. 119-47)Mad. 135 _at. 136..
10
14o BURMA LAW REPORTS. [1952
H. C. deals with a case of under-\'aluC\tion, but th e same
1951
principle \:c.ill apply where it is alleged that there had
GAW SHAN
SOOT . been an over-valuation of the rditf claimed. \Ne have
E. C;. ~iAuHA not been shown anylhing in the evidence which will
BRos. indicate"' that the defendant-appellant ~as in a.ny
u T~BYu, man~er prejudiced by having the present case tried o n
C.J. the Original Side of the High Court, and not in the
City Civil Court, even assuming that it was a case
which should not ordinarily be tried in the High Court.
The points involved in the present case appear to us
to be points which rc::quire very careful consideration.
It is said that there was a protracted hearing in the
present suit. It is more fit, in the circumstances, for
such qse to be tried on the Original Side of the High
Court than in tbe Rangoon City Civil Court. Jt is
argued, on behalf of the defendant-ap pel! ant, that
the provisions of section 11 of the St1its Valuation Act
will not. apply where t.h ere had been a deliberate over-
vc:t1uat.~on of :the relief cfaimed for the purpose of
having the suit tried on the Original Side of the Hig~1
Court. vVe have already stat.e d earl'ier tl1at we have
not. been shown anything in the pleadings or evidence,
which will show that E. C. Madha Brothers must
be considered to have valued their claim for damages
arbitrarily or th~t the valuation made by them was
m~mi_f.estly absurd or clearly too high.
It was next contended on behalf of the defendant-
appellant that the learned trial Judge wrongly allowed
the plaintiffs-re~pondents to amend their plaint. A
perusal of the amended plaint shows clearly that
E. C. Madha Brothers, in introducing paragraphs 5-A;
and 5-B in their amended plaint, has not introduced(
a~y new cause of action ; rior did the~- bri-ng in an~
inconsistent cause . of action into _th:e am~~?-e_d pl~in~ f
Paragraphs S..:A ar1:d $-s of the . amend~-d plfl,mt were;
. app<l,rently introduced. as a re :jo~n_der to the alle:gation;~
1952] BURMA LAW REPORTS. 147

contained in paragraph 2 of the written state ment of H.C.

1951
the defendant-appellant, dated tne 19th March: 19.:18,
GAW SIIA:'\
where the implication was that tl1e defendant-appellant SooT
was entitled und er the agreement (Exhibit H), J::. (;. '1.'.:'\IADIIA
executed between him an d E. C. Madba Brotherson the BRo~.

8th Novembe'i-; 1940, to use th{: sparrow mark, which U Tt;:--: BYU,
C.].
formed the subject of the present litigation . . There is
thus no substance in the contention that the learned
trial Judge, in allowing an amend1nent of the plaint,
permitted the plaintiffs-respondents to join a new
cause of action founded on contract to the original
cause of action which was in the nature of tort.
vVe might add that the circumstances under which
the amenclment of the plaint was disallowed in the
case of N. P. L. ST. Mutluzya Chettiar v. RM.A.RM.
Ch.ettyar Firm and one (1) are entirely different from
the circumstances prevailing in the case .at present
und er appeal. There it was sought, by means_ of
amendment, to introduce a new ma~ter which was not
in any way c~mriected with any of the allt:gations con-
tained in the orig~nal pleading.
The trade-r;nark of E. C. Madha Brothers contains
the picture of a duck standing on a twig in the centre
of the design, which constitutes the essential charac-
teristic of their tni.de-mark. The colour of the duck
. is a mixture of black and white. This trade-mark has
a round . design, with English letters at the top and
bottom of the design. There are Burmese letters
above the picture of t he duck, indicating that the
substance on which it is affixed is a duck-brand
soap, with the Burmese:: words (oocf.i~oo?c:) below
the bird. There are Tamil letters below the Burmese
words (oocf5~oo?C:) to indicate what kind of bird it'
i s. Then~. 'ls. a star on each side of the Tamillette~s
,

(1) (1948) B. L. R. 855.

148 BURMA LAW REPORTS. [1952

H.C with Gujarati letters just above the two stars. The
1951
trade-mark of th e New Asia Soap Factory is also
GAw SHAN
sooT round in design, with a b ird in the centre, resting on
E.c. ~iAoaA grass. English letters also appear at the top and
Bnos. bottom. edge of this design. There are also Burmese
u TuN BYu, letters above the bird to show what brand of soap
C.J. it is, and the Burmese words (rooSGoo-=>6:), with Tamil
letters, also appear below the bird in this design, as in
the design of E. C. Madha Brothers. T he design of
the New Asia Soap Factory also has a star on each
side of the Tamil letters. Thus the general get-up
of these two designs could be descri-bed as being
similar.
A contention, which has been str enuously
urged on behalf of the defendant-appellant, is
that, so long as the picture of the bird in the
defendant-appellant's design remains a sparrowt
his soap would always continue to be called a
. sparrow-brand soap and that it could not in that.
circumstance, be called a duck-brand soap. It
follows, it was argued, that it was not possible, in
the circumstances, to pass off the defendant-
appellant's soap as a soap manufactured by E. C. Madha
Brothers, which was known as du.ck-brand soap.
We cannot accede to this very wide proposition.
W e agree, however, that it is possible. for the
defendant-appellant to have attempted, when he
was planning his new de.sign, to keep himself with in
law in that he . had not devised his bird in
' .
Exhibit B into a distinctive form of a duck ; but if
it appears that his intention was clearly t o imitate
the design of E. C. Madha Brothers, and if it is
also found that his design could be consid ered to be
a colouraple im~tation . of the design of E. C. M~dha
Brothers, his appeal :will, in our opinion, have to be
dismissed.
 1952] BURMA LAW REPORTS. 149

T ile Master of the Rolls ~ta t ed in Perry v. Tru.fitl H.C.

1951
q):
GAW S HAN
SOOT
" .-\ man is not to sell his own ~oo cls under the pretence that ...
.they are the goods of ano ther m.1n ; he cannot be per;nitted to E. C. MADHA
BRoS.
practise s uch a deception, nor to use the means which contribute
to that e nd. He cannot therefore be allowed to use names, U TUN BYU,
C.J.
marks, letters, o r other i11dicia, b y \\"hich he may induce purchasers
to believe, that the goods which he is selling are the manufacture
of another person."

The Lord Chancellor, in the well-known case of

Seixo v. Provezende (2), observed :
"What degree oflresemblance is necessary from the nature
d things, is a matter incapable of definition a priori. All that
courts of justice can do is to say that no trader can adopt a trade
mark so resembling that of a rival, as that o rdinary purchasers,
purchasing with ordinary caution, are likely to be misled. It
would be a mistake, however, to suppose that the resemblance
must be such -as would dect"ive persons who should see the
two marks placed side by side. The rule so restricted would be
'Of no practical usc::.
If :1 purchaser looking at t he article offered to him would
naturall~ be led, from the mark impressed on it, to snppcse it to
the production of the rival manufacturer, and would purchase it
in that belief, the Court considers the use of such a mark to be
fraudulent. But 1 go further. I do not consider the actual
.physical resemblance of the two marks to be the sole question
for consideration. If the goods of a manufacturer have, from
tl)e t~ark or device he has used become known in the market by
a pa rticular. name, I think that the adoption by a rival trader of
any m!lrk which will cause his goods to bear the same n~me i'I!
the market, may be as much a violation of the rights of that rival
as the actual copy of his device."

The above observations, with respect, appear to us

to apply appositely to the case now under appeal. It
is thus not ilecessary in order.to constitute a colour-
abl~ imitation that the two marks co~cerned should be
(1) (1842) 6 Beav, 66 at 73. (2) (1~86) 1 Ch. Appeals 192 at 196.
150 BURMA LAW REPORTS. [1952

ll.C. similar in every particular, but it will be sufficient, in

1951
law, to constitute a colourable imitation, if there exists
GA~vo~~AN such similarity between the two marks, which could,
vM.
E C ADHA
in the ~ircumstances of a particular case, be considered
BRos. to ,be calculated to deceive the class uf persons for
u T-;;-BYu, whom the goods are ordinarily or primarily intended.
C.J.
Exhibit H agreement, dated the 8th November,
1940, ap.pears to us to be important. It furnishes a
'useful background. Gaw Shan Soot agreed in that
agreement not to use his "zinyaw" (sea-gull) mark on
the soap manufactured by him as it was considered by
E. C. Madha Brothers to be a colourable imitation of the
latters' s duck mark. It was also agreed tl1at should
E. C. Madha Brothers find that Gaw Shan Soot was
using his sparrow mark in a way which could be
mistaken for or passed off as the duck mark of E. C~
Madha Brothers, he would also cease using his sparrow
mark. We have no reason to doubt that Gaw Shan Soot
knew that effect of Exhibit H agreement, which he
executed in November, 1940. He had been a school
teacher previously, and he must, as a businessman, have-:
made himself acquainted with the effect of Exhibit H :
agreement, especially when he was compelled, under;
that agreement,c,to abandon the use of his mark knownl
a~ 11 zinyaw l?rat:ld ., . It i~, theref~re, only reasonabl~j
to a~sume that Gaw Shan Soot realtsed, as far back a~~
1940, that if the sparrow mark, Exi1ibit Hl , which h :
was allowed to .use under the agreement coufd, at anj
time, be mistaken for E . C. Madha Brothers' mark, o ~
become a colourable imitation of the latter's quck-bran
mark, he could be restrained from using the design s
complained against.
A gla~ce at E~hibit 'Hl sparrow shows that' trr_:;.
sparrow in that mark is very distintti ve .and tha~ .it. ~ .
altogether unlike a duck. It is di-fficult to thin_k ~h.
 1952 = BURMA LAW REPORTS. 151
lhe picture of a sparrow in Exhibit Hl design could ~g
han:! been mistaken at all bv anyone for the picture of -
' . C.l \\" SHA!-:
a cluck. The general gd-up of the sparrow mark tn sooT
Exhibit Hl is also more simple. It had no stars in it ; E. c. ~\IAoHA
nor \Ytre a,ny T:1mil letters present in the;.{ design. BllCis.
There was no grass below the sparrow. Subsequently, u Tu:-; BYu.
the defendant-appellant <tltered hi$ sparrow mark in c.J.
Exhibit Hl into tbe form in Exhibit B. We might
say that by that modification, the differences in the
general get-up, which existed bet\\'een Gaw Shan Soot's
old Exhibit Hl sparrow mark and E. C. Madha
Brothers' duck mark, practically disappeared. To be
more precise, Gaw Shan Soot added stars and Tamil
letters to the new design of his sparrow mark,
although stars and Tamil letters also appear in
E. C. Madha's mark. The picture of the sparrow in
his new design is smaller relatively, and the bird also
has shorter legs. The shape of the sparrow in the
new design is also different from the form of th~
sparrow in the old design, Exhibit Hl. Gaw Shan
Soot also added grass below the sp~rrow's legs in his
new design .
.Gaw Shan Soot was cross-examined about the
change in the design of his sparrow mark from the
form in Exhibit H 1 to the form in Exhibit B, and
his answer, with the question J was:

"Q. Why have you changed the size of the birrl from
Exhibit H 1 to Exhibit F ?
A. Exhibit H t trade-mark, as it stood, was not very
attractive. There was .a great competi tion in the soap market
and so we had to make our labels attractive so ~s to attract our
customers. :lt was with a view to attract these customers that
1 altered lhe size of the bird and also with a view to enable me
to insert certain Burmese and Indian letterings therein.
. . : .
152 BURMA LAW REPORTS. [1952

H.C. Q. Please examine Exhibit F and Exhibit Hl ancl say

195! whether Exhibit F is entirely different from that of Exhibit
GAw SHAN H 1 or not ?
SoOT
v. A ., Exhibit F trade-mark is based on Exhibit Hl. Both
8 ~~ . .
E. C.. MADHA the trade-rparks are 'sarglay tazeik.' I made certain alterations
.
m the stze of the bird in ordet to enable me to insert Burmese
U ~~J.BYU, and In,dian Jetterings and these make the label more attractive
to the customers."

Th e label Exhibit F is same as Exhibit B. It is

dear that Gaw Shan Soot deliberately modified his
old sparrowdesign in Exhibit Hl, so that there might
be a bigger sale in his soap. However, when we bear
in mind that the picture of his sparrow in Exhibi~ B
is entirely different frpm the form of his sparrow in
Exhibit H1, that he added two stars i n his new design,
Exhibit B, in the same places where the stars appear
in the duck mark of E. C. Madha Brothers and that
the Indian letterings Gaw Shan Soot added in his
new design also occupy the same relf:l.tive position as
in E. C. Madha Brothers' duck-brand mark, it appears
to us that Gaw Shan Soot was Clearly attempting in
his new design to make his mark as similar as he could
to the duck brand of E.C. Madha Brothers, wilhout
actuaily transforming the form of his bird into a
distinctive form o(a duck. This is also supported by
the fact that Gaw Shan s oot also made his bird in his
new design rest upon grass_ The legs of the sparrow
in the new design also became shorter. The changes
were made, it seems to ust so that incautious or
ignorant purchasers might' be persuaded into believing
that the soap they were purchasing was Madha's duck-
.br~nd soap w.hen, in fact, tP,e soap w~ich was offered
. to them was the defendant's soap. This inference
becomes irtf?sistaole wh~n we find ~nat stars and :
Indian letteringst w,Picli ~ere i~serled in the new .
.design of Gaw Shan. Soofs. sparrow. n:ta:rk, occupy the
 1952] BURMA LAW REPORTS. 153
H.C.
same relative position as the stars and th e Indian 1951
letterin~s occupy in E. C. Mad ha Brothers' duck-brand
mark. The grass which appears under the legs of t he ~OOT

sparrow in Gaw Shan Soot's new design also occupies

...
E. c. MAJJH A
B Ros.
the sa me relative position as the twig on wlii ch the
duck rests in E. C. Madha Brothers' mark. These U TUN BY u,
C.J.
things could not have occurred accidentally. They
must have been inserted with the intention that it
might be possible to mislead incautious or unwary
purchasers into purchasing Gaw Shan Soot's soap
under the impression that it was Madh a's soap.
All purchasers are not expected to examine the
label of an article very carefully before they buy
They will ordinarily be guided by the general
appearance or general effect of the label. There is
evidence, and which evidence we accept, that E. C.
Madha Brothers' duck-brand soap is purchased largely
by the dhobies, a class of the persons who could not
generally be .expected to read English, Burmese or
Tamil letters. E. C. Madha Brothers' label also
suggests that their soap is primarily intended tor use
by the dhobies. These persons, for whom E. C. Madha
B::-others primarily purported to manufacture and sell
their soap to; belong to a class of persons who could
genereally be. said to be illiterate ; and English,
Burmese and Tami1 .Ietters, appearing in E. C. Madha
Brothers' mark or those of New Asia Soap Factory,
will have no significance on this class of illiterate
purchaser's. .
Mathay.a, an illiterate dhobie, stated in effect that he
once purchased Rs. 2 worth of soap from a shop in
. Sooratee Bazaar thinking that it . was the duck-brand
soap meaning the soap. manufactured by E. C. Madha
Brothers. He soon. realised~ a(ter he saw Abdul
Rahman, who n'laintained a grocet.y shop, that the soap
he had pu.r chased was not the .duck-brand soap, but
154 BURMA LAW REPORTS [1952

r9~i th:Jt it was a kU1'u'i'i or bird-brand soap. Mathaya

GAw SHAN also said that the bird in Exhibit B (sparrow mark).
11
sooT w;ls not quite like a duck" ; bnt this answer
E. c. ~rAoHA \Yas :made after he had been informed by Abdur
BRos. Rahman about the mistake he had made in
u Tu~/yu, thinking that the soap which he purchased from
a shop in Sooratee Bazaar was the duck-brand soap
of E. C. Madha Brothers. Abdul Rahman was also
examined as a witness, and he supported Mathaya
in this matter.
_perumal, abo an illiterate dhobie, said that he
purchased a rupee worth of soap at the Sooratee
Bazaar thinking that it was a duck-brand soap.
He showed this soap to Narsaya, a shop-keeper,
who at once informed him that it was not a duck-
brand soap. This witness discovered when he used
that soap that what he bought at the bazaar was
notJ,;a duckbrand soap. According to Peruin:1l,
he looked at the bird in the label and the general
get-up of the Ia:bel and concluded that it was a
duck-brand label when he purchased the soap . at
the Sooratee bazaar. This witness's answer, which
he made towards the close of his examination by the
Court, has beep stressed upon strongly on behalf of
the defendant-appellant, in that Perumal had stated
tha.t the label Exhibit F, which is the sai:ne as Exhibit
B, is not a duck mark. It will be necessary to repro-
duce the questi01is and answers, which were put to
and made by Perumal when he was examined by the
Court, and they read :

Q. You say th::1t you have been purcha!?ing duck-brand soap

11

ever since you started as a dh,obie. How are you.in a, pbsition to

r~cognise duck-brand labels ? . . : :
. A. I can' identify c;Juck-brancl b~ the duck in the centre and
h\o stars and .letterings around it.
 1952 ] BURMA LAW REPORTS. 155

Q. Please look at E xhibit F ;mel say ,,heth cr thi=- is cluck- H.C.

1951
brand soap or not ?
G .l\1" S H AN
A. T his is not duck -brancl soap.
SOOT
Q. T he figure depicttcl in Exhibit F is not a d uck. Is v.
tha~so ? E. c. M.HIHA
RRO!\.
A. All that I cau say is that it looks like a cluck.
Q. At present will yon accept soap bearing labels similar to "C T l"N BYU,
C.J.
Exhibit F as cluck- b raud soap ?
A. N o. At present I ,,ill not ilccept such soap as cl uck-
brand b ecause I was cheated on a former occasion when I pur -
chased soap at the Sooratee Bazaar."

The answers reproduced above indicate that Perumal

had become wiser about the label on the soap after he
had seen Narsaya. Thus the fact that Perumal was
able to distinguish in Court one mark from the other
mark could not be said to indicate that he could not
have been deceived into purchasing the soap with a
label of th e defendant-appellant as soap manufactured
and sold by Messrs. E. C. Madha Brothers.
Achaya, an illiterate dhobie had also purchased
Rs. 2 worth of soap at the Sooratee Bazaar under the
same mistaken impression. He too showed the soap to
Narsaya who infotni.ed him about his mistake and said
that it was only an imitation of the duck-brand soap.
It must be mentioned here that Narsaya did not say
anything about Achaya in his examination in Court, but
this does not necessarily suggest that Achaya's
evidence must be untrue. We agree, however, that
Achaya's evidence must be examined with caution. It
has been urged on behalf of the defendan~-appel1ant
that the fact that Achaya was able to distinguish in
Court the difference in the label between the sparrow
mark .of the defendant-appellant and the duck mark of
E. q. Madha .B rothers shows that this witne?.s co~)d not
have been deceived, as he attempted to inake out in
Court-, into purchasing- a sparrow-brand soap for- the
156 BUR:IVIA LAW REPORTS : [1 0~7
/ ~-

H.C. duck-brand so~p. It should however be remembered

1951
GAW SHAN
that, because the two marks when they are examined
sooT side by side would not deceive anyone, it does not
E. c. ~Ao 1u necessarily follow that the mark which is complained
BROS. against COUld not COnstitute a COJOurab}e 1mitation Of
u TuN svu, another's mark. The marks are not as a rule looked
C.]. .
at s1de by side by purchasers ; nor could the pur-
chasers be expected to retain a clefir.ite memory of all
the particulars of the mark concerned. The pur-
chasers' recollection will, as a rule, be somewhat
indefinite.
It has also been contended on behalf of the defen-
dant-appellant that the dhobie witnesses must have
been either fools or idiots to have been deceived into
purchasing a sparrow-brand soap as a duck-brand soap
as stated by them, ::md their evidence should in the
circumstances be rejected. We do not think it will be
correct to assume that, because shop-keepers or traders,
who are experienced in distinguishing labels, or
persons who are literate, would not be deceived by the
appearance of certain mark or label, illiterate person or
persons of less intelligence could not have been
deceived. The case will have to be considered on its
own peculiar circumstances. We also cannot accept
the suggestion that we must assume that purchasers
will examine the details o the label on the soap very
carefully before they purchase it, because it is possible
for some purchasers to examine the mark somewhat
casually, particularly amongst an ~llite!ate class, to
which the dhobies might be said to generally belon g.
We cannot accordingly accept the statement of the
defence witness Ho.ne Hi tpat all the purchasers at his
stall examined the labels on the soap very carefully
before they bo.ught them . . : The observation that pur-
chasers are expected to "look fairly at ~he goods,
without dl.stingi.iishing featur~s . bein~ concea!ed,,.
1952] BURMA LAW REPORTS. 157

made in Byrallljee Cou:asjee v. Trera Sorn~1bh ai :l!o!ibhai H.C.

1951
al/(1 another ~1), must be co nsidered in the light of
G A\\' SHAN
the facts of that case. There the labels were affixed on Soor
v.
butter tins; and people who ordinarily purchased butter E. c. ~!AOHA
in tins would naturally come from a mu -ch more BROS.

intelligent or criti cal class than the dhobies. U TUN BYU,

C.J.
Lord Macnaghten laid down in Payton & Co. \'.
S11elling Ll~mpard & Co. (2) what the function of
a Judge is in such a case:
" T he Judge, looking at the exhibits before him and also
p:\ying due attention to the evidence adduced, must not
surrender his own independent judgment to any witness."
The learned Lord also observed at page 310:
"The principle is perfectly clear-no man is entitled to sell
his goods as the goods of another person. The difficulty lies in the
application, and, when it is a case of colourable imitation, I think
it is very desirable to bear in mind what Lord Cranworth has
said on one occasion-that no general rule can be laid clown as
to what is a colourable imitation or not ; you must dell with
each case as it arises, and have regard to the circumstances
of the particular case.''
The learned Advocate for the defendant-appellant
has submitted that the Court ought to express its own
view of the marks or labels concerne~ . We agree that
it is for the Court, bearing in mind the evidence adduced
at the trial, to express its own view as to whether the
label or mark of the defendantappellant is such so as
to be calculated to deceiv~ purchasers of the class for
whom the goods are ordinarily manufactured, and in
other words, whether there is, in the circumstances of
this case, a reasonable likelihood of the mark of the
defendant-appellant being mistaken, at least, by the
class of p~rchasers, fo.r. w");:10m E. C. Madha Brothers'
soap was .?rimarily . manufactured, as a. d~ck~brand
(1) !1915-16) 8 L.B.R. 561. (2) (1901) .A.C, 308 at 311.
158 BURMA LA\V REPORTS . [1952
H.C mark of the latter. Sargant J., in Sando?.;) Lilllited's
1951
applimlion ( 1) observed :
GAW SHAN
SOOT The question is not whether, if a person looking at the b..vo
t- .
E. C. MAOHA trad<:: -marks side by si( e, there would be a possibility of confusirn .
BROS.
The questi'bn is whether the person who sees the p_roposed trade-
u TUN BYU, mark ln the absence d the other trade-mark, and in view only of
C,J. his general recollection of what the nature of the 0 th e r trade-
mark was, would be liable to be deceived ancl te> think chat the
trade-mark before him is the same as the other of which he has a
general recollection."

It appears to us that different artists are likely to depict

th e picture of the same kind of bird somewhat differ-
ently; and this is a circumstance which we can properly
consider in considering the appeal before us. VVe have
also observed earlier that the picture of th e sparrO\Y in
Exhibit B new label is entirely different from the
picture of the sparrow in Exhibit H 1 old label of ihe
.d efendant-appellant. We have examined the picture
of the bird in the defendant-appellant's mark in Exhibit
B as well as the picture of the bird in E. C. Madha
Brothers' mark, and bearing in mind the evidence
wh ich has been adduced in this case, we are of opinion
that it is possible for a purchaser of the class, for vd1om
E. C. Madha Brothers' duck-brand soap is ordinarily
manufactured, tobe deceived into believing that the
soap marked with the Exhibit B label, which he is
purchasing, is a duck-brand soap of E. . C. Madha
Brothers. It is possible for him to think that the b ird
in Exhibit B is some kind of duc.kling or a pecu.l iar kind
of small duck, and when th is circumstance is con-
sidered with lhe fact that the general get,-up of the
defendant-appellant's new label in Exhibit B 1s similar
to the general get-up of E . C. M.adha Brothers' duck
.. mark, it is 'possible for' an illiterate purchq.-ser to be ~0
niistaken. _Both marks. are r~u.nd in d esign. T.h us .
(1) (1914), 30 Law Times 394.
1952] BURMA LA\V HEPORTS. 159
the defendant-appellant in aclop ti ng th e d esign in H.C.
11.)51
Exhibit B can, in the circ um sta nces of thi s case, be
G .\\\' SH A X
properly said to hme alte red his label in such a way ~~;OT

that it is likely to cause his soap to be sold by the same 1: . C.

t',
~ L.\ I>HA

name as E. C. MadhaBrothers' duck-brand soap.- There BIW~.

is, in our opinion, sufficient materials in the present C Tu..,; BYU,

C.J.
case under which it could properly be held that the
mark of the defendant-appella nt is reasonably calculated
to mislead illiterate purchas ers into thinking that it
represents the duck-brand soap of E. C. Madha Brothers.
A trader should not, it seems to us, a ttempt to use any
label or mark on his goods, which so resembles th e
b.bcl or mark of ano t h ~ r trarier as to mislead ignorant
or incautious purchasers.
The fact that M. E. Kola, a salesman, Ka njee Kanjee,
factory manager of E. C. Madha Brothers , U Sein, a
raiionshop owner, U Ba Sein, a provision merchant)
and Abdul Ral_lman, a grocery-shop ovvner, will not
accept a soap .sold with th e label of the defendant-
appellant as E. C. lVIadha Brothers' duck-brand soap, or
that they could clearly di stinguish the mark of the
defendant-appellant from the mark of E. C. Madha
Broth~rs,
. appears .to us to be of no importance in
considering the main question involved in the present
appeaL The question is not whethe:ra shop-keeper or
a trader is likely to be misled. The question is,
whether it is possible for the new label of the defendant-
appella-nt to mislcc:.d or d eceive purchasers of the class
for whom E. C. l\.Jadha Brothers' soap is primarily
manufactured. Th e less intelligent or the illiterate
~lass of purcha_ s ers might easily be misled or deceived;
even in cases whicl~ will not deceive a more astute
trader or shop-keeper. .
The picture of the birds in the labels of.lhe defen-
dant-- appellant and E. C. Madha Brothers, .of course,
forms thc.most prominent and essentiaL featu re . of the
16.0 I3URMA LAW REPORTS.
H.C. two marks, but the fact that T eik S\ve and Tan Su Yon,
1951
who are traders, would not in any way be confmed
CAW SHA:-1
SOOT :Lbout the picture of the two birds, would not, for th e
v. reason we have stated earlier, assist us in considering
E . C. MAO HA
BRQS. th e main. question involved in the present appeal. It
U TUN BYU, is no t possible for us to accept the suggestion that the
C.J.
pictures of the two birds in Exhibit B and Exhibit H 1
are same in form or shape, because a glance at those
two exhibits will reveal at once that the two birds are
depicted very differently in form and shape, although
both of them purported to be the picture of a sparro\.v.
Ma Kyin and Ma Chone are bazaar sellers, and
these defence witnesses will naturally be more intelligent
or shrewd in making purchases at the bazaar than the
dhobies or illiterate purchasers.
Hone Hi, also a defence witness, is a miscellaneous-
goods seller. He could distinguish the difference
in the English and Burmese letters jn the label of
the defendant-appellant and that of ;E. C. Madha
Brothers.
Ma Thein, a defence witness, could also read
Burmese ; and she had been a bazaar seller too. Thus
we have not been shown anything in the evidence
adduced on behalf of the defendant, which will indicate
that illiterate persons, or persons of the class of
dhobies could not possibly have been misled into
thinking that the label Ex.h ibit B is a duck-brand
label. .
The portion oHhe decree which reads :

"IT IS 0R!>RHED AND DECREED that the defendants, their

agents and servants be and they are hereby restrained from
.manufacturing any soap got up or-hearing a mark which may be .
.a cofourable imitation ofthe plaintiffs' well-known ' Duck Brand'
traQe-ma~k: or of offeri~~ such or any other soap for sale in
wrappers similarly got up fo res~mble the wrappers used by the
plaintiffs. and bearing 'the saicl 'Duck Brand' trade-mark."
1952] BURMA LAW REPORTS. 161

has, in our opinion, been expressed too widely, and is H.C.

1951
therefore modified as follows :
G.nv SHAN
11 SOOT
IT IS ORDERED AND D EC EE D that the defendants, their v.
agents ancl servants be and they are hereby restrained from E. C. M AD HA
BROS.
manufacturing 'any soap bearing the mark in Exhibit B or any
mark similar to the mark in Exhibit B which may be a colourable U TUN BYU,
imitation of the plaintiffs' clnclc-brand trade-mark or of offering C.J.
..any soap for sale in wrappers bearing the mark in Exhibit B or
any mark similar to the mark in Exhibit B which may be a
colourable imitation of the plaintiffs' duck-brand trade-mark:':

The judgment and decree passed on the Origi nal

Side will accordingly be considered to have been
modified as indicated above, and, except for the above
;modification, the appeal is dismissed with costs ;
,Advocate's fee twenty gold mohurs.

11
162 BURMA LAW RE PORTS. [1952:

APPELLATE CIVIL.
Before U Tun Byu, Chief lustiu, m,d U Si B11, !.

H .C. GOR KYIN S EI N (APPELLANT)

1952
v.
JatJ. 3.
u KYAW DI N AND OTHERS (RESPONDENTS).*

Code of Civil Procedwe, Order 21, Rule 90-Whos~" inte~csts "affected by,
sale-!t1ea11i11g of the 7cord-Tif!/Jether mcludes an attd i on-purclrase,-
Rule for the inte1pr etalton of ,(/a lutes-Conrt snlc-Misreprestn tntiou
whether material/act.
Held: Auction purchaser is not a person" whose interests are <tffected by
the sale" within the meaning of Order 21, Hule 90 11}, Code of Civil<
Procedure.
/(. V.A .L. C!tcttyar Firm v. M.P. Madcar, (1928} I.L.R. 6 Rnn. 621 at 622;
Baidyunath M11llick v. Sm. Radhara11i Dassee, (1945-46) C.W .N. 394 at 397;
KirMI Bola Shalla v. Suniti Brablta Shalta, (1939) Vol; J, Cal . Series, 373 at
_:175 ; Nihal ChnndGopal.fas v. Pritam Singh and a110flicr, (1932) 14 Lah. l ;
B 1zllwis/ma Watuam Kharknr v. Sakharam Baba;i Meshy, (1936} 60 Born. 70;
..
Kalumal Tolaram v. Ahtuad Nttr Mnhomed, A.I.R. (1931) Sind 107, followed .
.
Ravi1laudnu P1asnrl. v. J agnrnttf h Sa!T-u a11d Ajud ltia and others, I.L.R.
(1925) 47 All. 479; Bltaviriutti GoPt~ll:rish~~tr)'Yit v. Paka11ati Perfda Saujeeva
Reddy and allotltcr, A.l.R. (1920) Mad: 145 ; Mahadeo Ram v. Raja Mohan
Vikarom Sail, I.L.R. {l933) 12 Pat. 665; Tile All-l11dia Railwaymen's T?emfils
Fund Ltd. and one v. Ram Chand and a!JOtllcl', I.L.R. (1939) Nag . 357;
L . J ha 11 gi Ram v. L. Ram Sam1z, A.I.R. .11944) Pesh. 42, dissented from.
It .is quite proper and <easonable to examine earlier decisions or previous
law relating to the same or simi lar subject-matler , in order to clear up any.
doubt which might arise'in the construction of an exi stin~ provision of an Act.
MacMillan v. Dent, {1907) 1 Ch. 107 at 120; Craig's on Statutes & Laws,
(1936}, Edn. 87, followed.
In sales under the direction of the Court it is incumbent on the Court Ito be
scrupulous in the extn;me and very careful to ~ee that no ta!nt or tou::h of :;,
fraud or deceit or m isrepresentation is found in the condu~ of its ministers. ~
The slightest suspicion, of trickery 9r unfairness must affect the honeur of the :1
Court and in1pair its usefulness. It would 'be disastrous, and absolutely 1
shocking, if the Court were to enforce against a purchaser misled by its duly j
accrP.-dited agents a bar gain so illusory and so unconscientious as this. '
Mal~J>nred Kala /Ilea v. Harperiuk a11d others, (1908-09) 36 LA. 32 at 37. ~~
A.M. Hasitim Isf>/Ja l!any v. N.A.P.K. C11ettyar .Finn,.(19.l5-16) 8 L.B.R. 427 at:.
431 followed. ' . . ~
' . . . . i
<.:ivil 1st Ap'p eal No. 66 of 1950 against decree of the High Cour t ,
i.
Civir Regular. No. 92 of 1949, dated tl~e 1.6lh Au_gust 1959. '
1952 J BURMA LAW REPORTS. 16
\\'here the auction-purchaser was misled hy the Bailiff of the Court into H.C.
believing that tho properties belonged to the Judgment-debtor and thal there 1952
was no em;umbrance, and both the statements were found to be incorrect. the
Got< KnN
sale should be set aside. SF.tN
\\'hen a purchaser at a Court auction is not a citizen of the Union of Burma 1>.
he has no righ! to purchase immoveable property. Under s. 65 of the Code u KYA\\' DlN
of Civil Procedur.,e auction-purchaser will be deemed to have acq~ired interes t A:\ 0 OTHERS.

in the immoveable property purchased by him from the date of the auction
sale. In otht-r words, by reason of the prvvisions of section 65 the title in the
property relates back from U1e date of the ale and if tht. purchaser be a
non-c itizen of the Union of Burma, tl1e sale would be void.

T. L-Van Hock for the appellant.

Kya.w Din m person
Hla Sein }
Sei11. Tun for the other r_espondents.
N. R. Buri01jee

The }udgment of the court was delivered by

U TuN BYu, C.J.-The plaintiff-appellant Gor Kyi n

Sein instituted a suit known as Civil Regular No. 92
of 1949 of the Original Side of the High Court, to set
aside an auction sale which was held in connection
with Civil Execution Proceedings No. 317 of 1948,
which arose out of Civil Regular Suit No. 1868 of 1947
of the City Civil Court, Rangoon, anq for the return of
the purchase money paid by him in the proportion,
which has been received by the defendant-respondents.
The facts whiclJ.led t o the )nstitution of the Civil
Regular Suit No. 92 of 1949 are that U Kyaw Din, the
1st defendant-respondent, obtained a decree iri his
favour in Civil Regular Suit No. 1868 of 1947, and he
subseq uently applied in Civil Execution Proceedings
No. 317 of 1948, for the attachment and sale of a _four-
stor~yed pucca building stituate at No. 71,. Godwin
Road; R~ngoon, which he described .the prop~rty of as
his judgment-debtor L. Sin Nyan; who _died .s'ubse-
quently ; and tlie defendant-respondents Nos. z:._9 are
 BURl'vJA LAW REPORTS. r~95?
164 L l. -

H.C. his legal representatives. The plaintiff-appellant

1952
Gor Kyin Sein purchased the building at Godwin
GOR KY!N
SEIN
Road in an auction sale, which was conducted by
v.
U KYAWDI:-1
U Hla Maung, Bailiff of the City Civil Court, Rangoon,
AND OTHERS. for the ~um of Rs. 45,000 on the 5th O~_tober, 1948.
u TuN BYU, Gor Kyin Sein set out in paragraph 5 of his plaint the
C.J. various sums that were said to have been paid out by
the Court to the various persons mentioned therein.
We ought to mention here that the sale was not
confirmed by the Court till 21st March, 1949. T he
delay was due to the fact that Gor Kyin Sein was not,
at the date of the auction sale, a citizen of the Union
of Burma. He applied to become a citizen of Burma
only subsequently, with the result that the Certificate
of Citizenship was not issued to him till the 19th
March, 1949 .
U Kyaw Din mentioned in his application for
execution that the building at No. 71, God'l.;..,in Road,
was the property of the judgment-debtor L. Sin Nyan.
U Kyaw Din also stated in his Written Reply
(Ex;hibit E) that the house, which he had attached
was said to be the property of L. Sin Nyan. The
particulars of the property to be sold, .which were
required to be set out under Order 21, Rule 66, of the
Code of Civil Prbcedure, were filed by U Kyaw Din's
Advocate ; but they were 'clearly defective. It was not
signed by U Kyaw Din, the decree-holder ; nor was
a_n y verification made, as was required under Order 21,
Rule 66 (3). No notices were apparently issued by
the Court to settle the particulars of the property to
be sold. I.t is most astoundi_ng that such serious
irregularities should have been ~llowed to have
occurred.
The first question .- wJ?.ich arises in this appeal is,
whether "an auction-purchaser is _a person "whose
interests are affected by the sale, " within the meaning
1952 J BURMA LAW REPORTS. 165
H.C.
of the provisions of Order 21, Rule 90 (1), of the Code 1952
of Civil Procedure. The decisions of the Courts in Gol~ KYIN
India are not uniform . The Courts in Madras, Alla- SE!N
v.
habad, Patna, Nagpur and Peshawar, maivtain the u KYAW DJN
view that the word " interests " in the expr"ssion AND OTfo!F.RS.
"whose interests are affected by the sale,,, includ es U TuN Bvu,
C.J.
"interests " created by the sale, and is not confined to
''interests" existing prior to the sale; while the Courts
at Calcutta, Bombay, Lahore, Sind and Rangoon,
hold that it does not include 11 interests " which arise
as a result of the sale, but that it refers only to
"interests " which exist independently of the sale.
It was observed in K. V.A.L. Chettyar Finn v.
M. P. M aricar ( 1) :

" It is quite clear to our mind that the word ' interests '
mentioned in that rule refers to interest existin~ at the time of
the sale and not to interest c!eatecl by the sale. The only rule
under which an auction -purchaser can apply to set aside the sale
is Order 21, Rule 91, of the Code of Civi.l Procedure, and if the
Legislature had intended to allow an auct~on-purchaser to apply
under Order 21, Rule 90, of the Code of Civil Procedure, his
name would have been specifically mentioned in that rule. "

Rule 9.1 of Order 21 of the Code of eivil Procedure is,

in effect, a reproduction of section 313 of the old Code
of 1882. Rule 91 allows an auction-purchaser to apply
for the sale to be s'et aside in the restricted circumstances
set out therein. If it was intended under the Code of
1908 to enlarge the right of an auctionpurchaser to
have the sale set aside over and above what he was
permitted to do under se ction 313 of the old Code of
1882, the appropriate place for givi.ng effect to. this
purpose woul'tl dearly . be in Rule 91. T~ms, the fact
that the scope of secti.o n 313 of the old Code of 1882
(1) (19.28) I.I.,.R. 6 Ran. 621 at 6.2-2.
166 BURMA LAW REPORTS. [1952

H.C. had not been enlarged when it was reproduced in the

1952
present form of Rule 91, is a circumstance which ought
GoR KYL\1
SEz~ to d eter us f rom giving a wider meaning than what the
u KY:~v DzN wording_ of Rule 90 clearly states. In any case, this
AND oTHF.Rs. appears to be a circumstance where, if we a re in doubt
u TuN svu, about the construction of the wording in Rule 90,
C.J. as far as the auction-purchaser is concerned, we ought
to throw the doubt in favour of the interpretation that
the Legislature did not intend to alter the law vvh en it
enacted the new Code of 1908, so far as the auction-
purchaser is concerned.
Clough J., in Baidyanath lJfullick v. Sm. Radharani
Dassee (1), state :
'' If 'interest ' does mean interest in the property, then. the
important word is the \VOl'Cl ' affect.' Upon plain English it
seems to me difficult to find that a person's interests in property
can be affected by a sale if, prior to that sale, he had no interests
in it at all."

Mukherjea J., also made a similar observation in Kiran

Bala Shaha v. Su~1iti Brabha Shaha (2) :
" But whatever the nature of interests might be, it is clear to
me from a plain readi~ o the section' that the interests must be
in existence at the, time when. the sale takes place and must be
'prejudiciaHy affected by it, and if it is created by the sale,it is
inconceivable how it 'can be affected by the sale and give the
person a right to set.it aside." '

The view 0f the Rangoon High Court and Calc~tta

High Court was also ad?pted by th:e Lahore High
Coud in Nihal Chand-Gopalilas v. Pritam Singh and
another (3). A similar view was taken by the Bombay.
High Court in Balkrishna Waman Kharkat v. Sak-.
haram Ba:b afi Mestry (4).
. .
(1)'.(194S:-4.6) C.W.N.394 at'397. (3) (1932(14 u h . 1.
(2) (1939) Vol. I, Cal, Series, 373 at 375. {4) (1936) :6o Born. 70.
 ;1952] BURMA LAW REPORTS. 167

The vie\v of the Rangoon H1gh Court was al~o H.C.

1952
approved in Kalalllal Tolaram v. .i.lunad Nut
( j , ,, KYIN
Maho111ed (i), where Rupchand A.C.J., also observed : :)Ell'<
..
The words used by the Legislature are' whose interests are l' 1\:Y.H\' DIN
AN : <T HERS.
affected by ti'le snle.' To my mind, these words preSL!PPOSe
interests which existed at the time of the sale and are affected l." Tv~ BYU.
by it, and not interests which are for the first time created by it."
C.J.

It appears to us that the view of the Courts at

Rangoon, Calcutta, Bomby, Lahore and Sind, where it
was held that the expression "interests," in Order 21,
Rule 90 of the Code of Civil Procedure, refers to
interests which exist independently of the sale, is more
reasonable and consh;tent with the ordin ary meaning
of the word used in Rule 90 ; and, if we may say so
with respect, it is a correct view.
An opposite view was adopted in Ravitlandan
Prasad v. ]agarnath Sahu. at-1d Aiudhia and others
(2}, Bha1:irisetti Gopalkrishnayya v. PakM1.ati Ptdda
.Sanjeevt;z Reddy and anothc:r (3 ), M alzadeo Ram v.
Raja Mohan Vikararn Sah ( 4), The All-India Railwaj!-
.men's Benefits Fund Limited and another v. Ram
Chand and another (5), and L. ]hangi Ratn v.
.L. Rq1n Saran (6).
In Ravinandan Pra sad v. ] agarnath Sahu and
-Ajudlzia and otHers (2), Walsh J., observed at page 4Rl
as follows :

" It is necessary to observe that this expression was not con-

iained in the correspondin~ provision which was in force_up t9 .
1908, and up to that date the auction-purchaser could not apply
lbut could bring a suit. It follows, therefore, that for the purpose
of determining this question, the cases decided before 1908, or
decided after 1908, with reference to proceedi_n~s which h~d

Ill A.I.R. 11931) Sind 107. (4) I.L.R. (1933) 12 Pat. 665.
(2) IfL.R. (19251 47 All. 479. (51 I.L.R. (1939) Nag, 357.
(3) .A.I.R. !1920) Mad. 145. (6) A.I.R. (1944) Pesh. 42:
168 BURMA LAW REPORTS. [ 1952"
H.C. begun before 1908, b~aring upon the question whether auction-
1952
purchases could apply or could properly bring a suit, are wholly:
GoR KYlN irrelevant, and for my part, I decline to look at them."
SE!N
v.
U KYAW DIN T his observation is, with great respect, not justifiable ;
AND OTHERS.
and in afq case it is a most doubtful attitude to adopt.
UTuN BYU,
C.J. Rules 90 and 91 of Order 21 of the Code of Civil
Procedure, are not strictly new laws. It is, in ouF
opinion, quite proper or reasonable to examine the
earlier decision or previous law relating to the same or
similar subject-matter in order to clear up any doubt
which might arise in the construction of an existing
provision of an Act. Moulton L.J., stated in M ac!J1illart
v. Dent (1 ), as follows:
" In interpreting an Act of Parliament, you are entitled, and
in many cases bound, to look to the state of the Jaw at the date of
the passing of the Act- not only the common Jaw but the Jaw as
it then stood under various statutes-in order to interpret the
statute in question."

In Mahadeo Ram v. Raja Mohan Vikar.am Sah (Z),

Kulvant Sahay J., was a dissentiente. There James J..,
at 676, observed :
"The correct manner to interpret the rule appears to.me to
assume that Rule 90 as amended means what it says, and if this
interpretation rendeis Hule 91superfluot1s, the matter must be
left at that."

We are unable, with great respect, to subscribe to this

observation. 'V!e ought not to read Rule 91 as
superfluous unless it is not possible to construe
Rule 90 reasonably, without making ~u.le 91 super-
fhious. It is stated in Craig's on Statutes and Laws~
1936 Edi~ion, at page 87, as follows:
"The Courts : "viii not lightly impugn the wisdom of the
Legislature, and_~(an~ alternative constructron, althougb not the-
Ul (i907) 1 Ch. i07 at 1.20. , (2}--I.L.R. (19-33! 12. Pat.-.665.
. 1952 J BURMA L A'vV REPORTS. 169

most obvious, will give a reru;onable meaning of the Act and H.C.
1952
obviate absurdities or inconveniences of absolutely literal con-
struction, the Courts deem themselves free to adopt it." G oR KY IN
SE IN

Niyogi J., who delivered th e opinion of the Bench u KYA\1! DIN

t.

in the case. of The All-India Railwaymen's, Benefits AND OTHERS.

Fund Litnifed and another V Ram Chand and attolher U TUN BYtr, .
C.] .
(1), ob served at page 364 as fo llows:
"To deny a right to the auction-purchaser while conceding
it to the judgment-debtor or decree-holder would be manifestly
unjust and unreasonable. It would be wrong to impute to the
Legislature an intention to create such an anom:lly."
We mu st say that we find it difficult to appreciate
how an injustice could really arise, because, if Rule 90
of Order 21 of the Code of Civil Procedure does not
apply to an auction-purchaser, he would still have a
remedy, as he was entitled to previous to the Code of
1908, by means ~f a regular suit in a case, which is
not covered by Rule 91.
It does not appear that the cases, which held
the opposite view, were referred to in the case of
Bhavirisetti Gopalkrish.nayya v. Pakanati Pedda
Sanjeeva Reddy and another (2). Mir Ahmed J.,.
observed ih L. ]hangi Ram v. L. Ram Saran (3), at
page 44:
" We may point out that the Legislature had the auction-
purch.:ser before its mind for he is mentioned in Rule 91, and
they would not have failed to exclude him from the operation o
Rule 90, if that \vas the intention."
It is only reasonable to assume that the Legislature
must have had its ~ttention drawn to the provisions of
Rule 91 when it enacted the present Rule 90. This.
circumstance~ if we may say with respect, goes more
in. favour of tl~e contention that if the Legislature had
(1) I.L.R. (1939) .Nag. 357. .. (21 A.I.R~ (1920) Mad. 1.45.
(3) A.I.R. (14)44) 'Pesh .. 42.
 BURMA LAvV REPORTS. [1952
H.C. intended to change the law, so far as the auction -
1952
<ioR KYIN
purchaser is concerned, one would have expected tbe
SElN Legislature to do it in Rule 91, which deals specifically
v:
u KYAW DIN. with the auction-purchaser. It will not accordingly
AND OTHERS.
be reas0nable to construe, in the abs~pce of more
::U TUN BYU, expli~it words, the provisions of Rule 90 of Order 21 of
C.J.
the Code of Civil Procedure, as having the effect of
taking away tlie right of an auction-purchaser to sue
for recovery of his purchase rrioney in circumstances
which are not covered by the provisions of Rule 91.
The observation of Lord Macnaughten in M ah.onud
Kala Mea v. Harperink and others (1), is cogent and
salutary, although it was made in a case, which arose
prior to the introduction of the new Code of 1908 ;
and it was in these words :
'' It has been laid down again and again that in sales under
the direction of the Court it is incumbent on the Court to be
scrupulous in the extieme and very careful to see that no taint or
touch of fraud or deceit or misrepresentation is found in the
COnduct of its ministers. The Court, it is said, must at any rate
not fall below the standard of honesty which 'it exacts from those
on whom it has to pass judgment. The slightest suspicion of
trickery or unfairness must affect the honour of the Court and
impair its usefulness. It would be disastrous, it would be
absolutely shocldng,.., if the Court were to enforce against a
purchaser misled by its duly accredited agents a bargain so
1llusory and so uncoQscientious as this.''

The auction-purchaser in the above case was, as in

the case now under appeal, a casual bidder, who
came suddenly to the auction sale and gave the
:high~st bid, without previous investigation into the
title o~ the property and knew nothing about.:it, except
what wits mentioned by the au~t.iopeer. The passage
reprq.duted abpve was cited with approval in A. M.
Hashim 1sphany v. N .A_.P.K. Chettyar Firm (2), ..
(l) (1908..()9) 36 ~.A. 32 at 37. (Z) (1915-16) 8 L.B.R. 427. at 431.
 1952 J BURMA LAW REPORTS. 171

T he Bailiff, U Hla Maung, who conducted the H.C.

1952
auction sale, frankly admitted that he mentioned, when
GoR l<VtN
the auction sale was about to take place, that the SF. t N

property, which was being sold, was t he property of the u I<Y~~ DIN
judgment-debtor and that it was free from mortgage ; AN;; oTHERs.
aud we accept U Hla Maung's statement. Gor Kyin u Tur-: Bvu,
Sein also said that when he made his bids at the c.r.
auctio11 sale, he was under the impression that the
property belonged to the judgment-debtor entirely
and that it was free from mortgage; and he is supported
by two other bidders, who were p:-esent at the time
the auction sale was held. This probably explains
why the bids for the purehase of the building in
question rose higher than the estimate given by
U Kha, an Engineer. T an Shi Khoo and Lin Kyin
:Khin were two of the persons who also bid at the
auction sale. Lin Kyin Khin was said to have offered
up to Rs. 42,000 for the building in Godwin Road.
T he high bids, which were obtained at the time the
auction sale was held, point clearly to the conclusion
that the bidders must have been informed that the.
property, which was being sold, belonged entirely
to the judgment-debtor and that it was free from
mortgage. It could, in the circumstances, be said that
there was a material irregularity in tne conduct of the
sale of the building in question by U Hla Maung.
'There was a. definite misrepresentation of a very
material fact. It is obvious that no bidd.e r would have
:gone anywhere near Rs. 40,000 in his bid for the
purchase of the building 'unless the property had been
:sold as the . sole property of the judgment-debtor,
without any encu~brances attached to it.
The principle of cave_at emptor does not, in our
:opinion, apply in the circumstances of the present case.
Gor Kyin Sein did, in this case, enquire from the
.Bailiff of the Ra~g6on City: Civil Court whether the
172 BURMALAW REPORTS

H.C. property was being sold as the property of the

1952
judgment-debtor ; and he is, in our opinion, entitled
GoR l{YJN
SE,IN to accept the statement made by the Bailiff as accurate ..
v. This is not only reasonable, but also just, in that a
UKYA \V D!N
AND OTHF.RS. Bailiff is a responsible officer and he represents the
u TuN svu, Court at the time of the auction sale. It has been
c.J. argued on behalf of the defendant-respondents that the
proclamation of sale should have placed Gor Kyin
Sein on his guard, but as we have stated earlier, he
came suddenly to the auction sale, without an.
opportunity to investigate into the title of the property ;.
and there is accordingly no force in this contention.
It has also been contended on behalf of the
defendant-respondents that there is no evidence to-
prove that Gor Ky.in Sein suffered any substantial!
injury or loss in the present case. The property in
Godwin Road, it is not disputed, belonged to one
L. Soo Lim, father of the judgment-debtor L. Sin
Nyan. U Kyaw Din stated in paragraphs 4 and 5 of
his affidavit, Exhibit K, dated the 16th December,:
1947:
" 4. I say that the 1st defendant L. Sin Nyan who was most
substantial of the judgment-debtors and was able to pay the
amount died sudden ly on the 14th of October 1947 after lhe
decree had been passed.
5. I say that he has a share in the house in which he lived.
and died.as part of the inheritance from his father being No. 71-,.
Godwin Road, RanJ!oon and he has no other immoveable
properties in Burma."

Gor Kyin Sein's evidence also shows that he had

been obstructed, in his attempt to obta-in possession 0~
the -building in Gowin Road, by a brother-in-law of the
defendant-respondent Ma Moi, wi fe of the deceased
L. Sin Ny~m~ Thus, the failure to mention at the time
of the auction sal~ that :the judgment-debtor: L. S_in
.Nyan . owned only a share. in the property to be sold,-:
'1952 J BURMA LAW REPORTS. !73
must be considered to be a material irregularity in the H.C.
1952
conduct of the sale, as that was a fact which Hie
bidders. who had come there, would like to h::t\e Gol~SEIN KvrN

known to enable them to gauge how high they might v.

1; KYA\V DiN
bid. It wasJ therefore, a serious mis-stater.1en t of A:"\ 1J o-rHERS.
fact, which misled the bidders. As the judgment- U Tr~o~ BYU,
debtor possessed only a share in the property sold, C.J.
it. becom.es obvious that a substantial loss or injury
would be caused to the auction-purchaser who bought
the .property in question on the understanding that it
' belonged to the judgment-debtor only.
The effect or sections 3 and 5 of the Transfer of
Property (Restriction) Act, 1947, is to make a transfer
-0 immoveable property void, if it is made in favour,
-or for the benefit, of a foreigner. The auction sale in
the present case was made on the 5th October, 1948;
.and this sale was confj.rmed by the Court on the 21st
March, 1949; and thus the sale became absolute only
on the 21st J\.1:arch, 1949-vide Order 21, Rule Y2 of
the Code of Civil Procedure. It is also clear that the
..certificate of sale was granted only after the sale had
.been mad e absolute. The title in the property
purchased at the auction sale will ordinarily vest in the
. at:tction-purchaser at the time the sale becomes absolute
as it is only then can the title in the property
.purchased be properly said to have been transferred to
:fhe auction-pqrchaser.
We will, however, have to consider the effect of
;the provisions of section 65 of the Code of Civil
Procedure, which provide that after the sale has been
, confirmed, the property is to be deemed to have been
,vested in the auction-purchaser from the date of the
.:sale. Thus, by reason of section 65 of the Code of
Civil Proced~re, an.auction-purchaser in the present
case must, in law, _be deemed to .have acquired interest
tin the immoveable proper~y purchased by him from
174 BURMA LAW REPORTS. [19Si
H.C. the date of the auction sale. In other words, by
!952
reason of the provisions of section 65 of the Code of
Gon KvrN
SEIN Civil Procedure t he transfer of the title in the
u KY:~v DIN immoveable property in question must be considered~
AND oTHERs. in law, t~ have been effected on the Sth Qctober, 1948.

-u T;;;-Bvu. Gor Kyin Sein was a non-citizen of the Union of

c.J. Burma at the date of the auction sale ; and he did not
apply for a certificate of citizenship until after the sale.
He obtained the certificate of citizenship on the 19th
March, 1949. The provisions of sections 3 and S of
the Transfer of Immoveable Property (Restriction) Act,
1947, made it dear that any transfer of immoveable
property which will have the effect of V@sting the
immoveable property on Gor Kyin Sein prior to the
19th March, 1949, must be considered to be void.
Sub-sections (4) and (5) of section 8 of the Union
Citizenship (Election) Act, 1948, .read :
'' (4) The office1 shall, on receipt of the certificate, call
upon the applicant to appear before him on a date fixed by him
and to subscribe a declaration on oath or affirmation renouncing
any other nationality or status as citizen of any foreign country
and, on the applicant making and su):>scribing such declaration,
the officer shall deliver to him the certificate after having
endorsed thereon the date of the making of and subscribing the
said declaration.
(5) The cextificate shall not take effect unless the
makes and subscribes the declaration under the last
sectio"n."

The auction sale to Gor Kyin Sein will have to

held, in the circumstances of this case, to be void
reason of section 5 of the Tran~fer of Immo.
. Property (Restriction) Act, 1947. .
The. appeal is, for reasons stated above, al ""''"rllm
The judgment and decree passed on the Orig~J?,al
in Giv.il.Regular Suit No. 92 of 1949: are set aside,
the defendant-respondents are dire.cted. to pay to'
'1952 J BURMA LAW REPORTS. 175

plaintiff-appellant Gor Kyin Sein the sums required of H.C.

1952
them as indicated in paragraph 15 of the plaint, with
CoR KYJN
proportionate costs against them in both Courts. ~EIN
t:.
1: KYAW D IN :
AND OTHERS.

U TUN BYU :
C.J.
:.176 BURMA LAW REPORTS. [1 S/52

APPELLATE CIVIL.
lJefotc U Ou Pc autl U T!taung Sdu, fl.

H.C. D R. U CHIT A~D o~E (APPELLA!)JTs)

. . 1951
..
l
-Nov . 6.
DAW OHN YIN (RESPONDENT).*

Tramjer of JProper!) Act, .<. 106-Lcase-Nctice to qwt, su!f:ciciiCY of- Time

ofttolicc by legal requirement nud Time of 1W[tCe by private agncmeut-
/1zterPretattO/l of ttoticc, f>rittciplc tmderlying.
Held: It is clear that thirty days' notice by t>ither party is the requ irt-ment
to be complied with according to the agreement entered into by the parties :in
the light of this construction the provislnn of s. 106 of the Transfer of
Property Act requiring tiftten days' notice expiring with the end of the
month of t he tenan cy is not applicable to the case.
Held also : l tl interpre\ing ambiguous words in no tices lo quit the
_princi ple which should guide the Court is to test what the words would mean
to tena nts conversant with all the facts and circumstances of th e tenancy.
Ha rifla r BatterJi v. Ramsftnshi Roy, I.L.R 46 Cal. 458; Secretary of Slate
''IJ MadlmSuda.n Mukerjee aud others, A.l.R. (1933) Cal. 260.

Ba Nyunt Jor the appellants.

Aye Maung for the respondent.
The judgment of the Bench was. delivered by
U ON PE, J.-:fhis is an appeal against the judgment
:and decree in Civi:l Regular No. 509 of 1950 of the
City Civil Court, Rangoon, by which the appellants as
tenants of the house known as No. 53, Bagaya Road,
K ernmendine, were or:dered to be evicted therefrom
the Court having held that the aforesaid house was
required for residential purpose of the owner of the
house, the respondent, which is one of the grounds
entitling landl9rds to evict tenants under the Urban
Rent Control .Act.
Civil 1st Appeal No. 18 of ..1951 against the decree of the 2nd Jude,
~
City Civil Court; iRangQOn in Civil Hegular No. 509 of 1950, dated the
bt February 1?51.
1952] BURMA LAW REPORTS. 177

There \vere seven issues fram~:d in the suit, all of H.C.

19:i!
which were decided in favour of the respondent and
Dl<. U CHrr
before us in this appeal only t wo grounds have been AN U O:"E
t' .
urged, which are as follows: DAII' OiH\
Yl!'.
( 1) For that the learned Judge having answered
that the tenancy period b egan on the 16th of every U ON PE, J.
previous month and ended on the 15th of every ensuing
month, should have held that the notice of ejectment
to vacate the sui t premises b y the 14th April 1950 \Yas
not in a<.: cordance with law.
(2 1 F or that the learned Ju dge sho uld have held
that they ar e n ot the tenants of the respondent in view
of the exhibit docum ent.
Ground No. l?i is in etlect t o assail th e right of suit
of tl1e respondent but has not been seriously pressed,
and we think, rightly too, in view of the evidence in the
case which '''e consider has been \:vell assessed by the
lower C.ourt to come to the r ight finding on the point.
For the disposal of t his appeal, tl1e real point for
determination is the sufficie ncy or otherwise of the ,
notice given by th e landlord to vacate t he premises, or
in oth er words; whether the noti ce was in accordance
with law. T he law lays down c~rtain requirements to
be complied with by a landlord who desires to
successfully eject a tenant from a premises and such
requirements are embodied both in the Transfer of
Property Act and the Urban Rent Control Act, 1948,
which in so far as sufficiency or otherwise of a notice to
determine a lease is concerned, have to. be read
together.
Seclion 106 of the Transfer of Property Act lays
down how p eriodic tenancies are terminated by notice
to quir. The se'ction may. be reproduced: ..

" 106, In: the c:tbsence of a contra~t or lC'callaw or usage to

the contrary, a le~se of immovea}Jle properly for agricultural or
12
178 B URl\fA LA\V REPORTS. [ 1952
H.C. ma n nt:1 cturin~ purposes sliall be deemed to be a lease from year
1951
to ~ea r . terminable, on tbe p:; rt of either lessor or lesLee, by six
DR. U CHIT months' nocice expiring with tlle end of a year of the tenancy ;
AND ONE
'1/. and a le:~se of immoveable property for any othe1 purpose shall
DA\V OHX he cleemetl to be a lease from month to month, ter~1inable, on
YIN.
tbe p~<rt of either lessor or lessee, by f1fteen days' i1otice expiring
U ON PR. J. with tbe end of a mouth of the tenancy."

The question that presents itself for consideration is

whether in view of the agreement admittedly made
tetween the parties in this case, contain~d in Exhib it 1,
section 106 of the Transfer of Property Act is applic-
able to the present case. The Exhibit 1 document
contains the terms of the tenancy agreed to by the
parties regarding the determination of the tenancy,
one of which is a clause that one month's notice must
be given by either party. This clause relating to one
month's notice as appearing in Burmese, the counsel
for the appellants contends, is capable of being
interpreted to give a meaning which would bring the
case within the ambit of section 106 of the .Transfer of
Property Act. The passage reads: " oorooo~~:oot@;l
oaG6')8a6'J:q~tn': The counsel for the appellants contends
that the notice, terminating the tenancy on the
14th April and tpus not having ended with the end of
the tenancy \Vhich the lower Court has fixed to fall on
the l.Sth April, is invalid. This is a contention which
we cannot accept, for, the meaning of the word in ques-
.tion is clear to us that thi~ty days' notice by either party
is the requirement to be complied with and we agree .
with the lowerC.o urt that in the light of this construction
the provision of section_106 of the Transfer of Prop~rty !
Act requiring fif teen days' notice expiring with the end j
of the month of the tenancy is not ~pplicable to this case. i
I n interpreting any a~big!l<?:Us words . in. a docu-.- .~
ment, assuming that the words in quesfio~, namely .. ;
~~within a month" Or. " ~. month,"
.. .
Carry a eaning the "".~
 {952 J BU RMA L AW REPORTS. 179
legal effect of whic h ig that tenancy is terminable H.C.
11)51
within a month exp iring \\itb the end of the month of
the tenar.-;;y, the Court will be wd l guided by following
a well established prin cipl e such as the one laid down L.'.
D~w OH:-~
in the case of Harihar Barwji v. Ramshaslzi Roy (1). YIN.
There it is h-eld as follows: [.; 0:-: PE, J.

"Tile principles hid down by the English authorities are

equally applicable to cases al'isin!-! in India. They establish that
notices t0 quit, though not strictly accurate or consistetit in the
statements embodied in them, may still be good and effective in
Jaw ; that the test of their sufliciency is not what they would
mean to a stranger ignorant of all the facts and circumstances
touching the holding to which they purport to relate, but what
they would mean to tenants presumably conversant with all those
facts and circumstanc~s ; and, further, that they are to be
construed not with a desire to find faults in them which would
render them defective, but in accordance with the maxim 'ut res
magis v~lleat quam pereat' (th~t an act may avail rather than
perish)."

I n this ease-l~' the parties must be presumed to kno\\'

what was the real intent of the notice Exhibit A which
has given more time to quit than prescribed in the
agreement bet-ween the parties. In Secretm-y of Stale
v. Madhitf Sudan Mukherjee and oihers (2) it has been
held that a notice to quit is good notwithstanding that
more time is given therein than the t'ime prescribed.
In these. circumstances we hold that the notice to
quit is a valid one the same b eing in consonance with
t he termsof the agreement, which tP,erefore rules out
the applicability of section 106 of the Transfer of
Property Act. In the result the appeal fails and is
accordingly. dismissed with costs.

(l)LL.R. 46 Cal. 458. 121 A.J.R. (1933) Cal.:p 260,

12
180 BURMA LAW REPORTS.

APPELLATE CiVIL.
Before U T!<tJ Syu, Chief Justice, nnrl U On Pe, J.

H.C. SIN TEK AND ANOTHER (APPELLANTS)

1952
Feb. II. v.
LAKHAi:JY BROS. (RESPONDENTS).*

Urba11 Rc11/ Control Act, ~. 11 (1) (b) atJd s. 14 (1)-Mealling OJ tile

7Vortl ''premises.
Held: That the word "primarily" appearing in clause (tl) of s.ll 11) of the
Urban Rent Control Act, 1948 must be read in th~ light of the e.xpression
and was subsequently let" which follows it. It coul'd <ccordingly be
const rued as referring to order in time, 'meaning at first or originally.
A ht.:ilding to be erected on the site in question need not be in the nature
of a residential building. The expression " house" in clause (d.) should b<:'
given its ordinary wide construction and would include a plac:e of business.
"House" docs not mean necessarily a mere dwelling house or a house
only ued, exclusively or principally used, for a resid ence; the word" house"
includes a shop or may consist of a shop.
When a tenancy was determined by due n6tice and a decree for ejectment
was passed but the decree was later rescinded, but t~ landlord did not
receive:: any rent from the tenant anc;l he filed -a suit to ejed lh~ ten.ant und<.r
s. 11 (11 (d) of Urbau Rent Control Act to enable the lan~Uord to build a house
on the laud, fresh notice to quit was not necessary. There is a distinction
between the meaning of the word "tenant" in Urban Rent Control Act and
mt:aninJ.! of the word "tenant ' under the Transfer of Propelty Act. A tenant
holding over after the determination nf tenancy is a tenant within the
meaniug of the Urban Rent Control Act but he is not a tenant under s. 116 of
the:: Transfer of Property Act.
Richards v. Sut~mea"Improvemmt tltld Tramways Co., {1878) 9 Ch. D. 425
at 431 ; T. H . [(haJJ v. Dawqod Yusoof Abowath and others, ( 1947) R.L.R 354,
referred to.
s. B. Leonf? for the appellants.
G. Hot-rocks for the respondents.
The judgment of the Bench was delivered by
U TuN BYU, C.J.-The plaintiff-respondents
Lakhany Brothers, who are owners of a plot of land
known as No. 575, :.Dalhousi_e Street, Rangoon,
civil T~CA"ppeal N'o. 19 qf t9'S1 -agaiwst ~tr.e..dcre~of c'ity civil Court,,
Rangoon, in Cfvil Regular No . .?17 of 19SO,.dated .5th Feb!'uary 1951.
 1952) BURMA LAW REPORTS. 181

institutc:d a suit, known as Civil ! ~eg ular No. 686 of H.C.

1952
194-8 of the Rangoon City Ci\il Court, for the
:):=' TEK AXO
ejectment of the defendant-appell ants Si n Tek and .\~ vi. Hil

C. Seng Chean from the said land ; and a decree was v.

LAKHAN Y
passed in tbeir favour. Lakhany Brothers C)lso ~1ROS.

instituted a suit for arrears of rent due by the I; TUN BYU,

defendant-appellants in Civil Regular No. 780 of 1948 C.J.
of the Hangoon City Civil Court ; and a decree for
arrears of rent for the period between 1st May, 1947
. 'and 1st May, 1948 was also passed in their favour.
The defendant-appellants applied on 1st February,
1950, under section 14 (1) of the Urban Rent Control
Act, 1948, for the rescission of the decree of eject-
ment passed against them in Civil Regular No. 686 of
1948 ; and the decree of ejectment was rescinded
on the 6th March, 1')50. On 30th August, 1950
Lakhany Brothers instituted a third suit, known as
Civil Regular No. 977 of 1950 of the Rangoon City
Civil Court, for the ejectment of the defendant-
appellants from t he same plot of land, but on a
different ground, namely that they desired to construct
a building thereon ; and this suit was also decreed
with costs against the defendantappellants on the
5th February, 1951.
The site in question could, in our opinion, be
described as a plot of land " which was primarily used
as a house site." The expression ''primarily ",
appearing in dause (d) of section 11 (1) of the Urban
Rent Control Act, 1948, will have to be read in t he
light of the expr~ssion " and was subsequently let" .
which follows it. I t could accordi ~gly be construed
as referring to order in time, .meaning at first or
originally:
It \.vas urged on oehalf of the defendant-appellants
that the building to be-erected on the site in q uestion
should be in the nature o.f a residential building, and
182 BURMA LAW REPORTS . [1952

H.C. unless it 'vas so, clause (d) of section 11 (1) of the

1952
Urban Rent Control Act, 1948, does not apply. It
SJN TEK A:-;o
ANOTHER was sai.d that as the site in question is opposite to the
v. clock-t6lwer of the Soortee Bazaar and as it is in a
LAKHA )IY
BROS. busy business centre of Rangoon, it could not have
U Tt/N BYU, been required bona fide for the construction of a
C.J. residential building. The ev idence of Tar Mohamed,
the managing, partner of the firm of Lakhany Broth erst
shows that the upper floor of the buildings in the
locality in which the site in question is situated
are also used for residential purposes. Ko Bulu and
Ko Tin, witnesses for the defendant-appellants, alsc
made a statement to the same effect. The expression
''house" in clause (d) ought, moreover, to be given
its ordinary wide construction, includin.~ a place of
business, in the absence of anything to indicate, more
or less clearly, that it was intended to be used in a
more restricted sense, James L.J., in Richards v.
S7vansea I mprcner1zent and Tramways Company ( 1}
observed :
'' 0 comse, th'e WOl'd 'house' does not mean, it seem's to
me, necessarily a mere d\\'eliing house, or a house only nsed, or
6Xclusively or principally used, for a residence ; the word ,
'.house' includes a ;hop or may consist of a shop." 'j
. ~
There is nothing in clause (d) of section 11 (1) or~
in any other part of the Urban Rent Control Act,~
1948, which would definitely suggest thatthe building!)
~7 hich is to be constructed, must necessarily be ~(
dwelling house, or a place of rest or abode. We,:
rright mention her~ that the word '' res~dential "~
which appears in clause (f) of section 11 (1). is no '
P.reseDt in clause (d).. I.f the Legislature had intended
. that .the building or buildings Ui~tt are to b :
constructed under c.l ause (d) should . be 'r esidenti
{1) (1878) 9 Cb. D. 425 at '431.
 1952] BURMA LAW REPORTS. 183

building or buildings only, we would in any cas{; H.C.

1952
expect it to express its intention more precisely.
Sl:\ TEK AND
A plan of the proposed building has been approyecl ANOTHER
by the Building Department of the Corporation of the v.
LAKHAXY
City of Rangoon, and it could, in the circumstances, BRos.
be said that there is evidence to indicate tluit the site t; TuN BYU,
C.}.
in question was required bol/(.1 fide for the construction
of a building as deposed to by Tar Mohamed.
Admittedly, no notice to quit \vas issued to the
defendant-appellants in the present case ; and a
questiou arises whether a notice under section 106 of
the Transfer of Property Act is necess3ry in the
circumstances of the present case ; and the case of
T. H. Khan v. Dawood Yusoof Abowath and others (1)
was referred to on behalf of the defendant-appellants.
It was, however, submitted on behalf of the
plaintiff-respond ents that the defendant-appellan ts
were not, in the present case, tenants who are holding
over within the meaning of section 116 of the Transfer
of Property Ac t and that no notice to quit was , in the
circumstances, necessary under section 106 of the
Transfer of Property Act. There is no evidence in the
present case to prove that a ny -rent- was. paid to or
received by the plaintiff-respondents after the rescission
of the decree passed in Civil Regular No: 686
of 1948.
It seems to us to be necessary to consider the effect
of the order r escinding the decree .of ejectment passed
in Civil Regular No. 686 of 1948. T he order of
rescission was made on th e 6th March,H950. T he
effect of the order of the r escission co~lld ~e said to
relegate as far as possib le, the parties back to tl~e
position which they would h ave occupied, as if the
de9ree of ejectment passed in Civil Regular No. 6~6
of 1948 had not been made. T he defendant-
. . (1) (1947) R.L. R.'35~.
184 BURMA LAW REPORTS. [1952
H.C. appdiants continued in this case to remain on the land
1952
in q uestivn even nfter the decree for ejectment ll ad
SJNTEI\ A~ D
ANOTHER oecn passed and the contractual period of the lease,
v. which extended up to 31st July, 1949, had expired
Lt\KHANY
BROS. when the order of rescission of t he decree for
U TUN 8YU, ejecttpen1 was made. This in effect means that tl1e
C.].
defendant-appellants Wt're no longer lessees under the
lease executed on the 29th July 1946 at the time the
order of rescission was passed. What is the position
of tlle defendant-arpellants? Tbe mere fact of
holding over after the expiry of the lease will not in
itself create a new tenancy, and it will depend on the
circumstances of each case whether a new tenancy
had been created after the expiration of the original
term of lease.
1t was argued on behalf of the defendant-appellants
that as the definition of the expression "tenant" in
the Urban Rent Control Act, 1948 inclt,I des persons in
the position of the de.f endant-appellaots, the latte~
should, for that reason, be regarded as tenants hofding
over within the meaning of section 1.16 of the Transfer
of Property Act. We are unable to accede to this
contention. The definition of the word "tenant" in
the Urban Rent Control Act, 1948. is made for the
purposes of that Act ; and it has to be remembered
that the Urban Hent Control Act , 1948 does not provide
for the creation of a lease.
we have already observed that the lease which.the
d.e(endant-appellants held expired by efflux . of time
after 31st July, 1949. It is difficult to realise how the
defendant-appellants could properly be described
as tenants holding over unless they could bring
themselves within the meaning uf section 116 .of the
Transfer of Property Act. . T he defendant-appellants
had paid no rent to their )andlords fo~ the . period
subsequ ent to 30th April, 1948! It . aJso does not
 1952] BURMA LAW REPORTS. 185

appear that Lakban y Brothers had don e any tll in.t; ff .C.
1952
which wo uld indicate that they had assented to tl t~
d de nclant-appcllants continuing in possesssion of lhc :'!' TF. I( IXO
.~ :-.' OT H ER

site in que stion. The sum of R ~ . 5,578. \vh ich t he v.

L M> HAXY
defendant-app ellants paid into Court on I h e 21 st BRos.
February, liJSO, was in satisfaction of the rents a nd (} T l:N B YU,
C.}.
cos ts of th e suit due in Civil f<egular No. 686 of 19.:J8
and for the purpos e of havin g the decree pased in
that suit be ing rescinded; and moreover tll e . re nt due
in tha t sui t \\'~t s also for a period prior to the 1st May,
1948, that is, for a period before the contractual lease
expired by efflux of time . Tl1 e defendants could not
there fore b e considered to b e tenants holding over
within the meaning of section 116 of the Transfer of
Property Act ; and no notice to quit was thus necessary
in the circumstances of the present case.
We ou\/ht to add that the conditions of a bond to
be executed under clause (d) of section 11 {1) of the
Urban Rent Control Act should follow strictly the
direction given in that clause. It should ha\le been
that the plaintiffs are directed to enter into a bond for
a sum of Rs. 10,000 that they will erect a building on
ihe site in question within one year from the date of
the vacation of the premises by the defendants and that
ihey will, if so desired by the defendants, reinstat~
them on the premises in question. on completion of the
erection of the building in case it is erected for tpe
purpose of letting. We have . in creased the amount of
the bond to Rs. 10,000 in view of the fact that the site
is in an important business centre of Rangoon and that
ihe plaintiffs propose to construct a four-storied
building thereon. The trial Court should accordingly
require a new bond to be executed. in the place of the
old bond . .. Excepl for the modificat.i on set out above,
the appeal should 'be considered . as dismissed with
costs.
l8b BURMA LAW REPORTS. [ 19.52

APPELLATE CIVIL.
Btlore U T1111 By1~, Chief Justice:, anti U On Pe, ].

H.C. HAJI RAHIM BUX (APPLICANT)

1952
Feb. 11. v.
SHAIK MUBARAK HUSSAIN \RESPONDENT).*
R.,ngoou City Civil Court Act-Suit !11tdet s. 17 decreed on tht> basis t!tal the
OC<'ttpallf is a liceusee- Dislillclion betweeu a ten111Il and a licctrsec-
Urban Rent Co11trol Act, ss. 12 (1) and 13.
Hclil: That a suit against a licensee is maintainable under s. 17 of the
I~angoon City Civil Court Act. The Ut ban Rent Control Act does not apply
to a licensee. S. 12 of the Urban Hent Control Act contemplates people
whose rig ht or-occupation depenAs on tenancy created by statute.
One point of distinction between a licence and a lease is that there must
be exclusive possession in lhe case of lease and that element of exclusive
possession is absent in the case of a lkence. Where exclusive possession is
Jacking a person cannot claim to be a tenant.
S. R~ Rajr v. The Assistmit Controller of Re11ts, Ra11goou ard. others, (1950)
B.L.R. 10; Indian Sltucll Produ.ds Ltd. and ll1lOiher .v: The Co1tlroller of
Rents, l?an'.0011 (t1tci another, (1950) B.L.R. 64; Gurbachcm Singh v. los.
E. Feru,wdo, (lY50) .I:S.L.R.i, referred to. -

Ba Gym~ for the applicant.

N. R. Bu1jorjee for the respondent.
U ON PE, J.,-This is an application for i:eview of :
our. judgment passed in Civil 1st Appeal No. 60 ofj
1950, wJ-lich was ati appeal by the applican.t against~:~
the judgment and decree of ejectment by the Rangoon'
City Civil Court passed in its Civil Regular No. 587 o:'
1949. The ground on vvhich this application is base .'
is that one of the grounds raised before us in Civi .
1st Appeal No. 6 of 1950 _viz., "for that the learne ~_,
.trial Court should not have entertained a suit fo
~jectrrie~t under section 17 of the Rangoon City Civ ..~
. ~

" Civil Misc. Application No. 1.2 of 1951 being app!icatio~ under secti~-
114 read with Order 47 of Code of Civil Procedure fol' review of judgme ..
and de.;ree passed in Civil 1st Appeal No. 60of 19SO,_dated 16th March 195~
 1952] BURMA LAW REPORTS. 187

Court Act in respect of the suit premise!:> to which the H.C.

1952
Urban Rent Control Act of 1948 applies and erred in
HAJJ RAHm
law in so <:ntertaining and ordering an ejectment, and Bcx
the judgment is otherwise bad in law", was not t:.
SHAIK
considered by us in our judgment dismissing the MUBAI\AK
HUSSAIN.
applicant's appeal.
vVe might observe that the parties went to trial U 0~. PE, J.
on one issue only, that is, \vhether the defendant is
a permissive occupant or a tenant of the plaintiff, and
this migb.t be said to be tbe reason why the point now
taken up in this review application vvas not considered
specifically. In the appeal before us, we took tbe
same view, on question of fact, agreeing with the
finding of the lo\:~,rer Court and, having come to that
view, we must have considered that the question of
the maintainability of .the suit under section 17 of the
Rangoon City Civil Court Act did not appear to be
material for the decision of the case. On that footing,
we disposed of the appeal in the manner we did ,
without touching any other points in the case which
must have appeared to us to be immaterial for deciding
the case. It will be true to say now, as when we heard
the appeal, that if vve see no grounds to change our
view on the finding we had previously arriv<?d at, the
question of the maintainability of the suit can only be
of academic interest.
We have, however, aUowed the learned Counsel
for the applicapt, assuming the point now under review
to be an error on the ~ace of the record, to reagitate
the matter in his attempt to induce us to change our
view on the character of the occupation by the
defenqant (appli<;:ant) of the suit r9om. .". he learned
Couns~l has referr~d to us the decisions of the Supren::te
Court in support of this contention that on facts, as in
the present case, the Supreme Court held the
occupation to . be that of a tenant. The first-.case
188 BURMA LAW REPORTS. ( 1952
H.C.
1952 referred to is that of S. R. Raju v. The Assislmz.'
HA1i RAHIM
Con/roller of Rents, Rangoou and lwo ollzers ( 1). In
Bux that case the occupation was the outcome of an
s:~ 1 K agreement which the parties agreed to describe as a
~~~~,:~~~~ licenc~ and not as a sub-tenancy, and sc;me part of
- which may be reproduced from the judgment:
U 0::-IPE,J.
"Clause 9 of the ageement reci ies that as between the
'licensee' and the' licensor' the1e shall be no in terference ancl
interruption ofeeach other' s business. There is also in clause 6
a provision that out of the 14 almirahs in the said premises
the 'licensee ' shall be entitled to have the exclusive ose of
12 almirahs. Th~re is also another provision that the 'licensee'
shall be entitled to keep his employee or employees or men to
reside in the premises to enable him to run his own business.
There is, further, another provision that the 'licensee's' repre-
sentative will be jointly responsible with the ' licensor's'
representative for theft or loss of goods at night time on the
premises."

The Supreme Court also found as follows :

. " That the third respondent desired to keep this transaction
outside the meaning of a lease can be clearly understood, for
he was paying to the second resp0ndent Rs. 144 per mensem for
the whole ground floor o~ house No. 99-Wl, Fraser Street,
Rangoon, and was by this transaction obtaining a fee or rental
of Rs. 500 per men sen: for a part only of the same tenancy,";

and on those grounds it held that the occupation was

inconsistent with .the appli~ant being a mere licensee.
The next case of the Supreme Court is the Indian
Stm-rh Products Limited and another v. The Con-
tr.oller of Rents, Rangoon, and another (2) where,
following_ S. R. Raju.'s case (1) it was held that "the
distinction betwee11 a licence and a lecse is that there
must qe ~xclusive possession in the cas~ of rease and
that _element of exclusive possession is absent iri the
case of a licence/' .
.(1) (1950i B.L.R. l 0 . :2} . i1950l B L.H. 64.
l 1J52 J BURMA LAW REPORTS. 189

The third case of the Supre me Court referred to is H.<..:.

1952
Gurbacltau Siugll v. ]os. K Fernando (1), \rhere the
R.\Hnt
test dtstin~n i shing between a licer ce and a 1ease has HMlBl'x
been laid clown following the principle enu nciated in s::~ 1 "
S. R. Rai u's case (2). There \\'as an. agreement
.
i n this .MullARAI<
. Hl:SSAIK
case too under which, as set out 111 the judgment,
" the respondent agreed to allot to the appellant a floor u ON PE, 1
space mtasuring 17 feet in length and 5 feet in width
along the northern side of the show room, reserving to
the respondent therein a flo or space of 4 feet in length
\
and 22 inches in width. The appellant was under the
agreement to pay 'a guaranteed ~n thl y commission '
of Rs. 100 to the respondent as eonsideration for the
allotment of the space. OR the space allotted to the
appellant had been constructed teak-wood fixtures and
two show cases ior the purpose of the appellant's
business in the sale of radio goods and service of
radio instruments," and it was held that a:n exclusive
right of occupation in that specified area was given,
and that the respondent's case that the appellant was
mere licensee necessarily fails.
Th e case, before us, is distinguishable from those
~ases . .)In corning to th e finding that the applicant is
a licensee in this case we do. not consider that we are
at varianc.e with the prin ciples hiid down in the
Su!>reme Court cases, for the essence of a lease which
is exclusive possession is clearly lacking in the present
case. \Ve do not think we should reprod~ce the facts
except to say, beca~se .on the evidence in the case
exclusive possession was found not lo have been
proved, that' ~e held that th e applicant was a licensee.
The holding of the key of the premise does not
necessarily mean exclusive possession , if there are
other circumstances which would indi cate, as in this
case, that the licensor cannot be excluded from using
(1) (1950) B.L.R. l. t2) (1950) B. L,R. 10.
190 BURl'>'IA LAW REPORTS. [ 1952
H.C. the premises in question. It is clear from t he Supreme
1952
Court's decision that the allotment of specified space
H.4Jl R AHIM
Box need not be enclosed, provided such allotment giYes
v. exclusive possession, to constitute a lease. It is the
SHA!K
MOBARAK essence of the tran sact ion that is to be looked at , and ,
HOSSAIN.
for tile rectso ns already given previously when \re
U ON PE, J.
heard the appeal, we s ~e no grounds to differ from thnt
finding.
T he next point that has been urged is tl)at the
Urban Rent Control Act contemplates giving relief to
per~ons who are non-tenants like licensees and that
s.ecti,on 12 (1) of the Act contains provision which
tends to suppor t this v1ew. Th e relevant portion of
section 12 (1) reads :
II<"'

" In any area or in respect .of any class of premises to \\.hich

the Governor may, by notification, declar e this section to apply,
any person , not al~elcly being a . tenant of any pL'emises but
b ein~ i:1 .occ.t1pation of such premises bot~a fide for residential or
business .purposes. may make application to the Controller to be
permitted to continue in ?ccu~tion o( such premises, and the
Controller shall, on the applicant m<\king a written declaration
of his willingness io pay. the sta1idard rent of such premises,
issue a written order to the said applicant permitting him to
continue in occupation of the said premises and shall send a
copy of .his order to the landlord, or hi s authorized agent, if his
whereabouts are kno\vn."

It has been submitted. that the words '' any person,

not .alr.e ady being a te nant of any premises, b!lt being
in occupation" im'ply occupatio.n by t!10se 'persons ,
who are called licensees as in this case and t hat this ]
interpretation is in accordance w ith the principle ~
gover~ing the interpretation of statutes.. . .~
When one.keeps in view the object of the Urban ~:
Rent Control Act, whicp is primarily to give. relief to
tenant-cb:~.ss .~f pepp.le;_.the interpretati.on ~f >Hie . wo~ds .:
<~any person,'\'lot bemg a tenant but b~.mg m occupatwn ~
. . . . . ~
 .i952] BURMA LA\V REPORTS. 191

of a premise," which is susceptible of more th<m one E.C.

1952
mean ing s hould, in our view, be taken to mean the
Hn1 l~IH D:
class of people intended to be protected by thl.! Act. Bn
To be entitled to the protection under the Act, ; ne v.
SH AlK
must be a tet}ant or one who can become a ter1ant o:: .\lUB.\RAK
Ht:~MIN.
his complying with the requirement as laid &:)\Yn
t: 0:-.: PE, J.
under ~he Act. Under section 12 of the Act, a person,
not already being a te nant but bting in occupation of
a premise for residential or business purposes, may
make an application to the Co ntroller to be permitted
to contin tte to occupy, giving an uqdertaking to pay
the - stand~rd rent and becom~; a statutory tenant.
Sectiop. 13 of the Act v;.hich follows section 12 makes
it clear that section 12 refers to persons \\ ho :1re
qualified to be statutory, tenants. S ections 12 and 13
will have to be read together to get at the right
interpretation of the words in question. \Vhen these
two ~sections are read together, it becomes clear that
section 12 contemplates people whose right of
o ccupation depends on tenancy created by statute.
A licensee stands on a different footing and cannot
be classe.d with the aforesaid persons. His right of
-occupation is assured to him as long as the licence
lasts, whereas the ri_ght of occupation on a tenancy
rests on payment nf rent. In our vi'ew, we consider
that the case of a licen see is not contemplated to fall
within the ambit of the Urban Rent Control Act and,
that the suit has, therefore, been rightly enter tained
under section 17 of the Rangoon City Ci vi l Cour t Act.
In the result, this a.Pplication fo r review cann.ot
be entertained and is accordingly rejected; Advocate's
fees three gold mohurs.

U T uN B Y:u; C.J.- 1 agree~ .

192 BURMA LAW HEPORTS. [ 195 2

APPELLATE ClVIL.
Befcre U Tuu lJyu, Clzicf Justice, awt U Vu l'e, J.

~9~2 :MAGAT\LAL PRANJIVAN MEHTA .{APPELLANT)

Mar. IZ.
v.
MRs. CHAMPAKUNVA.R 1\:ATILAL MEHTA
AND OTHERS !)~ESPONDE NTS).*

R.:;,ie-APf>t:al a~ainst order rc.ieclin,rt applicntio1l f or rVitw- Order 47,

Rule 7 (JJ, Code of CIVil Procedure-S. 20, Ut!iOtl Judiciary del,. 1948-
Judgment-U:hethcr order rc jertiug r,view amounts .to._
A preliminary mortgage decree was passed by con~ent on the Original
Side. An application for review by Appellant was dismiss::d as time- barred.
The Appellant preferred an appeal and a preliminary objection w&s raised
that no appeal lay.
Hcltl: That undt:r Order '17, Hule i (ll, Code of Civil Procedure an ordtr
of Court rejecting an appiicatinn for review i:; not appealable. The said order
dot:s not also a.;uount to a jud~ment within the meaning of s. 20 of the Un:on
Judiciary Ad, 19-18. S. ~0 i<> 'in the nature of a gen.,ral provi::.ion relati ng to
appeals. But the. ~pecial provisi.>n in the Code of Ci vil Procedure excludes
appeal in ~. 20.. A judgment has been defined a~ a d~cree- rbade in a suit
whereby the rights of the party are determiued. 'fhe.word "jt:dgment" in
s: 20 ol the Union Judiciary Act, 1948 should not be accorced a wider meaning_
than ~utc.l_er til(! corre.;pondi ng clause 13 of the Hangoon Letters Patent.
A decis!on given by the Judge for sutlicient reason, even if erroneous,.
cannot make it a decision without jurisdiction, and an appeal did not lie in the '
~~ 1
Dayq.bhai Jiwandas and otlurs v. A .M.M. Murugappa Chetliar, (1935.~
13 Ran. 457 ; Dr. Hori Ram Singh v. Emperor, A.I.R. (1939) F.q. 43, followed~

Appellant in person.

M. E.. Dawoodjee for the respondents.

.

The judgment of the Benchwas . <;lelivered

U TtJN BYu, C.J :-.The appellant Maganlal Pranjiva''
Mehta was a defnda1.1t jn Civil Regular No. 99 of 19~{
: Cl'>'il Misc. Appea! No. 20 of 1951 against the order of Original Side -
Civil Regular ~o. 99 of 19~9, dafed the 9th March -1951.
'1952] BURMA LAW REPORTS. 193

on the Original Side of the High Court, and then.: it H.C.

1952
was ordered that th.e decree be granted in acc~> rdancc
witha compromise-petition, dated the 19th June, 19.30 )IAG ANLAL
P:~ \~:Jl\'AN
-1:ide the diary order, dated the 26th June, 1950. A :.!EHTA

pteliminary mortgage decree was thereafter dt~an-n llP 'II.

illi~S. C~!AM
PAK(;i!<VA R
in accordance with the terms of the compromise- {~AT!t.AL
petition. Subsequently, on the 9th October, 1950, ~lEJITA A~D
O'fHERS.
Maganlal Pranji van Mehta filed an application for the
V Tlr)l BYU,
revie\.v of the order allowing the compromise, made on C.J.
the 26th June, 1950, and for setting aside the preliminary
mortgage decree made in pursuance of the compromise-
order. The leamed Judge on the Original Side held,
inter alia, that the appl ication for review was barred
by limitation of ti me and that no sufficient cause had
been made out by the appellant for not prefercing an
application for review within the time allowed under
the Limitatiou Act. We agree with the decision of
the lear-n ed Judge on the Original Side, and the
decision is, in our opinion, correct.
A preliminary objection has been raised on behalf
of the respondents that no appeal is allowed against an
order rejecting an application for review. The relevant
portion of Order 47, Rule 7 (1) of the Code of Civil
Procedure reads :

" 7. (1) An order of the Court rejecting the application shall

not b e appealable ; but an order granting an application may be
objected to on the ground tbat the application was-
(a) in contravention of the provisions o Rule 2,
(b) in contravention of the provisi9ns of Rule 4, or
(cl after the expiration of the period of limitation
prescribed therefor and without sufficient cause."

It is thus clear that no appeal is.allowed under the

Code of Civil -:pr.oc~dllre against an order rejecting an
application ~or review.
13 '
194 BURMA LAW REPORTS. l 1952
H.C. It has been urged by the appellant Maganlal
1952
MAGALAL
Pranjivan Mehta, who appeared in person to argue the
PRAN JIVAN present appeal, that an appeal lies against an order
MEHTA
v. rejecting his application for review by reason of
MRs. CHA-bf
P.AKUNVAR
sectiQn 20 of the Union Judiciary Act, ! 948, which
RATILAL provides ;
MEHTA ANl
oTHERS.
" 20.. An ~ppeal shall lie to. the High Court from the judg-
U TUN BYU,
C.}. ment of a single Judge of the High Court sitting in the exercise
of its original jurisdiction or in the exercise of its appellate
jurisdktion, not including revisional jurisdiction ; provided that
in the latter case the ] tldge declares that the case is a fit one for
appeal.';

Section 20 of the Union Judiciary Act, 1948, is, m

effect, a reproduction, in a more concise form, of
clause 13 of the Rangoon Letters Patent. Rule 7 (1)
of Order 47 of the Code of Civil Procedure expressly
disallows an appeal being preferred against an order
rejecting an application for review, and it ought
therefore to be considered as being in the nature of a
special provision of law, relating to an order rejecting
an application for review. Section 20 of the Union
Judiciary Act, 1948, is in the nature of a general
provision, applying to appeal generally.
It was contended that an order rejecting an '
application for review should be considered to be :
a judgment within the meaning of section 20 of the :':
Union Judiciary A.ct, 1948: We cannot accept thi~d
contention: It was held in a Ful1 Bench case of~
Dayabluii ]iwatlda_s a11,dothers v. A.M.M. MurugaPPa{]
Chettiar (1) that the word " judgment" in claus6:
13 of the Letters Patent means :a decree mad&~
. in a suit wheretiy the rights . ~ 'tlie p~rty ar
de~.ermined . . 1;'he above F~ll B~nc;;h.- case was .als
(1) (1935) 13 Ran. 457;-
1952] BURMA LAW REPORTS. 195

referred to in a recent case in the Federal Court of B.C.

1952
India in Dr. Hori Ram Singh v. Emperor (1), and there
MAGANLAL
it was observed as follows : PRANJIVAN
MEHTA
'IJ.
" In view pf the observation, made by their Lord;hips of .MRs. CHAM-
the Privy Council, the word 'judgment' cannot now be taken in PAKUI'VAR
RAT! LAN
its widest possible sense so :s to include every orclet which MEHTA AND
terminates a proceeding j:ending in a High Court so far as that OTHERS.

Court is concerned. " U TUN BYU,

C.].
'
We are unable to see any good reason why the expres-
sion "judgment " in section 20 of the Union Judiciary
Act, 1948, should be accorded a wider meaning than
it possesses under dause 13 of the Rangoon Letters
Patent. The appellant Maga~1lal Pranjivan Mehta had
a right to have the consent decree set aside in certain
circumstances, on appeal ; and he had not preferred
any appeal agai~st the preliminary mortgage decree
which was drawn up in accordance with the com-
promise-petition. The appellant could also, if he
had proper grounds to . support it, institute a suit to
declare the decree void, and he is thus not without
a remedy.
It is not disputed in the present case that the
learned Judge on the Original Side had jurisdiction to
hear the application for review and ihat he 'had given
reasons for the decision arrived at by him. His
decisions, even if they could be shown to be erroneous,
would not convert them into decisions made without
jurisdiction. It could not therefore be said t.hat the
learned Judge on the Original Side had acted in excess
of his jurisdiction. Moreover the law, as expressed in
Order 47, Rule 7, of the Code of Civil Procedure
being a. ~pecial provision relatiqg to an order rejecting
anapplication 'for review, must 'be considered to

(1) A.I.R. (1939) F.C. 43.

196 BURMA LAW REPORTS. [1952

H.C. override a more general provision of law contained in

1952 section 20 of the Union Jud~ciary J\ct. The preli-
;'.lAGA~LAL minary objection raised is therefore upheld, and the
PHANJIVAN
:~_; EHTA appeal is dismissed with costs ; Advocate's fee five
v.
MRS.CHAM-
.gold m@hurs.
<
l'AKUNVAR
N.ITILAL
i\fHTA AND
OTHERS.

U TuN BYll,
C.J.
 1952) B URl'vfA LAW REPORTS. 197

APPELLATE C I VIL .
Bc:fore U Tun Byu, Cl1tej Just1cc, n11d U Ou P(.. J.

T. M. MOHAMED CASSIM (APPELLAlT) H.C.

1952
v. l!lar
M/s. A. C. MARTIN & Co. LTD. (RESPO~DENTs).*

Promissory uot e not duly stalllf>cd-Vefwcc t l1nt promissory-uole tuns tnkc1/.

in satisfaclio~ of the claim - Transfer of ritltls nm/linbilifies by parlttcr-
sltip to a lmtited comPany-Whether l rnnsfaee could sue 011 original cause
of actiou-C,rt~se of actiot:-Repnymelll of advaucc tdt~;; arises.
Held: The burden of establishing that a promissory-note was ao::epted in
satisfaction of a debt is-upon the party pleading to that efiect. Since the party
did not give evidence or examine witnesses on this plea it could not be held
that this plea was established.
Maut1g Cllit and another v. Rosltnu N. M. A. Knreem Oomer & Co., (1934)
I.L.R. 12 Ran.' SCO at 504, referred to :~nd followeci.
The Respon dent, a limited comran), as the successors to the finn of
A. C. Marlin & Co. had taken over all the assets, ril{hts and liabilities of the firm
under a WJ"itten agreement ; as such they acquired the right to file a suit on
the original cause of action in favour of the firm. The finn can have no right
of repayment for advances made by the firm against suppl y. of bl'!cks by
appellant until the O!ppellar.t ceased to supply bricks. He so ceased to supply
on the 12th April 19~8 and t;1at was the first time when it could be ascer-
tained that appellant owed money in respect of such adv:~nces. A suit which
was institu!ed in I950,'v.:as therefore wilhin time.
111 aung Auug Mi1, ami others v. Mulu CfmtPPntt C.f letty aud otl1crs, (1907),
Vol. I, B.L.T. 50, distinguished:

N. Bose for the appellant.

A. C. Rodrigues for the respondents.
The judgment of the Bench was delivered by
U TuN BYu, C.J.- The plaintiff-respondents
A. C. Martin & Co. Ltd. are the successors to the firm
of A. C. Marti!_) & Co. Paragraphs 2 and 3 of the
Agreement, d ated lOth April, 1950, show that
A. C. Martin & Go. Ltd. had taken over the assets, rights.
and liabilities of the firm of A: C. Martin & Co.
" Civil 1st Appeal Xo. 65 of 1951 against decree of City Civil Court in
Civil Regular No. 1174 of 19.50, datc:d 27th )uly 1951.
198 BURMA LAW REPORTS. [1952
H.C. The defendant-appellant T. M. Mohamed Cassim
1952
used to supply bricks to the firm of A. C. Martin & Co.
Mo~.:A.~Eo and the firm of.,A. C. Martin & Co. made advances,
CAssiM time to time, to T. M. Mohamed Cassim against
M/s~A..c. supply of bricks to be made by t he latter. T.
M~:S;o~ Mohamed Cassim admitted in his written sta
u T~~u. that he supplied bricks to the firm of A. c. Martin &
c.r. up to the 12th April, 1948, to the value of "Rs. 2,353
all. There was a settlement of accounts between T .
Mohamed Cass.i m and the firm of A. C. Martin &
on the 12th April, 1948, when it was discovered .
T. M. Mohamed Cassim owed a sum of Rs. 3,147
the firm of A. C. Martin & Co., aftel' giving credit
. the bricks supplied by him in respect of the
advances which T. M. Mohamed Cassim;reccived from ~
the firm of A. C. Martin & Co. C?n thesamedayT. M. :
Mohamed Cassim executed a promissory-note for the
sum of Rs. 3,147 found to be owed by him, but the '
prot;pissory-note had not be~n sufficiently stamped,
with the result that the plaintiff-respondents A C,
Martin & . Co. Ltd: founded their claim against
T. M. Mohamed Cassim on the original cause of action,
and not on the promissory-note, which. was said to have
been executed qn the 12th April, 1948.
The learned Second 'Judge of the Rangoon City
Civil Court found the issues in favour of the plaintiff- ~
respondents, and their suit was decreed. ;
It was urged on behalf ofT. M. Mohamed Cassim .;
that the plaint~ff-respond~mts could not in this casej
sue on the original cause of action on the ground that:\
the 'firm of A1 C. Martin & Co. had accepted the prom is-:~
sor:Y-not.e f~r Rs. 3,147 from T. M. :Mohamed Cassim i~J
sat(~achon . of the debt of Rs. 3,_ 147 found due by theii
latter on the.. sett~~rhent of accounts on ..the 12th~pril;l
'1.94:8. On 'the other hand, it was contended on behalU
. ci ~he .plafntiff~responden~.s, . who a,cquired the assets,)
1952) BURMA LAW REPORTS. 199
rights and liabilities of the firm of A. C. Martin & Co., H.C.
that the promissory-note for the sum of Rs. 3,147 was 1952

taken merely as a collateral security for the repayment T.M.

MoH.HIF.D
of the excess of the advances made toT. M. Mohamed CASSDt
v.
Cassim, as {ound due when the accounts were gone M/s. A.C.
into by the parties on the 12th April, 1948. , MARTIN &
Co. LTO.
Two of the propositions laid down in the Full
U TUN BYU,
Bench case of Maung Chit and another v. Roshan C.J.
N. M. A. Kareem Gomer & Co. (1 L read :
" (3) It isprima facie to be presumed (although the presump-
tion is rebuttable), that the parties to the loan transaction have
agreed that the promissory-note or other negotiable instrument
given and taken in such circumstances shall be treated as condi-
tional payment of the loan ; the cause of action on the original
con.sideration for money lent being suspended during the cur-
rency of the negotiable instrument, and if and so long as the rights
of the parties under the instrument subsist and. are enforceable ;
but the cause. of action to recover the amount of the debt revives
if the negotia'ble instrument is dishonc urecl or the rights there.
under are not enforceable. On the other hand the <#use of
action on the original consideration is extinguished when the
amount 'due under the negotiable instrument is paid or if the
Jender by negotiating the instrument or by laches or otherwise
has made the bill his own, and thus must be regarded as having
accepted the negotiable instrument in accord and satisfaction of
the bonower's liability on.the original con~ideration .

{4) * * *
(5) .If it.is agreed between the parties that the promissory-
note or otlier negotiable instrument shall be taken merely as
collateral security for .the repayment of the lean, the lender is
entitled to sue upon the original considet:ation independently of
the security, and without regard to any rights that he may possess
under the negotiable instrt1ment. "

T~.:Os, the bur:den of establishing that th~ promis-

sory-note for Rs.3,147, wh~ch T. M. Moham~d Cassim
(1) (1934) I.L.R. 12 Ran; 500 ::t 504.
200 BURMA LAW REPORTS. [1952

H.C.
1952
executed on the 12th April, 1948, was accepted in
satisfaction of the debt of Rs. 3,147 found to be due
MJHA~im by him on that date falls on T. M. Mohamed Cassim.
CAvs.s m There is, in our opinion, no proper material on the
M/s. A. c. record by which the Court might conch1de that the
MARTIN &
co. LTo. pron!issory-note for Rs. 3,147 was taken in satisfaction
u TeN BYu, of the debt of Rs. 3,147 which T. M. Mohamed Cassim
c ..J. was found to have owed to the nrm of A. C. Martin &
Co., in connection with the advances which' he received
from the latter firm.
1t was submitted on behalf of T. M . Mohamed
Cassim that the promissory-note for Rs. 3,147 should
not be considered to have been taken as collateral
. security in that there was no monetary transaction
enter~d into on the 12th April, 1948, for which the
pr9missory-note might be said to constitute a collateral
security. vVe cannot, however, accede to this
.c ontention.
M. Esak, Head Clerk of the fi1m of A. C. Martin &
Co., ~ho went into the accounts with T. M. Mohamed
Cassim on the 12th April, 1948, stated that they
,found on that date thal T. M. Mohamed Cassim owed a
srum of Rs. 3,147 to the firm of A. C. Martin & Co., in
r~spect of the advances made to him ; but he nowhere
stated that the proinissory-notefor Rs. 3,147 was taken
in accord and satisfaction of the debt .of Rs. 3,147,
found to be due by T. M . Mohamed Cassim. The state-
'ment, which M. Esak made -in Court, also does not
indicate that the promissory-note for Rs. 3,147 must.
have b~en taken in full discharge or satisfaction of the
debt of Rs. 3, 147 found to be duetothe firm of A. C ..
Martin~ Co. on the.12th .~p:ril, 1948. The appellant-
defendant T. M. Mohamed Cassim had, moreover, not
gone into:the witness 9.ox to givee.vidence in this case,
not had-he- examined . any: witness on.'his behalf. It
' co~ld not therefore, 'he:. s'aid in .this case that the
1952l BURMA LAvV REPORTS. 201

promissory-note fo r Rs. 3,147 was taken in satisfaction H.C.

1952
of or as a discharge for the debt of Rs. 3, 147, fou nd
T.M.
to bt:: owed by T. M. Moha med Cassim when the ::\IOHAMED
CASSDL
accounts were gone into. v.
The case of Maung Aung Min a11d thre~ oth~rs v. M/S. A. C.
MARTIN &
Mu!n Curuppan Chettv and lwo others ( 1), affords no Co. LTD.
help to the defendant- appellant in the present case; U TUN, BYU,
C.J.
and the headnote of which is in the following terms :-

: When promissory notes are drawn in avc-1.1r of one firm

and when partners in that firm change and a new fmn is formed,
the latter cannot sue on them unless trey arc endorsed over to
them by or on behalf of the fo1mer. "

The plaintiff-responcients had uot in this case based

their suit on a promissory-n ote. There is also no
evidence to s how that the promissory-note for
Rs. 3,147 had been endorsed in favour of the plaintiff-
respondents. Paragraph 4 of the plaint makes it dear
that they b;~.sed their claim on the original calise of
action, an d not on the promissory-note which T . _M.
Moh amed Cassim executed on the 12th April, 1948 ;
an d their suit was, in our opinion, rightly instituted in
that they had , und er a written agreement, acquired
all the assets, rights and liabilities of the firm of
A. C. Martin & Co.
A question arises whether the suit of the plaintiff-
responde~ts was instituted in time. The plaintiff-
respondents instituted their suit on the 19th Septem-
ber, 1950 ; and this was beyond 3 years from the date
of the last advance made to 1'. M. M o h~med Cassim ,
namely, a sum' of Rs. l,OOOon t_he 22nd Jan uary, 1947.
It cannot, however, be disputed, in v1ew of the express
admission of the defendant-appellant in his written state-
ment'that the three advances, which T . M. Mohamed

(1) (1.9071 Vol. I, B.L.T. 50.

202 BURMA LAW REPORTS. [1952
H.C. Cass.i.m obtained from the firm of A. C. Martin
1952
& Co., were advances made against the supply
M;~!.o of bricks to be delivered from time to time by him.
CAssiM
v.
It is, therefore, obvious that the firm of A. C. Martin
Mfs. A.C. & Co. would have no right to demand tor the repay-
MARTIN &
co. LTo. menl of the advances so made, until T. M. Mohamed
u TuN BYu, Cassim had ceased to supply the bricks to the firm of
C.J. A. C. Martin & Co. Paragraph 4 of the written state-
ment show that T.M. Mohamed Cassim ceasc:d to supply
bricks only from the 12th April, 1948. It was, there-
fore, only on the 12th April, 1948 that it could be
ascertained
. for the first time whether
~ . T. M. Mohamed
.
Cassim really owed any money to the firm of
A. C. Martin & Co. in connection with the advances
made to him against the bricks to be supplied by him.
The cause of action in the present case can thus be
said to have arisen from 12th April, 1948, only; and
the present suit, which was instituted on the
19th September, 1950, must therefore be considered
to have been instituted in time.
The appeal is accordingly dismissed, with costs.
 2195] BURMA LAW REPORTS. '20:

APPELLATE CIVIL.
Befort U Sa" Matm5 a nd U Si Bu, 11.

M/s. KALIDAS & SONS (APPELLANTS) H.C.

1952
v. Jan. 7.

KHOLI RAHMAN (RESPONDENT).*

Workmw's Compr.mntion Act, s . 30 (I} (a )-Commission wltctller Ca n be

issued.
Held: In proceedings ander the Workmen's Compensation Act, the
Commissioner has no power to issue a commission for the examination of
witnesses.
Singh v. Bur ma Railways, (1 93::1) R.L.R, 641 ; Brig st ock Edulj i mtd Co. v.
Gaguji Devj~ and. 111e, A.I.R ('1930) Sind. 221, followed.

H. Subramanyam for the appellants.

Tun Sein for the respondent.

The judgment of the Bench was delivered by

U SAN MAUNG, J.-This is an appeal under section

30 (I)(a) of the Workmen's Compensation Act by Messrs.
Kalidas& .Sons, boat owners of Bassein, against t he
order of the Commissioner for Workmen's Compensa-
tion, Bassein District, awarding a sum of Rs. 2,100 plus
cost of the application to the respondent Kholi
Rahman, for injuries received by him, resulting in
permanent partial disablement. The injuries said to
have been received by the respondent have been fully
described in the order under appeal and it was the
r ~spondent's case that they were. received by him . in,
course .of the empl~yment of the appellants
.
and that
. Ci~il-. Misc. A~~eal No. 17 of 1951 a~ainst the order of the
Commissioner fpr Workmen's .Compensation, Ba ssein District in C.W.C
Case No>l. of' 1950,
. .. .dated
. 27th February. 1951.
204 BURMA LA \V REPORTS. [1952
H.C. the fracture of the bones of the left hand necessitated
1952
M/s.l{AUDAS
its amputation. Tbe appellants in their written state-
& SoNs ment.before the Commissioner for Workmen's Compen-
71.
KHOLI sation denied all the allegations made~by the respon d-
HAHMAN.
ent; thePefore the respondent had to provenotonly that
u SAN the in}uries were sustained by him as a result of an
MAUNG,' J.
accid~nt arising out of and in the course of his employ-
ment as Sukhani of the steam launch belonging to the
appellants, but also that the injuries were such that
amputation of his left hand was entirely necessary. In
. these circumstances the evidence of the Medical Officer
who treated the respondent at Myaungmya, is important
for the determination of the case against the appellants.
This Medical Officer was not called to be examined as
a witness before the learned Commissioner as it was
represented to him that his attenda~ce could not be
procured without much inconvenience. A. Commission
was accordingly issued for his examination by the
District Magistrate of Myaungmya, w~o was a!so
Commissioner for Workmen's Compensation in
Myaungmya District. His answers to:the interrogatories
and the .cross-interrogatories were treated .as evidence
in the case. Therefore one of the points raised by the
appe11ants in 't his appeal is that the statements made
by the Medical 6ffi.cer before Commissioner for
Workmen!s Compensation, Myaun.gmya, were not
admissible i~ evidence and that therefore there
was no basis on which the Comm:issioner.for Workmen's
Compensation, Bas~ein, could have made his award of
to
Rs. 2,100 the respondent. Tli.is contention must in
our opinion . prevail. As held in Singh v. Burrna
Railway~ (1)-:
. ..
. .'' Undei:: the Workmen's Comp~nsation A.ct a Commissioiter
bas no jpdsdlction to issue a com~ission for t.h~. examination of
witnesses." "- : : :
Ill {1938) RL.R . 641.
. 1952] BURMA LAW RE PORTS . 20~

See also Brigstock Edulji & Co. v. Gaguji Devji H.C.

1952
and anotlze1' ( 1).
Although the fact that the respondent did receive I;;js.& KASo:-:s
LIDA:

injuries on the left forearm appears in his own

KHOLI
eviden t:e, it is only the f\fedical Officer who .can state RAH liA:\.
with any show of authority that amputation of tbe left U SAN
hand of the respondent was an absolute necessity. i\J Al'NG, J.
Therefore the svidence of the Medical Officer who had
treated the respondent cannot be dispensed \:t.=ith.
For these reasons we would set aside the order of
the Commissioner for \rVorkmen's Compensation,
Bassein awarding Rs. 2,100 and costs to the respondent,
and direct that the case be remanded to him to proceed
to record such evidence as parties may desire to adduce
according to law and upon such evidence together with
the evidence whic}:l had already. been taken before the
passing of the order under appeal to dispose of the case
according to law. Each party must bear its own costs
of this appeal.

Ill A.I.R. 11930l Sind 221.

206 BURMA LA'vV REPORTS. [1952

APPELLATE CRIMINAL
Before U Ou Pe and U San il1aung, Jl.

H.C.
1952
THE UNION OF BURMA {APPELLANTS)

Jan . 25. v.
BOH SE lN TUN \RESPONDENT).*
The Comtitutrot~ ojl:Jurma, .~. 60- Right of amnesty how to be excrcised-
DistinctiotL between a11111esly antl Pardo-tL-Principies o" whic!z it 1$.
based-Gweral Clarms Act as amwded by Act Xl of 1950-Ss. 21 (1),.
22 tmd 63 of I he Conslilttlioll-Principle 011. w!lic% punishment is to be
infiictcd-S. 562Wl, Cri mir1al Procedure Code .
Held: That a notification issued by the Governn:ent of !he Union of
Burma, Ministry of Home Affairs, Police II Branch Notification No: 370, dated:
10th May 19:00 is no more than a promise by the Government not to take any
action against those ' who surrender in Ierma thereof and has no legal effect:
unless it has been implemented by an Act of Parliament.
The wor.d " par.d on " includes Amnesty.
Phillips v. Eyre (1868) L. R. 4 Q.B. 225 anrl (1870) L.R. 6 Q.B. (Ex. Ch.) ;:
Burdick v. Unittd Stales 236 U.S. 79; John Knote v. United Stales, 95 U.S
149, followe.d.
Amnesty is a modified form of pardon and may be granted before- or after
a conviction . There is nothing in the Constitution which prohibits the
Presi:lent from extending a general pardon to offenders pr classes of offenders.
so long as it is known that they have committed offences' punishabl'e under the-
penal Ja\V of the count ry.
Under s. 6J of th~ Con.stit,Jtion the powers anrl functions conferr ed on the
President by lhe Constitut,!on sh<tll be exercisable and performable by him.
o11ly on the advice of the Uuion Governmen t save where it is provirled that
he shall act in his own discre.tion and s. 60 which vests the right of pardon.
in the President does not pro vide that in exercising this right he shall act in.
his discretion. Therefore the right of pa rdon is only exercisable on the advice-
of the UnioJl Governme.n t.
Though s. 13 of the General Claus<!S Act as amended by the 'Act XI of 19SOo
enacts thar whery be an Act of Farliament or by any existing law a~ defined ,
ins. 222 of the- Constitution any power is conferred or any duty imposed on
the Pres.i dent of 'the Unio:1, the powe r shall be exercisable and the duti<!s,
performable in his name by the Government. But . the power conferred on .
the.P resident by s. 60 is-not a p.Jwer conferred;!" him by any Act of Parliament.
or by any existing Jaw. .'

* Criminal Appeal N0. 306 6f 1951 .bCing appeal'from tile order of the
2nd Special Judge of :hi'\ubin, da~c~. i 2th April 1951 in Criminal Regular:
Trial No. 8of 1956:
19S2] B URMA LA'A' RE PORT S. 20i

s. 121 (I) of the Constitution pro1idc:s that all txecutive actions of tile H.C.
1952
Union Governm ent shall be expre~sed to be taken in the name of the P residen t
but this does not mean that all actions taken in the name of the Pre!idcnt THE U!\10:-1
:~re ip$o facto executive actions of the Union Government as s. 63 of the OF B URMA
Cons titution makes it clear th:tt th e pow era conferred on the President by the v.
BoH SEI N
Constitution shall be exercisable and performable by hiln though of course T UN .
only on th,. advi\<,e of the Union Government. All exec.:tive ac~ions of,the
Union Government must be in th e nan e of the P resident bu t a ll actions t:~ ken
in the name of the P resident are not necessarily executi1e actions of the
Union Government.
The Amnesty Order is nothing more tha n a promiseoo~by the GoYernmc:>t
not to take any action agajnst those who surrendered and as such not
cognisable by Cour ts of Law unless and unti l the promise contained
the rein is imp lemented by an act of Legislature.
Where the main offender has not been prosecuted but has been allowed to
serve the Go vernment the Court wou ld be justi fied in exercising t he powe rs
un der s. 562 (1) of the Criminal Pr ocedu re Code.
An offence of theft cannot be obliterated by the subseq::ent restitution of
property.

Chan Hto:J1'l, Attorney- I

General, Burma with
Choon Fou11g (Govern men t lI for the appellants.
Ad vecate), Bur ma J
Tin Hla for the respond ent.

The judgment of the Bench was delivered by

U SAN MAUNG, J.-This is an appeal by the Govern-

ment of the Union o f Burma under section 417 of the
Code of Criminal Procedure against t he judgment of
the 2nd Special Judge, Maubin, in . his Criminal.
Regqlar Trial No. 8 of 1950 acquitting the respondent
B oh Sein T un of the offence under section 395 of the
P enal Code for which he was sent up for trial. The
learned trial Judge's jud gment proceeded on the basis
that the offence committed b y B o.h Sein Tu n was really
one u n der section 3'72 of t he Penal Code but t hat the
. prosecution w-as barred by virtue of the amended
. Amnesty O rder issued by the Government of the
U n ion of Bu~ma, Ministry of H orne Affairs, Police I'I
208 BURMA LAW REPORTS. ~ 1952

H.C. Branch Notification No. 370, dated the lOth l\Iay 1'l50.
1952
The grounds of appeal are:-
THE t'l'II0:-1
OF BUHMA (1) That the offence committed by Boh Sein
v.
BoH SEIN Tun really fell under section 395 vf the
Tu:-.:.
Penal Code and not merely upder section
u SAN 392 as held by the learned trial Judge and,
MAUNG, J.
(2) That the revised Amnesty Order aforesaid,
was only an administrative act not binding
upon the Courts of Law.
Therefore the first point for consideration in this
appeal is whether those \vho come within the ambit of
the revised Amnesty Order aforesaid, ca!l plead it as
an effective bar to criminlll prosecution if Government
were to prosecute them inspite of the fact that they
had surrendered strictly in terms of that order. The
relevant portion of this revised Amnesty Order runs as
follows:
'' Whereas the Union Government are willing to repeat
their announcement published in the !Ylii1istry of Home Affairs'
Notification No. 127, dated the 14th :M;arch 1949, that they desire
to achieve peace and national solidarity by effecting mutual
understanding among all the communities and sections of the
population, and that accordingly in that announcement they
formulated certain terms of amnesty which were offered to the
members of the Kar'en National Defence Organizations, Mon
National' Defence Organizations and those members of th.e
Governmet1t Armed Forces who had been collaborating with
these two organizations.
And whereas the Government now consider that time has
-arrived whe'n the terms of the amnesty. which have hitherto. been
in force should be revised to cover all .types of insurgents by
widening the scope of their appli~~tion and by inclusion of a
provision that the surrenders that may be made hereafter shall
be subject to the cqndit~on that the discretion of. the Govemment
to proceed against suitable persons for high treason and cognate
offences will not be prejudiced.
 195:2] BURMA LAW REPORTS. 209

(31 AmnC'sty in the c"'sc of members of other Senice;; 0f th, H.C.

1~~ 2
vo\ernment and t he general public-.Mcmbcrs of the other
Service:; of the Go\ernme11t and th e g~neral public who have Tm-: L' NI OS
oF HtJ<.\t .\
heen inYohed in t he insur rections will , 011 surrender " ith all :;.
their ar ms an.d ammunitio n, subject in the case of G{)\ernment Hvrr SF1X
T !.'N.
servnnts to clepartmental action, be granted iull amnest~ in
respect of all offences other than the oCfences of rape, dacoitr or (; :)A!'I

murde r. Even in the else of t hose who bave committed any !IL \UNG , J.
offence for which no amnesty is granted. the fact that the_,. ha\e
surrendered themselves with nil the arms and am munition in
their possession will bt ..:onsiderccl a ground for sympa:hetic
consideration wl;en the question of their punishment is finally
d ecided.
2. The Union Go\ernment, ho\\'e\ er, desire it to be known
that in the applicatiqn of the abo\e conditions of the offer of
amnesty, Government \\'tll nse their discretion to take action for
high treason or other cognate offences in suitable cases of
imporl:mt persons who were or are 1esponsible for organizinl-!
and promo ting the insurrection and to decide finally on the
question of their punishment.
*
4 . No amnesty shall ordinar ily be granted in respect of
offences comtnitted t '' or after the 26th May 1950 other
than the offence of being a pnssi\c member of an insurgent
organization.' '

It is contended by tbe learned Attqrney-General, who

.has appeared to argue this pl>i nt on behalf of the
Government, that this reYised Amnesty Order is no
more than a promise by the Gove rnment not to take any
action against those who have .surrendered in terms.
thereof and that it has no legal effect unti l and unles s
it has been implemented by an Act of Parliament. On
the other hand, the learned Advocate for the respondent
Boh Sein T un contends that the revi se9 Amnesty
Qrd er is in fact t he exercise by the President o f the
. right of pardon vested in him by section 60 of the
Constitution of the Union of Burmjl. To this conten-
tion, the learned Attorney-General has r eplied that
14
210 BURMA LA'vV REPORTS. [1952
.H.C . under the Constitution the President has a po\\er only to
1'.152
r-.~mit punishment on those found guilty by the Courts
THE UNION
OF H ut~:\rA of having committed criminal offences \vhereas the

ROH "SJ-:1.'1
right of granting amnesties which have the effed of
J';Js. oval0oking offences is vested only in the ' legislature.
u SAN In support of his argument, tbe !earned Attorney-
MAt.:NG, J.
General has invited our attention to paragraph 972 of
tt Vvilloughby on the Constitution of the United States"

Volume 3, Second Edition, which runs as follo:\5;

In Burdick v. Umted Stat,s (1) the Colllt said : ' It is of

little service to assert or deny an analogy between amnesty anci
par~lon. Mr. Justice Field in Knolc v. Umtcd States (2) said that
tile distinction bet\Yeen t~em . is one rather of philological
interest than of legal importance.' This is so as to their
ultimate effect, but there are incidental differences of irr>portCJnc~.
They are of different character and have different pu.r~oses. The
one overlooks offence ; the other remits punishment. ' The first
is usual!:>; addressed to c1imes against
.
the sovereig,nty of the state.)
~

to political .offences, forgiveness being deemed more expeclieri t

for the public welfare tlian prosecution :tnd punishment. The
se.;pncl condones infractions of the peace of th.e state. Ampesty
is usually general, addressed to classes or even communities,-a
legislative act, or under legislation, constitutional or statutory,-
the act of the supreme magistrate. There may Ot' may not be
distinct acts of accep!ance. If other rights are dependent upon
it and are asserted, there is afiirmative eviclcJlCe of acceptm~ce.
Exampl~s are affor'cled in U11itttd Slates v. Klei11, 13 Wall. 128 ;
Anirslr011g's Fou11dry, 6 Wall. 766; Carlis!e v. U1;iled Slates.,
16 Wall. 14 7. See also Knote v. United Slates (2), sup1a. If th~te
be no other'rights, its only purpose is to stay the movement of
the. Iaw. It_s fun ction is exercised when it overlooks the
offence and the offender, leaving both in .oblivion'."

Howe-ver, it is difficult to get over the effect of the

judgm~Iit oHhe Supreme Court of the United States i~

(1) 236 u.s. 79. (2) 95 ' u.s. 149.

 1952] BURMA LA\V REPORTS. 211

] oh1 Kuote v. United Sln/('s (1 1, the rel<.~,ant portio11 of II.C.

1952
wl1ich reads as follows:
THR Ur-:w~
OF Bl"RMA
"Th~ Pro..:lamation of tin: President extended uncondi -
HoH S"ts
tionally an I wjthout reservation a iull pardon and ':lmn est~ Tu:-;.
for the o(fellCe of tre tson a).!ainst the United States. 0;. of
;.(iYin~ ~id and comfort to their enemies, to all persons wh o bad
t: SA~
.\l.w~c;, J.
directly or indirectly puticipated in the rebellion, with a
restoration ol all ri~hts, privile)!es and immunities under the
Constitution and the lam; made in pursuance thereof. Some
distinction has been made, or attempted to be made, beh,een
pardon and amnesty. It is sometimes said that the latter
Qperates as an extinction of the offence of which it is tle ohjc ct,
ca~sing it to be forgotten 1 so far as the pu~lic interests are
concerned, \\hilst tl.1e fotmer only operates to remove the
penalties of the offence. Tlais distinction is not, howe\'er.
recognized in our law. The Con~ti!ulion does not use the word
'amnesty'; and, except thal the term is generally employed
where pardon is extended to whole classes or communities.
instead of iridivicluals, the clistincticn between them is one rilther
of philological it1terest than of legal importance. At all events,
nothing can be gaine.cl in the consideration of the question
before us by showing that there is any difference in thei 1
operation. All the benefits which can result to the claimant
from both pardon.and amnesty would eqttally h<tve accrued to
1 1
him if the term .jnrclon alone had been used in the Proclama-
tion of the President. I n Klei11's case, this Co~rt said that
pardon included amnesty. 13 Wall., 128 tBO. C .S, XK, 51 Y}."

It is for ~~11~ reaso n that the learned author of" Corwin's

The President Office and Powers" had to observe
at page 194 of his publication .;

" By the tl.1 eory of the common law,_ as summed up by

Chief Justice Marshall in lhe early case cf U11i!ed S:atcs v.
Wtlson 1 a p.trdon is like a cleeJ, to the validity of which deliv.ery
and ;tccept1ace are essentjai ; nor may it b~ known judicially,.
. bein-g ',the private though official a.;t' of the Presiden t, ' unless.
it be pleaded by its intended benefii;iary.

(ll 95 u.s. 149.

212 BUR\1A L.'\W REPORTS . [1052

H.C. In short, the gr:~nting of a parclgn is an essential!~ man-to-

1952 man transaction, from ,,hicll it ,,ou!d seem to foll o,, that t he
THF. CNJox P0\\'er of granting it does not embr:tce the pO\\er to \!;sue a
oe euu)r,l
11.
general amnesty, of which the Courts would be obl igee\ to take
BOH SI!IN noli\-e. From the ftrst, nevertheless, t he contrary \Yas assumed.
TUN.
General amnesties were issued br \Vashington in 1795, by
u SA:-1 Adams i1i 1800, by Madison in l SlS. by Lincoln in 1863, by
MAl':\ G, J.
Johnson in 1865, 1867, 18r8, and by the first RooseYelt-
Aguinal do's foi!O\\crs- in I 902. II is tr,ue that Johnson's
enemies in Coi1gress m.\de a hal f-l,earted effort to challenge his .
power in this respect, but \Yitl10ut ;nnil. In cases decided in
1871 .the Conrt declared lint 'pardon includes amnesty.' and
that a proclamation of amnesty by the. President was a pul.)lic act
o( which 'all courts in the United S ta tes are held to til.ke notice
. and to which all courts are bound to give effect.' "

In the ((Introduction to American GoYernment" by

Frederic A. Ogg and P. Orman Ray (at p<!ge 367 of
tbe 8th edition) th~ authors have this to say regarding
the power~ of the President of the United States :

"A modified form of pardon is amnesty, which is a sort of

blanket paFclon extended to numbers of people who, without
having been inclividnally convicted , are known to have violated
federal law, as by engaging in rebellion. Amnesties may be
declared by act of"Congress ; but the usual methocl is that of
presidentiitl proclamation.''

Iri GreaJ Britain the Crown enjoys exclusive and

inseparable right of granting pardons and this preroga-
tive of the Crown is us_ually delegated to Coloniaf
G overnors. Pardon may, in general, be granted eithet
:~-ore or after a ~o,nvictioi?. Bes_id~s a royal pardon~
unaer the Great Seal or under 'the .s1gn manual, there~
may be a pardon by an ~ct .of- Parliament . . Se.f~
.Halsbury Laws .of England, Vol~:me 6, page 404 and~
Volume 9! page 444. The Cob1iial Parliaments also;
have the power of granting-p~rdo_ ns by pa.s sing an :act
 1952] BURMA LAW REPORTS. 213

of Indemnity. Sec Pltillif':; ,.. Eyre ( l ). the

.
From J-i.C.
J'J52
above, it is cl<:ar that the President of th e Un ion of
Tilt: l.7KiON
Burma has been vested with th e right of granting OF Ht"I<M A
pardon to a p~.:rson either before or after It is conviction HoH ~EIN
by a Court of Law if that person llas t:om mitted any JL :-;.

offen ce. Altflough the r ight of pardon is usuall'y exer- L: SAl\

cised in particular cases, there is nothing in the :\I.~Ci'G, J.
Constitution which prohibits the President from
extending a general pardon to offend ers or classes of
offenders so long as it is known that they h<tYe
committed offe nces punishable under tlle Prnal Law
of the country. T his is the Constitutional L:l\r ;mel
Practice in the United States, tl1e country \\ith a
Constitution following which our own Constitution
seems to have been fashioned, and it has not been
brought to our notice that the Law as laid down by 1he
Supreme Gour t of the United States in] oh11 R..nole v.
United States (2) had since been over-ruled. There is,
in our Constitution, a safeguard against ihe President
misusing his pO\Yer of granting pardons as section 63
t hereof provides tha-t the powers and functioH~
conferred on the President by the C0nstitution shall be
exercisable and p erformable by him only on the advice
of the Union Government, save where it is provided by
the Constitution that he shall act in l1is discretion or
on the advice ot nomination of or on r eceipt of any
communication. from a ny other person or body.
Section 60 which vest the right of pa~don in the
President does not provide that in exercising this right
he shall act in his d.iscretion. Therefore, the right of
pardon is exercisable only on the advice of the Union
G overnment.
Unfortunately for the respondent, the revised
;Amnesty Order, published in th~ M.ini~try of Ho.t:ne

(1) (1868) L.R. 4. Q.B. 225 and ( l !l70) L,R, 6. Q.B. (Ex. Ch.).
"!2) 95 u.s. 149. ..
 BURMA LA\V REPORTS. [ 1952
H.C.
1952
TH U:-:to:-:
Of" HURMA
v.
BoH SlW\
Tu~ .

u SAN
MAUl'(;,, J.
 1952] BURMA LAW REPORTS.

take any action against those \Yho have su h endercd in H.C.

~ 52
terms of the order and as such, not cognizable by
THE L:-.'ION
Courts of Law until and unless the promise therein OF Ht:TOIA
'!1,
contained has been implemented by an Act 0f B vli Sf.IX
legislature. U nfortunat<:: though the result may be T!;l'\.

that in otl'\ view, is the correct legal po~ili9n as V SAX

1\iAl"Nc;. J.
contended by the iearned Attorney-General. Th e
contention o( the :~arned Advocate for the respondent
that the Amnesty Order can be pleaded as an effective
bar to criminal prosecution cannot, therefore, be
accepted.
Coming to the facts of the case, they have been
fully set out in the judgment of the learned Special
Judge of Maubin now under appeal. It is therefore
only necessary to set out here such of the salient
features of the case as would be useful in coming to a
decision whether or not Bob Sein Tun has committed
any offence punishable under the Penal Code. Boh
Sein Tun was lhe leader of {the People's \-oluntctr
Organization or Pyithuyebaws as they n:ere called 1 of
Maubin District and he was also a member of Parlia-
ment until his membership was terminated for his
continuous absence from the meetings as a result of
going underground when a section of the People's
Volunteers known as the White P.V.Os. revolted
against the Government. In theft month of August
1948, the population of Panklnaw township was in a
state of panic because of the danger from the Karen
insurgeQts iri .Maubin District. Boh. Tha San {PW 14),
the mai1i witness. for the prosecution in this case was
"the Commander of a Unit of th~ 15th U.M.P. of which
the Company Commander was Boh Toke Shwe who
also revolted against the G~vernment by joining hands
with the Red Flag Communists and the White P.V:Os:
Boh Tba S:a n, whose intehtion according to his own
statement, \~ras to P~.oce.ed to Rangoon for the purpose
216 BURMA LA\iV REPORTS. [1952
H.C. of allowing ;1irnself and the men under his command
1952
to be disarmed, arri \'Ccl at Pautana \V on -the 11th o r the
'fHl<; U ~hN
Ol> BU H~rA 12th August 1948 and occupied the town at the r equest
v.
BoH SEI:-l of the elders. On th e same day, he caused his
Tu~. Lieutenant Boh Myo Myint to check the cash in the
U SA:" Sub-treasury and \.vh en it was found that .the cash in
:\lAU:-.!G, J.
the SLib-treasury tailied with the balance shown in the
Cash-book and the Sub-treasury Register, Boh Myo
Myint made an endorsement in the Sub-treasury
Register to that effect. This endorsement was attested
by some of the elders like U Ohn Maung lPW 8), the
owner of a printing press and U Sein Pe (PvV 13), a
Lawyer. On that day, arms and ammunitions were
withdrawn from the police by Boh Tha San and the
town was declared to be under his administration.
The Civil Police, guarding the Police Station loc:k-up,
was replaced by Boh Tha San's men who also guarded
the Sub-treasury. The Sub-treasury Officer U Maung
Khin tP"vV 15), in whose possession the Sub-treasury
key was still allowed to be retained, was ordered by
Boh Tha San not to make any disbursement without
his expressed orders. A special committee to help
Roh Tha San in the administration of the town was
formed from among some of the town elders and
Government Officers. On the 14th August 1948, Bob
Sein Tun appeared at Pantanaw. According _to some
of the witnesses for the prosecution he was accom-
panied by a number of his armed followers but,
the evidence on this point, is somewhat . vague and
unsatisfactory. On tbe day Bqh.Sein Tun arrived at
Pantanaw, some of the Government serv_ants approach-
ed Boh Tba ,San, \Vho was the de facto administrator
of the tow~, for disbursement to them of one month's
pay,: apparently. that for August 1948 which. would
. 0rdinarily be payable only on the lsf Sept_e.friber 1948.
Boh .Tha San was agreeable. So, on ' that day,
 ~952] BURMA LA\V REPORTS. 217'

Boh Tha San accompanied by Boh Sein Turi, th e Su b- H .~.

JCJ52
treasury Officer U Maung Khin ( P\rV 15) and the clerk
#~:,t. ~ =' 1o:-.;
Maung Hla Kyi (P\V 16) went to the Sub-treasury ! l~l" H~lA

vault and removed \rhatever cash balance that "as .

f. , ..;;.:,~
0

there. It amounted toRs. 36,702-10-3. According to ~ ".

U l\iaung I<J1in, th~ money was actually ta4.:en by 1: !-A'=

Boh Tha San after deducting the sum payable the to M.\ 1 :-> t' J
Government ser\'ants as their salary, whereas, according
to Maung Hla Kyi, the money was actually taken by
both Boh Sein Tun and Boh Tha San. Ho\\ever,
' when Maung fila Kyi was recalled for furth er cross-
examination on the 3rd November 1950, he admitted
that it was Boh Tha San who actually took the money.
At the time the money was taken Boh Tha San made
an endorsement over his signature d ated the 14th of
August 1948 that all the money had been seized
"Gg!l<l?:~:::BS:oB:~:G-:>c: " . On the left of Boh Tha San's
signature, there appears the signature of Bob Sein Tun,
affixed in such a way that the whole of it appears
directly underneath the left half of the endorsement,
Bob Tha San's signature being underneath the right
half of it. According to B ob Tha San, at about 12 noon
on the day ef the occurrence of this case, he -met
Boh Sein Tun who asked him whether the treasury
had been opened (meaning whether the cash _in the
treasury had been seized). Boh Tha'"San replied that
since tbe cash belonged to the country and the people,
he felt that he should not make use of it. Thereupon
Boh Sein Tun said that in view of the prevailing
condition, there was danger of the cash falling into the
hands of the Karens and Red Flag Commun~sts. Boh
Tha San then consulted U Maung Khin, U Tun Kyaing
and U Hla Kyi who told hi_m that since he "had already
tal_{en over the administration of the town, it was within
'his discretion to make use C?f the cash il) the manner
be deemed fit. -Thereupon, Boh Sein Tun- rei terated
218 BURI\1A LAW REPORTS. [ 1952

H C. his request for the opening of the treasury. Bah Sein

19.52
Tun then took him and the elders as well as th<.: Sub-
THE UNION
OF BuR~rA treasury Officer to the Sub-treasury whence Rs. 37,000
v. odd was taken out. About Rs. 18,000 odd \\'ere paid
Borr SEIN
TUN. to Gov~rnment servants as their salary. Out of the
u SA:-; balance', Hs. 10,000 was taken by Bah Sein Tun and
MAu~G, J.
Rs. 9,000 by Boh Tha San. It was agreed between
them that they should account ,for the return o the
money to t he Government when its administration was
restoreJ.
U Tun Kyaing (PvV 11) who was the I nspector of
Police at Pantanaw, did not support Boh Tha San as
regards the advice alleged to be given to him by tbe
elders for dealing with the cash in the Sub-treasury in
the manner which he deemed fit. He also denied
having accompanied Boh Tha San and Boh Sein Tun
to the Sub-treasury. U Maung Khin (PW 15), Sub-
treasury Officer, also did not support him on the
former point. On the other hand, U Maung Khin
said that he had to surrender the cash in t.be treasury
to Boh Tha San because he was afraid of Boh Tha San.
T~1erefore it is clear that Hoh Tha San who had
assumed' to himself the role of the adii1inistrator of
Pantanaw town had also arrogated to himself the right
to deal with the money in the Sub-treasury, in the
~annet: which he thought fit. Th at he had no su. cl~
power; in fact, is clear from his own statement. He
_w as merely a member of the u nion Military Police
Force on his way to Rangoon to surrender his arms.
Be has--Qot been appointed as Admiroistrator of any
region, nill.ch less to take charge of any Treasury.
Therefore, if any offence has been committed in:
..respect of the cash in Pantanaw Sub-treasury, the
prime offen:le.r is B.oh Tha SaO: against whom action!
:waso:riginally

taken
. .
under section
.
Sl 2 o(the . Criminali.!
Procedure Code as an ab.scondet but who wasi
. '
 BURMA LAW REPORTS. 219

subsequently examined as a witness for t he prosecution 1-l.C.

1952
instead of being made a co-accused \rith Boh Sein Tun.
THE U:-:rO:-i
.According to U Chit Atmg (PW 12), the police officer OF 8GR~IA
\Who investigated this case, en an enquiry being t.
BoH SF.r:-1
c onducted by him when Boh Tha San was found to be Tu:-:.
an officer .. of the 16th U.M.P. .on active serv}ce, no (.; SAN

criminal offence was found to be established as against lvLWl\0, J.

him. On th~ facts now appearing in evidence befon.:

l.lS this seems to be a strange attitude for the prosecu-
tion to have adopted for, as alre(1dy cbsern:d, if any
offence has been coma1i ftecl in respect of the cash from
Pantanaw Sub-treasury Bo h Tha San was the prime
.offen der while Boh S :!iu Tun could only be an
accessory. That this is the correct legal p0sition, is
frankly admitted by the learned Gove rnment Advocate
who has appeared before us to argue this case
-on facts.
No~,ov, what offence, if any, has Boh Tha San and
:Boh Sein T un committed ? The learned Special Judge,
Maubi n, who tried this case obsened as fol10n-s :

~ ~ There is no evidence to sup~ort the statement of Boh Tha

san that he was also ad,tisecl by the Tom1 Elders for the said
reason to take and dispose of the cash from tbe Sub-treasury.
A~ it was not impossible to remove the said c<~sh to Rangcon and
as he was not withont means for doing so, what Boh Tha San
did '''as obviously not the best course to be tollowecl and
'decidedly not commendable. The loss which has incurred to
the Government by it conlcl have been pre;:ented by removir:g
tl:e cash to Rangoon. Boh Sein Tnn seemed to have pla)ed
only the second fiddle in q1e matter and the leading role was no
.dotibt played by Bo Tha San. Mostpf the f: cts stated above,
-except what seemed to have been distorted to suit their purpose,
:are hardly in dispute and \\ell established by the evidence both
.Oral and d~cument<\rY on record. It seems to be true that
Bo Sein T~ri took away only Hs. 10,000 from tte loot thoughh e
denied rec~i-~ing. it. There is ample ev(dence an record to
-establish his paifbpatiqn in i~ .
220 B URl\.fA L.<-\ \V HEPORTS. [1952
H.C. The ncluarlooting ,,as done only by Boh Tb a San and Boh
1952
!:icin Tun, b oth of \Yhom were :hen ac.c.ording to U l\1aung Khin
'!'HE Ul\10:\ unarmed. No clotibt U :\[aung Khin, \Yho was then in charge of
OF .BU!UIA
!'. the Sub-treasmy, though reluct:lllt had to submit to them tamely
BoH Setx as lhe pel'pelrators though unarmed and only two in number at
Tt:N.
the aclu:J.l scene Inc! behi-nd them their armed followers in the
uSA~ town, a~1d :Sob Tlw. Saa with his armed men had o~cupied the
MAL!:\(l, J.
to\\'n and disarmed the police and as disc retion was wisely and
rightly considered to be the better p:~rt of valour when resistance
was impossible but a vain effort, which would do more harm than
good. There is nothing to show that their a1med foilowers
either participated or acquie.scecl in it. They might 110! e-..en
know that it was then taking place. It is for the ptosecution to
prove their participation in it heyoncl cloubt, without which no
i!1lputation can be made to them fe-r this, when it is found that
none of them was then present at or near the scene of crime.
To constitute the offence of dacoity the crime must be con1mittecl
by noi less than five persons, but the prosecution has failed to
show that the number of perpett:ator~, who committed it, \\as
five or more."

In consequence he considered that the offence

con1mitted by Boh Tha San and Boh Sein Tun fell
under section 392 of the Penal Code rather than under
s~ction 395. In our opinion, the offence committed
by Boh Tha San was theft rather than robbery.
Section 390 of the Penal Code enacts that theft is
robbery if in or der to the committing of the theft, or
in commi~ting the theft, or in carrying- away or
attempting to carry away property obtain.ed by the.
tJ1eft, the offender, for that end, voluntarily causes or
att_empts to cause to a ny person death or h urt or
wrongful:restraint, or fear of instant death or of instant
hurt or of instant wrongful restraint. It is not
apparen-t fro m the ev'idence of either the Sub-treasury
Officer or the Treasury clerk that Boh T ha. San in
carrying the ~ash away from the Tr~asury ca:t1sed or
attempted to. cause death or hurt or wrongful restra,int
to them or put them in fear of ins.tah't d_e;:tth or instant
19521 BtJ
u~~ ~ 1.-~
"YJ ~yQJ.'-
-ortS
\\IC \l\\\
. _. \.\IC -~n"-
\<,.. ,
n-~-,

;,;,<''
J.'-\.-.~ t c.\nce
v ()\ 1.-1 ,, I
hurt or instant \ \.~'3\n oo\;. \;-:~'' 2''
\ {e<:- c. t\ " n\"\'C .. r~
Auust, 19+~, wh S ,.. 0 n~\\.1 .-{',...~, 0 ~ -""'))st.. '- ' c
'-' "' \\ ~~ .w~ T HEO~Ju s
administration o[ ~tiC tO\{.l-,':' . t.'~t>};~riil,Q.~, _1.lll:rc .. ,.J:~~..i:!,A.,.._
general acquiescence on the part not onty of the B vHt'~r.rx
.....
civilian population but also of tht; Government Officers 'fuN.
to Boh Tha San being the de facto administrator. 'C SAx
Therefore there was no necessity for Boh Tha San to :VIAno. 1
cause death, hurt or 1\Tongful restraint to the Sub-
treasury Officer or his clerk or to put them in fear of
instant death, in sta nt hurt, o r instant wrongful restraint.
The fact that practically all the Government Officers
willingly and if \\'e may say so, gratef ully received from
Boh '-rba San one month's pay before it 'yas due,
points to the absence of ~uch element as would m:1.ke
the offence committed by Boh Tha San, one of
robbery.
Theft, undoubtedly, Boh Tha S<tn has c0mmitted
because he must be deemed to have known that the
cash in lhe Treasury belonged to the Government and
that the Sub-treasury Officer was the proper custodian
thereof. Boh Tha San not only took the money but
according to his own statement made use of it to the
extent of Rs. 9,000 in paying his men and Rs. 10,000
in paying to Boh Sein Tun who had no authority
whatsoev.er to receive it. The intention to cause
WJ:ongful .loss to Government, must in these circum-
stances, be inferred from his conduct. It is no
sufficient answer to this charge to say that he and
Boh Sein Tun had agreed that the. money should be
later refunded to the Go~ernment.
The n'e xt question is, is there-sufficient evidence on
rec_ord to warrant the finding that Boh Sein Tun had,
in fact, received Rs. 10,000 from Boh Tha San. None
of the witnesses for the prosecution actually saw
Boh Tha San handing over this sum to Boh Sein Tun.
T hose of them who stated that . Boh SeiQ Tun was
220 BUR~.fA LA \V REPOR
H.C.
~952
The actuaflootin~ \\as cl o ;1e o nly by Bo)RTS. [1952'
Scin Tun, both of \\'hOm \\'<.!re :hen accordin
Ttl t":.;wx
OF HI.:I<MA
unarmed. No doubt U :\[aung Khin, ll'ho \I' were deposing to
l '. llle Sub- treasury, thougl1 n:l uctallt had to s U Thein :\-Iaung.
B o ll :SEt:\
TL':\, as the perpetrators though una.n~1c_rt_.:nc1 otfownship Officer,.
the actuo.l sr,... l t d d -
BO:i S1:-1
rantanaw;, \\' 10 sent t 11c repor ate the .)tb
Tt;x. Septeri1ber, 1948, to the Deputy Commissiop'er, l\Iaubin~.
U S1:-; admitted that he only heard from others that out of the
MAuxt;, ,I.
sum remaining after the disbursement of pay to
Government servants, Rs. 10,000 was taken away by-
Boh Sein Tun and that tbe rest \:vas retained b y
Boh Tha San.
B.oh Tha San's statement that be actually gaye
H.s. 10,000 to Boh Sein Tun, being the statement of an
accomplice, should not be acted upon without
s:ttisfactory corroboration. However, in our opinion
this corroboration is afforded by the manner in \vhich
Boh Sein Tun had signed under the endorsement,.
"GlS0'3?~cq:oSS::2:@:G8')S:'I " . in the Sub-treasury Register.
As regards the fixation of Bob Sein Tun's signature
thereto, U Maung Khin (PvV 15) stated in his examina-
tion-in-chief that when he asked Boh Tha San for
acknowledgi~H!nt of the cash taken by him, b'oth Boh
Tha San and Bob Sein Tun signed in acknowledgment
thereof. However, when cross-examined, he whittled
down the effect of this statement by sayin.g that after
the money. was banded over to Bob Tha San, Boh Tha.
San asked Boh Sein Tun to ~ign and that Boh Sein
Tun then appende.d his. signature. '' ~c6o.:>-:>ao~:~ G~0'30G)
o1:ne}n ~c6:xJoao~:m ~cS~~~~:~rocf.i9oS~D1*~~n ~2~CJ6~:m ::D~;
Go.:>~~9o5 (m) ~9 (~) GOTOJCrocf.ilo5G&):c%-o1:xJe3n "
Bob ~ein Tun, who g~ve evid~nce on behalf of his.
own defence, contended that .he signed the Register
only as anattesting wit.nes.s. Howev.e r, his shttement.
on ' this po.i nt is rend~r~4'ineffective. by the o,bviously
fa,lse story ~vhich be toid . the .Court. Regarding the
circumstance in which his signature was affixed, he.
sta:ted th~.t ' he had : sig~ed the e ndorsement in the .
1~ 52] I3URMA LA\V REPORTS. 223

company of other elders such as t ; Ohn ~hung If. C.

!932
(PvV 8), and U Sein Pe (PvV 13\ a st~tc:ment
THf: ONI0:-1
contradicted by t11ese wi1ne~ses. eurthermon:, there PF ~vR:.JA
'il.
is conclusive C\'idence on record to show that U 9hn BoH SEIN
~iaung and U Sein Pe only attested the endorsement Tn~.

made by Boh rvyo Myint on the 12th of August 3948 I) SAN

~{A!::\ t: ,}
and that these persons \\e re not even in the Sub-
treasury on the 14th August 1948, when Boh Tba San
made the relevant entry in the Sub-treasury Regi~ter.
It is difficult for us to believe that if Boh Scin Tun
had nothing whatsoever to do with the cash removed
from the treasury l1e would have signed the endorse-
ment" Ggoo?:~:~S:.a:B:~:Gs-:>f:,, in the manner which he
did . The signature of Boh Sein Tun and Bob Tha
San appearing under the aforesaid endorsement suJ,.'gest
that joint responsibility was taken by both Boh Sein
Tun and Boh Tha San for the seizure of cash from the
treasury ; not merely that Boh Sein Tm1 was acting as
an attesting witness to th.e signing of the endorscn;ent
by Boh Tha San. Therefore Boh Tha San's story that
Boh Sein Tun 4ad to be given a sum of Rs. 10,000 out
of the money seized from the treasury must b~ accepted
as true.
Boh Sein Tun bad no right to acce1)t any sum out
of the money which Boh Tha San took from the
treasury though the exigencies of the time were such
that Boh Sein Tun might have felt that it \\'as better
for the money to be taken by him for the use of his
White P.V.Os. rather than allow it to fall into the hands
of the Karens or the Communist insurgents. However,
as a memb er of the Parliament, he should have known
that it was not lawf~.Il for him to take any money
belongi'ng to the Government.. In any ,. event,
ignorance ,of t he Law c.a nnot afford a v~lid defe.nce to
:ll criminal 'c harge. . Thefact d.e pose.d to by Boh Tha
Sari that he .a~d Bob Sein Tun agre.ed to refpncl the
224 BUR.i\I.-\ LAW REPORTS. [1932
H. C.
1952 money to the Government late r, cannot bt: of any avail
'THI! t't'IO~
to Boh Sein Tun, as, an offence of the t cannot be
'{)!' Bt:li~IA obliterated by the subseqnent restitution of property.
'1/.
BOI-l SF.IN .Fof these reasons, we consider that tQ,e respondent
Tt.::-.:.
Boh Sein T un has committed in offence either of tbeft
u s.~N
punishable under section 379 of the Penal Code or of
MAnm,J.
hav ing received stolen property knO\Ying it to be stolen,
an offence punishable under section 411 of the Penal
Code. To be on the safe side, he \.vill be conYicted "
under the latter section.
T he appeal against the acquittal of the r espondent,
Boh Sein Tun, is therefore allowed. The order of
acquittal passe d by the 1st Special Judge, Maubin, in :;
his Criminal Regular Trial No. 8 of 1950 is set aside '
and Bol~ Sein Tun is convicted of the offence punish-
able under section 411 of the Penal Code.
As regards the sentence, considering the c ircum-
stances in which this offence was committed ancl the
fact that the main offender; Boh Tha San, v:;as not
onl y not prosecuted but bad in fact been allo.wed to
continue to serve the Gover.nment, we ar e of the
opinion that this is a fit case for the exercise of ou
powers under, section 562 (1) of the Crimina .
procedure Code. Therefore, i nstead of sentenc
t he respondent, Boh Sein Tun, at .once to any punis
ment, we would direct that he be released on
entering into. a bond for a sum' of Rs. 5,000 '"ith
sureties in the like amount to appear and rec
sentence when called upon' during the' period of
year and in the meantime to keep the peace and be
good behaviour.
1952] BURMA LAVI/ REPORTS. 225

APPELLATE CIVIL.
Before U On l'c and U S11n Mazmg. JJ.

L.N. (ETCHUl\1ANAN CHETTIAR FIR~I H.C.

1952
(APPELLANT)
Mar. 20.
v.
v. M. FIRM AND OTHERS (RESPONDENTS). *
.4gent, Power of- to borro-w nzoncy-Pt>wer-of-atlorllt'Y not produced-S. 187,
Co1ztract Act-Whclh~r call be relied Oli-Dcscription tf prmetptJlB_as
nzoncyletzder wl~etlzet cmP;wers borrowing-Ratification-KnO!dcdge of
j>ri11ci1al.
The Appellant's case was that one Therumani Pillai as agent under a
P.>werof-Attorney of th e Respondent Xo. 1 borrowed money from him
which was entered in the booi\S of account, copies of which were ~<:nt to the
principals and the same had not been challenged. The Appellants contended
that the Respondents are responsible either as having ratified the loan tnmsac-
iion or the b~siness being one of money-lending it is a necessary .incident
for an agent to borrow money.
Held: That the Power-<U-Attorney which would define the authority of the
Agent had not been.produced and bad not been shown to be in the possession
or custody of the Respondents. In the absence .of tht production of such an
authority the Respondents cannot be made liable.
Thou~h the Respondents described themselves as money-lenders nnd the
business of a chettiar is money-lending, this does not me1n that a business
ike that of the RespondO!nts .:oulcl not have existed independently of the!power-
Joi-atlorney to borrow. '
Though it may be true that the loan taken by the agent w as entered in
lhe books of account, there is nothing to sbow that they reached the
hands of lh~ principals. No question of restoration of an unlawful benefit
arises. Where the agent was a.c ting beyond the scope 'of his power, there
can be no question of ratificalion as the principal had no knowled~e of the
~gent havinj;! a-cted in excess of his authority.
K.S.A.V. Chettyar v. Mahmoo, 13 Ran. 87 ; PaLoodan Goolabclraud v.
M. J. Miller and auotl1er, ~f.L.T. (1938) 688; Sultan Mahomed Rowtfler v.
Mohammad Eusoof Rilwther aml others, A.l.R. (1930) Mad. 476, referred to.
Basu an.d Venkatram for the appell<int.
. . ... . .
S. K. 1'! Aiyar for the respondents.. . .
-----~---------. --- ------------
. * Civill~t Appe~l No. 100 of 194$ asainst decree . of the 1st Assistant
ludge's Court- . of Myaungmya in Civil Regu!.;tr . No. 1 o! 1947, dated
26th October 1949 .
15 .
226 BURMA LAW REPORTS. (1 952
H.C. U ON PE, J.-This appeal has arisen out of a suit
1952
filed by the appellant against the respondents for the
L. N. LET-
CkO)fA:-;AN recovery of Rs. 5,450 due on a promissory-note
CHETTfAR
FIRM executed. by the th en agent Therumani Pillai of the
v. first "'respond eo t's firm on 31st January 1944. The
V.M. FIR~I
ANt OTHERS. promissory-note is (Exhibit A). Th erumani Pillai
executed it with initial V. M. prefixed to his name- a
fact which is relied on by the appellant-plaintiff as
indicating that the .document was signed on behalf
of the firm on the authority of the decision in [{ S.A.V.
C!zettyar v. !11alzmoo (1). The respondents contested
the suit on the grounds amongst others, thatTherumani
Pillai. borrowed the money in his personal capacity, that
he was not a validly appointed agent, and that the firm
had no necessity for such a loan and had received no
benefit out of the loan. The suit was dismissed on
grounds, the most important of which, in our view, is
the finding that the power-of-attorney which was said
to have been given to Therumani Pillai did not include
the power to borrow money on behalf of the respond-
ents. Other issues must necessarily pale . into
insign i fica nee if the said finding is held to !~ave been
correctly arrived t~t. We therefore propose to examine
this finding, whicl1' we consider is m9st ma.terial to the
disposal of this appeal.
The . power"Of-attorney is not "forthcoming.
Therumani Pillah.vas examined on commission at the
instance of the plaintiff and said that he had the pO\\er-
of-attorney at the time material to the suit and, in this,
he was suppo~ted by \Telangan Chettyar, who was also
eXamined On commission and. w.ho said that at the time
he gave the loan of Rs. 5,000 ~o Tberum.ani Pillai, he
saw the pow~r.-.of-attorney iri. favour of. ' Then1rri~ni
Pillai, written .in Engli~h, but that, as he did n~i

. (1) 13 nan. 87.

1<.)52] BURMA LAW REPOR.TS. 227

understand English, he asked another person by the H.C.

1952
name of Ram Chandra Aiyar as to its conle11 l$. l~am
Ch,mdra Aiyar was not called as a witness \\'ith the L.CHUMANA K. LET
N
result th~t the contents of the power-of-attorney \rill CHETTIAR F IRM
not be made-. known. Thi.s power-of-attorney \\a~. said v.
V.M FJRM.
to have been handed over along with other papers alld A);O OTHERS.
documents by Therumani Pillai to Pethuperumal u ON PE, J.
(DWl ), who succeeded the former as agent. P ethupe-
rumal denied receiving the pow~r-of-attorne y thollgh
he admitted that several other documents \.vere received
by him for which he had given a receipt. Th e list
held by Therumani does not show the power-of-attorney
as one of the documents received by Pethuperumal
P illai. T his document which would otherwise throw
light on the powers of the agent, has thus been
suppressed. On the evidence in the case, we acce pt
the finding of the lower Court that it was not one of the
documents handed over to the successor, Pethuperuma1.
Th.e main grounds taken up in this appeal are that
the respondents had suppressed the power-of-attorney,
t hat the Court should have held that the agtnt had the
power to act for them and that the action of the agent
in sending copies of accounts to the principals who did
not challenge them amounted to rati.fication. Here it
may be mentioned that the loan in question was entered
in the books of the respondents, that the power-of-
attorney was said to have been produced during the
Japanese occupation period and that the accounts were
sent to the principals by the subsequent agent who
succeeded Therumani P illai. The most important of
ihese contentions seems to us to be the scope of the
au thorit y given to him by the power-of-attorney which
is:nnfortun.ately not available. The agent's authority
as well as the extent of his authority is defined in tbe
Contract Ad but where his authority is defined in
writing, as in this case,. section 18.7 of the Con.tract Act
228 BURMA LA\N REPORTS. [ 1952
H.C. cannot be relied on, as the agent's authority will have
1952
to be fo und in the four corners of the instrument eit her
L . N. LET-
CFIUMA NAN in express terms or by necessary im!Jlication, th e limits
.CHETTI&R
FIRM
of such necessary implication being those defined in
v. section ' 188 of the Contract Act. [See Paboodan
V.M. FlRM
AND OTHERS. Goolabchand v. lvf. I. Miller and auother (1 ).]

U ON PE, J. What is the extent of Therumani Pilla.i's authority

is, we think, a determining factor in this case. Has
the power-of-attorney empowered the agent to raise
loans ? If it has not, then we consider that the
appellant-plaintiff must be non-suited as against ,the
respondent-defendants, unless it can be shown under
section 188 of the Contract AGt that the agent has the
authority by necessary implication. It is true that the
respondents described themselves as mon ey-lenders
and that the essential business of the Chettyar is money-
lending. But this does not mean that a business, like
that of th~ respondents leasing out paddy lands and-
collecting rental paddy, could not have existed
independently of money-lending busin ess. In fact,
T herumani Pillai had stated that there was no more
monty-lending busin ess after he went to Wake rna. Non-
production of this power-of-attorney, inthe circum-
stances of the case, is fatal to -the plaintiff's case.
_On the question of benefit being cierived by the
principals in this case, we agree with the lower Court
that there is not sufficient evid ence on the record to
sh~w that the respondents were benefit~d by the alieged
loan. Although it may be true t hat the loan was
entered in th~ books of account , t here is nothil).g to
show that the alleged loan came to the han ds of the
principals, so that the question .o f . restoration by the
principals either u nder ArtiCle. 103 or 104 of the Law
of Agency could hardly aris~. : .
0

~--------~------------~------~~--------~
{1): !193S) M.L.J. 688;
 1952] BURMA LAW REPORTS. 229

It has been contended b\ the learned Coun:sel for H.C.

1952
the appellant that copies of accounts were sent by the L. N . L.ET-
agent to the principals (r;spondent-dcfendants) the1t CHOI.INAN
GHET'riAR
they were not challenged and that this is sufficient FIR~!

evidence of ratification, in addition to the evidence of '1/.

V.M. F1R~I
demand frO'm the new agent and his reply tG the A1>0 OTHERS.

demand. The alleged demand cannot be said to have U ON PE, J.

been proved as Th erumani Pillai did not appear to
have supported this story of demand. It is in evidence
that the account copies came from Wakema but they
were sent back. It is true that where a principai on
being appraised of a fact fails to communicate to the
agent his determination not to be bound by it within a
reasonable time, it may be presumed that there was
implied ratification. [See Sultan Mahomed Ro~tther
v. Mohammad Eusoof Rowtlur and others (1) .] But
in this case the agent seemed to be acting beyond his
power and there can be no question of ratification when
the principal bad no knowledge of the agent having
acted in excess of the authority.
Taking all the circumstances in the case, we are
satisfied that this suit must fail on account of not only
for want of proof in respect of .the power of the agent
to raise loans but also for othe.r grounds mentioned
above. .
In the result, this appeal fai-ls and is accordingly
dismissed with costs~

u SAN MAUNG, r.-r agree.

lli A.I. R (1930j Mail. 4~b.

230 BURMA LAW REPORTS. [1952

APPELLATE CIVIL.
Before U Sou Maun{!. nnd U Aung /{/tine, II.

H. C. BIN HONG & Co. (APPELLANT.s)

1952

A:PL. 30. v.
MUNSH I MEAH (RESPONDEN"T ).*

Workmen's Cnupeusation Act, s. 8 (1 ), 2 (1) (d ) -Dependants of ~;.or!. men-

Necessity fo,-_ decisiou by Couuuissiona-Rep,>rl by the Comwissiouer Jo1
Comfeuscdiou, Chitlagon g-Dejinilton of C01nmissi.:.11erin s. 2 {1) (d) .
A Commissioner for V/o;kmen 's Comtensation while awardi ng Rs. 2.400
as damages did not record the finding that the deceased died as a result of an
a.:cident in the course c busin.;:ss. He acted upon the report of Commis~ioner
for workmen's 't:omp!-nsation. Chillagong, and awarded l~s. 2,400 as compen-
sation for R~spondent. Bot h these were challenged as illegal.
Hcltl: That though dired evidence ~as lacking, there is Sllfficient e ddence
of the death being the result of an acciden t arising in 'the cou rse of employ-
ment and there was nothi ng in Appellant's evidence to rebut the presumption .
The l'chcme of the Act under s. 8 (1) is for payment of money to the
Commissioner by the employer for his protectio~ against claim and it is open
io the employer to be a party in the distribution proceedings and contest the
statu's of the alleged dependant. There is a providon for repayment to !he
employer of mont:y so defosited. If no near relation exists the money cannot
be pairl to a ,;,ore distant relation and'' dependant" has been defined in the Act
under s. Z (1 ) (d).
The report of any other Commissioner ment io.n td in s. 21 (d) cannot
include the Commissioner for Workmen's Compensation, Chittagong, It
means a Con11nissioner appoi nted under s . 20 of the Act hy the President of
the Union of Burma. The Co1nmissioner, Chittagong i~ not such a Commi$-
sioner. The m<tttt- r relating to actual payment to or d istribution cannot. be
fransferred to .auothet Commissioner under the proviso to s. 21 (2). The
findi~gs of the Commisshmer are therefore illegal as be had acted on no
admissible evide1ce .
It~ t he Matter of Gudrlai ltfttfava/11, 7 Ran. 660; l1l tlte Matter of f(alka
Prasad, A.I.R [1929) All. 707, referred to.

Ba Maxmg for the appellants.

Respondent in p~rson.
~~~--------------~--------~~-- ---~
':. * ..Civil Mi$C. Appeai ~o. o~ 19~~ a?ai~st th e .o~der of th.e C?mmissionelJ~(
24
-for ,W qrkmen's Compensation Rangoon, m Case No. 31 of l94.8: :
' ' ' I
 1952] BURMA LAW R~ePORTS. 231

The judgment of the Bench was delivered by H.C.

1952
Btx HoNG
U SAN MAUNG, J.- This is an appeal against the & co.
t'.
order of the Commissioner for Workmen's Compen- 1\It::\SHI
sation, Rangoon, dated the 6th March, 1951, directing MEAH.

the sum Cf Rs. 2,400 deposited by the app~llants

Bin Hong & Company wi.th him to be transmit .~e_d
to the Commissioner for Workmen's Compensation,
Chitta gong, for payment to one Munshi 1\.lcah on the
ground that Bin Hong & Company was liable to pay
compensation for the death of their employee Amina
Ullab because of a fatal accident arising o ut of and in
the course of the employment and that Munshi Meah
was the onlv dependant of the deceased Amina Ulbh
as deJ1.ned 'in .section 2 (1) (d) of the \tvorkmen's
Compensation Act. The matter-has been once before
to this Court on appeal by Bin Hong & Company
and this Court had in its judgment dated the
4th February, 1949, in Civil Miscellaneous Appeal
No. 32 of 1948* taken considerable pains to poiot out
to the Commissioner for Workmen's Compensation the
proper procedure to be followed by him in dealing
with claims for compensation. The learned Commis-
sioner has again ignored the provisions of law relating
to the pr.o c;edure to be followed by .him in such cases.
Moreover, he does not seem to have realised that the
que~tion whether or not a workman has. been killed
by accident arising out of and in the co?rse of his
employment is a question of fact which, unless specifi-
cally admitted, must be proved as an issue in the case.
H owever, 'w e agree that although direct evidence on
t his point. .i:s lacking, the circumstances in \vhich the
deceased Amina Ullah met his death are sufficient to
raise a presumption that he died as a result of an

-., *. Reported in 19~9 B.L.R., 227- Reporter.

232 BURMA LAW REPORTS. [1 952
H.C. acciden t ti'rising (<ut of and in the course of his
1952
employment as a ptttlkab-walla. Tl1ere is no:hiug in
Bl:-< HONG
&. Co. th e evidence adduced by the appellants Bi n Hong &
~..

MUNS!II
Company to rebut Ibis presumption.
MEAH. Bowever, the order of the learned Commi~sioner
USAN for vVor;l;:men 's Compensation directing ..payment of
MAUNG, J.
Rs. 2',400 to Munsbi .Meah must be set as.ide for the
reasons urged by the appellants in their memorandum
of appeal. Th e proced ure adopted by th e learned
Commissioner for \.Vorkmen's Compensation in com-
ing to a findin g that the applicant Munshi Meah is a
dependant of Amina Ullah as defined in section Z (1)
(d) of the Workm en's Compensat.i.o n Act is entirely
ir'regular. As pointed out by a Bench of the late
High Court of Judicature I n the Mailer of Guddai
Mutavalu ( 1) the whole scheme of section 8 under
.sub-section (1) \-vhereof compensation must be paid . to
the Commissioner seems to be designed for the
protection of the employer against claims in respect of
accidents where h.is liability is admitted or: established.
Furthermore, if is open to the employer to be a party
i.o the distribution proceedings and to contest the
status of the alleged dependa.nt. The provision of
law contained in section 8 (4} whereby the Commis-
sioner must repay the employer the balance of the
amount deposited" by him less the cost of the work-
man's funeral expenses, if no def~ndant exists,
makes the employer vitally interested in the question
whether or not there are dependants of the workman
as strictly defined in section 2 (1) (.d). As observedby
a Bench of the Allahabad High Court In the 111atte1'
of Kalka Prasad (2) if no near relation as defined in
. section 2 (1) (d) exists, the money cannot be paid to a
more distant relation of the de<:ea~~d- ~ employ.ee . ~ven
. .. . .
Ill 7 Ran. 660. (21 l).':i.R. (1?39) All. 707 . .
1952] l3URl\I.L\ LAW REPORTS . 233

though he be his next-of-kin. The amoun t has got w H.C.

195Z
be refunded to the empl0yer.
Lr~: HO!\G
Therefore the question \\hether or not l\h: n.' h~ i:\: Co.
v.
M~ali was a dependant of Amina Ullah as defined in .\ it.;~SRI
section 2 _(J)___(d) of the \\'orkmen 's Compensation Act . lEAH.

should havv been maclc an issue in the case. and uSAN

MAUNG, J.
enquired into by the Commis:>ioner for \IVorkmen's
Compensation. H e should not have acted upon the
report sent to him by the Commissioner for \Vork-
men's Compensation, Chittagong. In this conneclion
we would like to point out that the words '' any other
Commissioner" contained in sub-sec tion (2) of
section 21 of the Workm en's Compensation Act cannot
be interpreted as including the Commissioner for
\Vorkmen's Compensation, Chittagong. From the
definition of the word " Commissioner " given in
clause (b) of sub-section (1) of section 2, it means a
Commissioner for Wqrkmen's Compensation appointed
und~r section 20 of t~e vVorkmen's Compensation Act
and a reference to section 20 shows \ht~t Commissioners
for Workmen's Compensation in Burma are to be
appointed by -the President o f th e Union of Burma.
The Commissioner for Workmen's Compensation ,
Chittagong, is not such a functionary. Besides, the
proviso to. s~1b-section (2) of section .. 21 enacts that no
matter other than a matter relating to the actual pay-
ment t0 a workman or the actual distribution among
dependants of a lump sum ghall be transferred for
disposal to another Commissioner except with the
previous sanction of the President unless all the parties
to the proceedings agree to the transfer.
Therefore in the absence of ~n agreement the
question relating to the depen<;lency of Munshi Meah
should not be _transferred to another Commissioner but
should be enquired into by the Com_missioner for
Workmen's . Gompensation, Rangoon. The _ finding
234 BURMA LAW REPORT S. [1952
H.C. of the Commissioner for \iVorkmen's Compensation
1952
that Munshi Meah is a dependant of tile deceased
Hl:'i" H O:\G
& Co. Amina Ullah must also be set aside as having been
V.
MUNSH! based on no admissible evidence whatsoever.
MEAH.
For these reasons we vvould set aside the order of
U SAN the 8ommissioner for Workmen's Compet..lsation dated
M A UNG, ] .
the 6th March 1951, directing payment of Rs. 2,400
to Munshi Meah through the Commissioner for Work-
men's Compensation, Chittagong. TI1e proceedings
will be remanded to the Commissioner for VVorkmen's
Compensation, Rangoon, to be proceeded with accord-
ing to Jaw in the light of the observations contained in
this judgment a.nd in the judgment of this Court dated
the 4th February, 1949. There will be no order as to
costs of this appeal.
 . 1952] BURMA LAW REPORTS . 235

APPELLATE CRIMINAL.
Be forelJ 011 l'c, J.

D. N. LOBO {APPLICANT) H.C.

1952
v.
M ay 26.
J.C. \VEBSTER (RESPONDEr\T) . *
Pe1utl Code, s. 500-Defamt~liou of wife-Wile/her h11sl:nud ca" file com t lawl-
Aggrieved pers..>n-:lleaui11g-S.19J , Crimi111tl f'uJC: d nr .: Cork
A husband filt:d a complaint under s. 500, Penal Code as a person a.:.! ~de\ed
by his wife beinl( defamed. Upon an objection being raise;! that th e \dfe
being an adult a nd sui j uris ~ hou ld have filed the complaint pers.;nall r as she
was the onl y perscm competent to compound such an offence.
Hefti: That in the ca~e of a married woman the husb~ncl is an :tggrievcd
pJrson an'd therefore he: can make a complaint under s . .t<)8 of lite Criminal
Procedure Code.
C!lrllam .Vaidu v. Ram.rS,r111i , I.L.R. 14 Marl. 379; C!t ho/.tnl I al uUuu v.
Natlrabllat Bechar and auotllcr, I.L.R. 25 ~om. 151 ; Gt~rtltl S i11glt and o/it ers
v. Tile Crowu, I.L.R. 5 Lah. 301, referred to.
The use ol the term " some aggrieved person" in the Criminal Procedure
Code is deliberate as some al{g rieved person" need n ot necessarily be on!}' the
person def:lmed. The word" ag)!rie,ed" in s. 198 of the Crin:i ..al Procedure
Code mtis~ be treated as equivalent to the "person injt~red and a husb:~nd in the
circumstances of this case was ~o inju~ed.
Queen-Empress v. Nga Shun, Selected Judgments L.B.R. (1872-1~<.t21 617,
distin.urshed.

H. M. Fisha for the applicant.

R.. E'. Hen.lerson for the respondent.
U QN PE, J .-This is an appli~tion to revise the
order of the learned Sessions Judge, Hanthawaddy,
affirming the order of the 2nd 1\dditional Magistrate,
Rangoon, ruling against the applicant's preliminary
objection to the right of the respondent to file a
complaint under section 500 of the Penal Code. The
complaint, giving rise to this application, was filed by
the . respondent . who is the husband against the
_____________________
applicant
-. for defaming his. wife .by the imputation...,..._
of ___
.:..._..

* Crin1inal Revi$ion No. 48B of 1952 being review of the order of

2nd Addiiional Magistrate, Rangoon, da.ted 26th Decembel' 1951, passed in
Criminal Re.gula: Trial No. 518 of 195!.
23"6 BURMA LAW REPORTS. [1952 "
'
H.C.
1952 unchastity to her. The objection \:~.ras based upon the
D.N. Lollo
provision of section 198 of the Criminal Proc~dure
v. Code which lays down, subject to the proviso, that no
J. C. WEB-
STER. Court shall take cognizance of an offence falling under
U 0~ PE, J. Chapter XIX or Chapter XXI of the Penal Code, or
under sec tions 493 to .f96 (both inclusive r of the same
Code, except upon a complaint made by some
person aggrieved by such offence.
The case therefore turns on whether the respondent
is an aggrieved person within the terms of that section.
Both the lower CoLtrts have held that the compiainant-
respondent is competent to file the con1plaint for
defam~tion imputing unchastity to his wife, fo llo wing tl1e
decisions in Chellam Naidu v. Ramasami (1), Chhoialal
Lalubhai v. Nathabllai Bechar and. another (2) and
Gurdit Singh mu.i others v. TJu:Crown (3). The decision
in these three cases is to the effect that whei1 a married
WOman iS defamed by the imputation Of UnChastity I her
husband is a. person aggrieved, upon whose complaint
the Magistrate may take cogniEance of a complaint
under section 198 of the Cri~inal Procedure Cod~.
With respect, I am in agreement with the decisions
made in those three cases.
It has been contended by the Counsel for the
applicant that the .decisions in the aforesaid three cases
were made before the amendment of section 198 of the
Criminal Procedure Code, inserting the proviso by the
Cri;ninal Procedure Code (Amendment) Act of 1923
and that the objed of the amendment was only .to s'we
Gertain class of complainants who were under a
disability Jrom being compelled to appear in Court.
In the first plave, it is not quite correct to say that all
those decisions Wt:r~ made before .the proviso came into
force.*' for the Lahor~ case was dated
7th March 1924
(1} I.L.R. 14 Mad. 379. (2, -I .b.R. 25 Bom. lS.l.
. (3) J:L.R 5 Lah. 30f.
1952] BBRMA LAv\ REPORTS.. 237

\\'hich was after the 1923 Criminal PrC'ceclure Code H.C.

1952
(Amtndment) Act came into force. Secondly, it ctoes
D. K l.oi:So
not necessarily folio\\' from this proviso that in case of t.
defamation the person defamed must make the ]. C.STER. WEB-

complaint herself when she is under no disal:lility.

u ON P.e, J.
The use of the term " some aggrieved person, ih
~ection 198 of the Criminal Procedure Code appears
to be deliberate, inasmuch as it is clear from the
term ''some aggrieved person " th<tt the person
competent to make a complaint need not necessarily
be only "the person defamed.'' This is best illustrated
by the case where the defamation is made against a
dead person and where a complaint has to be filed by
some person other than the person defamed.
Consistently with the intention of the Legislature to
allow persons other than those injured to file complaints
under section 198 of the Criminal Procedure Code, a
husband, filing a complaint for defamation against his
wife, may claim to have the right to do so on stronger
ground for reasons which are peculiar to the relation-
ship of a husband and a wife-a relationsh ip which
must be said to be unique. The defamat ion on the
hononr of the wife.affects that of the husband and, in fact,
a husband may, in some cases, be mote concerned when
the chastity of his wife is attacked. When two persons
become man and wife they are so hound up as one
person. each having a part to play in a matrimonial
bond, and i n this sense the husband can be said to be
a much aggrieved person when the chastity of his wife
is attacked. In this case, the r espondent has therefore
rightly complained in paragraph 11 of his compla.int
"that the accu_sed has defamed both your petitioner as
well as his wife as he has, by his imputation that the
pet~tioner's wife isa p.rostitute, .c aused d~ rect injury. to
t he reputation and honour of the petitioner and his
w1fe.''
238 BURMA LAW REPORTS. [ 1952
H.<:. T his case is therefore qu ite dist ingu ishable from
1952
the case of Queen-Empress v. Nga Sit"" ( 1) r elied on
D. X. LOBO
by the applicant's Counsel. T here it was held as
}. C. WEB-
STER.
follows:
u ON Pe, J. ' '
" The reputation of a living person who is an adult and
w i juris is ex~lu;ivel~, within his own protection. If he does
not take steps to defend it, no one else can. Section 345 , Code
of Criminal Procedure, show that the only person who can
compound a prosecution for defamation is the person defamed ,
and indicates clearly the intention of the law to leave to every one
the exclus4ve right of vindicating his own reputation"

It is a case in which the complaint was made not by

the phongyi who was defamed but by his llyaungtaga.
The r elationship between kymmgtaga and phongyi can
on no account be treated as similar to the relationship
between husband ~nd wife, who have been cemt:n ted
in a matrimonial bond in a way no other two persons
cq.n be cemented, and on this ground alone this
Burma case and th e present case are clearly disiinguish -
able. The next contention of the applicant is that,
in view of the provisions of section 345 of the Criminal
Procedure Code where it lays down that the offence
of defamation is to be compounded by the person
defamed, n o person other than the one who is defamed
is intended b y the law to file a complaint. 'This is to
overlook the fact that in th e case of defamation against
the wife the husband is an aggrieved person and
therefore can be said to be a "person injured.'" In
Queen-EmP1ess v. Nga Shun (1) 'q uoted above the
foll owing view on this point has been held : -

"The word ' aggrieved ' in ~ectic n 198, Code of Criminal

Proc~dure, must, I thin\<, be tre"lted as equivalent in cases of
defamation with the expression' person injured'."

(1 ) Selected JudgtnEcn ts. L.B.R .. (1872-1892) 617.

1952] BURMA L AW REPORTS. 239

I do not see how section 345 of the Criminal H.C

1952
Procedure Code can be in the way of a hu sband's
D.:-.;. L ono
complaint, for so long as the injury is consider<:d as v.
having been done to him, a wife's \\illin gncss to J. C.STER. WEts

compound trhe offence, which, in actual pr~~ice, is U 0:-~ PF., J.

unlikely will have no bearing on the question.
In all the circumstances of the case I see no ground
to interfere with the orders of the lower Co ur ts . The
application is dismissed.
240 BURMA LAvV REPORTS.

APPELLATE CIVIL.
Before U Si Bu, J.

H.C. KO MYA DIN AND ANOTHER (APPELLANTS)

.
I95L
Nov. 29. v.
KO BIN NGA (RESPONDENT).*
TI(IIIS/et of lt7111101'Cabl Prr)(erly ( Rcsfrictiotz I .'let, 1947, ss. 3 a11d 5-
Uuion Citi~ eusMp Elec:ion Act, ss. 7 a11d 8.
Held : That mere liliu~ of an applicatio1~ under Union Citizenship
Election Act for Citizenship in Burma and an enquiry beld are not sufficient
to mal<e a person citizen. A person attai11s the stat11s of a ciiizen onl)' when he
obtains the Certificate of Citizenship ater renouncing any other natiC>nality or
statu-s as citizen of any foreig n country.
Any transfer of immoveable property obtained by a foreig11er who has
applied for cilizensl\ip but has not y<=t obtained the certificate would be void
under ss. 3 and 5 of the Transfe r of Immoveable Property (Restriction) Act,
1947.

San Thein for the appellants.

[{yaw Myint for the respondent.

U Sr B o, J.-This is an appeal from the judgment

of the District Gourt of Bassein setting aside the
judgment and decree of. the Co~rt of the First
Subordinate Judge,. Bassein, and remanding the case
for disposal on merits.
_By conserit this appeal and appeal Nos. 54, 55, 56
and 57 of 1951 are heard together as the same point of
law and facts are involved and the. same advocates
appear in all the cases. This judgment will therefore
deal with all the appeals aforesaid .
. Civil 2nd .PP.e!ll ~o. 53 of 1951 against the de~ree of the Additional.
A.
District Court of Ba~s~in in Civil .Appeal . No. 1 or' 19$1 ar.ising out of
the decree of tlie 1st Subordinate Judge's CQurt of Bassein, _in Civil Suit
of
-No. 89. 19SO.
.1952] BURMA LAW ~PORTS. 241

The plaintiff-respondent sued the 'defendant- H.C.

1951
appellants for possession of land, claiming to have
P urchased it from Messrs. Burma Ccmpan\ Ltd. 1 ANDANOTHER
Ko MvA DrN
R1.ngoon, by a registered deed, dated the 31st ).larch, v.
. Ko BINNGA,
lYSO. The defence relevant to the purpose m hand was -
that on the, date of purchase the responden{ \yas a u SI au, 1
foreigner and so the sale to him was void. The trial
Court framed several issues-but those with which I
am concerned are tbe second and third issues which
are as follows :
"Issue nut:tber 2.-Whecher .the plaintiff w.as a foreigner on
the day of purchase of the suit land ?
Issue number J.-Js the sale deed in favonr of the plaintiff
void in law ? If so, is the suit maintainable ? ' '

In order to answer thest issues and to understand

the arguments of the learned Advocates appearing rn
the case it is necessary to note a few dates.
The land was purchased- by the respondent, as
already stated, on the 31st March, 1950.
The respondent applied to become a Citizen of the
Union of Burma on the 31st D ecember, 1949. .
The Officer holding the enquiry under section 7 of
the Urtion Citizenship (Election} Act, 1948, decided
that the respondent had established his right to elect for
citi~enship of the Union on the 3rd March, 1950. The
certificate of cit~zenship was delivered to the
respondent and took effect on the 2nd November,
19$0.
The respondent's contention -js that he became a
citizen of the Union on the 31st D~cember, 1949, when
he applied to becom~ a citizen or, at any rat ~, on the
3rd March, 1950, when the Officer holding tl~e enquiry
held under section 7 of the said Act dedded that the
respond,ent had established his righi to .. el~ct for
citizcmship. The _trial C~ur~ hel.d that tht respondent
. 16

I
I
242 BURM A LA\tV REPORTS. [1952

H.C. became a citizen of the Un ion on the 2nd

1951
November, 1950,when the certificate took effect; an d
Ko :l-1vA DJ~
ANDAI.:OTBER since htwasnota citizenon the31st March 1 1950,
~-
Ko 1::!1~ NG.I. when he purchased the land in suit, his purchase was
U S1 Hu, J.
void under sections 3 and 5 of the Transfer of
I mmmeable Property (Restriction) Act, "1947; and in
t his view of the case he dismissed the suit. On appeal
the District Court held that th e respondent became a
citizen on the 3rd March, l 950, and set aside the
judgment and decree of t he trial Court and remanded
tbe case for disposal on merits.
The reason given by the lear.ned District Judge for
his finding is that the deci sion of the Officer holding
11
the enquiry und er section 7 is final and conclusive".
Let us now examine if that l.s cor rect.
Section 7 of the Union Citizenship (Election) Act,
1948 and also section 8 of the same Act are in these
words :
" 7. {1) If the officer decides that the applicant has
e stablished his right to elect for citizenship of the Union, he
shall fprthwith transmit to the Minister a certified copy of his
decision together with the application for the certificate and the
affidavit annexed theteto.
(2) H the officer deci9es that the applicant is not entitled to
so elect, the applica'lt may file an application in revision against
the order in the H igh Court within sixty days from the date of
tl1e order.
8~ (1) When the Minister receives a decision of the officer
under section 7, he shall, unless he is in doubt of the correctness
of the decision of the o.tf_icer, issue a certificate o"f cit~zenship in
such form as may be prescr~becl and shall send tile certificate to
the office1 by whom th~ decision was made.
(Z) If the M"inister :is in doubt of the. cot:rectne~s of tlf~
decision of the officer, he may refer the application to the High :
Court on the Appellate . Side. Te such a reference b~ the
~iin ister or the applieation under section 7 (Z) tp.e provi~ions c'f ~
Order 4.1: of the C:v!l Procedure C'-ode shall apply. .
1952j BURMA LAW REPORTS. 243

(3J If the High Cc urt, on a reference. ~ nrirmg the decision H.C.

of the officer under section 7 (1), or set a::.i .:e 1h ~ order under 1951
sectio11 7 (2), the Minister shall issue a cerritic:t!e of ci tizenship Ko ')lYA Or:'J
,\:-;JJ A:-> OTHER
and transmit it to the officer by whom the ded:->i<'n was m:tcle. fl.
l4) The officer shall, on receipt of the ceniric,;;,te, call upon Ko Br:-< ?\GA.
the applicant ~o appear before him o n a date fixecl by II irn ;mel to U Sr Bu. J.
subscribe a declaration on oath or affirmation renouncing any other
nationality or status as citizen of any foreign country and, oa the
applicant making and suhscribin~ such declaration, the oft1cer
shall deliver to him the certificate after having enc:0rsed
thereon the date of the malcii1g of and subscribing the said
declaration.
(5) The certiilcate sh1ll not tal\e effect unless the applicant
makes and subscribes the declaration under the last preceding
section. ' '

It will be noticed that, after the Officer has made

his decision, it is open to this Court, on a proper
application made to it, either to confirm or not to
confirm the Officer's decision made under section 7 (1)
or to set aside or not to set aside the decision made
under section 7 (2). That being so, can it be said, as
the learned District Judge has done, that the decision
of the Officer is " final and condusive " ? I am sure
it cannot b e.
Another reason why the Officer's decision cannot
be II fin~l and COnclusive 11 iS that it Cal'\ be rendered
ineffective by the respondent. In spite of the fact that
't he Officer has made his deCision, it is still open to the
respondent to change hisi mind an d to refuse t9
r.enounce his foreign citizenship when called up0n to
do so before delivery of the certificate to him. Having
assumed, though wrongly, -that the Officer's decision is
~~final and conclusive, " the learned l;:>istrict Judge
pr.o~ecded to !)old that 9nce the respondent makes his
declarat_i9n under section. 8: (4} the certificate \V'Oulc!
take effect no~ from the date of such declaration, i.e.,
2nd November, 1950, ~ut from the date of th.e .Officer's
244 BURMA LAW REPORTS. [1952:
H.C. decision, i.e., 3rd March, 1950. Th e answer to that is
1951
that there is nothing in the Act to suggest this sort of
K o MYA Dr:-~ ..
AND ANoTHER retrospechvtty. In fact, such a co nstruction is
Ko B~ NGA. text~ally inadmissible. Once it is appreciated that
.
U SI Bu, }.
what the Officer decides is not whether the respondent
has pect>me a citizen but whether he has the right to
become a citiz~n-much of the difficulty under which
the learned District Juqge appears to have been
labouring would disappear. To establish that one is.
entitled to become a citizen is one thing, and actually
to become a citizen is quite another thing. Further,.
before one can assume that the certificate has.
retrospective effect he must also assume that the
renunciation also has retrospective effect, that is to
say that though the renunciation was made op. the
2nd November, 1950, one must assume that it was m ade
on the 3rd March, 1950. I can find no justification
for such an assumption or for the application of the
rule as to retrospective effect.
I do not think that there can be any doubt that it is.
only on compliance with the provisions of section 8 (5)
of the Act a.foresaid and on the day on which they are
complied with, that the respondent .c an be said to have
become a citizen of the Union of Burma. .
I therefore answer the second issue in the
~ffirmative, : and stnce I have done so it follows that.
I must having due r~gard to the provisions of sections:
~ and 5 of the J~.moveable (Ptoperty) Restriction -Act,.
1947, an"s wer the first part of the third issue in fhe
.affirmative, ancl the secon~ part ther,eof in the.
negative .
.In the result, the judgmeQt and decree of the
District Court are set asid~ and the judgment and.
decree of the trial Court restored with ~osts in all
Courts.
.t Advoca_te's fees :five gold" m9hurs aii6wed.
 1952] BURMA LAW REPORTS . 245

A P PELLAT E CI V IL.
Before U Atw.g Kltiue, J.

DA \V T H ET PU (APPELL\ :'-iT) H.C.

1952
v.
Mar. II
SAYA KHI N (RESPONDENT).*
Trade-mark-Trade u.ttlle-Questiolls iHvolved ;"-ln/rittgemmt of-'' Sllwe-
natJ-tllei"gi" 1/Jite/her ~rodtJce or description of pi(lintijf's medtcine-
Onus of proof-DescriPtive worilloosing original meaning.
Plaintiff and defendant manufactured blood purifiers. Each gave the
'$arne name" Shwe-nan-thein-gi ' anq ex..:ept for the name mentioned in the.
label, the get-ups were entirely different. 'Ihe plaintiff applied for an
injunction to restrain the defendant from u~ing the same name. The defen-
dant h;ld been manufacturing and seiling medicine for the last .25 years hut
only recently registertd the trade-mark and name.
Held: Thaf the most important question is whether the name " Shwe-nan-
thein-gi " has acquired a reputation in the market and became associated with
plaintiff and whether the public have always identified the same medicine by
this name.
A trade-mark or name which is primarily descriptive of an article or its
co:11position or mode of manufact~r... ~iust be open to the trade.and cannot be
claimed for exclusive use by one ttadet, Tl1e burden of proof of the conten-
tion that the name has lost its prima~9 bieaning and has acquired by long user
a secondary meaning indicating tH.:tt the medicine sold was not merely
medicine of a particular description bu_t medicine made by bim, lies heavily on
the party asserting it. The term dseff was never meant to b~ a trade name
and was given to this type of medidtlet~ng ago in 'h nunnese Royal Palace.
The process of manufacture had alto been published in" Tse-kyan " (Maler ill
Medica).
The Courts are very reluctant': to conclude that an ordinary deacriptiye
word has lost its original meaning ahll has become distinctive of the goods of
a particular manufacturer.
Gaw Kan Lye v. Saw K~Me Sai11g, (1939)R.L.R. 488; Reddaway v. Banlumt,
J 3 R.P.C. 218; Cellular Clolhi11g Co. v, Ma,:/o11 and Murray, (1899) A.C . 326;
.Ci1ivers & Som v. .Chivers & Co. Lld., 17 R.P.C. 420; Burbert~s v. J. (;.
Cordiug & Co. Ltd., 26 R.P.C. 693 i'ilorJicks Malted Milk Co. v. Summerskill,
34 R.P.C. 63; H~mmel v. Bauer & C.o., ~2 R.P.C. 43, referred to.

Ba Gyan for t he appellant..

Tha GyaU? fqt ..the res~onqent.
. civil 2nd ApPeal No. 80 bf,..~?51 against the decree of the Additional
District Court of Mandalay' in Civil Af:ipeal. No. 1 of 1951, date~ 20th July 1951.
246 BURMA LAvV REPORTS. [1952
H.C. U A UNG KHINE, J.-The plaintiff-respondent Saya
1952
DAW THY.T
Khi n and the defendant-appellant Daw Thet Pu are
Pu manufacturers of bloqd purifiers and each has given
v.
SAYA KHIN. t he same name '' Shwe-nan-thein-gi " for their
resp\:cti'\re produce. The blood purifiers which they
manufacture are in powder form and they are sold in
paper packets as well as in bottles. The get-ups in
their labels are entirely different except for the name
"Sh we-nan-thein-gi " ment.i oned on the labels. It
was Daw Thet Pu who probably discovered that she
and Saya Khin wer.e using the same name <i Shwe-
nar:l -thein-gi : for their respective produce . . She
approached Sa.ya Khin and requested him not to use
the. sa~e name "Shwe-ilan-thein-gi" on his labels ..
Saya Khin not only disregarded the request made but
promptly filed a suit foi: a declara tion that he has the
sole right to use this trade nai:rie and for an 1!1Junction
.to restrain Daw Thet Pu from the use of the same
name when selling her blood purifier.
_- It i~ the case of Saya Khin that for the pasl ten
years or so, he has been ma~ufacturing blood purifier
known as "Shwe-nan-thein-gi Thwese" and selling
the same under.the label of 006p;)~G(9ToSG:x>'JGf>~:::B~G~~Gro:u
This name" Shw~-nan-thein-gi Thwese" had, by long
. U~tr 1 come to n1ean aCOmpound of his manu.fa~ture.
In May 1950, Daw Thet Pu also manufactured and
produc~d the same type of ~edicine and began using
the same name '" Shwe-nan-tl1ein-gi. Thwese, and had
been se1Hng her medicine with the object of decei:ving
.the public, making them believe tt-iat her produce was
~ofhis manufact_~re: .. Xbis has, in turn, resulted i.n :the
reduction of his:own sales of ,his medicine: Daw Thet
Pu ~-n the other hand, asserted that she. ..had been
manufa:chiring a_n d' s'e lling h~r- own 'blood.' purifier for
the past.'25 years or so _undt?r~.-the ' name .of '.' Shwe-nan-
t_he~n,.,gi,: ~J:nv~se ,_ . S4<? also . ~tat~~ that he~ own
 1952] BURMA LAW REPORT~. 247

trftde-mark and name are quite different fro m those of H.C.

1952
Saya .Khin. She denied that she had any intention to
pass off her medicine as that of Saya Kllin. DA'~~HeT
T wo packets of blood purifier, one each from th e "'-. ~ . ~
p 1ainti'ff an d. tJ1e d e f en d ant, wer e pro d uced as ex41 1ts SAY~
1'b'
- !,H[, ,
in Court. It is not denied that the plaintiff's trade- i~7!'cE~j.
mark is entirely different from that of the defendant.
The plaintiff's label not on ly shows his own name but
also his O\.\n picture in contrast to the label of the
defendant, showing the picture vf a Burn1ese Royal
Palace and the words" Shwe-nan-daw and Shwe-nan-
thein-gi Thwese " . It was solely on this differen ce in
the get-ups of their respective labels that the plaintiff's
suit was dismissed by the trial Court. In the trial
Court, the defendant was able to prove that she
had been rnanufaci.uring and selling this type of
medicine under the name of '' Shwe-nan-thein-gi
T hwese ,., for the past 25 years or so.
In his appeal before the Additional District Judge,
Mandalay, Saya Khin was successful and the judgment
and .the decree of the trial Court was set aside and his
suit wa~ decreed. From ~ readin g of the judgme~t of
ihe lo~~er Appellate Court, it is cl~ar that the appeal
\Vas =allowed on one point only and that is, that .
although th'e parties had been manufacturing the same
kind of medicin e and had be.en using the sa me name .
'' Sh~e-na~-t.heiri-gi Thwese 11 1 it was the plaintiff who
firs t got his prod.l,lce in the mar~et. In.. this, I (!.ffi afraid,
the l ow~~: Appellate Court has .taken a very narrow
view of .ihe ease. and has 'given a restrictt:d interpr~ta-
.tiori ofthe d ecision in Gaw Kan.Lye v. Saw Kyone Sa!n;g
(1). : In that case the q uestion involved is .the tise o(a
tract'e:._x;x;tar~ .a.nd not of a. trade name.. Altho.ugb the
def~d~nt.: h~s }?een manv fatturing and selling her
,a,t .

(1) (1939) .~:L.R. 488.

248 BURMA LAW R.EPORTS. [1952
H.C. medicine for the last 25 years, the lower Appellate
1952
Court held that her produce had not been in the
DA.W THET
Pu market, probably because she had been selling them
SAYA KHIN.
not in open market but privately. It is true that it
--
U AUNG
was "Onfy recently tha't the defendant registered her
KHIN, J. trade-mark and name but it would be erroneous to
hold that her produce had not been in the market
before that of the plaintiff.
The most important question in this case is
whether the name "Shwe-nan-thein-gi" has acquired
a reputation in the market together with the plaintiff's
medicine and ~ has become associated with him and
that the public always indentify his medicine by this
name. He would clearly be entitled to a decree if he
.could prove that it isso.
on: the other hand, the trade-mark or narrie whic"h
is primarily descriptive of an article or its composition
or its mode of manufacture must remain open to the
trade and cannot be claimed for exclus.ive .use by any
one trader.
I have heard with interest the address made by the
counsel for the respondent Saya Khin that the name
"Shwe-nan-thein-gi " which was primarily descriptive
of his produce, has now lost its meaning and through
long user has acquired a secondary meaning indicating
that the medicine sold under this name is not merely
medicine of the description but metl'icine made by
.him. In support of this contention, reliance h'as ~een
. placed on the de<;ision of Reddaway v. Banham (1)
m9st commonly kriown as "Camel Hair Belting case''.
The bur~en . of . proving that the name '' Shwe-nan-
thein-gi Thwese" has <J,cquired a secondary significa-
tiqn sptiRen of b.y Saya 'Khin .lies heavily ~n him.
The term "Shwe-nanthein-gi." was never ine~nt to

Ill 13 R.P.C. 218. .

 1952] BURMA LAW REPa ~TS. 251:

:be a trade name. It was the name given to t1.

medicine many years ago in a Burmese Royal .t-.
The process of manufacture of this type of medic11.
had long been published in a " Tse-kyan " .(Materia
Medica) and using this process, this type of medicine '
U AL'N<
must have been produced over and o\er again under I<HII'e, ].

the same name. It is clear therefore that the name

.had, for years past, been in commercial use as
descriptive of the medicine prepared according to this
process.
Furthermore, there are numerous decisions to show
that the Courts are generally very reluctant to come to
the conclusion that an ord inary dcscripti\e word had
.lost its original meaning and had become distinctive
of the goods of a particular manufa<:turcr. See the
cases of Cellular Clothing Co. v. Max/on nnd Murray
{ 1) ; Chivers & Sons v. Chivtrs & Co. Ltd. (2) and
Rurberrys v. ] . C. Cording & Co. Ltd. (3}. There is
not , much evidence in the case to support the claim
made by Saya Kbin that the name '' Shwe-nan-thein-gi
.T hwese" has come to mean the medicine of the
plaintiff's manufacture. Thus it would be illogical to
1hold that the plaintiff has acquired exclusive right
io the use ot the name " Shwe-nan-thein-gi Thwese ".
Finally, it has been held in more than one case that
where the plaintiff's name is habitually used along
with the trade name of his goods, it is difficult to
-establish that the .trade name has, by itself, become
<listinctive of his goods. See the cases of Horlick's
Malted Milk Co. v. Summerskill (4) and Hommel v.
Bauer & Co. (5). The second case namely that of
Hommel' v. Bauer & Co. (5) bas a st-riking resemblance
to the case now under consideration. In that case
(l ) (1899) A.C. 326. (31 26 R.P.C. 693.
121 17 R.P.C. ~!O, (4) 34 R.P.C. 63.
151 22 R,P.C. 43.
248 BUR~"A LAW RE PORTS. [1952

H.C. medici.rA was selling a proprietary medicine which

1952
Cou ndecl '' Hommel's H rematogen," and sought to
DAwP~fiET ,_,train the defendants from selling a similar product
v. "' under the name " H rematogen ''. The action was.
.SAYA J(crl.
dismissed. It was held that the fact that the bottle
? AUNG
' klil~E, J. containing tbe medicine was marked, " Dr. Hommel's.
H <:e matogen" showed that '' H rematogen , had not
acquired this secondary meaning exclusively attaching:
it-to Dr. Hommel's preparation. In tbe present caser
on the label of the plaintiff's it was clearly mentioned
that " Shwe-nGln-tbein-gi Tb ~.ovese" was th.e manufac-
ture of the plaintiff Saya Khin. Th e words us~d are
006p~Gt9TGJ0G:).)')G~;>~:::SWr;;o,?:Gro:n
For all the5e reasons the appeal must be allowed.
The judgment and the decree of the lower Appellate
Court are hereby set aside and the plaintiff-respondent
.Saya Khin's suit must be dism.issed with costs through~
out. Advocate's fe~s in this . Court is fixed at fi.ve gold
mohurs. . ..
 19Sl i BURMA LA\tV RE PORTS. 251

APPELLATE CRIMINAL
lirfo'c C .':o !.yi, J.

MAC::\G NY Ui\T i\L\U~G

---=-....,....,..-='-- ~I ( .-\ I'!'LIC:..\):1":\) H.C
1952
;v] AU XG H L.-\ l\! YINT

v.
THE U~fON OF BURMA (fh:sPO:\DE><TS).~
S1eppre.sion of Corruption Act, J9.J$, s. 4 {-!) (c) a111l 4 t2 i-S. 109 of lite
Peual Code.
The applicant; were charge!) before the Special Judge (1), Rangoon,
for lakin~ bribe for releasing (PW 31 on bail and for abetment
under s. 109, Penal Code. The char~e agaiust U Nyunt Maung was that he
obtained for himself and also for the other applicant a sum of Rs. 125 as a
pe-cuniary advantage for the release of Mauug Aung Khint!.
Held: That the charge disclosed no acts of abetment against the other
accused applicant. The el'iGence also did not support any such case. The
charge against Maung Hla !\iyint was quashed.
Tlte Pu.blic Prosecutor v. Georg,, Wtltiams, A.l.R. (1951) Mad.lC42.
San Thein } .
B. W. Ba Tun for the apphcants.
Ba Sein (Government Advocate) for the respondents.
.
. ..
U Bo GYr, J.-Th ese two applications, one by
U Nyunt Maung, Court Prosecutipg Officer of the
Co.urt. of .the Western Su bdivisional Magistrate,
;Rangoon, and: the other by Maung .Bla Myint, Bench
~lerk bf tbe same Court, will be disposed of it?- this
order. The charge against Maung Hla Myint runs .:
"That yc J,.On.or aboutithe 2 1st d~y of July 1951.(3rd las.ok
1

of Waso 131.3 B.E.), at about noo~ in the " Court-room of the

Western Subclivisional Magistrate, Rangoon, ~betted U Nyunt
Matmg, the Court Prosecutin~ Officer of llie same Court as you,
.a .public
. servant
. .. . , in the cotnmissic:m of cr.iminal misconduct
. . in the

Cri~inal Revision Nos. 9 ancl 64 ( 8 ) being r~view of .ord~r of . Sp~iat

Judge of "Rangoon, dated 26111 M3rdt.1952; passed in Criminal Regular Trial
No. 8 of 1952,
:252 BURMA LAW REPORTS. l1952
H. <.:. discharge of his duties in that he by conLJp t or illegal mean~ or
1952 othendse by a buse of his office as a pl1blic servant, obtained for
MAUt>G himself and also for you as the Bench Clerk of the same Court
. ::~:~ from U Maung T in (alias) U Thein a sum of Rs. 125 as a pecuniary
MAUNG HLA advantage. for the release 0 M aung AunJ;! Khine (PW 3) on
~ c
MYJNT bail, which was committed in consequence of your abetment, and
THE tNION thereby committed an offence ptmishab!e under section 4 (1)
OF BuRMA. (c) /4 (2) of the Suppression of Corruptiou Act , 1948, read \dth
u Bo GYJ, J. section 109 of the Penal Code and within my cognizance - .''

Tl1is charge shows on the face of it that the facts set

out therein do not come within the purview of section
109 of the Penal Code read with section 4(1) (c) /4(2) of
the Suppression of' Corruption Act, 1948: Under
section 107 o( the P enal Code a person abets the doing
of a t\1ing when he instigates any person to do that
thln.g cir engages with one or more other person or
persons in a con spiracy for the d0ing of that thing,
or intentionally aids, by any .act or illegal omission,
the doing of that thing. Here, the eharge against
Maung Hla Myint is that he abetted U Nynnt Maung in
that the latter ''obtained for himself and also for you
as the Bench Clerk of the same Court from U Maung
Tin (alias) U Thein a sum of Rs. 125 .as a pecuniary
advantage for the release of Maung Aung Khine
(PW 3) ~n bail . " It is clear that the charge
discloses no offence of abetment against .M aung Hla
Myint ; n either does the evidel).ce for tfie prosecution
v.;hi.ch has been record.ed. I have 'c hecked the list of
t he prosecution witnesses menti~ned ir: the Charge '
Sheet with the witnesses examined fo'r. u:~ prosecution ;
a~d- I~.:~~A.~~P:~~.p~. s:.~se {or the prosecution had beetil
duly closed when the ch~rge was framed. .:;
The ~~~rned Adv~c~te for Maung Hla Myi~thad
taken me ~hro.ugh . ih~ . ~vidence otthe pro~ecutio~~
witnesses and I find that there is nothing to conne .'
Maung Hla Myint with the offence.all~ged . to have bee~.
. 1952] BURMA LAW REPORTS. 253

committed by his co-accused L" ~yunt l\Iaun~. H.C.

1952
Maung Hla Myint in his applicatil..'n ~tates that he~ did
~!.\ t:.f ~\i
nol know that l~ N yunt Maung demanded a bribe, and .:\ Yl':\!
~: A ;; ;-- .:;
on goi ng through Lhe record I can find no ev idence to
:\i.,l-~t; H u
sho w that he was present when l' :\~unt Maung is :IIY!:-<1'
! '.
said to have' dem:-tnded or received a bribe. THE l":-:rc:-.-
01" Bt R:H.
In these circumstances, the learn ed Government
Advocate finds himself unable to supron the charge U Bo GYI, J.
against Maung Hla Myint. There is no evidence
whatsoever against Hla Myint and the ch arge against
hi m will bt quashed n.nd he will be discharged.
As to U Nyunt Maung his learned Advocate frankly
. admits that there is some prima facie evidence against
his client. He states that he will not now go into the
question whether the evidence of "th e witnesses who
were present when the bribe is alleged to have been
given, r equires corroboration inasmuch as these
witn esses should be treated as abetters of the alleged
cnme.
The learned Advocate, however, presses for grant
of bail. In the circumstances menti oned by the
learned Advocate and in view of the fact that the amount-
involved was only Rs. 125 and after a con!>-ideration
0 the principles enunciated in The Public Prosecutor
v. George . Williams (1) r egarding .cases where bail
which .has been granted may be cancelled, I am of the
opinion that U Nyunt Maung should be given an
opportunity to defend hims_elf while on baiL
Accordingly, under sectio:n 498 of the Code of Crimi nat
'P rocedure I 'direct that U Nyunt Maung be released
on bail on his furnishing security in the sum of
Rs. 2,000 in two sureties in the like amount.

' . .
1~1 A.I.R. (1951) Mad.. 1042.
 BURI\'IA LAW REPORTS. ' 1952

A PPELLATE CIV IL.

Before V On Pe a,,t(. U Sail Jlfaung, .Tl.

'H.C. G.-\ w TUN SHvVE (APPELLANT)

1952

.June 6. 'll

MA KYIN AYE tRESPONOENT).*

.. iJ.loveables ghen as security for loan-Period of limitafioT~-if.,ticle 57,

Limilatiou Act-Suit for euforciug a dJ.arge-Artic/e 120-Coutmct Act,
ss.172 and 17b-l?igllts of pletf.gee-'Wheflur suilnut i11lai1lablcfor sale of
pledged articles-Stare decisis l1ow fw ap:J:licable i11. tfle case .
.-\ppc.:llant sued for enforcing a charge "ll jewellery pledged as ~ecuri ly
with him. The sui t was. dismissed on the ground that it did not lie and tl'at
the lo:~n had become barred by limitation.
Held: That the article the Limitation Act applicable to a decree for
>Ordering defendant to pay a debt is Article 57.
/lfa Kyi Kyi v. Ma Shvoe aud anolllcr, (1900-02) 1 L.B.R. 154.
:Nim Clta11tl Bt;lboo nod others v. Ja;,abandlm Glzose, I.L.R. 22 Cal. 21 ;
.lllahalinga Nadar v. Gmt.aPalhi Subbien, I.L.R. 27 Mad. 528, referred to.
The present claim for the debt is clearly. time-barred.
There is a conflict of opinion on the question as to which a rlide of the
Limitation Jtct is applicable for enfon.:ement of payment of money char~ed
upon 1~1oveable property. Case Ia w referred to.
Villa Kamti v. Kalej.(lra, I.L.I<. 11 Mad. 153; Madan Molmn l..al v.
Km1llai Lal, I.L R. 17 All. 21!4, referred to.
The rights of a pawnor are governed by s. 176 of the Contract Act.
'The plaintiff could either l;ne for debt retaining the pledge as c:ollateral
security or he could sell the goods under pledge afte~ reasonable notice.
'Though the right of suit was barred his right of 'sale is a statutory right
.and remained but no suit was 111aintainable for . enforcing such a right as there
was no necessity for such a suit. The language of s . 176 of the
, Contract Act states that the pledgee umy sell the thing pledged. Where a
Statute gives a power ta do a certain .t hing in a certain way, 'the,'thing mu~t
:be done in that way or not at all.
Tlte QuceT . v. Tht: Collt>IY Court Judge of Essex and Clarke , {lll8?)
18 Q.~ .D. 704' ; LP.mPltlgh v. Norton and otl;~rs, .f1889} 22 Q.!'J,D. :.452 ;

Civil I !it Appeal No. 58 of 1950 against decree of.the District Court . of
Banthawadd~ in Civil Regular No.2 of 1949, dated 4th Au)!itst !950.
. 1952] BU RM A LAW REPORTS . 255

Doe\', Bridges, 1 B.& Ad. S47 at 859 ; T. ioptitlator$, Janda Rubber TVo1ks, L td. H.C.
1952
v. Collector of Bombay and anoilltr, A.I.H. (1950) East Pun. 204,
referred to. GA\\' T L' :-o
SHI\'
'fher efore the only way to enf<:~rcc sale ol a pledged ;trtide is to exercise :.'.
the rights und er s. 176 o f the Contract Ad and not in any other way a5 by suit. MA l{YJX
AYE.
The question whether the Court has jurisdiction lo entertab su~h a suit
was not decided' in ltfa Kyi Kyi v. Jlla Sl1we nnd nnoiller, I L B.R: 1S4 and
therefore the rule of stare decisis is not applicable.

!{yaw Myinl and } for the appellant.

V. S. Venkatrmn

Dr. BaHan for the respond ent.

U ON PE, J.-This appeal has arisen ou i of a sui t

which p~rports to be one fc.r enforcing a charge of
Hs. 12,925 on jewellery alleged to have been pledged
with the appellant-plaintiff as security for the loan.
The jewelleries pledged are three items mentioned
in paragraph 2 of th e plaint. It may be mentioned
here that these three items of jewellery formed part of
the six items of jewellery in respect of which the
responde-n t-defendant and her husband filed a suit for
redemption in Civil Regular Suit No. 17 of 1946 of t.he
Court of the 1st Assistant Judge, Moulmei n, which
d~cided ' in favour oi the respondent-qefend ant, holding
that all the six items were pledged for th.c loan of
Rs. 6,000,a de cision which was upheld and confi rmed
by the High Court of Rangoon in Civil Second Appeal
No. 90 of 1948.
The reliefs asked for m this suit may be
reproduceq.
These are:-
(1 ) For a : d eclaration that the said sum with
interest is due to the plaintiff and. for an
.. order. of p'a ymentof .the said amount. by tile .
def endant mi the fixed date.
256 BU RMA LAW REPORTS. [19SZ
H.C. (2) For an order, in default of such payment,
1952
directing the sale of the pledged jewelleries
GAW Tu:-:
SHWO: and for payment out of the sale proceeds
v.
MA KY1~: the amount due to the plaintiff.
AYF..
The ,respondent-defendant bas contested the: suit
u ON PE,J. en the ground that the recovery of th e alle-ged loan is
barred by limitation and the claim for the sale of the
jewellery alleged to have been pledged does n0t lie ..
The lower Court \\'cnt to trial on six issues and
dismissed the .:;uit on the ground that the claim in
respect of the debt was barred by limitation: and that
the suit to direct sale of the pledged jewellerie5 was
not maintainable as the property pl.edged does not fall
within the ambit of section 100 of the Transfer of
Property Act, whereas the right of action exercisable
by the pledgee is one as provided under section 17 6 of
the Contract Act.
As regards limitation, we have been referred to
severed cases, one of which is a Burma case-JI!Ia Kyi'
. Kyi v. Ma Sh1x.,e aJLd another '(1) and which are
unanimous that the Article applicable regarding the
right to a decree ordering the defendant personally to-
pay a debt is Article 57 of the Limitation Act.-Please
see Nim Chand Baboo and othas v. ]agabandhu
Ghose (2) and Jit!ahalilzga Nadar v. Grmapathf
Subbit.n (3) . . We hold that the present suit in su far as
theclaim in respect of the debt is concerned 'is clea,:ly
time-parred.
With ..regard to the point as to main~ainabilify of
the suit fo:r .enforcing a charge on the articles pledged,.
cases have been . cited dealing with the que~tion as to
the Artit:le of Limitation applicable to a suit to enforce .
payment o(n:toney charged upon moveabl~ property.
T~er:e .: arose
.
a. .conflict of opinionon th~. p.oint, one
. . '
(ll (1900-02~ 1 L.!i.R. 154. (2) I.L.R. 22 Cal. 21.
131 l.L.R. 27 Mad. 5:28.
 1952] BURMA LAW REPORTS. 257

view as in i1fa Kyi Kyi v. Ma Shwe and all ,)!her (1) and H.C.
i':-52
Nim Chand Bnboo and others v, ]agabn1zdlm Glzose
G \.,,. Tt':-<
(2), holding that the Article applicable is Anicle 120, SH\\.E
there being no provision in the Law of limita iion as to MA t'.I{YIX
the period fi.xed for instituting such a ~uit :'ant! a _.!;\'E.

contrary view holding that the claim, being merely an u ON P, J.

incident in the nature of an accessory to the right to
recover the debt, became barred wilh the right of suit
, for that debt, as in Villa Kamti v. Kaleka1a t3), and the
judgment by Davies J., in Mahalinga Nadar v.
Ganapathi Subbien (4), where hi:s Lordship held as
follows :

'' That the claim to proceed against the debto personally

wa.s governed by Article 57 and was barred, but that in so far as
the suit was.for a sale of the pledged property that was merely an
incident in the nature of an accessory to the right to recover the
debt, which beclme barred with the right of suit for that debt.
The right of sale, however, remained. "

But it is his Lordship's observation in commenting on

the case of Villa Kamti v. Kalekma (3), which brought
outa new aspect of the case which had been overlooked
"in Nim Chand Baboo and otlze1's v.]agabandhu Ghose
(2) and Madan Mohan Lat v. Kanhai Lal (5), and
which is as (o.llows :

"The case here is, however, different in one respect from

that j~st quoted [Vttla Kamti . v. Kalekara (3) ]. There the
property was orily hypothecated. Here there was a ' pledge
within. the meaning of section 172 of the I ndian Contract A,ct
and the rights of the pawnee (the plaintiff) are governed .b;
section 176 of that Act. That is the phintiff could either sue.
upon. the debt; retaining the' p,ledge :as a collateral security or he
-could sell the thing pledged, 6n .. reasonable notice to t'he
dete~dant. His right of su.it. wa;
barred by Jimitation, but

(!) (1900:-02) 1 L.B.R. 154 . . (3) I ,L.R. 11 Mad. 153.

(2) I.L.R. 2i C.al. 2~. . (4) I.L.R. 27 Mad. 528.
(5) I.L.R. 17 ' All. i84.
17
258 BURMA LAW REPORTS. [195:!

H. C. his ri~ht of sale still remained and this was a right secured
1952 to him by law which he could exercise without suit. Hence
GAw TuN the suit was not maintainable as there was no necessity for
SRWE it. This point does not appear to have been considered in
MA vKYIN ' the casP.s of Nim Chatld Baboo atld others v. ]agabandhu Ghose
AYE. (1) and Madan Moha1t Lal v. Kanlzai Lal (2)." :
U ON PE,J.
We are, with respect, in agreement with this pro-
position of law that the pledgee's right of sale under
section 176 of the Contract Act is secured to him by
law which he could exercise without suit and that the
suit is not maintainable, as there is no necessity for it.
Here, we may observe, that in all the cases quoted above
this point as to maintainability of the suit, as pointed
out by Davies J., in Malzalinga Nada1 v. Ganapathi
Subbien (3), had not been considered with the result that
a situation was created in which suit for enforcing a
charge on moveable property continue~ to be filed.
This. confusion persisted and was made possible by
another factor, na.mely, the failure to keep the
distinction in view between a .security hypothecated
and bailment of pledgee. The difference between the
two forms of security is brought out in the following
words in the Indian Contract Ad by Pollock and
Mulla, 6th Edi.tion, at page 544 : -
" It is.clear from the definition of' bailment' that there can!
be no pledge of goods unless there, is .an actual deliyery of thef
goods. The loan, however, may be secQred by an hypotheca4
~ion of goods. Such a transaction ?oes not require delivery oi ~
:goods for its validity ; nor can it be said to be prohibite
by the Contract Act because the Act contains provisions fo :
bailment pf pledges and none for hypothecation of goods." , "

It is the failure to keep the disti~ction i~

view betwee~:
3 security hypothecated and a pledged article t~a
seemed to have caused the co.nf~sion resuiting .~ui: in
(11 I .L.R. 2~ Cal. Zl. {2} i.L.R,. 17 All. 284.
(3) I.L.R: 27 Mad. ~28 . .
l952l BURMA LA \V REPORTS.' 259

being filed even in cases which fall under section 176 H.C.
1952
of the Contract Act. Section 176 of the Contract Act G Aw Tu:-:
-contemplates articles pledged in the real sense and the SHWE
v.
present case is one which falls within the :;~.mQit of .MA KYIN
AYE.
the said set:tion and is, we must therefore hold, not
maintainable. U ON PE,].

Dr. Ba Han, counsel for the respondent-defendant,

has contended that the right given to th~ pledgee to
realise the security under section 176 of the Contract
Act is the only way open to the pledgee to impose the
charge, and that there is no other way. H e has
developed his argum ent on the line that the word
"' may" in the relevant passage, namely, ''or he may sell
the thing pledged on givi ng the pawnor reasonable
notice of the sale " in section 176 of the Contract Act
means' ' shall. '' In support of his argument he has
:taken us through several \cisions to show that \vhere
in a statute a power is given to do a certain thing in a
Certain way t.he thing must be done in that way or not
.at all. In The Queen v. The County Court judge of
ESiex and Clarke (1), Lord E sher observed at
,page 707 :
" The ordinary rule of C0 nsh~1ction th~refore applies-that
where the Legislature has passed .a new statute giving a new
't"emedy, th<it remedy is the only one which c.an be pursued."

The same principle was followed in Lamplu~h v. Norton

4nd others (2). At page 4$6 the following passage of
the judgment may aptly be-quoted :-
" But I agree with what was said by Lord Tenterden in Doe v.
Bridges (3). H e there said, ' Where an Act creates an obli~ation
.and enforces the perf_o rmance i'n a specified manner, we _take it to

______ ______________ _
be a g~neral rule that the pe.-formance cannot be enforced ih
.any. other manner."
_.:.. .. ,

(I ) (1887) 18 Q:H.D. 704. (2) il889) 22 Q.B.D. -t52.

131 1 B. & Ad . 847 at 859.
260 UURMA LAW REPORTS. [1952
H. C. In Liquidators, ] and a Rubber Vf7orks, Ltd. y.
1952
Collector of Bombay and anotlier (1), it was held as
GAW TUN
SHWE follows :
'1/,
MA KYIN
AYE.
'' Where a statute confers powers and a citizen has a
complaint or has suffered an injury because of th~ exercise of
u ONPE, J. powers conferred by that statute, the remedy for him is to
proceed in accordance with the provisions of that statute and
seek under it the particular remedy prescribed by it. In such
cases the jurisdiction of the ordinary Court is barred.''

This is a case in which the Collector of Bombay, as

the Custodian of Evacuee Property, declared and
sealed a factory known as Universal Rubber Works
belonging to a Company in liquidation, by virtue of
the power vesteq in him by the Bombay Act XXIV of
1949, which was subsequently replaced by the Central
Ordinance XXVII of 1949. T he Liquidators made an
application to the High Court:or issue of an injunction
to the Deputy Custodian to remove his seal from ~he
factory, contending that the factory could not be
seized wi.t hout obtaining in the first instance leave of
the Court. The Liquidators' application was dismissed
as the High Court had no jurisdiction to deal with the
application as the remedy open to tlie Liquidators was
to app1y under the provisions of the Bombay Act and
not under the Cot:npanies Act.
Following these decisions, we are of the opinion
that the only way to enforce a pledged ar~icle is to
exercise . the right secured to the pledgee under
section 176 of the Contract Act and ~hat there is no
other way.
B.eforewe finish with this judgment we may observ.e
that, strange- though it may see~, there has been no
direct .d ecision in B1;1rma si*ce the decision in the case
of Ma Kyi Kyi v ....Ma $hwe a:n d a11:other (2), which was
(1) A.I.R. (1950\: E~st Pun. 204: (2) '(1:900-02) 1 L,B.K 154.
 1952] BURMA LAW REPORTS. 261

made some 50 years ago. That is a. case which was H.C.

1952
decided without reference to the point as to whether the
VA\V TUN
suit was maintainable, and the same cannot therefore SH\\'E
t.
be taken as laying down any view differing from the i\IA [(yt~
principle that the pledgee's right of sale under AYE.

section 176 of the Contract Act is secured to him by tJ ON P.E, ].

la\v which he could exercise without suit. The judicial
rule stare decisis is therefore not applicable in the
present case in which the question is whether the Court
has jurisdiction to entertain this suit and does not
really relate to the rights of parties. The question of
.overruling old authorities, on the strength of which
many transactions may have been adjusted and their
rights determined, does not arise in this case.
In the result this appeal fails and is accordingly
dismissed with costs.
U SAN MAUNG, J.-1 agree.
262 BURMA L AW REPORTS. l195-2"

APPELLATE C R IMINAL.
Bef,wc U San /tlazwg ami U Aung Kltinr, J !.

H.C.
1952 HLA MAUNG Al\D OTHERS (APPELLANTS)

June 13.

TH E UNION OF BURMA (RESPONDENT)."~

High Treasou Act, s. 3 (1) - Spuj,;l Judges Acl, 1946, s. S (1)-Crimiual'
Procedure Code, >. 257 (1 ) -Prvcecdi1zg {,) judgmeut w:lltout examini11')t
defena wilzesse~-Witcn pcmissible-R'ight of acct,sed pcsv11s to !:nv~
dcjcucc witnesses swzmzoncrl ev~u if temporarily out of reach of he
Process of law.
Held: That in trial of warrant cases s. 257 (li of the Criminal Procedure
Code gives authority to Court {or compelling production of witnesses at the
instance of the accused. In the Special Judges Act, 1946 a special procedure
is laid down in s. 5 (1) . The Special Judge may refuse to summon any
witness if satisfied that the evidence of such witness will not 'be material
a.n.d he sl1all not be bound to odjourn a !rial for any period unless such
adjournment is necessary in the interest of justice. ln the (>resent case,
St1mmons could not be effectively served upon the dt:fence witnesses as they
were residing in area unde r the domination of insurgents and beyond the
Government's control. It is against the principles of natural justice that an
accu,s ed should be deprived of the right of havi ng defence witnessf.s
sumnioned for examination even in such circumstances. The Special Judge
had not stated that the evidence of these witnesses would not be material for
defence: Therefore he was wrong in having pas~ed judgme nt without
giving further opportu nity for the su mmoning of such witnesses as defence
witnesses.
Kllaw T<lW aud 011e v. The Uni01~ of Burma, !1948) D.L.R. 310, referred to.

Nyun Han for the appellants .

. Mya Thein for the r espondent.

U SAN MAUNG, J.-In Criminal Regular Trial No.8.

of 1950 of the Court of the Sessions Judge (U On . Pe}
of Mvaun gmya sitting as the First Special Judge for.
that District the appellants Hla Maung -and 10 others
were convicted under section 3 . (i) o'f t.he High
"criminal Appeal No. 231 of 1952 being ~ppeal from tqe or.d er of
Ses~ions Judge -sitting as 1st Special Judge, Myaungroya, datea 7th April
195~ passed in Criminal Regular Trial No.8. of19SO.
1952) BURMA LAvV REPORT.S . 263

1-l,t;.
Treason Act for taking part in an attempt by force 1952
of arms to overthro\\: the civil administration of
HI.A .\ lAl':'W
Moulm eingyun Township and they vvere each sentenced AX !1 t lHEf\$

to d eath. The facts of the case which have been fully '
T m 1.' :--lo:--
set out in the judgment appealed against may be o r B t:~)f \

briefly summarised as follows : t: S AN

lllAU:SG. ] .
On the 15th of August, 1948, Moulmeingyun was
attacked by Communist insurgents and the Police
Force which also included contingents from Kyaikpi
and Hlaingbone Police Stations was overpowered and
over 200 fire-arms including rifles, sten-guns and bren-
guns wer e seized. The Communists occupied the
town for three days and withdrew on receiving news
to the 'effect that the Government Forces were on their
way. They or a considerable number of them
concentrated at Onbinsu village. On the 13th of
Oc tober, 1948, that is to say about a month after
Moulmeingyun was attacked, a combined force of the
Union Military Police and Civil Police led by the then
District Superintendent of Police Mr. Cornelius of
Myaungmya proceeded to Moulmeingyun in two U.B.
boats and one tug flying the fla~s of the Union of
Burma. FromMoulmeing-yun they proceeded, accor-
ding to plan, to Onblnsu village where they arrived at
about 11 a.m. No Communist insur~ents were found
in. Onbinsu village but information was. received that on
the approach of the Government Forces the insurgents
had .retreated to the paddy fields in the rear of the
village. The Government Force then divided itself
into two main groups, one of which was led by the
DistriCt Superintendent of Police himself and the
other by U Thein Maung (PW 1), Deputy Superin-
t~ndent of Police. The_ party led by . the District
Superintendent of Police and Maung Mun Htaw
{)?.W 4); . Sub.-Inspector of P.olice, came 'Q.pon : the
appellants 'Ko Ko ~yi a~-d Paw Thein at a spot about
. .
264 BURMA LA\V REPORTS. Ll9S
J
~5~ 300 yards away from 'Nhere the main body o
- Communist insurgents were resisting the Govern men
HLA ~!A{;;>;G F
Mm <THERs orce.s. K o K o G yt. a1~ d p aw Tl1e1n
. \Yere seate<
THE "t~ 10 )1 among the paddy plan ts a short distance away fron

ott BuRMA. each other. Ko Ko Gyi was unarmed while Pa"'' T heir
u SAN had in his possession a revolver \~hick was subse
1
MAUNe, quently identified to be one which he had taken awa)

from Moulmeingyun from the possession of Maung \iVir

Maung tpW 20), the Station-Writer, who had hidden
it behind a photographic frame. The main body of the
Government Forces led by U Thein Maung (PvV 1;
was attacked by the Communists at a spot about 2 or 3
miles away from Onbinsu village and fighting between
the two parties continued from 1-30 p .m. till about
5 p.m. The attack upon the main Government Forces
under U Thein Maung was launched from two sides
and about 5 p.m. when firing ceased some of the
Communists raised up their hands and surrendered.
They were the appellants Ohn Tin, Than Nyun, Maung
Kyaing, Maung Saing, Ba Maung, Ba Tun, Hla Maung,
K~la, Tha Aung and one Kyi Hlaing who has since
died. The dead bodies of four persons identified as
those of Than Nyun, Khin Nyun alias Khin Than,
Tun Khin and Hla Kyi were found. There was only
one casualty 011 the Government side and he was
Police Constable Aung Nyein who received gunshot
wounds to which . he succumbed later in the day.
Altogether 14 rifle~ were seized froin those who
surrendered as well as from near the b9dies of the
dead Communists and of them 8 were those which
were seized by the Communists when they raided
Moulmeingyun. The ~ifles surrendered by. the appel-
lants Ba Maung, Kyi Hlaing, Ba Tun, Hla Maung and
Kala were among th9Se which have been so identified. ;
AlUhe Communists who had_ surrendered and.;
the -dead. bodi~s ~fthe ' .four persons who were found :
 19S2] BURMA LA\V REPORTS. 265

killed in action were taken to :Nioulmc.:ingyun the s:tnlt: H.C.

1952
day and on the 14th of October 1948 the Government
H !.A :\1AI.~G
Forces returned to Myaungmya where they arrived the AX 'l O THERS

same even ing. On the 16th of Octob ~ r the appellants ..

TH E LXIO:-l
Ba Tun, Ba Maung and lhe deceased Kyi Hlaing ga,e uP B:nnJA.

confessior:s marked as E xhibits B, D and' C respec- t: SAX

~1.\lixG , J.
tively. The confessions oi Ba Tun and Ba Maung are
admissible as against their co-accused under section 30
.of the Evidence Act while that of the deceased
Kyi Hlain g shouid be left entirely out of consideration.
As against the appellants Hla Maung, Kala,
Tha Aung, Ohn Ttn, Than Nyun, Maung Kyaing,
l\laung Saing, Ba Tun and Ba Maung: the prosecution
-case was that they actually resisted the Government
Forces that came ttl Onbinsu ville~ge after the
Communist insurgen ts. Th eir defence \vas that the
Kareri insurgents have been playing havoc in that
area by attacking Burmese villages, that they first
mistook the Government Forces to be Karen insurgents
:and therefore opened fire upon them and that as soon
.as they realised that the men they were figh ting
belonged to the Government Forces they had laid
down their arms and surrendered. The Government's
c ase against them was that they could not possibly
have mistaken the Government J:orccs to be Karen
:insurgents as the Government Forces went to Onbinsu
in two U.B. boats and one tug flying the Union of
Burma flags .and that the several parties which chased
after the Communists carried Union flags attached to
the top of Bamboo poles with a view not only to let the
insurgents know who they were but also to prevent
the various parties Of the Government's own forces
. -from opening fire at each other by mistake.
The .c ase against the appellants Paw Theip and
Ko Ko Gyi was that although tb ey were not actually
~mong
. the Comm\mist~
. . .who offered .resistane~ they
266 BURMA LAW REPORTS , [1952:
)
H.C,
1952
must haYe belon~ed to the sarne party having run avny
fro ;n Onbinsu at about the same time as the other
HLA MAUi'\G c . t san d }Javtng
. b cen cap t ure d at a spot a b out
ANu otHERs ommums
THE ~l"Io~ 300 yards away from the main body of the Communists.

oF BuRMA. The defence of the appellant Ko Ko Gyi was that he

u SAN went to Onbinsu village as Paw Thein called him to

l\1AUNG, J. J.
o1scuss t h e matter a b out 1l1e K aren msurgents
. and
that when the Government Forces carne he ran away
from the village. The appellant Paw Th ein stated that
he \Vent to Onbinsu village at the request of Ko Tun
Gyaw and Ko Hla Maung to protect the villagers.
against the Karen in!:>urgents and that when the
Government Forces carne he and Ko Ko Gyi ran away
to be arrested before the actual fighting took place.
As regards the appellants Hla Maung and 8 others.
who were actually arrested at the scene of action and
from some of whom weapons which were seized by
the Communists from Moulmeingyun were ca ptured,
we agree with the learned trial Judge that a prima
jacfe case has been made out against them by the
prosecution. The confessions of Ba T un and
Ba Maung to the effect that they knew that the party
that came to Onbinsu village belonged to the
Government .Forces and that they were only fighting
a rear guard action to enable the main body of t-he
.Communists to escape lend assurance to. the pre-'
sumption against the others that they knew that the
forces which they were attacking belonged to the
Government.
As regards the appellant Paw Th e!n, the fact that
he was one of those who had participated in the
disarming of 'th e Police Forces 'at Moulmeingyun o,n
. the 15th of August 1948, that he was. a~med with the
same revolver which he had taken froni 'the Station-
. W]'jter Ma:11ng Win Maung (PW 20) ~nd.'tha.t of th~
Cbmtnunists who offered resist~nce eight . were armed
 1952J BURMA LA\V REPOHTS. 267

with riflc:s seized from Moulmeingyun may be sufficient H,C.

1952
to serve as a con necting link bet\\"een him and the HLA :,fA l.' ~G
Comm unists who actually offered rt:si::;tance. There At'\0 OTHBRS
t '.
fore a prilllt'i facie case may be saiJ to have been THE U~>!ON
established against him also. oF BuR:tA.

As ::.gain~>t the appellant Ko Ko Gyi, bo we\ter,. the U SA:-1

ii!At:I>G. J,
mere fact that he was found in the paddy fields along
with Paw T hein is not by itself sufficitnt to show that
he belonged to the same party as Hla .Maung and
others who had offered resistance to the Government
Forces. Therefore the confessions of his co-accused
Ba Tun and Ba Maung shou ld be excluded irom
consideration in his case and not made to fill up gaps
in the prosecution case in so far as he is concerned.
See the case of !(lzaw Taw and une v. The Union of
Bunna ( 1). A prima facie case under section 3 (1) of
the High Treason Act cannot be said to have been
made out against him on the evidence adduced by the
prosecution.
As already observed above, the defence raised by
the appellant Hla Maung and eight others v.'hO were
caught red-handed while offering resistance to the
Government Forces was that they offered resistance
thinking th~t the KNDOs were after them and that they
surrendered as soon as they discovereq the true identity
_of tbe forces whom they were .resisting. They cited
witnesses ip. support of their defence though they
.declined tp give evidence on behalf of their own
defence. On the 29th of March 195J, the learned
.Special Judge who was then dealing with the case
(U Pha Trta Htaw) ordered the issue of summonses on
the defence witnesses,. but the summonses were
, returned unserved as noted in the diary dated 30th April
: ~951. Several more attempts were mad~. to sumriion .
- - -- - - - - - -
(II {19481 B.L.R. 310.
.268 BUKMA LAW REPORTS . [ 1952
H.C. these witt~ esses but in vain. So on the 3rd of September
195Z
1951, the learned Special Judge (U Ba s,:ve) who \\as
HLA ~1AUNG
AND OTHERS
then clealillg with the case rm.de this note in the diary :
v
THE UNION ' ' DWs absent. Summonses to them returned with the
'OF BURMA.
report that t'.1e D\Vs are residing in areas nO\\' under the
U SAN domination of insurgents. It will be useless~ to issue fres h
MAUNG,J.
summonses to the DWs until and unless their villages are
re-occupied b~; Government."

After one or two adjournments given with a view to

see whether the situation would improve the learned
Special Judge (U On Pe) made this note in the diary,
dated 5th November, 1951 :
" Accused Ko Ko Gyi gives the new addresses cf his t\\'O
witnesses.
Accused Ohn Tin waives his two witnesses, one of whom has
died.
The other accused ask for time to find out whether the
witnesses cited by them can come to Court or not as thev are
now in insurgent-held areas."

The next relevant entry in the diary i.s dated

21st November 1951. It reads as follows :
. " Two defence witnesses present ancl examined for the
defence of Ko Ko Gyi. The remaining accused say that they
could not contact their people .to enquire about the witnesses
cited by them. Tl1ey ask for further adjournment to eon.tact
their own 'people who are in Moulmeiogyun."

Later, after several adjotirnments being given to

enable the accused to c:ontact their witnesses through
their relatives warrants of arrest were issued to compel
the de.f ence witnesses to appear. This was followed
by au entry in the diary, dated 4th February 1952~
which reads as follows : .
"'
~ Warr.lmts o'farrest against the. d~fe1ice witnf;sses returned
une~e~ted \vitli the report tl')at the witnesses are residing .iq
msurgent..:held area . . r hJ.ve warn:ed the. accused to prpducd,
1952] BUR~IA LAvV REPORT S.

their witnesses on the next adjourned date. I i no evidence is H.C.

1951
adduced on that elate, no further adjournment will be granted to
procure the attendance of the defence witnessts." HLA l\!AU:-IG
A:\0 OTHERS

Th ereafter, after several adjournments were given to THE (;~ rON

enable the cefence witnesses to attend if the5' c~uld OF BtRMA.

be contacted by the relatives of the accused, the U SA N

:\L~II :\G, J.
learned Special Judge h eard arguments in the case and
passed orders on 7th April 1952, without hearing the
evidence of the defence witnesses whose attendance
was desired by Hla Maung and others except Ohn Tin,
Ko Ko Gyi and Paw T hein. On the 7th April 1952,
the date on which the judgment was delivtred, the
following entry was also made in the diary : -

"Accused filed a joint application requesting the Court to

examine the remaining defence witnesses they have cited.
T hese witnesses are reported to be residing in areas occupied by
the insurgents, and all possible effort was made to procure their
attendance but without success. Many adjournments were given
to get the attendance of these witnesses, and I do not think I will
be justified in givin~ further adjournments for this purpose."

Now, it is one of t he fundamental principles of

cri mimi.l justice in this country that no accused person
shall be condemn ed unheard . To this end in view,
every reasonable opportunity has to be given to
accused persons to enable them to have their defence
witnesse~ examined by the Court. I n the trial of
warrant cases the provisions relating to the issue of
process for compelling production of evidence at the
instance of the accused are laid down in section 257 (1)
of the Criminal Procedure Code, which reads as
follows:

"Z57. (1) If the accused, after he has entered upon his

defence, applies to t~e Magistrate to issue any process for
compelling .the. atte.ndance of .any witness for the purpose of
examin1tion or cross:examinatioo, or the production of any
270 BURMA LAVI/ REPORTS. [ 1952

H.C. document or other thing-, the Magistrate shall issue such ,,rocess
1952
unless he considers that such a pplication should he ref used c n
HLA MAUNG the ground tha' it is made for the purpose of vexation or delay
AND OTHEHS
v. or for defeating the ends oi justice. Such ground shall be
THE UNIO~ recorded by him in writing :
OF BUR?>IA.
Provided that, when the accused has cross-ex<tmined or had
u SAN the opportunity of cross-examining any witness after the charge
MAl.ING, J. is framed, the attendance of such witness shall not be compelled
under this section; u nless the Magistrate is satisfied that it is
necessary for the purposes. of justice."

In cognizable cases such summons are to be issued

free of charge and witness expenses are generaliy to be
defrayed by Government.
In the Special Judges Act, 1946, a special procedure
has been laid down in the form of a proviso to sub-
section (1) of section 5. It reads as follows :

"5. (1) A Special Judge may take cognizance of offences

without the accused being committed for trial, and in trying
accused persons shall follow the procedure prescribed by the
CoQ.e for the trial of warrant cases by Magistrate~.
Provided that a Special Judge may refuse to summon any
witness if satisfied that the evidence of such witness will not be
material , and shall not be bound to adjourn a trial for any
purpose whatsoever, unless such adjournment is, in his opinion,
necessary in the interests of justice."

This proviso although couched only in one sentence is
really composite of two provisos which may be made
to read as follows :
'

" Provided.that a Special Judge may refuse lo summon any

witness if satisfied that the evidence of such witness will not be '
material;
a
Provided also that Special Judge shall not be bound to
adjourn a trial for any purpose whatsoever, unless such adjourn- .
ment is, in hi? opinion, necessary in the interests qf .justi<?e."

Viewed in this manner the first of these two .provisos.'

~~st be considered-as C'Qns.tftu~ing the second provis~j
 1952] BtTRMA LAW REPORTS. 271

to sub-section (1) of section 257 oi the Criminal H.C

1952
Procedure Code, which, when applied to trials before
Hu MAUNG
Special Judges, will read as follows : A;o;D OTHERS
v.
THE
" 257. (1) If the accused , after he 11as entered upon his l'HE U)<JON
defence, applies to the Special Judge to i;;sue any"process for OF SURM.~.
compelling the attendance of any witness for the purpo~e of U SAN
examination or cross-examination, or the production of any i\JAUNG, J.
document or other thing, the Special Judge shall issue such
process unless he considers that such application should be
refused on the ground that ii is macte for the purpose of vex1tion
or delay ot for defeating the ends of justice. Sucll ground shall
be recorded by him in writing :
Provided that, when the accused has eross-examined or had
the opportunity of cross-examining any \\"itness ;~fter the charge
is framed, the attendance of such witness shall not be compelled
under this section, unless the Special Judge is satisfi ed that it is
uecessary for the purposes of justice.
Provided that the Special judge may refuse to summon any
witness if satisfied that the evidence of such \\itness \\"ill not be
material."

The case under appeal bas never proceeded beyond

the stage of issuing summonses or other processes to
compel the attendance of witnesses for the ddence.
Summons . could not be effectively served upon the
defence witnesses not through any fault or laches on
the part of the appellants but because the vvitnesse~
cited by them it:l s~pport of their defence were residing
. in areas under the domination of the insurgents and
beyond the control of the Government. It will be
.entirely against the principles of natural justice that
:accused persons should be deprived of the right of
, .having th.e defence witnesses summoned for their due
:attendance in Court because tb.ey happen to be residing
.i i1 areas temporarily out of the reach qf th.e. process of
t~e Court because of dominatio-n by for:ce_s in rebellion
against the established Government. .Mere considera-
;ti~ns_ of . delay "are quite insufficient. to override the
272 BURMA LAW REPORTS. [1952

H.C. compelling necessity for affording the accused person an

1952
opportu nity of d efendin g himself not only by giving a
HLA MAUNG
AND OTHERS statement whether on oath or otherwise but also by
'1/.
THE UNrON
havin g witnesses examined on his behalf. In the
OF BURlfA. present. cuse it cannot even be said tbat...the delay
U SAN would be prejudicial to the best interests of the
MAUNG, J.
appellants as they have already been convicted for
offences under the Arms Act in respect of the weapons
seized from their possession. Furthermore, although
the appellants were arrested as early as the 13th of
October, 1948, the case against them under section
3 {1) of the High Treason Act was not instituted
against them by the Government tili the 27th of July ~
1950, the reason given by the prosecution being that
Myaungmya District was in a bad state on account of
the activities oft he insurgents and that no investigation
could be made with a view to send up the appellants.
under the Treason Act. The same reasons now hold
for the inability of the Government to have effective
summonses issued to compel the attendance of the
witnesses for the defence.
The Special Judge has not been able to state that:
he was satisfied that the evidence of the defence
witnesses would not be material to the defence~
Th.e refore the provi"so to sub~sectio.n (1) of section S.
of the Special Judges .. Act which, as already pointed
out a ]Jove, may be regarded a s the second p~oviso
to section 257 (1) of the Criminal Procedure Code, is.
inapplicable and the Special Judge was wrong in;
having passe d judgment in the case without giving
further opportunity . to th~ appeUants to have their
witn~sses summoned for the purpose of being examined.
as . witnesses for 'the . defence. .. The conviefion's and
sentences on .all 'the.appellants are set aside arid the
appella~ts, except Ko Ko Gyi, are ordered to be retried
for the 'offence Under: se~tion 3 {1) of the H _igh Treasol'h
1952] BURMA LAW REPO RTS. 273

Act by a Special Judge of Myaungmya oth er than the H.C.

l J52
Sessions Judge as may be selected b~ the Sessions
H i..\ :'IL\t' lW
Judge, Myaungmya. A~() ''THE RS
As regards the appellant Ko Ko Gyi , having regard Tu ..:
1".
C~ro:-o
to the fact t,hat we consider t hat no prima ftzcie case OF But;~tA.

has been made out under section 3 (1) of the Treason r: SAl~
MAUN G, J.
Act we direct that he be acquitted and released so far
as this case is concerned.

U AUNG KHINE1 J .:-1 agree.

. .
18
27-l BURMA LAW REPORTS. [1952

APPELLATE CIVIL.
Bcfor e U Sau Matti!!!_ a11ll U A11ug /{hiue, 11.

H.C. CHANDMAL BIRLA AND ANOTHER (AP?ELLANTS)

1952
v.
f1111C 26.
MRs. LEONG WON KEE (a) DAW MA HT\iVE
AND OTHERS (RESPONDENTS).*

Liwilalion Act, Articles 36, 48 a11d 49-Wrollgful conversiCin of movcnllf.e

property- Colllpensafiou {o1- Whet ltct Atticle 4,~ applies fo " dishotJe:<l
couvcrsio11 or all types of C!)IIVershm- What nuzottuts to COttLersiou.
llaintiff in the trial Court clai med compensation from the 2n :l dtl end ant
for wrongfully detaining a boiler wh ich, it was alleged, he had comerled
to his own use. The suit Wl!S dismissed as h;~rrr.rt under Article 36 of !he
Limitation Ad.
Held: That Article 48 of the Limitation Act provides for a claim lor
~pecific n~oveahle property lost or acquired by theft or dishonest misapp'ropria
tion or conversion or for compensation for wrongful taking or detention.
The starling point is when the person having the right to the posst:s~ion of
the property first learns in whose possession it is. The article is not confined
to di~honcst conversion of moveable property but also applies to simple
convcrsiun.
L. P. E. Puglz v. As/111/0sk Seu, 8 Pat. 51 Gat 524-525 ; Adjai Coal Co. Ltd. v.
Papp,ll.a l Ghosh, A.I.R. {1930) (P.C.)l13; 57 Cal. 1341, refer red to.
Conversion is the wrongful interference with goods as by taking, using or
destroying thetn inconsistent with the owner's right of possession.
F<Jutctes v. Wi/loz~gh b~, Messo n and \lllelaby's Reports VHI, 540 at 548;
La 11 cashire aud. Yorks!tir<" Rly. Co. v. MacNicoll, (1918) 118 Law Times
Reports, 596 ; Sttl'lli Lall Mondal and others v. Umar H aji a11d others. 22 Cal.
877, referred to.
The. claim in the present case is not therefore barred by limitatio11.

J{yaw Min for the appellants.

!{yaw llfyint for t-h.e. respondents~

U SAN MAUNG, J.-ln Civil Regular Suit No. 1 of

1950 of . the Disfrict Court of Akyab the.. p.l~intiff
appella:nts Cha~dmal Birla and Gang~bux Bjrla sued
..~~ivu .1sl.Appeal No. 26 of 1931 against the decree.ol the P'istrict Co!trt in
. Civil Regular No. 1 of l950, dated 3rd February 1951.' . ..
' 1952] BURMA LA \V REPORTS. 275

th e defendant-res pondents Mrs. Lccng: \\.on Kee and H.C.

!952
her two sons L. Ah Thaik and Ah Khun for the
L: ;:.~:>:!HJA[.
recovery of a ~mn of Rs. 25,000 as damages or com- Bl:;t.\ .~ '\U
pensation for wrongfully removing a poria hie steam A);<) TiH:~
v.
engine and boiler belonging to th em and for cc,nverting )IRS. LEO );<;
WoN KEP.itll
th em to ti'1eir own use. The respondents' in~ their D AW l\IA
\\'fi tten statements denied inter alia that th ey \\'tT~ HT\n: ANO
OTHERS.
liable to pay compensation either for the allegecl
t: S;.N
wrongful removal or for the alleged conversion of ti Jc )lA t:l'G, J,
steam engine and boiler. Th ey also contend ed that,
even assuming that the plaintiffs had a cause of action
against them, their suit was barred by limitation. On
the pleadings the learned trial Judge, or rather the
Registrar of the District Court of Akyab, framed six
issues as follows :
1. Did the clefenclauts cause the plaintiffs' engine
and boiler to be removed from the latter's
mill and use them in their rice mill for
their benefitc;; ? If so, for what period ?
2. Were the engine and boiler damaged and
rendered unserviceable because they were
used improperly by the. defendants ?
3. Di.d the military commandeer and remove the
boiler and use it for their purpose in
defendants' . rice mill"? If so, for what
pe.riod?
4. Is the suit barred by limitation ~s the catJ~e
of action arose since the early part of 1946 ?
5. Is the .suit fi~ed by the pla~nt ifis for the
r easons given in paragraph 6 of the writt,en
statement of def~ndarits 1 and 3 ?
.6. Are the plaintiffs entitled to..daili~ges ? If so,
fe.r wh~t proper.ty and to. wh~f.eHent ~ - ,
Thereafter~ after hearing the witnesses cited by~both
parties,. ~he tri_a l Judge held that - Artielc: -36 of the
276 BURMA LAW REPORTS. [ 1952'

H.C. Limitation Act was applicable to the suit on the facts

1952
admitted or proved beyond controversy and that th ere-
CHANDMAl.
BJHLA AND
fore the plaintiffs' suit was barred by limitation .
ANOTH ER Being dissatisfied with the judgm ent and decree. of
MR~. vLEOKG the learned District Judge of Akyab dismissing tlltir
w~~,~~~~~l suit a:s aforesaid. tbe plaintiffs filed the pre~ent appeal
HT\\'E AND on the grounds, infer alia, that the learned Di!:>trict
OTHEI~S.
Judge failed to consider the admission of the
M~u~~'~ J. 2nd defendant-respondent L. Ah Thaik to the effect
that after the boiler, which was taken possession of by
the British Military Administration, had been
abandoned by that Administration, the 2nd defend;ml-
respondent wrongfully took possession of it, and kno\\-
ing fully well that it belonged to the plaintiff-appellants
converted it to his ovvn use during the period Novem-
ber l 945 and Jun~ 1946 and that su ch action on the
part of the 2nd defendant-respondent aFllOtmtecl to
converswn. It is contended that on the admitted fact
of there having been a wrongful conve~sion of the
boiler by the 2nd defendant-respond~nt, Article 48 of
the Limitation Act was applicable to that part of the
plaintiff-appellants' claim relating to damages for
wrongful c,onversion and that the limitation pre~cribed
was three y~ars from the time when the plainilffs first
came to lea.1:n in whose possession their boiler was.
In our opinion this contention of the plaintiff-
-appellants must be allowed to prevail.
It is not necessary f.or us to recapitulate liere the
fads which have been fully set out in the juqgment
under appeal. The <:ase ha~ been :considerably
simplified by the ~dmissiop. . mad~ by tile learn ed
Advocate for the a.ppeilants that. the pl3:int1ffs' claim so
far :as if relates to fhe 1st and 3rd defeP.d, ni:.te~pon
dents caniiof p<;>ssibly. succeed i.nasrnuc11 as these
d~fendant-:resp~n:de~ts .were ..away from ~.1:1nnfh:at the
time the 2nd defendant.:..respondet1t ,converted thf':
 1952] BURMA LAW REPORTS . 277
.
boiler to his o\\'11 use by working Lec ng \\.on Kee's H.C.
1952
rice mill with it and there is no specific prooi on the
CHAND MAL
point that the 1st and 3rd defendant-resp ( ndent~ hac! BfJ.:J, A AND

ratified the tortious act of their partne:r L. _.\h Thaik. .' >:nTHBR
v.
It is also ~dm i tted that thnt part of the ~:>laiptiff ~ii<S. LtO~ G
\\'oN KEE (a)
appellants' claim as relates to the action of L. .-\h Thaik D AW lilA
HTWEAND
in run ni ng Leong vVon Kee's rice mill with the OTHERS.
plaintiffs' boiler during the period of the British U SA N
Military Administration cannot also be supported as 1\fAt,;XG, J.
L . Ah T haik was then merely an employee of the British
Military Administration which was in fact running the
mill having requisitioned not on ly Leong \7\l on Kee's
rice mill but also the plaintiffs' boiler \rhich they had
removed from the plaintiffs' premise~. T he plaintiffs'
claim therefore has boiled do\\'n to a simp le claim for
compensation for ,;r,,rongfully detaining the boiler which
the 2nd defendant-respondent \\as at'leged to have
converted to his ow n usc.
Although the plaint has been inartistically drafted
it seems to us that there is sufficient material therein
to found a claim based on simple conver sion and
wrongful detention of their boiler. Such a claim is
impli cit in paragraph 3 of the plaint which reads:

" That on enquity being instituted the plaintiffs c~.me to

learn in early 1948 that the said engine auc! boiler were in
defendants' possession at theit rice mill known as the Leong
Won Kee Rice Mill at Akyab and that tbe defendants uot only
caused the said property to be removed by trespassing into the
premises of t.he plaintiffs' rice mill but also used the said engine
and boiler in their rice mill deriving enormous gains and benefits
to themselves till the said portable steam engine and boiler were
damaged and rendered unserviceable."

I n paragraph _6 of the plaint also the plaintiffs hav~

state? t hat the cause of action fortheir su~t ar~~e <!:!
Akyab in 1948 when t hey first came to learn t hat their
pro perties_were in the possession of t he defendants.
278 BURMA LAW REPORTS. [ 1952
H.C. Now, .-\ r ticle 48 of H.e Limitati on Act provides th at
1952
in the r.:tst of a claim for specitic move<1hle property
Cif>INOMAL
BtRLA AND lost or acquired by theft, or dishonest misappropria-
ANOTHER
t/ .
tion or conYcrsion , or for compens<tlion for wrongfully
MRS. Lt:O!\G taking 0r detain ing tht same, the limitatio n is three
WON KEE (a)
DAw MA years from the elate on which t he persor! having !he
H't'WR ANll
OTH!::RS. right to the possession of the property first karns in
u SAN whose possession it is. That t k is Article of the
MAU l'> G, J. Limitation Act is not confined to dishonest co nvt rs ion
of moveable property but applies also to simpl e
comersion as well is clear from th e following obsena-
tion of th eir Lordships of the Privy Council in the case
of L. P. E. Pugh '' Ash-ttlosh Sen { l ) =
11
In their Lordships' opinion the decision cf the trial Judge
in this case is correct, and Article 48 is the Article that ar plies.
The two Articles are the only ones that appl~ lo claims in respect
of spt:cific moveable property. Article 4~ alone refers to
conversion, and their Lordships can see .no ground for splilting
up conversion into two cla~ses, one dishocesl an<i the other not
dishonest: J such were t he intention one would have expected
to find such a distinction between different classes of the same
tort made clear by the express inciusion in Article 49 of tl:e
second of the two classes. The truth is that, if the Article is
read 'Nitbout the commas inserted in the print, as a Court of
Law is bound to 0 do, _ lhe meaning is reasonably clear.
' Conversion,' a well-known legal term lo1 a particu lar class of
tort, is referred to as one o the modes by which specific mo\"able
property may be wmngfully acqui1ed, the others being theft and
dishonest misappropriation . T he opposite view involves giving
a clifft:rent effect to 'or' preceqing conversion to that which it
has before' dishonest mi?appropriation.' In fact, in each cm;e
it is equivalent to ' pi by.' "

This ob_scrvatioo was later approved b y t~1e P rivy

Cou ncil in the c~se. of Adiai Coal Co. L td . v. Pappalal
Gh<?oh {2).

(1) 8. Pat. "516 at 524-525. (2! A.I. R. (193.0) (P.C.) 113 ; 57 Cal. .U.h :
' 1952] IJURl\lA LAW REPORTS. 210

:-;-oi\", what is comersion ? '' .-\ ny ::~~1ortation of :1 H.C.

1952
chattel for the use of the deftnclant. !. :-.third ptrson,
CHA'I:D~I.IL
anw unts to a conver!:iion ; for this simi L rl:!ason that it Hm>.A AS: '
is an act inconsistent with t11e g~ n: ral right of AXOTH E I~
~IRs. L l:::~l XG
dom.inion \vhich the owner of the chattel i1a:> in it 1 who "'ox Ku: .,,)
is entitled ~o the use of it at all times and in all pl~ccs," DAWMA
HTWEA!\0
observed Alderson, B. in Fouldes v. T1lillouglibl' 1). OTHeRS.

In La1icashire and Yo1kshire Rly. Co. v. J11 acNicoll u SAS

(2), Lawrence J., in delivering the leading judgmtnt MAu:o;G, J.
observed :
''A conversion may tlke place though there may be 110
intention to commit a wrong. It is converting to your own use
the goods of another perSL'n without any real excuse."
Atkin J., who agreed, expressed it more elaborately.
H e said :
" It appears to me plain that dealin~ \'vith ~oods in a manner
inconsistent with the ri~ht of the true owner amounts to a
conversion, providing it is also established th:1t there is an
intention on the part of the deienclant in so doing to deny the
O\Yner's right or to assert a right which is inconsistent \Yith the
owner's right. But that intention is conclusiveiy proved if the
defendant has taken the goods as his own or used the goods as
his own."

In Surat Lall Mondal and others v. Uma r Haji

and others (3) Norris J., puts 1.t.ver}> tersely by saying,
"Conversion .is a wrongful interference with goods as
by taking, using or destroying them inconsistent with
the owner's right of possession."
Viewed ii-1 the light of the~e observations, it is clear
that the ind defendant-respondent's action in making
~1se of the boiler after Leong Won Kee's.rice mill was no
longer worked by the British Military Administration
-----.--- -
.(11 Messon and Welsby's Reports VI.ll, 540 at 548.
!2) 11918) 118.Law Times Reports, 596.
13) 22 Cat 877.
280 /JURMA LAW REPORTS . ' l952
H.C. is conversio n inasmuch as this defendant had
1952
used the boiler knowing fully \\'ell that it belonged to
CHA:'<UMAL
Bmr.AA:-<o the plaintiffs and that he had no right whatsoever
AXOTHER
v. in making use of it in a manner inconsistent with
MRS. LEONG
WoN KBE(a)
the plaintiffs' ownership thereof. Article 48 of the
0AW MA Limit.ation Act is therefore applicable to the plaintiffs'
HTWP. ASO
OTIIPRS. claim for compensation for the wrongful detention of
u SAN
his boiler which the 2nd defendant-respondent had
MAU!IIG,]. converted to his own use. The limitation is therefore
three years from the date on which the plaintiffs first
learned in whose possession their boiler was.
For these reasons we would set aside the judgment
and decree appealed against and, as provided for in
Order 4J, l~ule 23 of the Civil Procedure Code, remand
the case to the trial Court which is directed to re-
admit it under its original number in the register of
civil suits and to proceed to determine the suit accord-
ing to law . We would also direct that the following
issues shall be tried:-
(a) \Vhen did the plaintiffs first come to learn in
whose possession .their boiler was ?
(b) In view of the answer to issue (a), is the suit
within the period of limitation pres cribed
by Article 48 <?f the Limitation Act?
(c) What is t<he amount of compensation, if any,
are the plaintiffs entitled to for the
wrongful detention of their boiler which
the 2nd defendant had converted to his
own use?
Costs must abide the final result of the suit on the
merits ; Advocate's fee in this Court five gold mohurs.
In this connectio~ it must be noted that it is apparent
that the daim agai nst the 1st and 3rd defendants will
be withdrawn in tpe trial ~ourt in view of the attitude
taken by the plaintiff-appell~1 ts' Advocat.e in re,gard to
 HURMA LAW REPORTS. 281

them and that it \\'ill then be \\'ithin the d isc rc.: tion of H.C.
1952
the trial Court to grant them such costs as it ma~
CII..IXU~IAL
deem fit. Let a certificate for the refund of the Court l:HRLA AXU
.;xonnm
fees paid by the a.ppellants on the memorandum nf :.
appeal be issued to them under section 13 of the Court :-.I;~~- LE,lN'
,. \\'o:\ KEE (n)
Fees Act. DAw MA
HTwP.A:'\ll
OTHF.R:;.
U AuNG KH!~E, J.-I agree.
U SAN
:.iAUI'G, I.
2?12 BURMA LAW REPORTS.

APPELLATE CRIMINAL.
/Jcj,.:c U On P~ ,md U Aune Khi11e. 11.
H.C.
1~52
1viAUNG NYI AND ONE {APPELLA~!S)
Au.~. 11.

v.
THE UNION OF BURMA (RESPONDENT).;,.:'

Ccnfes.-.ion-Cou; id:olf 111(de 1 s. $02 (1) {b), l'elfal Corle nad w ith s. 3.f-
Relractcd c,:11.jcssion- Evidentiary t alue- Recording of confrssion by
Magistl'llt,s--Neccss:ty for 1emotal from i'dice influence-Recordiug of
couf,:ssion of accused in the hra1"i1tg of each other- Gaps in prosecution
e vide11Ct:- Duty of Proscwtion.
Apptl iants \\'ere coll\icted by the Sessions Judge;Ha nthawaddy silting a,
a Special Judge. The .:onviction rested upon confl:ssi"n by each cf lhe
appelian1s and circnm~t:mtial evidence of the condurl of the accused. who
wc;e said l:> be runnin& "" ay iu a paddy field a mile away, ha lf ;m hour after
the o::currence ;md the seJture of a dagger from t-he Appe llant !\faun~ Tee
when ca1:~ht. The C<nfessions we e recorded by a Magistrate and the
2nd accused was in a pcsition to hear the first confession. Tl1ey were placed
before till" Magistrate from Police custody and bl.l'n batk to Police cus!ociy.
Heltl: That though an accused person can be lawfully convicted on his.
own confe~sion even when it has been rdracted lhe ('( urt rr.u st be ~ati~f.ed
of its trnth and its voinntari ness. The accused had no mind to make a confes-
sion and it was reasonably clear they did so to escape ill-t"eatment which.
they thought they were bound to be confronted with. It i~ not in dispute
that the appellants were taken back after the confessions were made to Police
custody and they were iJ,l lhe same room when confe~sions were made by
each ,of the appellants. The confessions were therefore not \'Oluntar) and.
were recorded in an illegal manner ancl no weight should be given to 1!.
Bhaguan Din aud ol/1e1'S v. Emperor, A.I.R. (1934) Oudh 151, rc:ferred to
The incriminatinfl pieces of evidence d1d not connect ~he appellants with:
the c.ommission of the crime. There was no evidence that any one chased the
culprits. frum the s pot where the murder was committed to the scene where
t-hey were seen running away nor was there evidence to suggtsl t hat the
dagger reco\ered was used in con,mittin_g uie murder. The gaps- in the:
pros~cution evidence had not beo:n filled up an'l it is not for the defence to-
supply such gaps. ~

"Cimitial Apt~eals Nos. 320j3Zl of 1952b . , -~- th d . f tl

emg appea rom. e or ero 1e
Criminal Reference No. 17 9f 1952 . ,
Sessions ]tldge, Hanthawaddy and Rangoon Town Di.s trict, sitting as Specialt
'Jud~e, dated 3rd .June 1952 passed in Criminal Regular Tria~ No. 3 of 1952:
'1952]

S . .-1. A. Pilld for the apre l blt~. H. C.

1952
(:!lOon. Foong for the respond l'nt. i\JAl':q; ?\ y
JIX D 0:\~.
U 0:--: PE, ].-These are appL:al~ IF lhe tw(l ~.
THE l':"lt>:\
appe llants Maun.~ Nyi and lVIaun .:~ Tc:: r.: \\'b(l \\'en; ~l F glR~; .\

convicted, the former unde r SL:d ion 302 (1 )"(b)' read

with section 34 of the Penal Cede, and the latter under
section 302 (1) (b) of the P enal Code by il' e Sessions
Judge, Hantllawad dy, ~itti ng as a Spt:ci:d judge in h is
Criminal Regular Trial No. 3 of 1952 and sente1.ced
t o death .
The fact s leading to the prosecution are as follows :
On 4th March 1952 at about 10 a . n. by the side of
the T wante Canal, East of Kaladan Yillage, an old
India n by the name of Usoof, was atta(;kcd by some
two persons as a result of \\'hich he met his death.
According to the medical t:Yiclence, l'soof received
four stab \Younds one of nhich pe n etrated into the
chest cavity and o ne in the epigas trium through \\'hich
the intestines \\'er e protruding and three lacerated
wounds on the h ead and neck. On the day in question
at about 10 a.m., Tha Htay (PW 1), a sampan plier,
and Mau ng T hein Maung (PW 2), happened to b': on
the opposite bank of the canal ~~t a place called Setseil~ .
T hey both saw a man being ~ttt<'td.::ed but could not
make out who the assai lants \\'tre, 011 ;;ccou.nt of the
dista~1ce. T he spot from which they sa\\' lite attack
on the opposite bank was about seven hundred feet
across the ean-al. Tha Htay (P\.V 1) saw the man being
struck by two other persons. Maung T hein Maung
(PW 2) \Vhuse attention was drawn by T ha Htay saw
one man. walk away after striking another with what
looked Jike . a stiCk. T hein Maung (PW 2), t hen
reported ..:V:...hat he saw to Kyaw Thein (PW 3), . \~ho
is the Head .of. the village def~nce force on this sid_e ~f
the . Twa1;1te Ganal, opposite Kaladan. Kyaw Thei.ri
284 BURMA L AW REPORTS. [1952 ;
H.C.
1952 collected the ,illagers and crossed the canal io lind
l\'fAUNG NY!
out who the a.;sailants were, but in the mean t ime
AND ONE Chin Kh\\'<' (PW 4) of Kalacbn vill age h~ard some
v.
THE UNION one raise an ab rm in Kalacl an itself and on
OF BURMA.
looking .out saw t\.vo men at a distance of n e<~rly
U ON PE, J. a mne away l;eing chased by so me oUte~ villagers.

Chit Maung (PvV 5), the Headman of Kaladan village

\\'as one of the villagers of Kaladan \Yho joined in tl~e
chase and saw a mile away in the open field two persons
running au-ay towards the North. Chit Maung and
his villager s in their chase came to Thon e in Chaung,
North East of Thonein village ,,here villagers from
Thonei n Yillage j.oined them. Thonei n is over a mile
from Kalad an village. According t<' U s~n U (P\1\' 6),
the Headman of Thoncin village, he met Chin KlH\'C
(PV\1 4) who poin'.ted out the two men who \Yere ~t en
at a distance and who were walking a\Yay briskly after
having con~e out 'of a hut to the north of Th onein .
It was then aboll t 11 Cl.m. He did not take part
in the chase but o rdered Saw Maung Hla (P~ 7) to
chase the two met'1 . Saw lVIaung Hla gave chase to
two men who wer~. pointed out by U San U and who
wc:rc walking away., Saw Maun g Hla and his party
fired two shots into !tbe airby way of warning lhe two
1
persons not to ruil,! went up to them, and fo.und the m
to be n<;> other that~ the appellants Maung Nyi and
Maung Tee from hi1S O\vn village. They e~lso found
a dagger (Exhibit 2jl in its case from the appellant,
~bung Tee. The tv,~o men were handed over to the
Police at Kaladan V}illage at C San U's house and
taken to t be Police St;~tion at Twante. The following
morning they were p:roduced before the Subd ivisional
Magistrate, Twallte, .a-nd both made confessions, one
after the other, the - ~arne bei ng duly. recorded in
Crimmal . Miscellaneot{;s No.4 of 1952, of Subdivision a!
Magistrate, Twante.
'1952] B U Rl\1:-\ LAW REPORTS . 285

Tile prosecution case thus rests on coniessions made H.<.:.

1952
bv. each of !he appellants and .circumstanti. al cYidence
?.Ln::-;c; ~Y l
based on the conduct of t\\'O men who were said to be ANI> O NE
running away in the paddy field a mile away and T.HK U:oox
,.
on the sei.zurc of a dagger from the ci'pp~llant OF Bt:IU!A .
Maung T ee when he was caught. u ON PE.l.
It is n uw for us to consider wh~t evidentia ry value
is to be attached to the conf~ssions made in the circum~
stances of this case . It is true that an accused person
can be la\\'fu lly con\'ictecl o n his O'vrn cor.fession, even
when it has been retracted, as has been done in this
case, if the Court is satisfied of its truth and of its
voiuntariness. T he circumsta nces in w11ich the con-
fessi ons were given by the appellants in this c-ase
disclose that their co nfessions could not be said to
have be~n made voluntarily. To begin with, it is clear
from. the evidence in the case, that the appellants d id
not ::eei-11 t o ha\'e a miFid to mak~ the confessions, as
can he seen from what took place on the Police
Motor Boat which took them a'v\'ay to the Police
Station. This is what U San U (PvV 6) says : "The
motor boat in whi ch we went is a small boat and it
would take abou.t fom to ten p~ople. Th e two b oys at
first said t11,ey,did' not ta.ke part i:n the s;ornmission of the
offet?-ce \~ihile in the motor boa:t. The boys spoke to
m e in Karei1 that if t hey were ill-treated what could
they do?_ I told them th at ( could not advise them. 11
W e have no reason to disbelieve this witness, when
he said that the boys asked him as to what.they should
do if H~ey .were ill-treated~.):>y the. po~ice. It is reaso~
ably . clear ..to us . that t~ey were thinking of 11ow to .
escape ill-treatment with which,. they ~eemed to think
they were to be c;onfronted .soon and that, thaf.w.as
their st~te of ~i1irid be for~ they inade their: c~~fessions
t he next day. The question . as to wheth.~r. they
were . s 1,1bjecte~ .to ilhtr-entment does not, in the
 UL'RMA L A\V REPORT S. f 1952
1-J.C. circnmstann.s, appear t o be materi<\1, for rightly 0r
1952
wron gly the :,ppdla nis were in fear of ill-treatme nt.
.'\Lw::-:G NY!
A::-:0 O:-< That fear seemed to have been t\~gravated by other
~~.

TI-lle UN! OX circumstances in thi s case C'.lthough those c irc umstan ces
01' ll U!OIA.
migU not h<lve bec:n the result of delibt;,rate d esign.
CON PE,J. We refer to the fact th at the appellan ts were taken
back, after th e confessions were made, to the Police
custody <~.nd also to the fact t hat the confessions were
taken hy the Magistrate while th e appellants were in
the same room . I n the case of BlzalJWa11 Dili oud
ot/re1'S V. c11lperor (1), it has b een held as follow s :

"It is most clesir:tble lhat the accllsed should be ::.eilt to

jail custody :md remoYe<l from police iuRuence before they nre
place:\ before ~[agi :;trales for the recording of the-it ccdt'!-~icn.!>.
It is also very neces~a ry in the interests, l oth of th<; accused and
of the prosecuticn th:J.t the accused after their confe~sior.~ b~'c
b een recorded, should not be sent hack to police custody and
tlnt at a time when the confessions are recorded they sr culcl be
assured that !her need be under no fe::tr of ~oing back i1 to the
custody of the yol ice. Magistrates ou~h t to see that whC'rc con-
fessions of several accnsed are r ecorded, one accused shodd not
be able to hear t~e statement made by another."

In this case it is not in dispute that the appellant s

were taken back 2fter the confessions were made t o the
police custody and that they were in the same room
when confessions were made by each of the appellant-
circumstances_which clearly contravene the instru c-
1ion laid down for the guidance of Mag istrate ~ . In
this case th e two confessors having been kept in the
's:~.me ~oom whi.le, confe!>s~.Q.QS ~ere b-eing taken down by
-thi Mt\gistrate, the second conf~ssor who was in a
pos1 lion lo h yar the confessions of fhe fir.st confessor
<:oqld easily. have been influenced by wh~fhe heard,
sc;> ~hat .his confessioqs cannot be sai~ ~~ ~ve any

(1) A I .R (1934)0 Jdh 151 .

:
'1952} BURMA LAW REPORTS. 287

cortr,borat i\'t ,a luc. It could ha\e ht<: n :1 mtt'C: repeti - H.C.

J93 2
tion of the first ronfession . This set=ms to h:ne
:~!A t- ~G j\tyl
happened in t hi s case , for til<:: two co:1f<.:ssions corre- A ~D O~ E

spond to each oth er in every cle tail. ... In the c ircum- 'V.
'l.HF. l: ~l O~
stan ces o f Jhe case \\'<:: are not prepared , .. , hold !hat OF BUR l!A.

these con fessions had been made volu nbrilv nor are \\'e G 0~ PR, J.
impressed with the tr ut h of the co n tent~ r,f tLe c~;nfcs
sions havi ng regard f.o t he illega l manner in \rhich they
were recorded .
T he next poi nt for consideration is whether
i ncriminating p ieces o[ evidence against the appellants
are su ch as ,,oulcl suffice to conn~ct t he two appellants
with the commission of the crime. The fi rst piece of
eviden ce rc!J.tes to the alleged conduct of the appellants
who \\ere said to be running away from the north of
Kaladan village. We have carefully weighed the
prosecution evidence on this point and we are con-
~tra in ed to ta ke the ,iew that the evidence does not
create m9re than a suspicion against the ap pe llant::; as
being likely assailants. It is in eviden ce th at about
half an hour had already passed after th e crime v>as
committed, wh en the appellants were said t o have been
seen by the prosec ution witn esses who came out to look
for the cu lorits. Il is th erefore not impossible for the
real culprtts to have made good H~eir escape during
this half hotir. There is also n o evidence to sh ow that
an yof.le chased the culprits from the spot where the
murder was comm i ~ted, in oth er words, from one end
to the other end, when th e two ap pellants were
stopp-ed in the paddy fi e ld. What is .clear fror,n.the
evidence is that those who came out to look for the
culprits sawa mile away in the open fi eld two persons
who were said to be.r unning towards the north. The
.weak point in the chain of prosecution evidenoe .is that
there is n o tvidenc~ to show where they were before
they were ~ hu s seen. T heir presence in the place
28S BL!RMA LAW REPORTS . [ 19sz
H.C. where th ey \\'ere seen cannot be said to be an unu sual
1952
thing , h :1.\'ing regard to the fact that they belonged to
~!AUNG }.iYI
AND O~E Thon ein vill<tgC'. According to U San U (PW 6), the
v. Headman of Thonein village, the b0ys of the village
THr: UNION
OF BURMA. useJ.. to go out to tend or graze cattle early and return
u ON Pt::, J. home about 10 or 11 a.m. The presence of the
appellants in tbt: open field does not by itself, in our
vie"vv, help to prove the prosecution case. The prosecu-
tion has made capital of the fact that they were running
and were being chased . . Even assuming that they
were running on ,;..rhich, the prosecution evidence is not
quite unanimous [see the evidence of Saw Maung Hla
{PvV 7) who says he saw the boys not running but
walking briskly] it does not conclusively prove that they
ran from the spot where the c rime was committed.
M9.r eover, the prosecution evidence does not make any
suggestion that any one looked towards any other
direction round about the scene of crime.
As regards tbt: seiiure of a dagger from tbe appel-
lant Maung Tee, there is no evidence adduced by the
prosecution to suggest that this dagger was used in
committing the mmcler. It is not for tlie defen ce to
supply the gaps in the prosecution case. It is for the
prosecution to show that the dagger was used in
inflicting the inJ"uries on the deceased which it has
failed to do. Taking all the circumstances in the case
into consideration, we cannot hold that this is a case
in which the . prosecution has prslVed its case beyond
.reasonable doubt. In the result, this appeal is al!owed
~nd .the convictions and sentences passed against the
appellants must be set aside. The death sentences are
acco,rdingly l>et aside _and the appellants will. be
~cqu~tted so far as this. ca~e is concerned.

... . . .. .
. .,_:lJ A,u.~G . KHINE,, J.- J . ~gree . .
.I. . - ..
.1Y52 ] 3 C RMA LAW REPORTS. 289

AP PELLATE CIVIL.
B.:fore U Stm Jlaung, J.

NANA MEAH (APPLICANT) H.C.

1952
v. l!w, 26.
N IREND~A K UMAR SEAL (a) DEVENDRA
KUMAR SEAL (RESPONDENT).*
ReviSiOtJ nuder s. 25. City Ct ~il Court Act-Death of Respn,;dcut-Whe !h er
Order 22, Rule 3 (41. Code of Ci;il Pr11udure a tflicnblc- Appml and
Revisic1~.
Held: There is a great deal of analogy between re,ision applicativns ar.d
app eals but they :\fe n<t ict>:nliC'al. In an appeal the matter i3 one &ttween
the parties and the rarti cs nn s t see that all necessary materials are before the
Court for c!ecisicn. An order in revision is made by the. Court of its own
motion. It is an es~entia l part (If such jurisdiction that no one should be
prejudiced by the Court passin~ orders without being heard. H is therefore
necessary that parties who are dead should be properly represe1led in
revi!uon !)roceedings .
Peudy.zl!l Bnsau anjanngu/u nnd ollters v. Lingamul/u Rmnnlingay,a,
A.I.R. (193t\) Mad.115; Nm;JabSyed Karim Hu>saiu '' Seth Pcarey Lal . A . l.l~
(19391 Oudh 277; Bakslto .wd a i/O/Itcr v . l'iaroaud !Jlhcrs, A.I.R. (1920, Sind
120; Ml. Tariff lJcgllm I! lid lliiOIIICT v. s. n. Rt~trfl(f:lill, A.I.R (1935) Oudh
219, r eferr'e d to.
rt is des\r:~ble th :~t in applilatiom; under s. 25 of the City Civil Court :\ct,
recourse sh011}d be hac! to the ir.berent powers of the Cv urt to see tha t legal
rcpresentativts of deceased-respondents are representee!.

G. N. Banerji for th e applicant.

Ba Shun for the respondent.

U SAN ~AUNG, J.-Jn Civil Regular Sllit No.120 of

19.51 of th~ ity Civil Co-pr! 1 Rangc()n , the plaintiff
Nana Meah st1ed:Niren,_d ra Kiu11ar Seal tor his ejectment
from ~ house known as No. 6/62, Blzaar Road, Dallah,
on the grqund that he was the o\\n er of the house and
that the defendant ""as in \\Tcngfuf ~<;cnpati.on thereof'
.
by residing
.
the.rein \Yithout l)i.
.
s lea\'e
.
or. license . .
* Civi1 Revision No. 67 of 1951 against decree of the City civil Court~
Rangoon in' Civil Regul.u No. 120 of 1951, dated 26th Sept~tnber 19~1.

t9.
290 BURMA LAW REPORTS. [1952
H.C.
1952
The defendant in his written statement contended
that his name was Dabindra Lal Seal and not l\irendra
NA:-:A MEAH h
v. Kumar Seal and that the ous~ which he was occupying,
'K~!:~~~~~L was known as House No. 20 of rice mill compound,
(al
DEVF.~DRA
Zaylan, D allah, of ~hich he and Monindra Lal Seal were
l (

Ku~IARSeAL. joint tenants of one U Po Kha. Thelearned 4th Judge

u SAN of the City Civil Court, who tried the suit dismi s~ed it
M .toNc. J. on the ground that the plaintiff had not establigbed the
fact of his ownershi p of the house in suit. The plaintiff
therefore applied to this Courlunder section 25 of the
City Civil Court Act for the revi sinn of the judgment
and decree of the City Civil Court. In the meantime,
the defendant Nircndra Kumar Seal died and the
plaintiff-applicant has applied that his wife Ma Aye be
b.rought on th e record as the legal representative of
Nirendra Kumar Seal. Ma Aye objected to this on the
ground that she was not a legally wedded wife of
Nirendra Kumar Seal or rather, Dabindra Lal Seal and
that she should therefore not be b rought on the record
as the legal representative of Dabindra Lal Seal.
However, before going into the question whether
a nybody should be brought on the .record as a legal
representative of the respondent in an application for
revision under section 25 of the City Civil C ourt Act,
it is necessary to consider whether the provisions of
Order 22, Rules 3 and 4 of the Civil Procedure Code
-are applical;>le to . such applications. In the case of
Pendyala Basawanjanagulu and others v. Lingamullu
Ramali1.1gayya (1), it was held by a sihgl ~ Judge of the

applicable to proceedings .
.Madras High Court that Order 221 Ru.'tes 3 and 4 are
. . under sectiqn 115 and that an
order -passed by .the High Court on a .Petition under
section 11 5 in . ignorance of the fact of death of the
-petitioner more.than 90 days previously is one -~ade
-.,vithout jurisdiction. ~h e contrary view is tciketi by the
(ll A.I.~. (1938) Mad. llS.
' '1952] BURMA LAW REPORTS . 29

Oudh High Comt in Nawab Syed Ka zi m Husslrin v. .H.C.

1952
Selh Pearey Lal (1) where Radha Krishna J., held t hat '--
:\A NA. ~JF.AH
the provisions of Order 22, Rules 1 to 11 are appli\.able ~" i.
~$~ORA
only to suits and appeals and that there is no pro\ision Kc~SJ-:.~1
of law laying down procedure for subslitutiqn it1 place (al
D E 8NOHA
of a deceased party in a revision application for the K tJlCABSEAL

obvious reason that the remedy provided by section 115 USA:-1

is absolutely discretionary. The same view was held by ;\IAUN<< , J.
ihe Judicial Commissioners of Sind in [Bal~sho and
a11oflzer v. Piaro and others (2)] where they obsetTed
as follovvs :
" It dves not appear to us there can be ~ny question of
abatement in a tevision application. It is nrS!ed that there is no
procedure laid down for revisic.n applications and that therefore
the procedure laid clown in the case of appeal must necessarii)'
apply. There is, no doubt, a great deal of analogy between
.revision applications and appeals, uut they nre nc t identical. In
the case of an appeal the matter is one bet ..,een parties and it is
obviously for the parties to see thal all necessary materials for
.th e Court to decide are befcre the Court. In the case of n
revision application the matter is different. An order in revision
"is made by the Court of its own motioo1 to redress gl'iev1nces
which come to its notice. The order in revision is of its very
nature an essential act of the Court. No doubt the Courts do not
,pass orders which should prejudice any party to the prcceedings
.with.out hearing them, and therefore it wtll be necessary to issue
motices to all the parties ; and this seems rather a reason why the
Court, i.f it discovered tb<rt certain of the parties were dead and
not properly represented, should see that they were properly
;represented. "

"The latest reported decision o n the subj~::,ct seems to

be that of a Bench of the Oudh High Court in. M t ~
Ia1'i!f Begum and another v. S. R. Raziuddin (3) where
was held that Order 22 did rtot apply to r evisions bttt
J:hat it was .necessary
.
for
.
the- Court to have the Iecral
b .

(J.) A.I.R; .(l939) O~dh 277. (2) A I .R. ll920) Sind 1:!0,
. {3; AI R. (1935) 0 ..1dh 219.
292 BURMA LAW REPORTS. [195Z,

H.C. representativ es oi the deceased on the record before:

1952
any effective orders could be passed in the revision
MANA MEAH
v. app I'xcahon,
. ancl t h at t h e 11exrs
. o f t I1e deceased -
K UMAR
NmE~osRA applicant should be brou1ht on the recc,rd as his legaL
EAL e
(aJ representatives. The observations made by the learned.
K~~-:;~~~::L. Judges ofo the Oudh High Court and by u~e Judicial
u SAN Commissioner of Sind seem equally apposite to appJic~-
MAU"'G, J. tions under section 25 of the City Civil Court Act. It
is desirable that the legal representatives of parties to
the proceedings initiated by such an application be
represented and, to this end in view, recourse could
be had to the inherent powers of the Court under
section 151 of the Civil Procedure Code.
Let the proceedings be therefore sent to the
office to enable the Deputy Registrar. to dispose of the
application for bringing the 'legal representative of the
deceased-respondent on the record, vide Rule 12 of the:
Appellate Side Ruks of Procedure (Civil}.
 1952J BURiviA LAW REPO RTS. 293

APPELLATE CRIMINAL.

MAU NG BA YI (APPLTCA:\T) H.C.

1952
v.
June 14.
MA SEIN MYI NT (RESPO~ D P:NT\ .'~

1m/elltnif v a-nd Va lidating Act, 1950, s. 3 ( l l, s. 3 (3)- Proclam ! I.' " ,1 Mn r t ial
L a1o O:-di11auce of 19-18 by Pr.:$ideni-AP:Poi11i111cn ! < ' f .'lt~i;f rn!c by
SuPrt'tnC 111 ilitary Co111ma1tdcr- Whethrr he is a Mag i. f rat< 1111der
Crw1i ual Procedure Cod c-Couf it~llaliou of pro&Cid i 11 g s i>y same Magistrale
after mi l i tary adminidr ation. uifhdrawt1-Jlirani ng oj ' rm order ' in
s. 3 ( I) of hzdemnity a nd Validali1tg Act-Omission to e.mmine Complai-
nan t Ot/. oatil mid issuiug oj process- Whether irngu/arily or illcr,n!ily-
htler{cre1rU by High Court on Revision.
lldd : That U Khin Maunj!. Lay was appointed as a Ma.qistrate, Mandalay
iby the f upreme Military Commandc:r under s. 4 of the Proclamation of
JYI'art ial Law Ordinance, 1948, the said area being proclaimed by the
Presidtnt as having come under Military .<\dministration, ancl as a result the
.J urisdiction of all Courts established bv the Civil Government ceased.
Magistrates appointed under special powers under the O:dinance exe1cise
:special powers including summary trial and recording of evidence hy way of
r~1 emor:mdum only and also in respect of passing sentences. There is no
:appeal ag'ainst their judgmeuts, though they may be reviewed by superior
military courts appointed from time to lime. The Magistrates appointed by
J!he Supreme Miliiary Commande_r are not therefore Magistrates exercising
jurisdiction under the Code of Criminal Procedure whose powers are defined
.i n Chapters II and III of the Cri~inal Procednre Code.
The wor.d '' M:;gistrate" is not defined in s. 4' of the Code of Criminal
Procedure. It must mean Magistrate appointed by the Government under the
-provisi~ns of ss, 10, 11 , 12 ~nd 13 of the Criminal Procedure Code.

S. 5 of tne Criminal ProcedLtre Code enacts that all offen:es under the
'Penal Code ~nust. be aealt with accordinJ! to the provisions contained in the
Code. Cognizance must be taken by a Magistrate appointed _under the
Code. The~e is no provision in the Code by which a Magistrak.. can
-continue a case from the .st.'lge where it was left by another Magitlr.tte
;acting under the provisions of the Proclamation of Martial Law Ordiu.1nce,
1948. :
Ramchatidrrt Modak v. KingEmpetor, 5 .Pat. 110; The Kitzg v. Mau11-g P.o
:ntl others, (1~46) H.L.~.- 41, referred to ;_and distihguished.

Criminal Revision' No. 178 (tl) of J9Sl b:eing review of the Proceed ug
now. pending befor e 3rd Additional Magistrate, Mandalay in Crimi.1il
Regular Trial No: l28 of-1951.
294 BU RMA LAW REPORTS . [ 1952' .
H.C. The contention that~- 3 (1) of the Indemnit y and \ 'alidat i:;g Act, 1950<
1952 validated the ord!.:r of the Magistrate is<ui nl! proces,; under the .Military
Administration is f:tll~cions. The word'' order in~. 3 11) must be interpreted
'-'' ~fuse/em gcner is _with the words" jt~clgments and sentences " in the same
MA SEI:-1 section and the ord~:rs refe r red to must be final orders :1fi{-'cting the rights of
MY H\T . the acc.:used person and not interlocutory orders r<:laling to issue of process ,
etc.
. .
However the tal;ing of fresh cogn i%ancc of the same offence by the
Magistrate was valid and wh~n he issued notice to the accused t. e took
COJ'( nizance as a Magistrate under the Criminal Procedure Cede. The-
omission to e~amine the complainant on oath is a mere irregularity under
3 . 537, Criminal Procedure Code which did not prejudke the applicant in
any way.
Emperor v. Batoiltar, 37 All. 628; P!t.,rgu Salw m~d mrother v. Emperor.
A.l.R. (19161 Pat. 129 ; Mahr Clri: a~;lz Din v. The C1owu, 4 Lal\. 359 ;.
Des ibhai Kflltshalbhc~ i Patl'l v. Emteror, A.I.R. (1938) Born. SO, referr ed to .
The High' Court w ill not interfere in revision exce pt in exceptional
cases and the rrcsent case did not come within that category.
Kh.Jn Balradur Haj.;e Gnl am Sltera~ee v. T!le King, (19H J R.L R. 59?;
U J.flaGyi v.1'TteUnion of Burma, (1948) B.L.R.652; S.M. Bnslzir v. The.
King, (19~6) R.L.R. 306.

Sei11 Tun (1) with l~, f h .

u r. r or t e app 11cant.
San v1, ttz _ )

Ba Sliun for the respondent.

USA~ MAUNG, J.-This is an application by Maung:

Ba Yi to qua:.>h the proceedings of the _3 rd Additional
Magistrate of Mandalay in his Criminal :Regular Trial!
No.128-of 1951 wherein -action wasbeingtakenagainst-
him under section 420 of the Penal Code on the direct-
complaint . of the respo~dent Ma sein Myint. The:
facts of the case are briefly these. The applicant
Maung Ba Yi was a trader residing in Rangoon who
was sellfng, among other things, si~k pie.ce-goods in
respect of which he has had several business transac-
tions: ~ ith . the responqent Ma: Sein Myirit d ~ring the
perlo<;i 'p rior to Oct9l;:>er 1949. On the 15th of October
~919_: rv!a~~g Ba "1 .-too~ deliyery o{ ~orne $il~ piece-
goods valuep a~ .Rs.,: 5.,610 . f,r:o_m the respondent
'.1952] BURMA LAW REPORTS. 295

Ma Sein Myint, whose case, as alleged in her comr Jaint: H.C.

1952
is tb.at he had promised to remit the sum of Rs . 5,610
within seven days after his arrival at Rangoo n, but
MA
..
Sr: :~
that the circumstances were such that he knew fully MY I Xl',
well that it vvas practically impossible for him to pay u SA~
for the goo'ds which he had taken delivery of. No IIIAUNG, J.
payment for the goods was in fact forthcoming so that
Ma Sein Myint carne down from Mandalay and was
told by Maung Ba Yi that he could not make any
payment in respect of the goods delivered to him and
that if she were to sue him he would have to seek the
protection under the Insolvency Act. Ma Sein Myint
then filed a report at Obo Police Station for an al!eged
offence of criminal breach of trust in respect of the
silk piece-goods delivered to Maung Ba Yi. Her case
was that she had entrusted these goods for sale to
Maung Ba Yi on his representation that he would
remit to her the sale proceeds as soon as the goods
were sold. Obo Police after making some equiry into
the ~~e referred Ma Sein Myint to Chanmyathazi
Police Station for necessary action. In the meantime,
the. 'appiicant 1\'laung Ba Yi filed a complaint under
secti~h 500 of the Penal Code ih the Court .of the 3rd
Acldi.ti'onal. Magistrate, Rangoon, alleging that he had
i)eex{ defamep by Ma Sein Myint. "Ma Sein Myint also
fi~ed . a 'direct complaint under section 4 the to of
P~nafCo9e against tl~e applicant at Mandalay an~ this
wa,s 'deait w'ith by U Khin M~ung Lay who .was then
a' f.~~~t ~ass Magistrat~ l}nder th~ Military A.qmini~~ra:
ti~n: On tbe 13th of September 1950 U Khin Mauiig
., , .. ... \ 1 :.

Lay dir~cted su mmons tq be issued to the appliqmt

(6F' h~s - appearance . aftef he had examined t r~~poQ be
~ent'Ma $~in Myint on oa~~ a'n d. h<td read t~~~ r~po~t
of.,
the
~.Mandalay
~ ~ :
.t .
Police,. to.
:
whbin.
.:. ~
. ..
he had. re{ei-r~cf
'!: - .
the
. . "1~

maHer f ,._
; ":_ '. ;; 1.
for
!
investigation.
I '
However,
'
up till
, , ;
the
,
time
; , , f ,- ', , ~ ' 1

tlie military administration was withdrawn from

296 BURMA LAW REPORTS. [1952

~~i Mandalay the app1iC;int Maung Ba Yi never appeared

- in person before U K.hin Maung Lay, and the Advocate
AU~G v. BA Yl w ho represen t ed h.tm o btawe . d severa1 a d.Journments
1
";~v~~~~ on the ground that the applicant was either under
u SAN treatrnen.: at the Rangoon General Hospital or that he
1\fA u NG, J. w.as still too ill to be a.-,le to travel to Mandalay. Later
an attempt was made by the applicant through his
Advocate ::it 1\l~ndalay to ha.ve the process issued
against him with drawn. vVhen this attempt failed,
the matler was taken up to the Court of U Po Yin,
sitting as a Reviewing Judge of the Military Court, but
no decision \.Vas obtained as the petition for review
was subsequently dismissed for want of proseculion.
In the meantime, military administration was witb-
drawn from Mandalay District, and U Khin Maung Lay
again became a magistra.te exe.rcising second class
powers which was the same as that whid1 he was
exercising before the military admini.s tration began.
The case by Ma Sein My int against the applicant Maung
Ba Yi was not withdrawn from him because he was
being recommended for first class magisterial powers.
Subsequently on the 2nd of July 1951 U Khin Maung
Lay noted in the diary that he had since been invested
with first class powers and that.the case pending before
him should be tran~ferred to his file and registered as
Criminal. Regular Trial No... l28 of 1951. One U Ba
T hin. appeared for the respondent 'Ma Sein Myint but
there was no appearance on behalf of .the applicant
.Maung Ba .Yi. Accordingly a no lice was ordered to
be iss-u ed for his a ppearance befor.e the Court on the
21st of July 1951. . On the latter date, one U Sint filed
power-of-attorney. for th~ applicant a~J.d ..a~ked for an
adjournment on .the gr6und that- he was .applying for
:the transfer ofthe ca~e fro~ Mandalay. ~o Rangoon .
Th:is tx:ansfer apphcation, which was .made in the H igh
.Cou rt, was dismissed by U Aung K hi.ne J., in Criminal

... ~
 1952] BURMA LAW REPORTS . . 297

Miscellaneous Application :\o. 1 <) of 1951. Subse- H.C.

1952
,quently after several adjournments given i0r the
?o.J.w~G BA YI
appearance of the applicant at Mandalay, a \Yarrant v.
for his arrest was issued. As this \Yas returned MA SEIN
MYI:ST.
unexecuted. a fresh warrant returnable on th~ 1(th of uSA:)/
February 1952 was issued. In the meamime the MAUKG- J.
applicant Maung Ba Yi filed the present application
for revision on the 17th of December 1951 , and this
Court ordered a temporary stay of the proctedings and
:also directed that the warrant for the arrest of the
applicant be withdraw!~.
Now, before I deal with the merits of the appli-
.cation for revision, it is necessary io deal with the
preliminary objection raised by the learned Advocate
'for the respondent Ma Sein Myint that this Court bas
no jurisdiction to entertain the 3pplication as the
matter involved has already been dealt with by the
reviewing authority at Mandalay and that if any further
action did lie it was only by an application to the
.persons who have been authorised by the Supreme
Commander, Union Armed Forces, to review all
judgments, sentences. and orders passed by Superior
Mil~tary Courts of criminal j~risdiction. In order to
be able . to solve this problem, ~t is necessary to
'interpret the 1-rovisions.of sections 3 (1) and 3 (3} of the
Indemnity and Validatii1'g Act, 1950 (Act XXIII of
1950}, which in turn requires a consideration of the
whole position created by the withdrawal of m~litary
:admi.I)istration in Mandalay Di~trict and the concurrent..
restoration of civil administration there. Military
~.administration was introduced in Mandalay District by
the exerCiseofthe po~ers.conferred.'upon the President
-of the. Union . of Burma by the Proclamation of Martial
Law Ordinance, 1948 {oe9o . :r~~~ '~~2<-'GDcxto?~G~~Si
~ttp O')~~o5eoGs)a . On .a ny area being proclaimed by
:the President as having come under the military
298 BURMA LAW REPORTS. !1952,:'
H.C. administration, the jurisdiction of all Courts established
1952
by the Civil Government ceases, except to such an.
MAUNG BA Yl
v. exten t as th ey may be allowed to continue by the.
MA SEIN
MY! NT. Supreme Commander of the Union Armed Forces ..
u SAN See ser;tiQ.n 4 of the aforesaid Ordinance. TJ:is jurisdic--
MAUNG, J. tion is then exercisable by the Courts estahlished by
the Supreme Commander.
By the Military Administration Proclamation Ko. 4
of 1949, dated the 12th February 1949, the Supreme
Commander established Courts of :Magistrates in the
areas under his control, vide section 1 of that Proclam<t-
tion, which reads :

" 1. Wheneve1 Martial Law lws been proclaimed in any

area, there shall be, in addition to the Superior and Inferior
l\'filitary Courts of Criminal Jurisdiction established unc~e r
Military Proclamation Nos. 2 and 3 of l 949, other Courts of
Magistrates under the Military Administration presided over by
ofllcers exercising the powers of a District Magistrate, Additional
District Magistrate, Subclivisional !\i<Igistrate and the Magistrates:
of the first and second classes.
2. Such Magistrates shall exercise all the powers and perform
all the duties conferred and imJ=osed under the Corle of Criminal .
Procedure or under any other law for the time being in force.
etc. etc. etc. "

Special powers are given to such Magistrates and'.

specjal rgles of P,roc~d-ure pt:.,escribed for them. Foe
example, all Courts of Magistrate~ under military
adm.inistr~tion may take. cognizance 'of offences in any
of tiH~ ~nodes prescribed by sub-section (1) of section,
of
190. the Cod~ 'of Criminal Proce-dure: They have-
power . to try .sum'~t1arily all offences which ttley are:
competen( to' tak_e. c6gi1izance of a nd 't hey n~ed record_
only
.
a in~inot;uidu
t. ' . . .. .....
m o{ the substance
. .
of th'e eviden-c e:
t , '

i)f :.e ach w1triess. They may pass any sentence:

aut1;16rl~~~ : by.l~\~ . notwithsta.nq~ng .' the.. .ljmitationS..
cont~irie'(j' in' tla'~se (2) of se~tion Z62 o( the Code of
,, ' o .. ' ' " ' I I ;
 i'952J BURMA LAW REPORTS. 299

Criminal Procedure. T here is 110 appt:JI against tht:ir H.C.

1')52
judgments though the same may be re\iewccl by such
s.~~perior Military Courts of Crimin al Juri:;diction as
MA ~F- I N
may be appointed from tim e to tim e. ;\IVJ~T.
From the above it is cl ~:!ar that th e ~Iagist,rates
.. USAN
appointed by the Supreme .Comm <1nder in th e areas 1\JAI.:NG,J-

under military admin istration are not those: exercising

th~ jurisdi ction and powers of magistrates under the
C~de of Criminal Procedure, or in other \YOrds they
are not Courts of Magistrates \vhose constitution and
powers are defined in C hapters II and II I of the
Criminal Procedure Code. T he quest ion now arises
is c~n U Khin Maung Lay as ll Magistrate of the fi rst
class appoin ted by the Governmen t undn fhe provisions
of section 12 of the Cod e of Criminal Procedure
continue the proceed ings of the case against the
applicant Maung Ba Yi by the respondent Ma Sein
Myint from the stage where it \ras left off by U K hin
Maung Lay as a Magistrat e under the military adminis-
trat~on exercising the powers of a first class magistrate.
i'he. word "Magistrate " is not specifically defined in
~edion 4 of the Crimin al Procedure Code, the
concluding portion of which r eads as follows :
'
" all words and expressions used herein and defined in tl~e
Penal Code, and not hereinbefore defined, shall be deemed to
have the meal')~~lgs respectively attributed to them by that Code."

The word ~' Magistrate " , however, is not' defined in

" the Penal Code a lso. Nevertheless, section 19 in
which the ~vord , , Judge " has b een defined contains
il~ustrati"ons showing that a magistrate exercising
jurisdiction jn respect of a charg,e on which he has
power to s entence to fin e or imprisonment is a Judge.
T~~refore"a Bench of thy Patna High Court has held
in t he ca~.e. of Rarnchand1a
.
Modak v. King-Emper.or. (1)
(1) ? Pat. 110.
300 BURMA LAW REPORTS. [l<.J 52

r~t that a Magistrate is a Cl Judge " within the me;:ning

JITAr!\G IJA y , of section 19, P enal Code, read with section 4 (2), Code
v. of Criminal Procedure, only when he is exercisin-g
.MASEIN
MYI~'>T.
0 0 d ' t'
JUriS 1C 1011 tn a smt or m a procee m g.
0 0 d' H owever,
u SAN this Clefi'tiition is only helpful when the wold" 'judge''
MAu:-:G. J. occurs in the Cod e of Criminal Procedure, as for
instance in section 539. It gives us no help where the
word cc Magistrate'' occurs in the Code of Crimi nal
Proyedure, and recourse must therefor e be had to
whatever meaning can be gleaned from the provisions
contained in Chapters II and III of the Code of
Crim inal Procedure relating to the consti tution and
powers of the Courts of Magistrates. Thi s brings us
b ack to the same point, viz., that the \\'ord u Magistrate"
as used in the Code of Criminal Procedure must m ean
the Magistrate appointed by the Government under the
provisions of sections 10, 11, 12 and 13 of the Code of
Criminal Procedure.
Now, section 5 of the Code of Criminal Procedure
enacts that all offences under the Penal Code shall be
investigated, enquired into, tried and otherwise dealt
with according to the provi sions contain ed in the
Code. Therefore the case again st the applicant Matmg
Ba. Yi under section 420, Penal Cod~, must be
investigated, enquired into and tried, accord ing to the
provisions cc.ntained in. that Code. Cognizance -of the
case must 'be taken by a .Magistrate appointed under
the Code of Criminal Procedure, and when the accustd
appears in obedience to the process issued by the
Co urt trial of the case must be in the m anner set o u t
in Chapter XXI by the Magistrate appointed under the
Code of Criminal Procedure if it is a warrant case,
such as the one under sec tion 420 of.the P enal Code ~
There is, so far as. I can -s_ee; no provision of law
contained in the Criminal Pr0cedure Code. by which a
Magistrate appointed under that Code can continue to
1.952] BURMA LAW REPORTS. 30I

cieal '':ith a case from the stage where it is l~ft off by a H.C.
1952
i\Iagistrate exercising the jurisdiction and powers
MAO:c.BA YJ
conferred upon him under the provisions of the v.
MA SF.IN
Proclamation of Martial Law Ordinance, 1948. MYI:\T.
In the case of Tlze Kin~ v. Maung Po rmd others
u SAX
{1) it was na doubt held by a Bench of the lai:e High MAUl-iG, J,
Court of Judicature at Rangoon that a magistrate
validly appointed as such under the British Military
Administration of Burma was a 11 magistrate " within
the meaning of section 26 of the Evidence Act so that
confessions recorded by him can be proved in a trial
before a muni<:ipal Cou r t of British Burma. However,
the decision in The King v. Maung Po's case (1)
proceeded on the basis that there was no definition of
the word '' magistrate " in the E vidence Act and that
the definition given in the General Clauses Act which
enacts that t he word "magistrate " shall include every
person ~xercising all or any power of a magistrate under
the Code of Criminal Procedure is wide enough to
i.nclude magistrates validly appointed under the British
Military Administration. Therefore, it is distinguish-
able from the present case inasmuch as the magistrates
under the Code of Criminal Procedure must for the
reasons gi_ven by me in the discussion given above be
presiding officers of the Courts of agist rates whose
constituEon and powers have been defined in Chapters
II and III of the Criminal Procedure Code. Besides,
the Vefy definition Of the WOrd II magistrate IJ given in
the General Clauses Act recognises the fact that
magistrates ~ppqi nted under the Code of Crim_inal
Procedure are a distinct body quite separate from any
othet k inds of Magistrates.
It has be,en argued that section 3 {1} 'Oft he I demnity
and Validating Act, 1950 h as validated the order
regard~ng _the issue of processes upon Maung Ba Yi by
(1) (1946) H.L.R. 41.
."302 BURMA LA\V REPORTS. [ i9s~
H.C. U Khin Maung Lay acting as a first class Magistrate
1952
under the Military Administration, and this order haviocr
:MAUNG SA Y1 b
" been validated gives the jurisdiction to .U Khin Mating
~:y~~~;~ Lay as a magistrate of the first class appointed unde-r
U SAN
the ,t)rQvisions
r
of tbe Code of Criminal Procedttre to
MAuNc, J. proceed with the case from the stage w'b ere he Ii:id
left it off. The fallacy of this aq~~ument wiii he
apparent if U Khin Maung Lay while actii1g !Jnder the
militarv administration had examined witnesses for ti1e
prosec~tion and h~d framed a charge tinder section 420
of the Penal Code <Js against Maung Ba Yi. Then if
the argument of the learned Advocate. tor the respon-
dent be valid, UKhin Maurig Lay could have proceeded
with the case and would have been able to use the
memc-randum of the substance of the evidence recorded
.by him, notwithstanding the fact that the Code of
Criminal Procedure itself has prescribed that a
tnagistrate trying a warrant case must t:ecord the Whole
-of the evidence of each \\'itness as ]aid down in section
356, and not merely the memorandum of the substance
-of the evidence which is only permissible in snmmo~s
Cases (vide section 355, Code of Criminal Procedure).
lf, for th,e sake.of argument, the Silpr.e~e co~mander
in his Military Administration Proclamation No. 4 of
1949 had prescribed that onfy cryptic notes 'nee(\ be
kept of the evidence of witn.es~es in warrant cases,
'U Khin Mat1.ng Lay as a -Magistrate of the firsf .class
ap-p ointed __under the pro'-:isions .of the Crimina.l
:Procedure Co'de could under the provisions ot section
.350 act upon such n9t~s in finally dis'posing o'f the cas~i
:against Maung Ba Yi. This .s tate of_ ~ibirs can n(:we'f;
have Q.e.en contemplated by the L egislature in _enacting
se~tio~ ~ (1) :of t~e Indemnity atj_ d _::Validatlpg. ACt~:
19'50 . . . . .. . . ~ . . :i:
. . lrt my' opinioii, the .w ord ,, order'" . conhtined ..in:.
:.Sub-~ection {1) . of -section' 3 of . the lndemnity .and' .
 ,,
1952) BURMA LA \V REPORTS. 303

Validating Act, 1950 must be interpreted ejusdem H.C.
1952
gmeris with the words ''judgments and -sentences
:'II.H'~GSA Yl
appearing therein in the se nse that they must be final 11.
MA SEIN
orders affecti~g the rights of the accused person in a !IIYDlT.
criminal case and not such interlocutory qrcle.rs as u SAN
those relating to the issue of processes to the accus<.:d M AUNG, J.

or directing that charges should be framed against him,

etc. The necessity for enacting sub-sectiun (3) of
section 3 is apparent when it is realised that \\'hen
military admi nistration ceases no Court established by
the civil Government has the power to deal with the
orders, judgments and sentences passed by the
:military Court and that therefore the Courts or other
authorities that had the power to review the orders,
judgments and senteuces of Inferior Military Courts
should continue to have that power as if the Military
Administration Proclamation is still in force in the
:area concerned.
U Khin Maung Lay as a Magistrate of the first class
under the civil Government was undoubtedly wrong in
not having recalled the respondent Ma Sein Myint for
the purpose of examining her again 'o n oath before he
:issued a notice (which was in fact a summons~ for the
:appearance of the applicant b efore him. H owever, it
:cannot be said that he had not taken' fresh cognizance
Of the offence against the applicant Maung Ba Yi. as
the taking . of cognizance does not involve any fqrmal
.action or: action of any kind being merely a mental
!process which occurs as soon as a magistrate as
. such, appli'e s his mind to the Stt$pected commi~sion of
: ~n offenc_i. ; seeS. M. Bashir v. The King (1). There-
.fore w.h~n he issued the so-called noti~e to Maung ~ Ba
-yi for his .appearance at Mandalay, he must b e deemed
;,to have taken cognizance of the offen ce as a first class
:inagi~trate appointed onder. the provisions . of the
11) (1946} R.L.R. 306.
304 . BURMA LAW REPORTS. [1952
'
~i2 Criminal Procedure Code. The omission to examine
- the complainant again on oath is a mere irregularity
MAuN;.BAYt 'l.vhich can be cured under <>ection 537 of the Criminal
M~~v~:;~ Procedure Code as it had obviously not prejudiced
u SAN the applicant Maung Ba Yi in any way. Cf. Emperor
MAu~o. J. v. Ba'teslrar ( 1), Pllagu Saln1 and {;lncflzer 'I! . Emperor
(2 ), Mahr Clzirag!t DilL v. The Crown (3) and Desaibhai
Khushalbhai Patel v. E111j>eror (4 '. It is idle to contend
that if U Khin Maung Lay had to examine the
respondent Ma Sein Myint again on oath he would
have changed . 11is mind and d~sisted from taking
further action against the applicant Maung Ba Yi.
As regards the merits of the case I have read the
complaint of Ma Sein Myint and her examination on
oc:.th before U Kbin Maung Lay as \:vell as her statements
made to the Mandalay Police and the Rangoon Police.
There is no dopbt some discrepancy in that \vhereas
in Rar1goon sh~ had tried to make out a case of criminal
' breach of trust, her case before U_ Khin Maung Lay
was that she had been cheated by having to part with
her goods on a representation which was kno\<vingly
false that Maung Ba Yi was in a position to pay her
within seven days from the taking delivery of the
goods. I would not like to discl.1ss the case further
lest it might prejqpic<.: the mind of the trial Magistrate
in the trial of the case agaii1st the-applicant. I would ,
howP-ver, sa:y ad~pting the words of M_q sely 'J., in
'!Own Bah.adur Hajee Gulam Sherazee v. The King ~S)
that the High Court wili only interfere in excep~ional
'c ases such as wh.ere a person is being harassed by an
illegal prosec~tion ;_where there is some manifest and
patent injustice apparent on the face of the proceedings
and cailing for prompt redress, where the evidence on
.., I -

~il _37 ~II. 6:28; . (3) 4 Lab. 359.

t2f A.I.R. (1-91~) Pat, 129.'. . . (~) A.I.R:. (1938) Born.. SO.
.. . . (5) (l<X,li R.L.R. '599.
1952] BURMA LA \V REPORTS. 305

record for the prosecution clearly does no t justify a H.C.

1952
charge of any offence, or where the trial is on t:1e face
of it an abuse of the process of the Court. I am not ..
)I At,;NG llA Yl

l\-IA :>~. IN
pre pared to say at this stage that the case against the MY INT.
applicant ~::tung Ba Yi falls within any of th~ c-ategories (.;~ A N

enumerated therein. See also the case of U Tf'a Gyi v. l\L\t' NG, J.
The Union of Bu1' ma ( 1).
For these reasons although the preliminary obj ection
b y the learned Advocate for the respondent Ma Sein
Myint has failed, the application of Maung Ba Yi must
b e dismissed on the merits.

{I) (1948) B.L.R 652.

20
30 6 BURMA LA\tV REPORTS. L19Sz'

APPELLATE CRIMINAL.
Before U Tltt!lll1g Sei11,l.

H.C
195:... .UNION OF BURMA} (APPLICANT)
] UfiC 20.
DAW TIN TIN
v.
DAW TIN TI N } (RE P , ~
UNION OF BURMA . s ONDEN1 J.

SuppressiJ, of Brotltcls Act, s . 5. (~)- "Lives" w s. 7 (1)-Proof of at~ isollllcd

act of receivi1tg wages of vice- Wltetller su ffictellt.
Held: That the essence of an offence under s. 7 (11 of the Suppression
-of Brothels Act consists in the earnings of prostitution, formin~Z the subsistence
of the accused either wholly or in part. The word "lives" ins. 7 (1} imports
<:ontinuity and re~ularity.
Sultan v. Tlte King, (l947} R.L.R. 337, referred to and applied.
The Burma Act II of 1921 has now been replaced by Act XX IV of 1949 and
the words" any male person" in the previous s. 7 has been changed into" any
J)erson" in the n ew section.
All that had been proved in the ca~e was that Daw Tin Tin received
earnings of a prostitute on a single occasion. It does not amount to proving
1hat she is living on the ea~nings of prostitution.

Ba Tu.n for the applicant.

U THAUNG SEIN, J.-These two revision cases have
.arisen out of Criminal Regular Trial No. 320 of 1950 of
the Court of the 5th Additional Magistrate, Rangoon,
(U Kyi), in which an accused person named
Daw Tin Tin has been convi'cted of an offence under
-section 5 {I) of the Suppression of Brothels Act and
:sentenced to pay a fi n e of R s. 100 or in default 4 months'
rigorous imprisonment. This sen tence is of course
illegal as accord ing to the Suppression of Brothels
.~ct, 1949, imprisonment is imperat i~~ for an offence

Criminal Revisi~n N~s. 8~~B and 103-B .of 1952 bejng ~evlcw of the
:5th Addilional Magistrate, Rangoon, dated 17th . March 1952 in Criminal .
.R~ular Trial No. 320 of 1950.

.._ I
- .
1952] BURMA LAW REPORTS. 307

u nder section 5 {1). The illegality was detected by the H.C.
1952
learned District Magistrate of Ran goon "vho ha~
submitted the proceedings to the High Court "for l':->10~ BUR:II'A
OP

-orders." The accused Daw Tin Ti n on her part DAWTINTIN

'II.
has also a~plied in revision against the convidio'n and 0AW'l'INT!:S
sentence and prays that she be acquitted. UNION OF
BURMA.
The facts leading up to the condction of the
U THAUNO
accused are simple and as follows : On receipt of SEtNJ.
credible information t hat house No. 339, Sparks Street,
Rangoon, occupied by the accused Daw Tin Tin, was
being used as a brothel, U Ba Thet (P\V 1) the then
Police :Station Officer of Kyauktada Police Station,
called in a Sino-Burman named Ah Chi and sent bim
to the house in question with three marked ten-rupee
notes for the purpose of contacting the prostitutes
H any, at that place. Ah Chi proceeded to the bouse
.of the accused and there met a prostitute named
Ah Myint (DvV 1) and paid Rs. 18 for sexual intercourse
with her. He states that he handed over two 10-rur ee
notes to the accused Daw Tin Tin who returned two
.rupee-notes as change. He goes on to state that while
he was in the act of sexual intercourse, U Ba Thet and
his witnesses arrived and the accused was placed in
custody. She was then called up.on to produce the
marked. notes which had been handed over to her
by Ah Chi, but she refused to do so. U Ba Thet
. thre~tened to search her person and this had the
desired. effect when she threw dowri two 10-rupee
notes. hidden in the pockets of her bodice. These
notes tallied with the numbers noted by U Ba Thet in
:his note- book.
That in short was the case for the prosecution. As
pointed out by tl"!e. learned counsel fot the accused
Daw T in Tin, there are numerous discrepancies and
'Unsatisfactory features in the statements 9f the prosecu- .
tion \.v,itnesses. For ins.t~n~e, though U Ba T het is
308 BURMA LAW REPORTS. [ 1952'

H.C. positive that two witnesses ~,,ere present when th e notes

1952
were marked prior to being handed over to Ah Chii
u~~~~~Aor neither of these witnesses, namely, Maung Maung
i5AWT,NTIN tP'vV 3) and N. C. Nandy {P\V 6), supported him in
DAw~)N TIN this respect. Maung Maung in particular .states that
UNION oF he saw the notes for the first Hme at the house of
BURMA .
the accused DawJ'in Tin. So also N.C. Nandy relates:
lJ THAU:-IG
SEIN, }. that he merely initialled a note-book produced by
U Ba Thet in which certain numbers were recorded.
In view of these discrepancies it might be unsafe to
hold that the notes found on the accused Daw Tin Tin
:were in fact the ones marked by U Ba T het.
T here can be little doubt, however, that Ah Chi did
in fact have sexual intercourse with a prostitute named
Ah Myint (DW 1) at the house of the 'accused and it is
quit~ possible that a sum of money \vas paid to the
accused Daw Tin Tin in consideration for the enjoy-
ment. T he question is whether 0n this fact alone the
accused can be convicted of living wholly or partly on
the earnings of prostitution? In this connection the
following passage from the head-note of the ruling in
Sultan v. The King ( 1) appears to be most apposite :
"The grav unen of the offence under section 7. (!) o the
Supptession of Brotheis Act, consists in lhe earni n gs. of prostitu-.
tion, formin~ the subsistence of the accused either wholly or ~11
part.
The . word 'lives' in section 7 (1) of the Act imports cori:.
tint~ity and regularitr. Proof of an isolated ad cf receiving the
wages of vice without anything more cannot Sllfiice to establish
the offence.'.'
No doubt this ruling was in respect of an offence undeF
the Suppression of Brothels Act, 1921 (Burma Act I1
of 1921 ), whi~h ha:> since been replaced by th e .
S't.1ppression . 'o.f .BJ;othels Act, 1949 (Aet No. XXIV
.'.lf 194~. ' However,
.. . . section 7 referred
. to in. the abov:e-
.. .
(1) (H:t~ ; ~. L.R. 3 37.
.1952] BUR MA LAW R~OORTS. 30-9

ruling has practically been reprodut.'t:d as se ctio1~ ~ ,/ H.C.

l952
b e Suppression of Brothels Act~' 194-9, \Yith s::~.( .:
; xlo::-1 OF
amendments. For instance, in pla.~:c of the wc-r .: , RURMA
:-Ft\\' TINTI~
"any male person" occurring in the prt::vivus section -;
the words ''any person'' have been substituted. "'
C AWTJNTIN

Applyiag the above principles to the pret;en t case, '\_' :\[()X OF

~~URMA.
all that has been proved against the accused
t Tl:I AU:-IG
Daw Tin Tin is that she r~ved earnings of a SEIX. J.
pros titute on a single occasion. It can hardly b~ held,
therefore, that she is " living" on the earnings of
:prostitution, as required by section 5 (1) of the
Su ppression of Brothels Act, 1949.
Under the circumstances the conviction and
sentence passed on the accused Daw Tin Tin must be
set aside. Accordingly, I direct that the conviction
and sentence passed on the accused D aw T in Tin
cnder section 5 (1) of the Suppression of Brothels Act,
1949, be set aside and she be acq9Jtted. All fines paid
:by her should be refunded. /
310 BURMA LAW REPORTS. [19$2'

APPELLATE CIVIL.
Before U 8oJ Gyi, J.

H.C.
1952 u LA \V (APPLICANT)
Aug. 5. v.
MAUNG BA PE (RESPONDENT) .*
Pleader- Objection to af>pearance of pleadcr- Cirwmsf(111Ces justifying.
U Law filed a power for defendant in the trial Court. An objection wa&
raised by the plaintiff to such ~ppearance on the groun d that plaintiff had
eng<Jged him and gave him il1struction$. This was denied. The trial Court
refused permission to the applicant to act in the case for d~fendant. On
re\ision :
Held: T hat no information of a confidential nature re~arding the di~pute
between the partie~ had been convtytd to the advocate whic:1 could be used
against the party in the litigation. The objection to appearance was not
therefore justified.
Saha1anPur Graitl Chamber Ltd. v. Maharaj S111Sh, I .L .R. (1940) All.
Series 262.

Po Aye for the applicant.

U Bo Gv1, J.-This is an application by U Law,
a Higher Grade Pleader of Pyawbwe in Pyinmana
District, to have set asi ~e the order of . the Additional
Subdivisional Judge, Yamethin, dated the 18th
December, 1951, refusing hi1n permission to appear
and act for the defendant in Civil Regular Suit No. 14
of 1951 of the -Court of the . Subdivisional Judge,.
Yamethin on objection raised bi the respondent
U Ba Pe, the plaintiff in the s.uit. It appears that on
.t~e day in question . when the case was called on for
liaring U Law filed a power-of-attorney for the
dMendant whereupon Y :i3a P.e obj.ected to U Law
aRpeadng in the ocase on the ground that he had
e~gag~, him and given h~m ~ertain instructions.
Civil Revision No. 18 of ' 1952 against the ortler of the Additional
Subdivi~ional Judge of Yamethin in Civil Regular No.. i4 cif 1951
.da~ed_18th -December 1951.
.1952] BURMA .:..A W REPORTS. 31i
U Law <.lenied this. He has reiterated !;is deniai in H.C.
1?52
his affidavit setting ou t tl1e reh::vant circumstances.
l' L .i W
U Law's statements have not bec:n contradicted. ..
MAl~G .
It seems clear that although there was a talk about 13.\ PE
engaging U Law by the respondent, in iact th ere \Yas U Bo CYI, J.
no actual , engagement and there is lllnhing to' show
that U Ba Pe has imparted confidential information to
e Law. In these circumstances th e c,b~ervations in
Saharanpz-tr Grain Chamber Ltd. v. ivlaliamj Sirtgh (1)
are apposite. The head-note to the case reads :

"An advocate who has been consulted by one party to a

litigation may not appear on behalf of the other party, if the first
vat ty has conveyed to him any information of a confidential
nature regarding the dispute bet\\'een the parties ; he is perfectly
free to accept a brief against the first party, if he has not received
from him any information of a cor.fidential nature which would
be of use against that party in the litigation. ''

The order under review is accordingly set aside.

The respondent shall pay the applicant's cost ;
Adovcate's fees three gold mohurs.

(11 I.L. R (1940; All. Series 262.

312 BURMA LAW REPORTS. [1952

APPELLATE Cl VIL.
Before l} Eo Gyi, J.

H.C. HAJEE AJIM CASSI:M JEEWA ( APPLICANT )

l-9.52
Aug. 7. v.
MOMIN BIBI (l~Jo:SPONDENT).*

Jlluslim Wnkf Val1da!iug Act, s. 3-De :Jioll :>{ Wakf-Wh elh cr Di.(fric! C.:.urt
comJ>ele11t to hold an ffl !)Uil :J1 ns !o e1istcnce of a valid Wakf.
An application was made in the Additional District (.;ourt of Amherst under
s. 3 of the Muslim wak' Act calling on Applican t to produce a slatcanent
of account ~nto Court. The App!icant denied th<~t there was any vali d Wak f
but tbe Additional District Court held that the petition was maintainable.
On re1 ision:
Held: The Muslim Wakf Ad bad not been artistically drafted in certain
respects and there are di..-ergent views as to whether the Courts can go
into the question whether there is a valid Wakf or not.
NasrullaJ. Khan v. Wajid A l i twd ano!!tcr, A.l.R. (1 9301 All. 8: Taller
Saifuddi~t v. Emperor, I.L.R. 58 Bom. 302; ltf. A. Abdul HussaiJL v. Molta mtd
Ebralli!l' Riza, .~.I.R. (1939) Nag. 2J5, Molurmmad Baqm v Mohammad C.tsim,
7 Luck ; 601, referred to.
The balance of authority is in favour c.f the view that where a \ Vak
is denied the Court cannot hold an enquiry into its existence.

San Hlaing for the applicant.

P . K. Basu for the respondent.

U Bo Gvr, J.-This is an application to set aside the

order of . the learned Additional District Judge,
Amherst, holding that respondent's petition under
section 3 of the Muslim Wakf Act is maintainable
although the applicant has denied that there has been
a valid Wakf. It appears that the respondent produced
a copy of a Will concerning the property in question
.and that the genl;liness of the Will was not disputed.
Civil Revision No. 73 of 1951 against order of the Additional District
.Court of Amherst in civil Mis<:ellaneo,us No.2 of 1951, dated 4th October
.1951.

... i
.J 952 ] B U RI\IA LA\\. REPORTS. 31 3

H0we\er, the petition er sl r)n ~l~ obje~ted to

proceedings being taken under s:: cti on 3 of the 1\Iush:.
lJ A'Fi AID!
\Yakf Act on the gr<1und that th<:r~.: n-:ts no \'alid \\.ak! : .~""''~'
}t-: F.'.V,\
.and th e learned Advocates are agreed before me that
the question whether the applicati 1n under section 3 of
the Act is ~naintainable where the validi ty of the '\Vakf
is denied should be gone into in the fi rst instance.
Several authorities bearing on the Act have been
Canvassed before me. The Act has not been
artistically drafted in certain respects, and COilsequently
there are divergent views as to \rltere t he existence or
va~id ity of a vVakf is denied, th e Courts can go into
the question whether there is a Wakf at all. In
.Nasmllah Khan v. U7ajid Ali aud another ( 1), it was
held that where an alleged mutwalli did not admit the
applicability of the Muslim Wakf Act to the property
:in question the Court was incompetent under section 5
of the Act to hold an enquiry and compel him to file
:a statement of accounts. A Bench of the Bombay
H igh Court in Talzer Saifuddin v. Emperor t2) agreed
with t his view. F urthermore, in M . A. Abdul Hussain
v. Mohamed Ebrahim R iza (3) occurs this passage :
''It is remarkable as pointed out by Srivastava]., in Moha111mad
. Baqar v. fl!ohammad Casi111 (4) t hat the Act does not contain any
provision requiring the Court to enter upon an ir~ quiry as to the
existence of the wakf, as is clearly laic\ down in section 5, Chari-
. table ~nd Religious T rusts Act, 14 of 1920. The .absence of such
. a clear provision on an important issue which is bound to arise in
cases relating to wakf properties negatives the assumption that the
Legislature intended that the Court should deal with the
. controversy of such a fundamental nature. It is true that if it
is held that the Court's jurisdiction is excluded when an aU.eged
mutwalli denies his character as a mutwalli it would defeat the .
very ob.i.ect which the Legislature intended to attain by enactin~
:this statute, but!. on the ot~~~ ha.~d, it must be remember~d that
{1) A.l.R. (1930) All. 8. (3) A.I .R. (1939) Nag. 203.
(21 I.L.R. 58 Bom. 302. (41 7. X,.uck. 6a1.
 BURMA LAW REPORTS. [193~

H .C. a person on \thom a fine is in!liclcd under section 10 of the Ad

1952
has no remedy to get back his fine in case h e succeeds in gettin:,:
HAIEB AnM a c!eclaration in a regular suit that th e disputed pro perly is.
CASS!M
]EKWA not waH. In one case then;: may be no hardshi p as it is <t l\\'ays
v. B open to an agj.!rieved party to seek recourse to h is r emedy in the
MOhfJN IBI.
_ or d.1nary course b u l .rn tl1e oller
I case th ere 1s
. pOSitive
. . h <~rc.s I11p
I .
U Bo GYI, J. against. which the Act has prodded no red ress. Tire Act does
not provide for any appeal or r evision a~ainst orders pnssed
under the Act includ ing that imposing a '.fine under section 10.
It is inconceivable that the Legislature would give on the one
hand wide judicial ~O\Yers to tbe extent o adjudicating on iss ues
relating to title nncl on the other band denying the aggrieved
party the remedy by way o f appeal or revisi on."

T hese observations \\'ere made with respect to

section 10 of t he Muslim Wakf Act, no doubt; b ut in
my opinion they apply a fortiori to the present
application under section 3 of the Act, and with
respect I agree with them.
Mr. Basu, learned Advocate for the respondent asks
permission to amend the application to one under
section 10 of the Muslim W akf Act, and this application
is strenuously opposed by the learned Advocate for the
petitioner. The contents of the application clearly
show that the application was under section 3 of th e
Act and in view of this fact and of th e conflict of
authority as io whether an inquiry can be held even
under section 10 of the Act where a Wakf is denied,.
I must disallow the request. I confine myself h~re
entirely to the consideration of section 3 of.the Act.
. T he balance of authority is in favour of the view
that where a wakf is d enied in an application under
section 3 of -the Muslim. vVakf Act the Court can not
hold an inquiry into the existence of the Wakf.
Th e order ubder review is accordingly set aside:
with costs ; Advocate's fees thr~e gold mol~urs.
 1952,] UURl\tlA LAW REPORTS . 31 5

ORIGINAL CIVIL.

MA MYA SEIN (PLAINTIFF) H.C.

1952
Attg. 8~

L\\TEE KIM HAN (DEFENDANT).*

Advocfltes-0/Jj.-ct;on to uf>/><ll ra ucr c/ advocates-Priucirt.~ appliCJi b!e-

W!tctltcr ad vocate being cited as wiluc~s u bar to appe.t r(luce.
An objection was taken by the plaintiff to the appearan.:e of S.T.L. as
ad 1ocate for the opposite party. The affidavits disclosed th at Mr. L had bet'n
assigned the role of mutual friend of the parties in the disrute, that he had
thrown out a suggestion that there should be an amicable settlement, that the
defenc~ant later engaged u~ e said advocate and that Mr. L wou ld probably
ha1e to appear in Court in conntction with the making of a particular \\'ill and
Codicil and giit, if th e plaintiff thought it necessuy to he r interest. When the
said Will was produced for Mr. L 's inspection the phtintiff might have ~ aid
many things w hich might have left an i mpre~sion in her tdncl that she had
been di1ulging ser.rets of great itnporlance. Mr. L was 1\< ~c:r professionally
consulted in respect of the 1ery maltt r in dispute. nor w:ls any formal consul
.,
tation made in regard to the validity of th e Burmese Will produced f<>r
inspection. The objectior. by the plai ntiff was based on two grounds, vi~ .:-
(1J ll1at the advocate had become possessed of information of confiden-
tial nature regarding matters in dispute between the parties and .
t2J plain:iff feared that this might be used h her pre judie~: and that with
reference to the validity o f the B'urmese Will which was denied by
the plaintiff, the advocate's ev idence was neces~ary.
H eld : T liat th e legal profession is a noble one and Ad vocates will do well
to avoid any conduct which is reasonably capable~ of beitig misun~erstood .
If a pleader advises or acts for a client he shotld not appear a~ains t him in a
subsequent proceeding, if he feels that he might even un consciou::.ly use the
informatiorr gained from his former client. It is the duty of the legal practi-
tioners to avoid even suspicion that they may possibly use iniormation
received in their professional capacity against tli.: client from whom they
received it.
i>'llonji Mtrw.111}i v. Ka'llabltai Lallub!tai aud one, I.L.H. I 2 Bom. 85 ;
MaUIJ/t Myt~ {J v. Suu Si"g/1, (1!19-7-1901) U.B.R. 368 ; Dnnzodar VC11kalesh v.
Rlravn nis/;a1Jkar Mangesh, I.L.R. 26 Born. 413; He. Cults, (1867) 16 L.T. 715;
Mr. v. Tiu Byu U, 1191 0-1 31 U.B.K SO; [qzkuse11 v. Ellis, Mu11day
aud. (:larkt (191 2), 1 Ch. D., 831 ; Afar3' Lilia~~ Hira Det>i v. Ktmwar Dtgbijai
Singh, 21 r~ .W.N. (P.C.) 1137 ; A.LR: (1925) Mad. 1201, referred to.
' t

*Civil Regular No. 62 of 1952.

316 BURMA LAW REPORTS. [195~

H.C. 'The Hjgh Court of Han~oon had il(.ld in ls!t'l~~ n.~ S{ii! Gyi v. J . i\luJ,t';. ~~i<-'C
l'.l:-2 ~!~an. 1-1
ancl 0 f{o J;o 17y! v. C S :111 .1/ :JI. 8 R.tn. -146- tha..t th e Co:,rl wil l no
1\J A ~IYA allm an adyocate lv .:ha:>:,:e ~i des if such conclud ls likely to c;wsc n,i,-chie
SEll' nr rr:asonable misapprehension in t he rn ind of the la!e c lient. l: l"<'ll if th<
'iJ . p:~rty refu s~ to rd~in him in a c:~~e in w!1ich he wo~t ld be e m bara.ss<:d iu the
.L WE l< t.\1
disch;t rge of h is duty by reason of suc.h confider.ce rerosed in hi m, lte o:.~ghl
HA ~-
not to app t ar.
To preveilt counsel from appe;uing he m ust have a clefin: te re!aincr w it11
a fee paid or must have received st1c!l conF.denl.ial information which would
m;~ke it im proper fo r him tc appear.

Edna May Ol vi:i H .1nlless v. H arold Richard Han/less, A.I. R. (1<)32) All.
536 ; T. C. Dhar nud others v. 1'. L Glwsh auri others, (1 939) R.L.K 514,
r derr ed to.
Objection on the gro~mcl t ha t the lldl ocate m ig !"It be a witness in the case
h:~s received judicial atten tion in D. Wes.l."tl a nd others v . Pea r y Mofztl n [)ass
I.L.R. 40 Cal. 898 at 900: S. '8. Th.1 ku m i : 1 v. Mrs. F . A. Sn v i , J.L .R. 11 Pat.
3 59; Mohamed Glt ,Hi v. U Tutt Kyw~ n,,d ot hers, (1939) R .L.R. 22 ~ ;
V~rrappa Clte liiar v. P. G. Stmda rc~a Sasf1'1gnl , A.l.R. (1925) Mad . 1 201.
No positire r ule was lai d down in these ca"ses .that the m ere prospect
of bein g called a witness WOII!d disqualify a Cvunsel from appe~r ing for one oi
th e parties,. eut the advocate's condud must be ~u i de cl by a proper ap_preda-
tion~'of the principles of professiollal con tinct a pproved an d accepted in the
vari ous CO!Irts.

L. Si Park for the plaintiff.

Kyaw Dtn for the d efendant.

U AUNG T H A GYAW, J.-In this matter, an objection

has been raised by th e pJai.ntiff in the case to tt.e
engagement and a{?pearan ce of a Mr. Saw Taik Leong,
senior partn er in tbe legal firm of Leong and Th ein, as
an advocate for the oppo~ite party.
.Ma Mya Sein, the plaintiff, claiming to be the
widow of the late Lwee Swee Hain, on 7th January
1952, applied for letters o ad ministration to the latter's
estate ; on tbe same date she applied for appointment
of an administrator pendente lite. Her claim is opposed
by Lwee Kim H_<m, son of the deceased by his Ch~nese
wife. On 21st February 1952, Mr. Pillay appearing for ,
the d efendant took time till the 28th February for
.filing _h is written.. objectio?s. On this date the legal
1952] BURl\IA LAW REPORTS. 31T

firm of Leong and Thein, in lieu of Mr. Pillay, appeared H.C.

i952
for the defendant and obtained a further a:ljournment
c. ~IA :.r n1.
till the 7th March 1952 for uling objections. These ~~ 1\
obj~ctions \\'ere filed on 13t11 ~l arch 1952. On the L,,.E..F: KIM
15th Marcl'\1952, th e plaintiff .1\fa I'.-fya Sein swofe the Ho\~ .
present affidavit in support Clf her objection to the u :\~:-.t TH.\.
. G\ .1\,. , ] .
appearance o f Messrs. Leong an d Th e1n as Advocates
for the defendant L\\'ee Kim Han. The affidavit was
not actually filed tmtil the /7th June 1952 when her
formal objection in that b ~ half was made in Court.
She states t hat Mr. S. T. Leong, the senior partner
of this I egal firm was the legal adviser of her late
husband Lwee Swee Hain and herself for a long time
and that he had appeared in several cases in Court on
their behalf in connection with their properties, busi-
ness and family affairs. After her husband's death she
is alleged to have consulterl Mr. Leong and obtained
advice from him r egarding her late husban d's estate and
its administration. She further states that a few days.
before Mr. Leong took up the case for the defendant
Lwee Kim Han he sent for her and conveyed to her the
impression that Lwee Kim Han had approached him
with a view to engage his professional services but that.
he had refused on the ground tbat, he was acquainted
with the facts of the case; that he had advised Lwee Kim:
Han to settle the matter amicably and was thereupoll!
authorized by the latter to negotiate a settlement. She
refers to the allegations made in the counter-affidavit.
of Lwee Kim Han in support of her aR,Prehension that
the legal firm of Leong and Thein has made and will.
make use of part or all of the communications she had.
made to Mr. Leong who is furth&r credited with,
a personal knowledg~ of all relevant facts relating to the
estate of her. late husband and his fami ly.. She also.
s~ates that Mr. Leong will be a material. and necessary-
witness in her case for the . purpose _of clarifying and_
318 BUR~:fA LAW REPORTS. [l952
B.C. meeting the \arious allegations set np by the defendant
19.52
Lwee Kim Han in the objections filed by him.
MA MYA
SEI:-1 Mr. Leong h;1s countered these allegations with the
'IJ.
'L>\IEE f{BI denial that he had been the legal adviser to the late
HAl\. L\\'f'E; Swee Hain and/or the petitioner for a long time,
U AU~G THA that he had llp;:>earecl in several cases in co'urt on their
GYAw, J.
behalf in connection \\'ith their property, business and
family atfairs. From what he rccolkcts he had never
been consulted in his professiomtl capacity regarding
these matters. He d<:nies that he bad received any
information of a confidential nature from the plaintiff
or her husband at any time regarding the management
or disposilion of their properties. He had, however,
conducted the defence on their behalf in a criminal
prosecution before the 3rd Additional Magistrate,
Rangoon, in which charges vvere brought .a gainst them
under the:: Suppression of Brothels Act. He denies
that the plaintiff bad ever con.s ulted him and that he
had given her any legal advice regarding her late hus-
band's estate or its administration, or that. she had fully
acqua.inted him with all the facts concerning the same.
He admits, however, that she had showri liim a Will in
.B urmese and was questioned as to whether it was in
order ; and seeing. that the document was attested by
.U Ba Sein, now Government Advocate, he had hazar-
ded an opinion that it must be in order and had asked
her to keep it in safe custody. He admits sending for
the petitioner a few days before he was . briefed by
Lwee Kim Han, the defendant and telling her that he
had been appr~ached to appear aga~nst her in the case,
that it would be in the interests of all concerned to
settle the d~sput.e amicably, and that he wou~d .not like
to accept the brie~ against 'her if he could 't-ieip. He
denies receiving any confidential-information regarding
:he. case which he could pos~il.bly use toher d~triment
out aQ.mits that she went away,saying thatsl1e 'would
 1952] BURMA LAW REPORTS . . 319

:be reasonable if the opposite party would be fair. He H.C.

1952
-disputes the proposition that he would be a material
MA i\lY A
witness in the case for he kne\v nothing beyond the SEll\'
v
existence of the Burmese vVill which has been admitted LwEE Km
iby his client Lwee Kim Han. HA:-<.

The p{aintiff Ma Mya Sein in her further afficla\it U A VNG THA

GYAW , J.
reminded Mr. Leong about the fact that his firm bad
appeared and conducted for the plaintiff and her
husban i in Criminal Regular Trial No. 76 of 1947 in
:the Court of the 4th Additional Magistrate, Rangoon,
.in connection with theft of property in her husband's
Hotel. Mr. Leong was also alleged to have, in 19+ 1
on instructions received from the plaintiff and her late
husband, dra\\111 up a registered deed of gift in faH, ur
-of her sons and had also acted for them in the matter
of the mutation of names in respect of this same
.Kemmendine property wbich has no\v been alleged by
-the defendant, Lwee Kim Han, to belong to the
-decea~ed's estate in the counter-affidavit filed by l:im
.. on 13th March 1952. She mentions the existence of
~ receipts and documents .i n her possession to substan-
.tiate her averment that Mr. Leong in pre-war days had
, enjoyed the friendship and confidence of her late
,husband. She is disposed to blamy Mr. Leong for the
various defences arid allegations set up by Lwee Kim
~ Han in the counter-affidavit made by him in opposing
~ the plaintiff's claim. She draws attention also to the
..objection taken by Lwee Kim Han to the validity
..of the Burmese \Vill which she states is inconsistent
"v.ith the admission made by Mr. Leong and in view of
~this attitude taken by the defendant to the validity of
..the Will, the plaintiff would rega~d Mr. Leong as
..a Q!aterial and necessary witness in the case. She
;-repudiates Mr. Leong's suggestion that her objection:::
.bave been made with a vi~w to d~prive him of his legal
;;remuneration by drawing attention to the fact that .her
3~0 BURMA LAW REPORTS. [195 2'

H.C. f!rst affidavit "'as S\rorn on the 1Sth March 1952 shcr tl y
1952
after the defenda nt fil ed his counter-affid;:nit en
13th March 1952.
v.
L\\'F.F. Knt'
Mr. Leon g admits having held a watching brief for
HA :-< . the plaintiff's late husband in Criminal Re,gular Trial
u AuNGTHA No. 76 of 1Y+7 in the Court of the 4th Additi onal.
GY.~W, J.
1viagistrate, Rangoon, but be has no recollection of
having prepared any d eed of gift in respect of the
d eceased's Kemmendine property in 1941 under instruc-
tions from the plaintiff, nor does he remember having_
moved the Corporation of Rangoon for mutation of
names in respect of the said property. Although
Ma Mya Sein had been to bis office once or hvice after
he had been approacb~d by the defendant Lv.:ee Kim
H an to accept his brief, he denies that any secret:
relating to the estate of her deceased husba nd was
ever imparted to him. Th_e suggestion for an amicable
settlement \vas made by him as a friend of both the
parties. Lwee Kim Ha:n, the defendant kne\v the
existence of tbe Burmese \Vill and the Chinese Codicil
long }?efore b e was briefed in the case as there had
previously been an effort to settle the dispute before 'the
Chin ese elders prior to the making of the defendant's
application for lettr.rs of administration in Civil Mis-
cellaneot15 No. 227 of _l YSO of this Court.
. From these allega-t ions a.nd counter-allegations set
out in the affidavits filed by' the plaintiff and the
defendant's Counsel, it _is suffi:cieiltly clear that
. Mr. Leong had somehow been assigned the role of a
mutual friend of the partie-s in this dispute. It was in
that belief't}:J.at he had thrQWU out the suggestion that the
. plaintiff _should make an effor_t to arrive at an amicable
settlement with 'the defendant -; btit by then, the defen-
dant had t~en advice -from the legal firm of Leoilg and
Thein a nd asuggestion has been made by the plaintrff
that in the subsequent . courtter-affidavit . filed by th-~
 i952] BURMA LAW REPORTS. 321

ddendant in opposition tn her petition ior grant of

lette rs of administration, not only tlieir legal skill but
also lile kno\-vleclge nhicb l\Ir. Leong llad obtained as a :.:" ~tiA.
~ = .~-~
- ~~ ...
friend of the various matters concerning the deceas~d's ;
I.Wr"i' !Ci );;
family affai;s and his properties had been ma(\e t~st: of. HA~:. .... \

Mr. Leong cannot remember whether he had hdpt:d L: r\t::-; G T!:i~

G\" .\ W. J
the plaintiff in the making of the deed of gift resptcting
the Kemmendine property in favour of the plaintiff's
children but Mr. Park for the plaintiff, having had
inspection of the relevant documents, has gi\cn him
the necessary assurance in this regtrd.
Now, the making of the Burmese Will and the
Chinese Codicil and the gift above mentior. tcl are
matters the validity of which the defend::nt has ques-
tioned in his counter-affidavit; and Mr. Leong will
probably have to appear in Court if his depos1tion is
consi.dered by the plaintiff to be Yital to her interests.
It might be that whatc\er fact or circumstance that 11ad
come to the knowledge of Mr. Leong had already been
kno,.vn to the ddendant al1Cl that there is not am-'
. informati on of a confidential nature which Mr. L ccng
can usefully disclose in th~ case to the plaintiff's pre~
judice~ but, in .a matter like the present, the justification:
of the apprehension which the objecting party enlerta:ns.
must be! judgcd in the light of her status in life rt.flcc -
ting the degree of her ~cnend intdligence, the nature
of the dispute, previous relationship both priral e and
professional .behreen her and !vir. L eong and the latter's.
exhibition of friendly interest in the a~ortive settleme.nt..
Both at the time when the Burmese Will was produc~d.
for . i\-fr. L eung's ins_pection and in the intervie\\'S \\hil~h
took place shortly before the defepdant's brief was.
actually accepted, the plaintiff m igh.t have s_~id man y
things . which Mr. Leong might no( consider as o f
having . any iniportan~ bearing on her dispute with.
the defendant. But tbese <;lisclospres might have:
21
322 BURMA LAW REPORTS. [195
. -
H.C. nevertheless, left an impression in 'her n'l ind. error
1952
eous i l might b e, that she had been divulging secret
MA i\lYA
SEIN of great importance to a lawyer and a friend of Ion
v.
LWE!; KIM standing.
HAN. 1t is clear that M r. Leong was never professionall
U AU!\GTHA consu'lteli by the plainti ff in respect of th e "Jery matte
G\'AW, j.
in which the parties arc now engaged in their presen
dispute . T he t\YO criminal cases in which h is assis
tance was obtained in the li fe time of the d eceased hat
no relation wbatscever k) the matter~: now in d ispute
nanv:ly, the contendi ng clain1s to the d eceased's pro
perti cs. Mr. L eong's opinio t1 in regard to th e nalun
of the B-urmese Will shown to him by th e pbin tiff wa:
hazard ed by him in the capacity of a fri end . It doe:
n ot appear that any formal consultation was made ir
regard to its validity or otherwise. Mr. L eong himsel
is alleged to have pre pared a deed of gif! in 194:
whereby the deceased parted with his K emme n d in ~
property in fav our of some of hi s ch.ildren . Of thi~
m atter Mr. Leo ng has no clear recollection. It i~
likely that if the deed of gift is sought to be impugned
h e might have to come forward as a witness in the cas<:
and throw some light on the matter.
H aving found these facts which led to the mak ing
of the present objectio n, it is now necessary to look into
the law relating to the conduct of Advocates in
circumstances similar to those now met with.
Two aspects of the m;ttter have been presented ifl
the plaintiff's objections. In the first place , sl)e objects
to Mr.. Leong's appearance for the opposite party, as, in
view of Mr. L eong's professional assistance given to her
and her deceased husband OJ) the two previo us criminal
.litigati_o ns ai)d i1'l tli~ matter of _the tran sfer of the
Kemmendine p rop~rty to some:_of thejr c hildt;en,. he
hQ.d become possessed of inforniation 'Of a confide~tial
_ilature regarding those ma1tcrs in. disprite behYeen the
 1952] BURMA LAW REPORTS. 323

parties and she fears that this knowledge bas been and H.C.
1952
might be further used to her prejudice in the case.
l\IA MYA
Secondly, in view of the denial of the Yalidity of the SEI:-:
'II,
Burmese 'W ill set. up by the plaintiff in support of her . Lw~:E KIM
claim to lhe clec~ased's e5tate, she would Qc ~alling HAN.

1\Ir. Leong as a witness on her behalf. . (1 AUNG THA

GYAW, J.
A Beoch of the Bombay f:Iigh Court in Pa' llonji
Mer wanji v. Ka'llabliui Lallubliai ami 011e (1) had.
this to say with regard to the rights and obligations of
pleaders practising in India :

'' 1. A party to a judicill proceediHg is entitled to such

professional assistance as he thinks wi ll bt:st suit hu~> .
2. A pleader i,; lree to place his l-ervices at the disposal ot
any :::uch party upon such terms ;1 s l:e 111:1y think most
advantageous to himself cc-nsistt-ntly \\ith tl:e h; t:our of his
profession and the due ;dministration of justice.
3. A pleader who ecei\es any ~onfi l~ntial i,fo:;nalion from
his client in the course of his profe.;sional employment is not at
liberty to carry that information into thl': service of his antagonr~t,
or any one who in that very litigation or in any subsequent
litigation m.1y be oppo::;ed to1the client furnishing tbe information.
4 Pleaders receive certain fees , in return for which they are
not at liberty to act again:.t those ret~tining them, whether they
are retained by one client singly ot by two or more cliC'nts jointly.
A pleader who has acted for several persons will not be
restr;tined from a[ter\\'arcls at.:tin~ for lOme of them cnly as
against the o.hers. unless it be shown that he is posses:;ed of
knowledge :trising from !1is pre\'ious cmployme11t which might
be prejudicial to his other clients.
A., a gen.e ral rule the C~nrt will require a ve1y stron~ case to
be made out before it will interfere hy way of injuncticn
estraining .a pleader fr>m appearing for a client, and. there mu st'
be .de;1r , atlidavits made t) show that special knowledge was
acquired oy the pleader during his employment by the former
client.
' It.is misconduct from a !'rofessional point of vie\~' for . an
a.clv9~ 1te, 1fter beiu~ consulted iu his capacity of advoc.1te abc ut
.
a
case and af~er learniq!.! par~j~ulars of -the c~se as. stated by . one
~- - . . . .
(1)' I.L.H. 12 Born. 85
324 BURMA LAW REPORTS. [1952'

H.C. side, to unde rtake the case in the interest of the oppo~ i; e p:uty.
1952
The bet that there was no definite engagement by the tir~t party
MA M\'A makes no difference. ' [!:>ee illaung lllya U v. Suu Sing/1 {1):).
::iF.IN
'/),
'Tho!.e things \\bich an attorney learns from his client or in
LWEE KIM consequence of his employment by his client, l1e is forbidden
BAJ!i.
to disclose,;:mcl any betrayal cf his confidence \YCuh:l he visited
U AUi\G THA by the Courts as gross misconduct. But if he learns matters
GYAW, J.
rebting to his client under sncb circumstances, that if questioned
about them in a Court of Justice he could not r efuse to answer
them, he is not within our jurisdiction.' [See Danwdar Venkatesk
v. Bhavanishankar Mangesh (2).]"

It was, hpwever, pointed out that this rule laid

down by Blackburn J., in Re. Cutts (3) should . not be
taken by pleaders as the st;:~ndard by which to regulate
their professional behaviour as it serves only to indicate
the extreme low-water mark of professional conduct.
Following these cases the learned Judicial Commis-
sioner of Upper Burma in Mr. . v. Tin Byu U (4);
observed:

"On the point bere in questi~n the rule is, putting it shortly,.
that it is not open to a legal practitioner who has a-r~e<'~recl for
a party in a ca~c to ad for the oppo~ite P<'tl'ty in a later st;:t~e of
the same proceedings or in ~ubseqn ent litigation, unltss he has.
been clischwgecl \\'ithcut misconduct, 01 he hf-S ccmpleted the
business he was engage I to perform, and unless he has uo
secrets to carry with him that can be nse.d to his former client':;.
prejudice."

The matter r eceived fresh attention in England in

Rakusm v. Ellis, Munday and Clarke (5) where it \.Vas.
held Lbat there was no general -rule that a solicitor
who had acted for some personeither before or after
the litigation begatl could in nocase act for the opposite
side ' the<'.
Court
. ..
must be satisfied in. each case tb.a t-
(l) (1~97--1901) U.B.H. 368. (3) 11867) 16 L;T. 715 .
. . (2) I. L.R. 26 ao,lt~ 423. .. . (4) .(191~13) l:T.B:R. s-o.
(SJ (191211 Ch. D;s3L . _
1952] BURMA LA \V REPORTS. 325

miscllid would result from his so ;1cting ; th at thcr~.: H.C.

1952
could be no danger of any breach of confiden ce if :1
solicitor acted for th e opposite party. :-.:.~~~~~A
The Privy Council in Jlary Li lian Hira D e'd \'. f. . ..;:.I.:: 1\..olf
Kuwwar Digbijai Si11gh ( 1 ~ observed " it is im proper. H .\:-..
for a lega!, practitioner who has acted for one pctrty i n u Avso THA
a dispute to act for the other party in subsequen t GrAw, J.
lit igation between them as such conduct is open to
misCJnception, and is likely to raise suspicion in the
mind of the original client and to embitter subsequent
lttigation as the matter is one which concerns the
honour of the profession."
The legal profession is a very noble on e and
pleaders would do well to avoid any conduct on
their part which is reasonably capable of being
misunderstood. If a pleader advises or acts for a
client he should not appear against him in any
subsequent proceeding if he feels that he might in
such proceeding even unconsci:)Usly use the informa-
tion gain ed from hi s former client against him. Clients
shou1d have the fullest confidence in their legal
advisers and should not be deterred or hampered in
disclosing the strei1gth and weakness of their cases by
the fear that their instructions might at some future
time be used against them by their. legal advisers. It
is the d i.1 ty of the legal practitioners to avoid eve n the
suspicion that they might possibly use th~ information
whieh they receive in their professional capacity
against the clients from " whom they received them.
There is no rule, etiquette or code of ethics to . govern
the condu~t of the clients. On the other hand, the
pleaders who are guided and governed by the etiquette
of the . profe~sion ar.e not . expe.c kd to . do. anyt~ing
which wot1ld . 1n~ur the censure of t_b e profession. [$ee
c:
Veeraj>pa (:heltiar v. P... Sundaresq Sastrigal (2) .]
(1) 21 C. W.N: (P.C.J 1137; A.I.R. (1925) Mad.l201 (2) A.I.R. (1925) Mad. 1201
 326 BURMA LAW REPORTS. [1952

H.C. The late High Court of Judicature at Ra.ngoon in

1952
the cases of Mauug Sdn Gyi v. ]. llfan.e(.kjee ( 1} and
MA MYA
SEIN
U !{o K.o Gyi \'. U :;an i1Jya (2) had occasion to review
v. the state of law on this p;1rticular point and held that
L\VEE KIM
HAN. a legal practitioner might change sides but if si1ch
U AUKG THA conduct ' rs likely to cause mischief or reasonable
GYAW, J. misapprehension in the mind .of the late client, the
Court will not allow the advocate lo appear for the
other party ; and that a counsel ought not to ~ccept
a brief against ;. party even though that party refuses
to retain him, in any case in \vhich hf' would be
embarrassed in the discharge of his duty b y reason
of the confidence reposed in him by that party.
'' In order to prevent counsel appearing for the other
party, he must have a definite rc:tainer \Yith a fee paid
or he must have had such confidential information
froni one of the parties as \\ould make it improper for
him to appear for the other party." [See Edna May
Olivi-a Har.dless v. IJmold Richard Hardless (3).]
The s~me matter again came up for de~ision before
a Special Bench of the late High Court of Judicature at
Rangoon in T. C. Dhar rmd others v. T. L. Gheslt aud
others (4) ,...,here it was held that it was improper for a
legal practitioner who had acted for one party in a
dispute to act fortheolher party in subsequent litigation
between them relating to or arising out of_that dispute.
An advocate or pleader who had appeared ought not to
allow . himsilf to be placed in the position in which
thet.e might be some suspicion, whether well or ill
founded, that his knowledge of' his client's case would
be .used by him on a subsequent 0ccasion in. appearing
for another party and. against his origin.al client.
Bearing these ptoad.:a.nd wholesome principles m
mind, it.is ~ow ne~e~sary. to- exa:m~ne, th~ : question as
(1) 8.Ran. 44. (3} A.I.R. W/32) All. 536..
Ul 8 Han. 4~6. (4). (1939) R.L,K 5f4.

- '
 BURMA LAW REPORTS. 327

to whether Mr. Leong, in the position in which he has H.C.

19)2
placed himself in this particular case, should be re s-
trained from acting for th {; oppo:;ite party in the c:tse.
It is clear that whatever confidences which th e plaintiff ~.\\"t:E K!~l
had impart~cl to him were not specifically in rt:;Spf;ct of HA:-;.

matters pertaining tn the present dispute ; but according C i\J;XGTHA

GYA\\', J.
to the plaintiff-a1~d this is admitted by Mr. Leong-
she h ~a paid two visits to his chambers shortly before
his services were retained by the defendant in lh i ~ case
in connection witl1 an effort made for an amicable
settlement of the dispute. He is also alleged to have
arranged a transfer of one of the properties belonging
to the deceased to the olaintiff's
'
children-a matter.
about which be bas naturally retained no recollection
after a lapse of some ten years.
Mr. Leong admittedly bad shown his reluctance to
appear for the opposite party in vievy of the friendly
relationship that had existed between him and the
plaintiff's. family in the past. Plaintiff has alleged that
Mr. Leong's embarrassment was the result of his
possession of an intimat~ knowledge o( the circum-
~tances which led to the di~pute between the parties and
although she cannot specifically say that any confiden-
tial m,1tters were ever discussed with him, the fact ihat
he had at least used his service.s on Del1alf of both the
parties to arrive at a settleme.nt had undou bteclly
placed him in a peculiar and privileged position likely
to give rise to a . C()nflict bchYeen his sense of duty
to h!s client and his friendly sentiments for the
plaintiff. .
The circumstances present in this case have some
affinity to those dealt with in U Sarz Mya's case ( L ) .
The plaintiff possibly ha4. said rri.a.ny things to
Mr. Leong which she believed was : of Importance to .
he.r case and although Mr. .~e~~g's past ass ociation with
(ll 8 Han: 446.
 BURMA LAW REPORTS. [ 1952

HC. the plaintiff in his professiomll c::tpacity in c onm:ct ion

1952
\\ith ::>ther litigations cannot be taken in:o <ll'Cou nt
!\JA MYA as suggesting any impropriety to his appearing for the
SEIN
v. opposite party in the pres.ent case, ihe intervie ws \;.hicll
L WEE Km
HAX . he sought with the plaintiff and the attempt lie made
u A U:-"G TH .~
lo settle the dispute to the satisfaction of F;i s present
GYAW, J. client is likely to cause a reasonable apprehensi on in
the mind Qf the plaintiff that he might make
unconscious use of the intimate ' knowledge wbich he
is ::tlleged to have obtained in regard to the existence or
disposition of the deceased's estate to the prejudice of
the plaintiff.
Though ther~is nothing wh1ch really savours of
gross impropriety in his professional conduct to strictly
justify an order to restrain Mr. Leong and his firm from
accepting his client's brief and acting for him, yet, in
the special circumstances in \Yhich ite has evidently
placed himself in this case, he should bestow further
reflection to the matter and decide for himself on the
wisdom of his timely w.ith<..lrawal from the. conduct of
the case.
The next ground on whi ch objection has been taken
to Mr. Leong's appearance for the upposite party in the
case is the extr.;me likelihood of his being called as a
witness on the plaiqtiff's behalf. This matter received
jqdicial attention in D. H~esto n and others v. Penry
Mohan Da.ss (1) where the learned Judges of the
Calcutta High Court approving the tesolutions of the
Bar Council held that : (a) if cmmsel knows or has
reason to believe that he will be an important witness
in .a case, he ought 1_1ot to accept a retainer therein, (b)
if he accepts a retainer not knowing or having reason to
believe that he wiH be such a witness but at the opening
.or at. a:ny subseq-uent stage before ev.idence is concluded
i!...!?~~:?~es apparent that he is a witness oil a . material
(tl l.L.R. lO Cal.. 89S.at 900.
. ..
. 1952] BURMA LAW REPORTS. 329

question of fact, he ought not to conlinue to appear in H.C.

1952
the case unless he cannot retire without jeopardisin .~
.! A :'>1YA
th(;! interests of his cli;:!nt, tel if counsel knows or has SF. I:-:
re:;son to believe that his own profe~sional conch;. ct on 'i.
L\\'i:E Km
matters out of which the action <~rises is likely, to be HAX.

1mpugned ~in the case, he ought not to accepta retainer, U AUNG THA
(d) if he accepts a retainer not knowing or having GYAW,J

reason to believe that his own professional conduct in

such matters is likely to be impugned but finds in the
course of the case that it is so impugned, he ought to
adopt the same course of conduct as is mentioned in
clause (b) ante, (c) in either of the cases mentioned in
clauses (b) and (dJ 1 there is no rule of professional
ethics which debars counsel if he continues to act as
counsel in the case, from goiP g into the witness box
and being cross-examined.
It was pointed ou~ that as a gcnerai "practice it v\as
undesirable \:vhen the matter to which counsel should
depose is other than formal that they should testify
~ther for or against the party whose case they were
conducti'ng and that it would be unprofessiunal for
counsel to cross-examine a witness as to facts within
his. personal knowledge.
This view as to the undesirability of tbe counsel
appearing in a case in which he ha~ reason to believe
that he will be called as an important \Yitness was also
taken inS. B. Thakurain v. Mrs. F. A. Savi (1).
Dunkley J., in Mohamed Ghazi v. U Tun Kywe
and others (2) had occasion to r'efer to these cases
with approval.
No positive rule was laid down in any of these cases
that the prospect of being called as a witness in the
case ~ould di.s q ualify a counsel from.. appearing for one
Of .t{le parties in the case, and in this matt~.r a lso
Mr. 'Leong's conduct must. he ~~1ided by 'his proper
.(1) I.L.R. 12 Pat.359. . (2) (1939} R L .R. 224.
330 BUR MA LA\V R EPORTS. rt952
H.C. appreciation of the principles of professional conduct
1952
approved and accepted by the Judges of the various
M~ MYA
SEIN H igh Courts in the cases ab ove referred to.
v.
LWE KIM I wou ld t herefore refrain from passing any definite
H AN.
order restrain ing him from appearing for thepefend<1nt
U AUNG 'fHA in this case. There will be no order as to costs .
GvAw, J.
 1'952] BURMA LAW REPORTS. 331

APPE LLAT E CR IMINAL.

ANvVAR KHAN (APPLICANT) H.~.

19::2
~.
Jul y 29
THE U"NION OF BU R lVIA ( RESPO~ D F.l\T).""
R<1ll <J r ueglig,;ul lr iv in;f.- CJilt> iCJn b. /;N<u tw. l tJ rritS Both d n n > tf,nrged
-lom dcr w hct/t(r proPer-S. 25r, Crim111n l r,-.cctlu,, Cod;; tr s a mend e,!
11olfolwwed.
A lorn <1-i\'(:n b) applic::u;; ;wd :tnllher clrhen by the 2nd ac;;ustc.l cu ll ided.
Uoth d ri vers \\'ere ch:~ r gcd of ne,;:llg.ent ell iv ing. One was ac<.;uiltt' d ;m d t l:e
case proccede:l a;!a ins: th:! o:h.:r. H<: w:~s sentenced rndcr s. 2i9, Pe:.l:t l Cod;;:
wit h a li nt~ of Rs. SO An app:tl t-, l!:~ s~ssions l'Onl t was rcje,:ted <t$ it d id
not l ie . On r e vision to 1l1e H i~!l C:oJrl :
Held : A joint tri:tt silo:: ld n): ll a .: bc:e:t h..:ld ll'hcn lh.: p r:;)s<:<.:utioa case
ag>.ins; I,,.., person;; is mutu;,ll y cx;;h;si,e. <r when the t" t> lhrvw th e bl:tme
upon each other.
Po Lan v. Tht K ing, 1 19~1! RL.H. 3i9, referred to.
F nr l!1er the manda tor, p rovision o s 256 o f Crimin<~ l P occd ure Co:le as
amended had not been follo wed.
On th e 111t re fact th at thvrc was a .:.,Jl isio n bet ween two cars it n:u~t not
be p: cs umNl that either driver was ra~ h or negli g ent.
ltla!m g Ant Bwa a l!d tJitC v. The l!ni011 of Btmtta, (19-181 B.L.R. 863.
referred to.

Ba Shun for the applicant.

Kyaw Thaun1!, (Go~ernment Advocate) for the
respondent.
U Bo GYr, }.-Applican t Anwar Khan has been
convicted u nder section 279 of the Penal Code and
sentenced to a 'fine of Rs. SO or in d efault, one month's
rigorous imprisonm~nt by th e 2nd Additic,nal Magis-
trate, Hsipaw, who has been invested with first class
magisterial po ...vers. He \vent up to the Sessions Court,
Hsipaw _State on appeal, bu t under section 413 of the
Code -o _Criminal Pro c~dure , the appeal di,<i nof lie
and his application was d ismissed ..
": C riminal l{t:vision No. 56 lB) o 19~2 b.eing re view of Ute order o'the
Ac!ditional Sessions Judge of Hsipaw, dat.e d 13th January 1952 ,- <tssed in
Criminal Appeal No. 1 of 1951.
 332 BURMA LA vV REPORTS. [ 1~J5Z

H.C. The facts are that on the evening of t!1e 30th

1952
January 1951, a three-ton lorry driven by the a pplicant
A~w~; Kc c..\:v and another three-ton lorry driven by Maung H Ia i\ raung
THF:. U:-;IoN who was the second accused in the case and b;>.s been
OF 8 tiR~IA.
acquj.tted met under a railway bridge in Hsip;n.v State
U BOGYJ,j.
and as the road was not wide, the two l01r~es collided
with each other. Fortu nately, the lorries must have
been d riven slowly at the time of the collisi0n i for
they were not severely damaged and none of the
passengers were hurt. The learned Magistr<-.te \Yent
inlo the question of which cf the two accused was
responsible of the collision and finding that the appli-
cant w.a s responsible for it, convicted and sentenced
him. The first ground taken up before me is that
the trial was bad for mis-joinder and in support of this
contention, the case of Po Lan v. The King ( 1) has been
cited. The relevant head-note to the report runs :

'' When the prosecution case againsft\\o persons is mmually

exclusive, or when the two accused llnow the blame ll!'On each
other, a joint trial cannot be hacl. The proceedings are bad for
mis-joinder."

Another legal objection taken up is that the learned

trial Judge has failed to comply with the mancl<1tory
provisions of se2tion 256 of the Cod~ of Crimi.nal
Procedure as amendeq., and the case of M aung A11t Bwe
and o.ne v: T~2e Union of Burma (2) is cit ed in support
of the. contention . Here again, I must say that the
legal objection is not without substance. .
In view of the ahove; I have no option but to set
aside the conviction and sentence. In considering the
question wheth!(r a ret rial shouid b e .ordered, I may~
note tha:t from the mere fact t hat there is a collision ]
betweent 'wo. motor-cars,
..
it can not be presumed thaH
- .. . . J
. . ]
(1! (1947) R.L.R. 379. (2) (194Sl B.L.R. 863. :~
195:?] BURMA LAW REPORTS. 333

either driver was rash or negligent. On go! :1:..: through ~~b

the judgment of the trial Court and the t\ i it nee on A ~_-.:-;~~K~
record, I am not prepared to hold that tht: ap~'licant 't'-Jr'
has been proved beyond reasonable doubt to ht: -~ither ~~~~:lf.
rash or negligent

at the time the coli is10n oco-u rrtd.

u 1{Q G Yl, '>
I accordingly set aside the conviction and s<. r:tence
and do not order a re-trial. The fine \~ill be refund ed .
334 BURMA LAW REPORTS. [ 1952

APPELLATE CIV IL.

13efore U Au11g K!.itte . J.

H .<.;. KO B A T UN T I N (APPELLANT)
1952 (

A ug, 7. v.
DA \V P\ VA tRE~PONDEN T) .*

Urban Rent Control Ad, ss. 11(11 lei aud l+A (31-0wuer re'}uin11g bui/diug
for re ercdton f'urtous-Old b:;i/dilg t:scd /c>r residential purt<>scs-
Wite t lter lz~li' bttil: liu~ must also l:e residentl(ll-" Home 11l<'a1till[!. of.
Daw Pwa as l'lwner of house :'\o. 60/72, Phongyi Str~el, :li' PI:ed for :l
permit unckr s. lol A t.>) read with s. II (11 (e) of tht: ljrbau 1\enl t.:ontrol Act
for iilinl{ a suit t (J eject her t<n;mts on the ~ound th:lt she w:\l.l<:d to put
up a new building. The teuants <Hhmlled the b uildinl! rc:quircll txtensi\e
repairs aud the CorpH atiun ~Iter inspc::ction 3 years l>ack had .lc.itt ittcd that
the bm lding requile<l extensive repairs. i'h; tena:tts <lbjectecl that th~ new
build i 1g lllltSI he re.;tdentia l building as otherwise;; the blond, exect: t ... d by the
landlnrd \\'Oui d be entirtly ue kss. The l:utdlnrd obtaimd ~~ dt'~ree fo r
eje, tlllen t On appc:~l by the te nan b :
Held: That 1he clesireof the lanrHo d to put up a new b1:il!lin~ wa.; in the
d r cumstances ju4ihc::<l. The tvtt:ntion- th<'.\ the new llt11:d : n~ mu~t
necessari ly be a residentml on~: had been 'ueg:ltived by a Bench of th is Court.
Abdul Jab!Ja, v. D.t?o 1'hein K hin and awJi hcr, Ciliil 1st Appeal :\o. 27
o! 195 1 ; S inTekaudouc v. Lal:ltauy B,os. , 11952i B.L. l~. J 80.r~!erreclto.
T he word" house" in c lause ldl or ~ . I I (11 of the. Ur ba n Hent Coutrol
Act ought to be gi ven its mclinar y w iclc cnnstr uclion, i nclndin~~ a place: of
busine ss, in t he absence of anythin l{ to indk:lle clearly that it w:ls i ntcnried to
he used in a more rt'slrkthe slats~ .
Riclto.rtU v, Si.lat~sea I m/'rovemwl & Tramuays Co. 118781 9 Ch. D . 4 25
at431, rekr r ed to and appl ied

Htun Tin for the .appellant.

Ba Hpu l or t he res po'ndent.

U AU NG KJ-i iNE, J.-T bis appeal an d Civil First

Appeals Nos. 109, 110 and 11 1 of 1951 haye .b een taken
up together by co nsent a~ the poirit~ for decision :
C ivil l St . Appeal :"Jo ' tOSof .195 1 a.,:.ll:t$1 d.:c ree .o f .City Ci., il c_.;urt of ,
Hi1n~o9n in Civil Regular 1'?'.' 21 6 of 1'.15 1.
. 1952] BURMA LAW REPORTS . 335

H.C.
involved in tl1e four cases are identical. The judgment j l/52
in this appeal will also be the judgments in Appeals K r> l)f.Tr:->
Nos. 109, 110 and 111 of 1951. In tl1e lower 1.~~

Court also the s utis, out of which th ese appeals have ~~

. DAIITcPI"A.

arisen, were heard together after tile evidtnee \\as U A'ONG

recorded i,n one case by consent. K!I IXF.. J
The facts of the case are quite simple and they are
bri~.:Ay these. The respondent Daw Pva is the owm:r
of a wooden two-storeyed blilding known as ~os . 60/t2,
Pl10ngyi Street, Rangoon. There is a ce111ent flooring
dowm;lairs. The building has six rooms and Dav; Pwa
had let out four of these rooms to four tenants.
The tenants are the appellant Ko Ba Tun !'in in this
appeal, Ko Snauk Wall appellant in Appeal i\v. 109 of
1951, Maung Hla Kywe appellant in Appe;-tl !\o. 110 of
19Sl and Maung Shin, appellant in Appeal No. 111 of
1951. Daw Pwa herself occupies one room on the first
floor and one room on the ground ftoor. The two
other rooms on the first Hoor are occupied by
Ko Shauk "Wah and Maung Shin, and Ko Ba Tun Tin
.and Maung Hla Kywe occupy one room each on the
ground floor. This building bas become very old and
it is noi in dispute that it requires extensive repairs .
Before the respondent Daw Pwa field her suits in the
lowe.r Court, the tenants themselves' made an applica-
tion before the Controller of Rents to direct the
respondent to repair some portior s of the house. It is
also in evidence. that the tenants also filed in their
application before the Controller of Rents to fix standard
rents for the rooms let out by the respondent. Some
time afterwards Daw Pwa issued notices to her tenants

to vacal;s: their respective rooms on the ground that she
C)

: .wanted ~o put up a new building in place qf the one.

which they now occupy. Her tenants how.ever.did ~ot
to
think it necessary reply the notices sent to th.e m. An
appt'icatiOll waS .filcd by the respondent
. i~ .ti;e office -Of
336 BURMA LAW REPORTS. [1952

H.C. th e Controller of R ent~, Rangoon, requesting tlut

1952
necessary permission b e given to her to file suits for
KOBATUN
TIN
ejectment against her tenants. The Controller of
v. Rents however dismissed her application. f.\ refere nce
DAW PWA:
was rt1a~ in the Rang0on City Civil Court, and th e
U AUNG
I<HINE, J.
learned Chief Judge of that Court set aside the order of
the Controller of Rents and at the same time directed
him to grant a permit under section 14-A (3) read with
section 11 (1) (el of the Urban Rent Control Act, and
this was accordingly done.
Am1ed with this permit the respondent filed her
suits against her tenants, viz., Ko Ba . Tun Tin ,.
Ko Shauk Wah, Maung Hla Kywe and Maung Shin.
The tenants resisted the suit on the .ground that the
respondent Daw Pwa did nof require the building.
boHa fide for the purpose of re-erecting a new buildin-g.
It is their case that although the building requires.
some extensive repairs the respondent could \'ery well
carry out the repairs where needed withcut bringing
down the entire building. It was in the month of
Septerr.ber 1949 that Da w Pwa first made an application.
to allow her to bring down the whole building .ancl to
erect a new one in its place on _the ground that the
present building was in a very damaged condition: Her
statement. must b'e accepted as true because when,
Maung Mya Th~in, Building In spector employed by the
Rangoon Corporation, went and inspected the house he,
found that the cement _flooring was in a damaged comli-
tion, the \valfing at the back of the house, the W~?Odwork
'support-i ng the cement flooring of the kitchen and the
wooden passage leadi ng from the main building to the-
kitchen were in ' "' d ecayed condition, the -rai~ing of the
front verandah was missing .apd some of the . tiles~n th.~..
roofing were cracked . . I'f . th~t was the condi tiori some:
at
thr.e e.' years back, the cor)ditiori . of the hous.e thtt
present.juncture. n{t1St be wor,s~; I theref~r.C considen
1952] BURMA LAW REPORTS. 337

that th e des ire of the respnndent to pllt up a n. .': H.C.

1952
building instead of doing patch-work repairs here a;:t ~ ;.;:,, B.~ TUN
there is understandable and justified. T he plan of the T1!>

proposed new building has been submitted to t n<: 0.\'' t'-'f" w A.

Rangoon Corporation and it bas received the approral {; ll,Gf>l>
of the Building Engineer subject to certain ccnctitions . KH1NF, ].

It is contended on behalf of the appellan t that although
the respondent has stated that sf:e was willing to
reinstate him and other tenants the nature of the
building pro posed to be put up is such that there
would be no room for them to occupy after the building
is completed. I have studied the plan and I see that
on t he ground floor of the proposed building a big
space has been shown as godown. My attention has
been drawn to the case of Abdul ] abbar v. Daw Thein
Khi1t and a110/her (1) wherein U Thaung Sein J.,
is inclined to the view (1) thatthe new building to be
put up after the eviction of a tenant must be <1
residential b uilding as opposed to buildings of other
characters; (2} that the bond executed under section
11 {1 ) (e) of the Act would be entirely useless unless the
building or bu ildings referred to in section 11 11) (d)
are residential ones.
R elying on the d ecision in the ab ovementioned
case; it has been strenuously stress~d that the building
now proposed to be constructed would not fall within
the category of the build ings contemplated in section 11
(1 ) (d) of the Urban Rent Control Act. H owever, _the
facts appearing in that case and t hose of the present
case are not similar. There the owner wishing to
extend her busin ess wanted the tenants to b e vacated
from the buildings erected on a site belonging to her,
although she had already three or fGur oth er godowns
which she c.ould make . use of in the pursuit of her

(il Civil 1st Appeal t\o. 27 .of 1951.

22
338 BURMA LAW REPORTS. [1952

H.C. business. Here the owner who is occupying part of

19-52
the building itself desires to demolish the same to put
Ko ~~/eN up a new one. In the Bench Case of Sin Tek
DAwv.Pw;.. aud one v. Lakha11y Bros: (1) it was contended
- also that the new building to be brought into being
U AUNG
RHINE, J. under ' section 11 (i) (d) of the U rb~n Re~t Control
Ad must necessarily be a residential one. THis ..,,as
not accepted and it was held that the expression
"house" in clause (d) ought to be given its ordinary
wide construction, including a place of business. in
the absence of anything to indicate, more or less
clearly, that it was intended to be used in a more
restrictive sense. The following observation of James
L.J., in Richards v. Swansea bnP1'0vemmt & Tramz>.ays
Co. (2) was quoted with approval :

"Of course, the word 'house' does not mean, it seems to

me, neces5arily a mere dwelling house, O!". a house only used , or
exclusively. or princip~lly used, for a residence ; the \Yord
'house' includes a shop or may consist of a shop. "

It was further observed that there is nothing in

clause (d) of section 11 (1) or in any part of tbe Urban
Rent Control Act, 1948, which would definitely suggest
that the buil~ing, which is to be constructed, must
necess:;~.rily be a dwellin.g house, or a place of rest or
abode and that if the Legisiature had intended that the
building or buil~ings that are to be const~ucted under
<::lause (d) should be residentialbuilding or buildings
.only, it would have expressed its int.e ntion more
precisely.
In view of the above Bench dec~sion I must hold
that the build~ng intended to be put up by the respon-
gent is covered bythe provision of sectiol) 11 (1) (d) o{
ttl~ -qr:!Jan Rent Control Act. She_ .h as giv~fl' an
.. \ (1) (1952) B.L.R. iso. . . (2) {1878) 9 Ch. D. 425 at 431.
1952] BURMA LAW REPORTS. 339

undertaking that if the tenants so desire she would be H.C.

1952
prepared to take them in again. As a matter of fact
Ko HA TU:-1
she has already executed a bond under sedion 11 (1) (e) 1'1:-1
of the Act in th e lower Court. An undertakir.g has 7/.
DAW P WA
also been given in the lo\Yer Court that af te ~; the
completion o f the building if the tenants desire
u AUNG
KIIINI!:, J.
r~-entry, partitions would be put up so tha t the
position would be status quo. I ha\e carefu lly
studied the case from different angles and I am of the
opinio n that the appellant has not been able to show
any good cause why he should not be legally evicted.
Th e appeal is therefore dismissed with costs.
340 BURMA L A\\ REPO:RTS. [ 1952

APP E LLATE CRI MINAL.

Btforr. .U Ba TltOtmg. J.

H.C. B. K. H,ALDE R (A PPLICANT)"

1952
Aug. 23. v.
s. KR. CHELLI AH P ILLAY AND OTHERS
( R ESPONDENTS).*

Crimi11al J>rocedttre Code, s. 435-AI>Piication for revision before Scssiou$

J udge-Dzsmissed /or defaul/ of appearallce-Propriely or Correcl11ess
of Order.
Hclrl : Even if the applicant or his advocate does not appear, it is the duty
of the Sessions Judge to reruse the lower Court re<forrl and satisfy himself as
to lhe correctness, legality or propriety of the order sou~ht to be reviewed,
~n d must dispose of the application on its merits.

Held further: When a Criminal Appeal or Criminal Revision petition is

dismissed for oefault of arpearance, there is no ecision on the merits, and
there is no proper disposal of it according to law ; the order of dismissal is
not a jud~ment. '
Kut~llanmzacf. Haji, I.L.R. 46, Mad. 382, referred to.

G. D. Wt.ltiams for the applicant.

U BA T HOUNG, . J.-Th e applicant B. K. H alder

filed three complaints against t he respondents
S. KR. Chdlial1 Pillay, S. KR. Mp thuramalingam and
S. KR. Man ickam . under section 420 -of t he Penal
Code in the Court of the 5th Additional Magistrate,
-Rangoon, in Cri minal Regular Trial Nos. 512, 513 and
514 of 1950. T he learned Magistrate d is missed the
complaints in Criminal Regular Nos. 512 and 514 of
1950 as being gf a civil nature. T he applican t then
applied to .t he Sessions _Judge, H anthawaddy, for
Criminal Revision No. 129:B _of 1952 being Heview of the order of the
Sessions Judge, H anthawaddy, in Criminal Revision No. 437 of 1951.
 1952] BURMA LAW REPORTS. 341
revision of the orders of the 5th Additional Magistrate H.C.
1'-5 .'?
in these two cases in which the complaints were
B. K.
<lis missed. HALDER
The learned Sessions Judge interfered in revision . S. KR.
in respect. of Criminal Regular No. 514 of t95Q and C H ELI.IAH
PILLAY
.sent the case back to the District Magistrate, Rangoon, A~D OTHERS.

for further enquiry, who in turn sent it to the U BA

'2nd Additional Magistrate, Rangoon, for further T HOU!>: fl, J.
enquiry. In respect of Criminal Regular No. 512 of
l <150, the learned Sessions Judgc admitted the appli-
-cant's application for revision in his Criminal Revision
No. 437 of 1951 and ordered notice to be issued on
the three respondents. The 2nd and 3rd respondents
were served with notice, but as the 1st respondent
was away in India, notice on him could not be served.
A . fresh notice was issued and 26th May 1952 was
fixed for the return of the notice. The learned Advo-
cate for the applicant, hO\l\'ever, thought that the date
fixed for the ret~rn of' notice was 27th May 1952
instead of 26th May 1952. On 26th May 1952 the
ca s~ was called and the notice on the 1st respondent
returned from India unclaimed, but as no appearance
\as. made by the applicant or his Advocate, the
learned Sessions Judge dismissed the application for
default; On 27th May .1952 the applicant's Advocate
appeared in Court and he was told that the return of
notice was fix~d for 26th May 1952 and that as no
app~aranee was made his application was dismissed
for default.
The applicant's Advocate then filed an application
on the - ~ext day, that is, 28th May 1952 before the
l~arned Sessions Judge, Hantbawadd}', sb.ting that the
dismissal _for default 6_ appearance in his Criminal
Revisibn Application was . not a legal dismissal of the
application and that tP,e . ~pplication . may be disposed
of ori. its merits~ - J'he learned Sessions Judge,
342 BURMA LAvV REPORTS. [1952

H.C. however, refused to interfere with his order of

195!
dismissal for default. Hence this application for
B. K.
HALDER
revision.
v. The application filed by the applicant in t he
S.KR.
CHELLIAH Sess:ons, Court of Hantha\'1-'addy in its Criminal Revision
Pll.LAY
AND OTHERS. No. 437 of 1951 was for the learned Sessions Judge to

USA
call for and examine under section 435 of the Criminal
TROUNG, J. Procedure Code, the record of Criminal Regular
No. 5 12 of 1950 of the Court of the 5th Additional
Magistrate, Rangoon, and satisfy himself as to the
correctness, legality or propriety of the order of the
5th Additional Magistrate, Rangoon, dismissing under
section 203 of the Crim inal Procedure Code the
applicant's complaint against the respondents, and to
set aside that order and to direct a fresh enquiry into
the complaint. For that purpose the learned Sessions
Judge himself after perusal of the lower Court record
could satisfy himself as to the correctness, legality or
propriety of the order of the 5th Additional Magistrate
and dispose of the application on its merits even if
t he applicant or his Advocate had not appeare~. on
that day, instead of d ismissing the appl icati cn for
default of appearance.
It has been laid down in the case of Ku11h anzm ad
Haji (1) as follows :

'' I n a criminal matter lhe question is not between party and

party. It is the duty of the Court to. go into the matter and
di.s.pose of it en the merits. When a Criminal A,ppeal or
Criminal Revision f'etition is dismissed for default of appearance,
tl).ere is no decision on the merits and therefore there is . no
proper disposal.of it according to lawf and the Court mar re-hear
it. The order of disn.Jssal for default of appearance in such case
:is n~ judgment at all and the order is tanta~ount . to an.
adjournment . of the case till someone appe~rs anci. moves the
'Cou.r t to hear him."

(1) I.L.I<. 4o Mad-..382.

19521 BURMA LAW REPORTS . 343

For the above reasons I do not consider that the H.C.
1952
order of the learned Sessions Judge, Hantha\Yc:ddy,
of the 26th May 1952 in his Criminal Revision Ko. 43 7 H B. K.
ALnEF
of 1951 dismissing the application for default is corr~ct. S v.KR
or proper. and I hereby set it aside and dire.ct rh at the CH f.L[.IA f.{
PlLLAY
application in revision be d isposed of on its merits. AND OTHERS.

u BA
THOUI\G , J
344 BU RMA L AW REPORTS. 1952

APPELLATE CIV IL .
Before U Auug ls." hiuc, J.

H.C. .
MA SI M TI AND OTHERS (A P PELLANTS)
1952
Aug. 11. v.
SAw MA U NG PU AI\D OT HERS {R ESPO NDENTS}.*

Suit by ro-own er against a sJ ranger ;,, Posscssioti--Claim for llalf sllare--

Whellter liable tc> be defeatedasfor partial parlttitm-Gitil 1-rocedure
Code, Order 2, Rule 2, /l/ustratiotl Ill.
Held: The general principle is t hat a par tition suit should embrace all
the joint rroperties belonging to the parties to a void multiplicity of suits.
In the present case, however, as the claim for a half share is not against a
co-owner hut against strangers in possession,
Held :The suit ia not a partition suit in the proper ~ens<: of the word ; it
is in esence a claim that, in spite of several tra nsfers in respect r.f the suit
laud, the plaintiff$' half share remains intact and feparable from the share of
str;mger-transferees in possession.
Ma illya a11tl others v. Ma Mya, U.RR. {1897-1901) 229 ; Rajct.dra
Kuu:ar Bos.: v. Brojendra Kumar rBosc, A.I.R. (JQ2:t) Cal. 501, distinguished.

JJ. N. Du tt for the appellants.

Tun I for th e respond ents.

U AuNG K HINE ,,J .- This Second Appeal ar ises out
of Civil Appeal No . 7 of 1948 of t he District Court of
T haton in wh ich the learn ed District Judge confirmed
t he judgment and decree of the Second Subo rdinate
Judge, Kyaikto, in ~ ivi l Regular 'Su it No. 28 of 1947.
The plain tiff-appellants Ma Sim T i, Ah Ti, and
Kyan Ti are the children of Saw Maung Maung,
deceased, son of Ma K hai Ma als_o d eceased. Ma Khai
Ma had a nother ~on Saw Maun g Pu and these two
sons survived h er, b u~. Saw Maung Maung died shortly
after the death of his.mother Ma Khai Ma. Some time
Civil 2n'.l Appeal No. 62 oi 195 1 ag~j nst decree of District Con rt of
T ha ton,'in Civil Appeal No. 7 of 1948.
1952] BURMA LAW REPORTS. 345

in 1926 S<t\V Maung Pu mortga,ged to one K.S ...\ .K. H.C.

1952
Chettyar firm some six items of property including the
MA Snt TI
.suit land belonging to the estate of Ma Khai 1\Ia for AND OTHERS
V.
Rs. 15,000 unkno\Yn to other heirs. He had i11 the SAW MAV~G
meantime also obtained other unsecured Io1ms <u'iwunt- PU A~O
OTHER~.

ing to Rs. 4,000 from the same firm . A decree was

U AI3~G
obtained by the said firm against Saw Maung Pu for KHIXF.,J.

the recovery of the amount on the unsecured loans.

I.n execution of the decree the six items of property
mortgaged were attached for sale. By then
Saw Maung Maung had already died leaving his wife
Wana and three minor children. Wana was successful
in having the attachment removed to the extent of half
share in the properties attached. Saw Maung Pu's
share, however, was disposed of in the execution of the
decree.
The suit land together with a house standing
thereon was bought in a Court auction by the same
K.S:A.K. Chettyar firm . In 1941 K.S.A.K. Chettyar
firm. assigned and transferred the same to R M.A.N.
-firm and in 1946 R.M.A.N. firm sold the house site only
to the 3rd and 4th defendantrespondt-nts Eusoof . and
Kassim. The house standing on the suit land was
destroyed durin~ the war.
The plaiutiff-appellants as the children of
Saw Maung Maung and Wana claimed a half share in
the suit house site. They say that they were minors at
the time when the suit house was sold in the Court
auCtion apd .at the time there was nobody to. look after
th.eit; interest. The 1st defendant-respondent Saw
M~ung Pu admitted the claim of the plaintiff-.
respoirdents. The remaining defendant-respondents
resisted ti1e.suit_ori severa}groundsand on the pleadings
x is.sues .were:framed to be tried. EvidenGe was then
led by the parties . a nd after- they. !J:ad close4 their cases
anti the case put down 'for argument, the trial Court on
346 BURl\1A LAW REPORTS. [1952
H.C.
i')52 its own motion rai~ed ;111 additional issue on th e
statement made by defendant-respondent Sa\\' Maung
Ill.-. SIM 1'1
AlW OTHF.RS P.u wlto was cited as a \Yitness by the 3rd defendaiJt-
11,
SAW MAC:-I C. rcspondent. This is vdut the learned trial Judge said
Po AX !.> in his juq_gment :
OTHERS.

U AoNr.
KHtNF., J. "On 2nd February 1948 \\'ben the lst defendant \\'hOi:. the
plaintirfs' uncle was called and examined as a \\itness by the 3rd
defenclan~. it \Yas revealed that plaintiffs' g:randmot!:et
:'\1a Kbai i\ia h.:td not only left the suit land but also 4 or 5 items
of other properties in the Bilin Township were left behind after
her death. Hence th~ Court took cognizance of this fact and
framed the following additional issue under Order 14, Rule S
Civi l Pocedure Code.
Additiotlal /ssue.
Whether Lhe pl:\intiffs' suit is maintainable without bringing
the othet properties belongi.ng to the estate of Ma Kbai Ma, the
deceased, ioto the division for partition?"

The learned trial Judge was of the view that as- the
plain tiff-appellap.ts have still interest in other 5 items
of property belonging to the original estate of
\'fa l{hai Ma for which they have not included their
claim, they are barred from making a partial claim
only, in this suit for partition.
The other issues were not discussed at all and the
suit was dismissed on the answer giv.en to this
additional issue raised by th~ Court. On ap'p eal by
the plaintiff-appellants the District Judge, Thaton,
upheld th~ decision of the trial Court. The case of
Ma Mya and others . v. Ma Mya l l ) has been
canvassed in support of the case made out by the lower
Courts. In' that cttse in a short judgment it was held
.that a suit for partition cannot be .brought unless the
whol_e .e state is br~ught into th~ d~vision . .'.T.h_at' \V~
tpe case in which the plaintiff':M,~ Mya as a. wi.d ow .of
(1) U.B.'R. (1897 -1901), .2~9.
 BURMA LA\tV REPORTS. 34

eke_ :bt:'d :\Jaung Tot filed a ~t1i t on behalf of li\:'r;;eli 9

r ~
and !1er h\'0 minor children either for possession of a --;..:- _
ctnam
, I10use m tl1e possession
o f t 11e d e ..r<:: 11 c.anc :v..-o "uTHE:l
1
1 .~-x M

M<t Mya or for h er siJ<tre in the property. The. :;Aw \iu;.~~

dektHlart Ma MF' claim ed th<1t she ra::; also a wicl o\r P ~> AxD
N " OTH.E~S.
of dtceased Maung Toe. It was discoven.:d thal the
t: A tilO:G
,,hole est:tte of Maung Toe had not been brought into KH1::-;.e:. J.
t he hotch -pot and tht refore the Court h eld th at as a
Part ition suit it must be dismissed . 'lll ere > is no '
dispute about the correctness of this principle in a case
where the parties claim a share in the estate of the
decease,: person as co-heirs. The lower appellate
Court in its judgment also mention ed th e case of
Rajendra Kumar Bost~ v. Brojend1'a Kumar Bose (1)
in support of the view held by the trial Court. In that
case the plaintiff sought _partition of an ancestral house
at Srinagar, two houses at Dacca and a large number of
moveables, and the defendant contended that all the
joint -properties should be included in the suit and
divided by the decree therein. The decision in that
case simply reaffirmed the principle that a partition
suit should embrace ail the joint properties belonging
t~ the parties in order t0 avoid suits being filed in parts
or in fragments.
:N'ow, tl)e facts in the present case differ a great
deal from those as elicited from the two cases cited.
The plaintiff-:1ppellants here are merely trying to get.
pos's ession of half the_ suit land as their share, not .
against Saw Maung Pu, but. really against the persoqs
in possession who are str~ngers to them . It is in the
manner in wh.ich the suit was framed which has pro-
bably led the_two lO\'rer Courts intq thinking that this
is .a suit for partition. Wben properly studied it will .
be seen that the ~u.it is not a partition suif in the proper.
.sense. of the word. _The :fact that Sai.v Maung -P.u was
!1) A.I.l~. !1923}. 1'<11. 50!.
 BURMA LAW REPORTS. [195 2

H.C. added as a party to the suit does not alter its real
1952
nature. It must be remembered that Saw Maung Pu
MA $!~ Tt !1
AND oTBBRs as no } anger any wterest
. .
m . d er of
t h e remam
"
'SAW l\IAUNG
Ma Khai Ma's estate. H1s share in the estate had
Pu A~o already been disposed of. As <1 son of Ma, Kh ai Ma
OTHERS.
his interest in her estate was exactly half and no more.
U AUNG
KH!NE, J.
1'J1e partitiou which the plaintiff-appellants seeks now
js really to s~parate their share out of the suit lanq
\\:hich s in possession of the 3rd and 4th defendant_
respondents. In the process they included those whom
th ey consid er to be necessary parties and among whom
was Saw Maung Pu. !n order not to fall into an error
it must be borne in mind that the essence of the
plaintiff-appellants' case .is that in spite of severa}
transfers in respect of the suit land their half share in
jt remains intact. The Illustration (1) under Order 2,
Rule 2 on page 529 of the Mullah's Code of Ci\il
Proced ure, 11th Edition, 1941, is very apposite to this
case. It runs as follows :

''A, claiming as his fltber's heir, sues B for possession of a

Cl!rtnin pi~ce of land . He then sues C, nlso as his fa t her's heir,
lor possession of anothPr piece of land. The fact that both
pieces of l111d are claimed by A under the same titl e cloes not
preclude A from maintaining separate suits against 8 and C."

F ollowing tbi's principle, the plaintiff-appellants will

not be debarred from maintaining separate suits aga~nst
different persons in possession of different items of
property belonging to them out of M_a Khai Ma's estate
For all these reasons I would accept the appeal and
direct that the judgments and decrees of the two lower
Courts be set asid~ T he original six issues framed in
the suit have not been . discu~sed and tried and therefore
the suit must be remanded back to the trial Court with
a direction that those; tssues be now tried: The suit will
be re-admitted {.rider its original nurpber. Under
1Y52] BURMA LA\V R E PORTS. 349

section 13 of lhe Court Fees .-\ct 1 th: a~~pdlants \rill be H.C.

l<i52
granH.:d a certificate authorising them to rec\."i,e b<.t..:k tl~e
~l A ~D! Tt
full amoun t of fee paid on the memorandum of appe al A:O:' (I'FH I-.R$

both in this Court and in the lower appellate Court.

..
SA ''' )! AU:\<
They shall also be entitled to costs in tbis Court and in Pv .~=--o
oTHERS.
the lower~ appellate Court. Advocate's fee ifi' this Court
'l' Acz.;G
is fixed at t hree gold mohurs. T he costs in the trial hHI~E . J.
Court will abide the ultimate result of the suit.
350 IJURMA LAW REPORTS. [1952

APPELLATE CRIMINAL.
Bcf'lre U J~o Gyi, f.

H C.
1152
MAUNG SH\VE (APPELLANT)

Dec. 11: v.
THE UNION OF BURMA IRESPO:-.JDENT). 'i:'

Mu r rlcr- Pt"n rl Code, ~. 302 (2)-Evideucc Act-S. 11-/--f'rcsu,,p:iou-

Pos~.:ssion of frrc~Pcrties belO"nginl! to //1(; d ,:censal slto: tly aft c1 11/ttn/ct.

H eld: There remains only the fact th at short ly after the headma n h~.d bee-n
murdered articles belonging to him were found in appellant's possession
Fro1wth is fact alone it cannot be presumed that appellant murder ed the head
man ; for "the hi~hest presumption wh ich ca n be <lrawu from [lOS$eS$iOn
o~ stolen prcperty, by it$elf, is presence at the scene of theft."

Nga Theitt Pe v. Tlte Ki ng, A.I.R. (1939) Ran. 361, followed.

Fakitcharul .\iand1am nut! auoi:ur v. The State. A.I.R. (l9SO)( M.B .) 76
(F. B.), rderred to.

Chit \Government Advocate) for the respondent.

U Bo GYI, J.- Appellant Maung Shne, aged 23,

has been convicted by the learned Additional Sessions
J~dge of Pegu 1 sjtting as a Special Judge, under
section 302 12) of the:: Penal Code and sentenced
to transportation for life.
The events that took place shortly before the dead
body of t.he HeadmanU San Dun of Thayetkon Villa,ge
was found on the Rangoo~-Mandah:ty Trunk Road
a few furlongs from the place where a Zatpwe. was
being held near Payagyi Village in celebration of the
last Independen ce .Day are not seriously in dispute.
Maung Tun Kyi (PW 1) ' and hi~ companions who
were on kin duty <\.J Payagyi carrie upon. the dead body
of U San . Dun about 3 a.m. on the ~th January last,
. Crimi~al Appeal No. 527 of. 1952 being App~al from the order of the
Sp.eclal Judge (Addlti~nal Sessions Judge) .of Pe)!u il} Cri.ininal Regular Trial
. 'Ko. { of 1952:
1952] BURMA LA\V REPORTS. 35 1

and a report w<ts made to the headman, who in his H .C.

I <.I;;:?
turn laid a First Information Report. At that time
MAl":-<(:
no one knew who was responsible for the murder of SHwF.
the headman. Police took up the investigation and on THE t'. t : KT
the 11th January U Khin Xyunt ( PvV 21). the i~vesti ' OF Bt:RMA.
g::J.ting officer, \;\,'ho had received the c~isc from U l:IO GYJ. J.
l 1 Thaung (PW 22) visited U San Dun 's village
Thayetkon where he examin ed U s~n Du n's \\ife,
Daw Nyunt (PW 10), and received from her a coat and
a tooth. According to Daw Nyunt, on the 5th Ja nuary
her husband left for Pegu to have a tooth extracted
and did not return home that night. T he next morning
her cousin U San Pe came to inform her tbat her
husband had been killed at Payagyi. He had also
brought with him a coat belonging to her husband .
The next day about 8 a.m. witness Maung Kalagyi
1 PW 16) came to her house and told her that the
headman had been all the time with him and otbers
during the previous night and that he had at last bten
killed. No mention \.\as made as to the identity of the
assailant or assailants . Maung Kalagyi then went to
sl eep and. while he was rolling and turning in his sleep
a tooth came out. D aw Nyunt noticed t hat it had been
r ecently_extracted and she saw blood on it. The tooth
and the coat were later made over t'>l the police.
T he investigating officer, U Khin Nyunt, after
examining. Oaw Nyunt and receiving the coat and
tooth from her we_nt . over to .Wingabaw where h~
looked for witnesses Mau ng Kalagyi a nd Maung Maung
(PW 15), who are brothers, belo-n ging to the village,
Maung Kalagyi was away from t he village and the
officer examined Mau ng Maung. T hereafter a search
was made af appellant's house at ' P ayagyi .but _no
incrim inati ng articles were fou nd. .T he same . day .
the officer and wi_tnesses wen t to U Kyi .Myit's r!c e m ill .
at P_ayagy( where a ppellant was wor king. A ppella nt
 BURMA LAW REPORTS. [195Z
H.C. made a sea.rch in a heap of paddy husks in th.e mil l
1952

i\IAt;~G
compound and produced a fountain pen, a ~ilver
SH\\E amulet, a wooden figure of a lion and a handkerchi ef.
v.
THe UNtoN These articles have been satisfactorily identified as pro-
OF BuRMA.
perty belonging to the deceased headman U San Dun.
U Bo GYS, ]. Now Dn the night" in question appellant ,admittedly
met the Headman U San Dun and witnesses
Maung Maung and Maung K3.lagyi at Ma Sein's
Chow-Chow shop some distance away from the pa;e at
Payagyi and there they ha.d drinks together. Ma Sein
(PW 7), the owner of the shop, 1:oticed that the 4 men
left her shop together at about 11 p.m. The headman's
dead body was found at about 3 a.m. the next morning
on the Trunk road and the place where tbe body was
found was about 2 furlongs north of Ma Sein's shop,
and the place where the pwe was h eld would be about
6 furlongs north-west ofthe place where the dead body
was found.
The most iniportant witnesses in the case are
the two brothers Maung Maung and Maung Kalagyi.
Their story is that after they had left Ma Sein's shop
together with appellant and deceased headman
U San Dun they were walking along the Rangoon-
Mandalay Trunk Road in the direction .of the pwe, the
headman walking, in front ; and after they had gone
some distance appella.n t told them that he would go up
to the headman and kill him. They tried to dissuade
him but to no avail. . The appellant who was armed
with a hatchet strode up to the headman. The moon
had set by that time and they heard the sound of a blow.
Almost immediat~ly afterwards the appellant returned
to them and told them that he had killed the headman
and threatened them with death should they divulge
what they h~d witnessed: . The two broth~rs then
went back . to . t~e pwe .. a~d there they s~w accused
Po Toke, ~ho has been d isc.harged, at the pwe-stalls.
1952] BURMA LAW REPORTS, 353

Sometime later the appellant who bad remained H.C.

1952
behind near the headman's body joined them at the
l\!At: NG
pwe and at day-break they were returnmg to their SHwE

respective villages. However, on the way I~alagyi said THE vU~IoN

that he would go and tell the headman's \Yife about cF BuRMA.
the matter._. and went off towards her village. 'It is u s;Gn J.
said that Maung Maung told his f:1ther, U Ba Kin
(P vV 3), about the identity of the headman's assailant
and also that sometime later Maung Kalagyi when
called and examined by Maung Aye Maung (P W 2),
Commander of the Village Defence Force, told him
that the headman had been killed by the appellant.
No report was made by either of these two witnesses
to .the authorities and since they are intimately
connected with Maung Maung and Maung Kalagyi,
their evidence must be treated with caution. Similarly,
the evidence of Maung San Tun (PvV 6) that appellant
and Po Toke came and looked at the headman while
he was sleeping on a cart at the pwe should also be
rec.e ived with caution and~does not amount to much.
Now, the medical evidence is that the headman
had.received a contusion on the left temple, 2 circular
abrasions one of which was on the fore-head and the
other on the chip, a bla.ck eye, an abrasion on the
right knee-cap and 2 .stab-wound~. The first stab
wound was in the c.hest and the .second in the abdomen,
and .while the former was necessarily fatal, the latter
was sufficient in the ordinary course of nature to cause
death. According to the Surgeon, these stab-wounds
had been caused by a sharp-edgea and pointed
weapon. It seems clear that the medical evidence
badly contradicts the story of the two brothers,
. Maung Mau.ng and Ma~g Ka_Iagyi ; and this apparently-
led the learned t_rial Judge.to ?bserve that probably the
headman: had t:Iot -been ~ttacked b y the appellant alone.
The . ~ondl,lct of Maung Maurig and Kalagyi was highly
23
354 BURMA LAW REPORTS. [195?

H.C, suspicious and the suspicion is deepened by the fact

1952
that a freshly-dra:wn tooth was found on Maung Kalagyi.
MAUNG
SHIVE
This \vilness had not left for Pegu with the headman
:~. and lle has not explained \rhy the freshly-dra\;vn tooth,
THE UNION
oF BuRMA. which apparently had been extracted from the headman
u s;Gvr, J. was foun-d on him. In these circumstance~, I feel that
the evidence of these hvo witnesses must be treated
with great caution and the learned Government
Advocate agr~es with me.
The learned Government Advocate contends,
however, that on the available evidence and on the
authorities cited by him the conviction should b~
altered to one under section 392 of the Penal Code.
I am inclined to agree with him. A fountain pen, an
amulet, a wooden figure of a lion and a handkerchief
belonging to the headman wer e found concealed in a
heap of paddy husks near the place where the appel-
lant was working, and he searched for and produced
them. These articles were kept concealed. Appel-
lant explained in his examination and also in the
memorandum of appeal that these articles had been
lett with him for safe custody by Maung Maung and
Kalagyi af the pwe after he had parted with them near
Ma Sein 's Cbow-Ch'ow shop. This story is supported
by Ma Mya Khin tDW 3) and Maung Bo Gyi (DW 4).
Ma Mya Khin is aunt of appellant's wife, and
Maung 'Bo Gyi is a White-band PVO who has
surrendered. Appellant himself is a surrendered
White-band . PVO. If their story be true, it is highly
iiJ::lprobable that the appellant would have kept the
articles concealed in the heap of paddy husks. It
seems that people in the cou ntry side have a fively
faith in charms Qnd _although the articles in question
are of trifling value, the amulet and the figure' of a lion
which are apparently r~ckon ed as talismans-disappeared .
during the trial.
. 1952] BURMA LAW REPORTS. 35

Now, since the evidence of i\Jaung Maung and H .C.

1'.': 2
Maung Kalagyi is suspicious, there remain only the
fact that shortly after the headman had been murdered ~~~~~G
:articles belonging to him \vere found in appellant's . THE 't:-;~<~
possession. From this fact alone it cannot be or BURMA.
presumed.. that appellant murdered the headman ; for U Bo liYI, J
"the highest presumption which can be drawn from
possession of stolen property, by itself, is presence at
the scene of the theft. ''-vide N ga T/ui11 Pe v.
The King ( 1). This Bench decision of the late High
Court of Judicature at Rangoon has been followed
by a Full Bench of the High Court of Madhya Bharat
in Fakirchand Nandra1'1z and another v. The Slate l2J
and I find myself in respectful agreement with these
decisions. Here in this case the circumstances seem to
show that the appellant was not alone at the scene of
Crime ; and there is no sufficient evidence that would
justify the Court in presuming that the appellant had a
,common intention with others to murder the headman.
. For all the above reasons I alter the conviction to
<>ne under section 392 of the Penal Code and reduce
he sentence to 7 years' rigorous imprisonment.

-------:--------...,....._---~-------
m A.I.R. ( !939) Ran. 361. (2) A.I.R. (1950) (M.B.) 76 (F. B.).
356 BURMA LAW REPORTS. [1952

ORIGINAL CIVIL.
Before U Ar111g Tha Gya7c, l,

H C. MOHAMED KHAN (PLAINTIFF)

1952
SeJ>t.19. v.
DAMAYANTHI PAREKH AND TWO OTHERS
(DE FENDAN TS) . ~~

Molwmcclan Law -Co1wersior~, what amouufs to-Age of converi- 111inor uudcr

no disabi!ity-Mt~jorify Act inapplict~ble to mnlters of religio 1: -
Jurisdictior~ of Court over tJOtt-resideu t joreig11er- Cause of action arisi11g
wholly within territorial limits-Conflict bef1vem Irlleneat ional a11d
Mutticipal Law!-LOcal legislation the f!tlldiug f.:.ctor-Effect o.f
st~bsequc11.t apostasy oa ., narriagc-spccific Relief Ad, s. 42-No.tute of
relief cllltrcly discreftvncti"J-Et:ctds subsequeut to ittslifulio" of suit, must
also be considered.
In defence to a suit filed by plaintiff for a declaration of a legal and
subsisting marriage between him and their daughter, the 1st defendant, and
for an injunction prohibiting them from preventing the return of his wife
to his dominion, the 2nd and 3rd defendants, a Hind~ couple, contended that
as their daughter was und.r 18 years of age she could not become a convert
and embrace the Islam faith ; that she is a foreigner and now Jiving in India,
and the Court had no jurisdiction; and that in India she has been lawfu!iy
married to one of her own faith.
Held: What a mounts to conversion to the Mohamedan faith is set out
in paragraph 19 of Mulla's Princip les of Mohamedan Law. It is sufficient if
tho: person who embraces the new faith is shown to have professed the
Mohamedan r.eligion.
0:

Ab,tooJ Razack v. Aga Mtthomed Jaffer Bi11daneem, 21 I .A. 56 at ~+.

referred to.
Held .: s. 3 of the Majorit y Act fixes the age of a person domiciled
in Burma at 18 years, but s. 2 provides that this age of majority cannot affect
the capacity of a person to act in matters affecting reli~ic;m. The Law .has
provided no age of majority for a change of religion. The fact of a girl being
~tnder 18 years of age would not invalidate a convenion toanother faith.
Re. Muhammad Alam, (1939).A.I.R. Sin<:J 311; Samt Ch'anrj.ra ChakrabaU
v. Farma1! and another, I. L.R. 12 All. 213, referred to. :
Held; Where local fegislation exists .<iu\horising a Court to exercise
jurisdiction in respect of abs~llt foreigners,. a decree perfectly valid as far
as the Court is concerned can, be .pronounced. .

* Civil Regular N.o ..63 of 195~ . of t~e High Court.

 1952 J BURMA LAW REPORTS, 35/
Sirdar Gurd ;;al Singlt v. Tir e Rajalt >f Fn1irlkol<, .? l I.A. 1/1 , 'tLC.
cli;tinguished. 1952

In a pe;sonal action a foreign Court has juri~diclion in an internatio n:ll :.loHA)IEO

K!V.X
s ense in certain circumstances; from this emergtd the rule th:~t c:tusc of <t.:t;,,:t
:.'.
i; not;; genera l ground of j-urisdiction in Internatio nal Law. DA)!AYANTHI
PAReKH A:\0
Chor M,d' Bnl Clla11d \'. K<Hluri Cllaurl Scrnogi, I.L.R.' 63 Cal. 1033 : Two OTHERs.
T!ithnlbltai Shit-bltai Patel v. Lnlbhai Bimbllai, I.L. H. (1942) Bolll. 688;
Rousillou v. Rot~sitlou, (1880) H Ch. D. 351 ; Emanuel nt!d other; v. Symon,
(1908) 1 K. H. ~02, referred to.

S. 20, Civil Procedure Code and s. 15 of the Union J udiciary Act invest this
C)urt w ith jurisdiction to try a snit where the caus ~ of action is alleged to
ha\e t:~ken place within its territorial limits.

Gael;wnr Baroda State Rflil~oay v. H.tbilt Ulla, I.L.H: 56 All. 82S ;

Neelnknnda Pillni v. K . rl. Kunj11 Pillai, A.I.R. 0935) Mad. 545; Swamiu a
t!Jnu C!tettiar v. VE. .V.K.RM.V.RM. Somnsul lflaram Clretliar a mi otltcrS
A.I.R. (1938) Mad. 741, referred to.

The question whet!Hcr the Courts of a nation will or will not entertain
jurisdiction of any di~pute is to be cetermin(d by the nation itself, i.e., by itS
Municipal Law. If by express legislation the Courts are directed to exercise
jurisdiction, they must obey.
Compntlhi.t De Mocambiquc v. British South Africa ComPm1y-De Sou~a v.
Same, ( t 892) 2 Q.B.D. 358 at 394; Cllu uilal Kasturc!umd Mnrw.tdl v .
Duudappa Dama:P:Pn .Yagnlgi, 52 Born. L .R. 660, referre.d to.

The question before the Court is not wb~ther :~Her a decree is passed a
forei~n Court will r.erog ni se it, but whether, having r egard to s. 20 of the Civil
Procedure Code and s. 15 of the Union Judiciary Act, it can assume
jurisdiction in the case and tr y it a~ainst a non-resident foreigner when th~
cause of action has arisen wholly within its local limits. It will be the duly o
the_Courts to !~ive effect to local statutory ena~tmenls and i t is immaterial
whether the judgment rendered would be recognised by foreign tribunals as
con:s isfent with lrtternational Law.

Gird/tar Dnmodar v. Kassiga r Hirn ga r, (1893) 17 Rom. 662 at 665;

E~-parte Blaim, in re Sauers, (1879) 12 Ch. D. 522 at 526, applied.'

:'The grant of relief t~nder s. 42, Specific Relief Act is entirely discretionary
a Court has to take--into consideration not only well established principles . but
als!l the varying factors in e<tch particular case, and it must also take notice of
the events which have happened since the institution ol the suit and to mo uld
its' decree according to the circumstances as they stand at t he time the de~ee
i's. made. >

Ram Iawakal Tewari v. Mf. Dulari pnd others, A.I.R. (1934) All. 469 ,; Noor
Jehatl Begum v. Euge1fe Tiscenko, A.I.R. (1942) Cal. 315; R. B. B . Sara11
Singh at~douev . .Ch,. M~t}t ab.'r Husain a nd othcrs,.I.L.R. 16 Luck. 742; Hussa.i ll
Unw.ar v. Fa tima. Bee, (1872- t 892) S.J. L.B. 36.8 ; Ali Asghar v. Mi Kra Hla U
8 J,.B.R. 461, referred to.
358 BUHMA LAW REPORTS. [ 1952:

H.c. D1'. BaHan for the plaintiff.

1952
MOHAMED
!{HAN P. [(. Basu for the 2nd and 3rd defendants.
v.
DAMAYANTiil
PAReKH AND U AuNG THA GYAW, J.-This is a suit brought
TWO OTHERS.
.b y one Mohame
. d Khan, a Muslim . youth orl' N o. 284r
Ed ward Street, Rangoon, against l1is alleged wife
Damayanthi Parekh and her two parents, Bhanu Rai
Parekh and Mrs. Samratt "Laxmi Parekh, claiming
firstly, a declaration that Damayantbi was la..,vfully
married to him and that he was therefore e ntitled
to the free exercise of his conjugal rights as against
her and, secondly, a permanent injunction against her
parents restraining them from keeping their daughter-
out of the plaintiff's lawful dominion over her person
and from preventing her from returning to the
plaintiff.
The plaint sets out that the 1st defendant
Damayanthi married the plaintiff on 28th September
1950 as a convert to Islam i n accordance with
Mohamedan Law and had subsequently cohabited with
him as man and wife in Rangoon ; that two days later~
she was removed from the plaintiff's lawful keeping
and dominion by the 2nd and 3rd defendants and that
they have since pre~ented her fror:n coming back to
the plaintiff. On the facts so pleaded the plaintiff
states that he is entitled to the reliefs sought for in the
plaint.
The 1st defendant is alleged to have since removed
ber permanent resid~Iice to India and cqnsequently the
hearing of this suit has taken place in her absence
after due service of sQmmons on her by way of
substituted service.~
The 2nd and 3rd defendants have contested the
plaintiff's claim denying that their daughter, the 1st
defendant, became a convert to Islam and that there
was any lawful marriage between the plaintiff and the

..
 1952] BURMA LAW REPORTS. 359

1st defendant. They claim that the 1st defendant was H.C.
a minor and that this suit has not been validly
instituted as against her. They further contend that )h-.<iA)iF.D
KH ,;:-:
the 1st defendant has since before the institution of t .

this suit b~en permanently residing in India,and that ~.:~~~~~~~~r:-:~~

this Court has therefore no jurisdiction to entertain Two vTH ER~.
this suit against her or to grant a decree for a u G\'A\\',At::\G THA
J.
permar.ent injunetion against them as asked for by the
plaintiff in respect of a person who is not in Burma.
T hey also state that the 1st defendant has been
lawfully given in marriage as a Hindu to one
Omerchand of Gonda!, Kathiawar, India, and has since
been living there with her husband. The 2nd and 3rd
defendants further claim that in taking the 1st
defendant to I ndia and getting her marned. to a Hindu
they had exercised their lawful rights as parents under
the Hindu Law and had acted in the best interests of
the 1st defendant, their only daughter. They deny
that the plaintiff is entitled to the reliefs claimed
by him.
In his reply the plaintiff states that the 1st defen-
dant was 18 years of age at the time of her marriage
to .him on 28th September 1950 and that she became a...
convert to Islam before her marriage arid that defendants
No.~ 2 and 3 h~d thus no right to give her away in
marriage to a Hindu under the Hindu Law. It is
claimed that the 1st defendant was a major at the time
tnis suit was filed. He denied that defendant No. lis
a permanent resident of India and that the allegation
that they had taken defendant No. 1 to India and that
she has been living there is described as false.
Qrt these pleadi,ngs the followingjssues were fixed
by. consent : - . . ,
. 1.. Was the J st defendant a . minor qn 28th
. September 1950, as alleged by defendants
No.2 and 3 ?
360 BURMA LAW REPORTS. [1952
H.C. 2. \as the 1st defendant lawfully married to tile
1952
plaintiff under Mohamedan Law ?
MOHAMED
KHAN 3. Is the 1st defendant permanently residing in
"
DAMAYANTHI India?
PAREKH AND
TWO OTHERS.
4. If so, has this Court no jurisdiction to entertain
this suit or grant any decree against her or
U AUNG THA
GYA\V, J. grant an injunction against .defendants
No. 2 and 3 as prayed for in the plaint?
5. What relief, if any, is the plaintiff entitled to?
Issue No.1.
Section 3 of tile Majority Act fixes the age of a
person domiciled in Burma at 18 years but section 2
thereof provides that this age of majority fixed by the
Act cannot affect the capacity of a person to act in
matters of. marriage, . dower, divorce and adoption."
However, a plea has been taken that by reason of the
non-representation of the 1st defendant through a
formally appointed Guardian for the purposes of this
suit no claim whatsoever can be adjudicated aga.inst
her.
T he 2nd and 3rd defendants have sought to show
that their daughter, the 1st defendant was born on
6th February 1935 and that on the dat.~ this suit was
filed in Court, i.~. , 27th August 1952, she was still a
minor. and that it was necessary that she should
be represented: by a properly appointed Guard~an-
ad litem.
I n mp.port of their contention as regards the 1st
defendant's age, the horoscope-Exhibit 12, has been
put in evidence. This document was said to have
been produced some five days after a report was made
by the 2nd deferid:;mt to the police alleging that his
daughter, the.l st defendant was a minor and that she
had be~n kic:lnapped :by .the plaintiff and twoothers.
The horoscop.e. W!.S saidt o have been prepared by an
Indian P.a ndit named Lai Ji in the 1st defendant's

,. ., '
;
1952 J BURMA LAW REPORTS. 361

place of birth, Gondal in India, under instructions H.C.

1952
given by the 3rd defendant and the 2nd defendant's
?lOiiA~IED
brother, Raksilal, not called. Besides the 1st KHAX
defendant, there were five other children, alL male::-, 'U.
0A)fAYANTHI
and when questioned about the horoscopd prepared P .~REI'H AXD
T\\' 0 OTHE RS.
after the birth of these five other children, the 2nd
defendant gave the explanation that these documents t: A t:KG THA
GYA\\-, J.
were destroyed during the period of Japanese occupa-
tion. It has not been properly explained as to ho"
this one document, Exhibit 12, has been saved from
destruction.
The alleged horoscope is prepared on a piece of
ordinary paper suggesting very little of the importance
of preserving it for any length of years, and regard
being had to the urgent necessity of influencing the
course of police investigation in respect of the report
made against the plaintiff regarding the charge of
kidnapping and the ease with which such a document
can be prepared, it is rather difficult to attach any
'S@rious weight to the contents of the same.
The passport, Exhibit 1, taken out on the 5th
October 1950, has been next referred to as supporting
the defendant's contention regarding their daughter's
age. This, however, was a document prepared after
thy criminal complaint was filed in Court against the
plaintiff and accordingly lacks the usual evidentiary
value attached to such admissions made by persons
whose age is in question.
The next document on which reliance is placed is
Exhibit ~' the International Certificate of Inoculation
and Vaccination wh~rein Damayanthi's age has been
given as 15 on 8th }tily 1Y50. This document is said
to have be~n signed .bY the person .who was vaccinated
and it has been rightly contended on the plaintiff's
b.e half thaf the allegedsignafure of the 1st defendant
.appearing on this document has not been identified.
. -
362 BURMA LAW REPORTS. (1952
H.C.
1952
The next document relied upon is the doctor's
certificate, Exhibit 14, which ~tates that the probable
MOHAMED
KHAN age o f the 1st de fendant at the time o f her exammabon
. .
DAMA~ANTHl in Oct?ber 1950 was between 15 and 16 years. This
PARF.KH AND examinatic,n as regards her age was made in
Two ~ERs. connection with the criminal complaint laid by the
u t:::.1~A 2nd defendant against the plaintiff and his mother.
The reasons for which this opinion regarding the girl's
age was formed do not appear on the certificate nor was.
the medical witness questioned on the point.
As against this evidence the plaintiff has produced
a number of recorded admissions alleged to have been
made by the 1st defendant in regard to her age. The
first of these appears in Exhibit A, an application
made by the 1st defendant in the Registration office
under the Foreigner's Registration Rules. In this.
document she signed her name in English and gave
the year of her birth as 1933 and the month of her first
arrival iu Burma as June 1933. This application was.
accompanied by a duplicate registration report in
Form A, giving the year of her birtb as 1933.
' In the General Diary, Exhibit C (1) recorded by
the police officer on 27th September 1950, the 1st
defendant is allegep to have adri?ilted her age to
be 18 years. Exhibit H is an affi.davif sworn by
r;>amayanthi before the 4th Additional Magistrate
which she signed in English on the 28th September
1950. Here also she admitted that her . age was
18 years. r ~~:x;hi bit K, a dechtration of her religious
faith she is ~11~1~9. to have repeated that her age was
1.* years. _Nei~her her handwriting nor her signature
iJ1jhis document has, however, been identified. She
is also alleged to have made. a similar admission t9
the Moulvi who made the entries in the Marriage
Register in Ex-h ibit L . Apad from the ev~(ience of
the 211d and 3rd ddendants there .is no other
 1952] BURMA LAW REPORTS. 36J
testimony to corroborate th e story that th e 1st :: .\.:.
1 _;51
defe ndant was born at Gondal in the year 1 935, and not
l\i \ '~! ,\ ~-! ~ :i
in 1933.
T he result of the examination of the evidence D'AMAYA::T H!
K H .~:-.
..
adduced before the Cou rt regarding the 1st defendant's TPAREKH
\\o oTHC i~'i.
AXil

age would point to the fact that, while her age at

U A l' Xt; TH~
the date of her elopement with the plaintiff on the GYA\\', ]>
27th Sep tember 1950was possibly below 18 years-a fact
which hardiy matters at all in the consid eration of the
merits of the plaintiff's claim, at the date of suit she
had probably attained he r majority. Consequ ently, it
cannot be beld that the suit has not been validly
instituted against the 1st d efend ant. Th e 1st Issue is
accordingly answered in the above sense.
I SS1t c. N 0 . 2.
T he next q uestion for d~termination is the alleged
marriage of the 1st defendant to the plaintiff und er th e
Mohamedan Law on 2l:>th ~epternber 1 950. It is the
plaintiff's case that the 1st 0efendant D amayanthi
was converted to Mohamedanism on the aforesaid date
and that she was Javdully ma rried to the plaintiff
in accqrdance with Moh~med an L aw . Although the
1st defendant was possibly un d er 18 years of age on .
the. date of her alleged convers~on, it cannot be
said that by reason of her minority, her a ct of apostasy
was 6'f no legal effect. Conversion was the only
means by "v'hich the 1st defendant could lawfully
contract a marriage with the plaintiff and her capacity
to so conduct' herself cannot be questioned under
section 2 of the Majority Act since r eligion is also one .
of the maHers excepted from its provisions.
This matter of conv~rsi on of a minor received 3

. jildiGtal . attention in Re. Muhammad A lam tl) where

the .)e arned Judicial c~mmissioner qf Sind was. or
. opinion t hat the fact of~ girl b eing und~r 18 years of
(1) (1939) A.I.R. Sind. 3!1 .
364 ~BURMA LAW REPORTS. [ 1<;52

H.C. age would not invalidate the conversion \Yh ich

1952 preceded her marriage to a .1\fohamedan. A minor,
M o !'IAMF. D
KHAN
accord. i ng to himr provided he or she is old enough to
v. und erstand the nature of his or h er acts though under
0AMAYAN THr
PAHEKH A ND 18"years of age, is able, inspite of the father.'s power of
TWO OTHERS .
geneml control over his or her education, religious
U AUNGTHA and otherwise, to change his or her religion.
GYAw,J.
Religion is a matter of conscience, a matter personal
to a minor of age to understand.
A similar change of religious faith was the subject
of comment in Sarat Chandra Chal<rabati v. Forman
iznd another (1). At page 227 of the Report
Mahmood J., remarked that for a change of religion the
law has provided no age of majority and t11e Majority
Act is specifically referred to as not being applicable
to matters relating to religion. This question arose
incidentally in a case arising under tbe1Guardians and
Wards Act but the views expressed in both the cases
cited above would seem to indicate t hat hO\:\'ever
desirable it might be tbat the minpr should be guid.ed
by his guardian in the matter of his religious belief,
the question essentially rests upon the intelligent
choice of th.e minor concerned. Such an exercise
of intelligent choke should not, of course, bG made
under. du.ress or from some compelling outside
influence working on the will and conscience of the
minor. Apart from the infatuation for her lover, the
plaintiff, which the alleged minor in this case suffered
from at the time she eloped with him, there is no
e vidence of any such evil influence having been
practised on the minor's mind at the time she
underw~nt the experience of her alleged conversion .lo
1\1 ohamedanism.' in this e:a:~e.
\iVh~t' amoti~ts to conversion to. the Mohamed~m
is
: faith set.'out-'in paragraph .i9 of Mulla's Principles o_f
(1) I.L R. iz:All. 21'3:
1952] BURMA LAW REPORTS. 365

Mohamedan Law, 13th Edition, at page 19. Courts H.C.

1952
cannot test or gauge the sincerity of religious belief
and it is said to be sufficient that the person "'" ho .\I~,t,~~Eo
embraces the new faith is shown to have professed : .
0,\ ~I.~YAl'THt
"the Mohamedan religion in the sense that he a~cepts PAREKH Ax o

the unity ..of God and the prophet ic character of Tw o ~E!Is.

U A CXG THA
Mahomed l l GYA\\' . J.

"In all cases where, acccrding to fifohameclanla\\', unbelid

or difference of creed is a bar to marriage with a true believer, it
is enough if the alien in religion embraces the Mohameclan faith.
Profession with or without convers:on li s~nec essary and sufficient
to remove the disability." [See Abdool Razack v. Aga Jlfa/Jomed
Jaffer Birtdaneem (1).]

To get at the meaning of the word "profession ''

u sed in this connection, Murray's New English
Dictionary has been appealed lo on the plaintiff's
b ehalf. At page 1427 thereof, the word "profession''
is shown as meaning "the declaration, promise or vow
made by one entering the religious order, hence the
action of entering such an order.''
in the light of this meaning attached to the word
"profession" evidence has bee n given in the case on
the plaintiff's b ehalf to show that on the evening
of the 28th September 1950, E1 e 1st cj.dendant
OaQlayanthi in th e presence of witnesses Raschid
and Rahman made her declaration that.she believed in
God and his Prophet 'M ohamed. Kalima was recited
fo.r her to repeat an~ this she did both willingly and
with a full comprehension of the meaning of the words
uttered by her.
Before she was asked to repeat the Kalima a
written declaration of her faith is ctlso said to have
b ee.n made by .the lst""defendant in Exhibit K. The

(1) 21 x:A. 56 at 64.

.366 BURMA LAW REPORTS .

H.C. document is in the Gujerati language and neit her tlJe

:1952
\.vriting nor the signature has been proved to be that
MoHA~rED
KHAN of the 1st defendant. After the Kali1wa was recited
:DAMA~~NTHJ and the conversion to the new faith was completed
PAREKH AND Rascbid and Rahman went and fetched the Moulvi -
rwo OTHERS.
. - Abdul Salem (PW 4) from the Chulia Mosque in
AUNG THA R
aJ Gy~'Y.
1. owett street, p azun d aung and wh en t l1e 1atter arnved,
.
a Mohamedan marriage is said to have been performed
at No. 47, in 54th Street, where the plaintiff and the
1st defendant were stopping after thP- elopement.
The 1st defendant was askP.cl by the witnesses Rahman
and Raschid as to whether she consented to the
marriage and on receiving her assent, the Moulvi
wrote d_own the entries in the Marriage Register,
Exhibit L, the particulars necessary for his purpose
and while the plaintiff~s signature was actually taken
-on the document, the 1st defendant, re-named
Miriam Bibi, did not do so but at her request Raschid,
_her Va!lil, signed the document on her behalf. This
Raschid is alleged to have acted throughout the
marriage ceremony as the 1st defendant's Vakil. A
copy of the marriage certificate, Exhibit L (1), entered
jn the Register is said to have been given to the
plaintiff.
In support of tke plaintiff, the fact of conversion
and the performance o.f the marriage. ceremony by the
Moulvi, Abdul Sal.em, have been deposed to -by
witnesses Raschid (PW 6), Rahman !PW 7) and Abdul
Salem (PW 4). According to these witnesses the
words appearing on the certificate "Mark of Mariam
Bibi 11 were entered- by Abdul Salem after the
certificate -was brought back by Raschid and Rahman
from..
the. 1st detendant
. who / was asked to plate her
signature on the same. but who, however:, contented
herself by asking Raschid . t_o :do the . needful on -
her behalf. -
 1952] BURMA LAW REPORTS. :.u
.
Moulvi Abdul Salem und erstood from the::;e \\"it- H.C.
I95Z
nesses that the conversion of the 1st defendant tO<.' k
place one or two days before they came to fetch him :'-J,>H.-
\~F. u
KH-~:\'
for the .celebration of the marriage. Great stress ha~ ..": .
. . D .\~:.,)A);lH I
been latd on thts and other senous discrepaqctes 111 PA !<E&:H A:\'o
T\\'0 tt'l'll !iRS.
:the evtd~nce of these wttnesses and m v1ew of the
acts and circumstances disclosed in their testimony t ; A l':\'GTHA
GYAW, J.
:this criticism would appear to be well justified. The
1st defendant is shown to have signed her love letters,
Exhibits 0 and E, in Gujerati, the affidavit Exhibit H,
in English and the declaration, Exhibit K, again in
Gujerati. Exhibit S also <lppears to contain the 1st
-defendant's signature in her language. Exhibit 1,
:the 1st defendant's passport also contains a signature
-of hers. She was thus a literate girl having, according
;f:o the entries appearing in Exhibit A, read up to
;the 3rd Standard . It was rather surprising that the
.necessity of taking her own signature on the marriage
-certificate was not thought of by these witnesses at the
:time the alleged marriage was performed in their
presence. It was not an ordinary marriage ceremony
,performed between members of their own faith.
l t was a runaway marriage celebrated according to
Mohamedan rites in order to conform to the require-
ments of the plaintiff's personal la,w in the matter and
done in circumstances requiring the exercise, on the
plaintiff's part, of great circumspection in order that
the status so created should not .be open to future
dispute.
T he absence of the 1st defendant's signature .on
t~1e marriage contract is thus by itself a matter of
.some suspicion but there are other discrepancies in
:tbe plaintiff's evidence to strengthoo this suspicion to
serio~s doubt as to the truth of the 'whole matter.
Tf!~ . girl's declar~tion,. Exhibit _ K, b ears the date
27_th . September, one . day earlier than the alleged
368 BURMA LAW REPORTS. [1952

H. C. conversion to Islam and the Muslim marriage celc-

1952
br~.ted immediately thereafter. Between the evidence
M~f;:~ED of the plaintiff and that of his witnesses a difference is
v. also noticed as regards the time of the performance of
DAMAYANTHI
PAREKH AND the Muslim marnage. Accordmg to the plamtiff the
Two ~ERs. Moulvi w<:ls fetched after dark and the wed.d ing took
U AUNG TJH,\ place at about 7-30 p.m. Raschid and Rahman place
0 YAW, .
the time earlier, the conversion of the 1st defendant
having been done by them at about 5-30 p.m.
It would appear from the affidavits, Exhibits.
H and J, that on the 28th September 1950, the
plaintiff and the 1st defendant appeared before ille
4th Additional Magistrate, Rangoon, and swore their
respective affidavits declaring that they had taken each
other as husband and wife. This practice of celebrat-
ing marriages in the purely civil form in the presence
of a Magistrate has been in vogue in this city and with
the Ward Headman Meera Gunny (PW 5) as their
only adviser, these young people w.o uld appear to have
thus conformed to the prevailing cpst6ll). in ap:pearing
before the 4th Additional Magistrate, Rangoon, and
signi'ng their respective declarations. But, their
happiness was shortlived, for, consequent upon the
report made by the 2nd defendant to the police
charging the plail)tiff with kid napping his minor
daughter, th~ plaintiff was placed under arrest and the
1st defendant was restored to .the custody of her
parents, the Znd and 3rd defendants on 30th Septern-.
ber 1950.
I n Crimjnal Trial No. 332 of 1.950 of the Court of
the Eastern Snbdivisional Magistrate the plaintiff on
5th October 1950 filed a criminal complaint against
the 2nd and 3rd ~efendants charging them with an
offence under section 498 of the Penal Code for having
iilegally> taken . b~c~ : the. 1st 4efe.ndaJit and: remove.d .
her,Jrom h:ts law'f.~i cu~~ody . W hen he .was examined
1YS2] BURMA LA \V f<EPORT~ , :)69

on his complaint he made no mention whatsoever of H.C.

1952
the Mohamedan marriage which had been performed
on the 2~th September 1950 before the Moulvi in his Mj~':.~~o
house in 54th Street. Both the complaint ~Exh.ibit 2) DAMAYA.NTHI
and his statement on oath or affirmation (Exhibit 3) f'AREKH A~o
? TWO OTHEilS.
only ment,oned lhe fact that they were marned before -
the 4th Additional Magistrate, Rangoon. If a proper uGAv~~:, ~~A
marriage ceremony had been performed uniting them
into lawful wedl0ck under his own personal law with
the help of a Moulvi of his own faith, it was surprising
that having the legal assistance of an Advocate of this
Court both the compl;linl and the statement made
by the plaintiff on solemn affirmation before t he
Magistrate should be si lent about this vital fact.
The Mosque copy of the certificate of marriage is
found in Exhibit L (3). The certificate which
immediately precedes Exihibit L {3) appears to be
dated the 8th September 1950. The one that follows
it appears to be dated the 6th November 1950, five
weeks after the alleged marriage, and the plaintiff's
cppy of the certificate, Exhibit L (2) was received in
the Translation Department on 2nd December 1950.
Th'e complaint bef!)re the Eastern Subdivisional
Magistrate was made on 5th OctQber 1950 and the
same was d ismissed on 14th October 1950 on
r eceipt Qf a police report-at page 5 qf the criminal
proceedings. This police report also makes no
ni.e ntion of the fact that the . plaintiff and the 1st
defendant underwent a wedding ceremony under
Muslim rites on the 28th September. The certificates
ExhibitsL (2) and L ( 3} could have been prepared any
time before 6th November 1950-aiter the dismissal
of the criminai c omplaint made by the plaintiff. All
these facts and circumstances would tend to show that
the alleged Mohamttdan marriage evidenced by the
mall'iage certificate, ~xhibit L ,2} did not really take
24
370 .BUR!'.'IA LA\:V HEP ORTS. [ l<J52

H.C. place on the date alleged by the plaintiff. l\fost

1952
probably, the young people in the excitement 0f the
J\!~~:!~ 0 escapade were far too removed from sources of proper
. v. legal advice and had contented themselves with the
D:.o.M,\YANTHI .
PAHEKH AND performai"lce of the c1vll f0rmabty ev1denc~d by their

Two ~ERs. affidavits, Exhibits H and J before the 4th i\.dd itiunal
u GVAW,
AuNGTHA Magistrate.
J. The alleged Muslim marriage was
probably an afterthought.
In view of the probabilities of the case in herent in
the nature of the discrepant t:vidence. presented on the
plaintiff's behalf it is difficult to believe that the 1st
defendant was converted to Mohamedanism and was
lawfully married to the plaintiff under Mohamedan
Law on 28th September 1950. as alleged by bim.
The 2nd Issue will accordjngly be answered in the
negative.
3rd rmd 4th Issues.
The 3rd and 4th Issues may now be briefly touched
upon. as on ' the . findi,ngs a,lready arrived at on the
validity of the alleged marriage, the question of the
C01,1rt's jurisdiction i? no longer vital to the decisi,Pn of
the cas~. It has been alleged that at the in~eption of
the prc~ept suit, th,e 1st defendant was away in India
where .she is said to have married and settled down
pern.i?.-~~ntly. The 1st def.end;1nt in consequence ~f
.the rep-c;:>rt .ma(,ie by the 2n.<\ 9efendant to th~ police
charging .t he plaintiff and his ~other. with the offen.ce
~(kidnappipg was'festored to he1; parents'. cu~tody on
the morning of t~e 30th September 19;50. A week or
so .later, tl~t is,. on 8th October 1.950,, the mother
Sa~ratt . L~xrni J?arekh, the 3rd de(endant; took her
away tq .Inqia ii,J.. th~ co~pa}1y of Doshi (D\V .2}, .in .a
pl~~e .: ~donging to the l.IJ.di<m :: National .Airw<,~-ys.
Service of. which witness Nadun-gadi ~DW 1) is the
io~.a1 Statio~ ~t,tp.e~int~~..~ent. . His pffice #I.e,. E,xh~bit 5,
 1952 J IJURMA LAW REPOR,TS. 371

has been produced in evidence to show that th~ 1sl 'H.c.

1952
defendant travelled to India by the I. N .A. plane on
the said date with Passport No. 1092058 and that she " K~:.'Io
1

was on the occasion issued with the luggage. receipt; D.~)~~~A~TH

Exhibit SA. The number of Doshi's passport is P.o\REKH AND
r d no ~t d h IS
name m J . d ocument. TWO-OTHERS.
. t11s
1oun e agamst
E x h 1.b.tt 10 1s
. a receipt
. granted to t }1e 1st d e f en d ant U civ..:w.
AU:->G THA
1.
in respect of her F oreigner's Registration Certificate
which she had to leave behind on her departure for
I ndia i and this affords further corroboration of the
~tory of her absence in India at the time when this
suit was brought two months after. In support of the
story of her marriage in India Mr. J. M. Vora (DW 3),
has produced the invitation card, Exhibit 11, inviting
him to the 1st defendant's marri_a ge in I ndia. There
is therefore sufficient evidence to prove the fact that
i:he 1st defendant is an Indian National, that she had
since before the institution of the present suit been
residing in India.
4t.h f SSl!e.
This affirmative answer to the 3rd Issue then leads
to the question of jurisdiction raised in the suit, the
contention on the defendant's behalf being that by
re~son of the 1st defendant's absence in I ndia at the
1nception of the suit this Court has n o jurisdiction to
entertain the suit or to grant any decree against the
1st d efendant or to grant any injunction against
-defendan t Nos. 2 and 3 as prayed for in the plaint.
T he leading case cited as authority on this point is
fou nd in Sirdar Gurdval Singh v .. The Rajah of
Farzdkote. tl) t he headnote of which. reads :
. .
" No territorial legislation can give jurisdiction which any
foreign Court ought to recogni_se against absent .foreigners who .
)We no allegiance or obedience to the Pn"er. ,,ihich so legislates.
..
U) 2~1.A.171.
372 BURMA LAW REPORTS. [lSISZ
B.C. In al l personal action!': the Courts of the country in'' hich
1952
the Defendant resides, not the Courts of the country where the
MoHAMED cause of action arose, shculd be resorted to."
KHAN

DAMAYANTUI Th~ir Lordships of the Privy Council had before
PARElKH AND
TWO OTRERS them the case of an ex pa1'te decree for mont>y passed
U AUNG THA
against the defendant by the Faridkote Court where
GYAW, J. the defendant had been employed under the Rajah as
a treasurer but, at the time of the suit, the defendant
had ceased to hold this office and was resident in the
State of Jhind of which he was a domiciled subject.
At page 185 of the report their Lordships said :
"Territorial jurisdiction attaches fwith special exce~tion!')
upon all persons either permanently or temporarily resident
within the territory while they are within it; but it does not
follow them after they have withdrawn from it, and when they
are living in another independent country. It exists always as
to land v.ithin the territory, and it may be exercised ove1
moveables within the territory ; and, in questions of stlllus cr
succession governed by domicile, it may exist as to persons
domiciled, or who when living were domiciled, within the
territory. As between different provinces under one :soy~reignty
(e.g., under the Roman Empire) the legislation of the sovereign
may distribute and re~ulale jurisdictioi1 ; but no tenitorial
legislatiQn can give jurisdiction which any foreign Court ought
to recognise agninst foreigners, who owe no allegiance or
obedience to the Power which so legislate~.
In a personal action, to which no.n.e of these cal.!ses of
jurisdiction apply, a decree pronoun~ed in abs~ntem by a foreign
Court, to the jurisdiction of which the defendant has not in any
way submitted himself, is by international law an absolute
nullity. He is under no obligation of any kind t~ obey it; and
it must be reg. lrded as a niere nl.!llity by the Courts of every
nation ~xcept (when authorized by specia!locallegislation) in the
country of the fort~m l;?Y which it was pronounced."

The last. part of this :quotation wo~ld rather seem .

to indicate .that where ~o.c~l legislation exists. authoris-
ing this Court to exercise jurisdiction in respect of
 t95Zj BURMA LAW REPORTS. 373

absent fo reigners, a decree perft:ctly valid as far as this ll.C.

1952
Court is concerned, can be pronounced in the dispute
to which the 1st defendant is impleaded as a party. )Jf{:~~Eo
The same question arose in similar circumstances D A)1AoJ\:S ';: T
H1
in Char Mal Hal Chand v. Kasturi Chand Ser:aogi (1} PAJ!EKH .~No
T\\'(l OTHERS.
and mc1<;lentally t he Court held that : _
U At::SG T RA
GYAW, J.
In a personal action a forei~n Court has jurisdiction in an
international sense if-
(i) the defendant is the subject of the foreign country in
which the jud~ment has been obtained ; or
(iil he, the defendant, is a resident in that foreign country
when the action began ; or
\iii) where the defendant, in the character of a plaintiff, has
selected the forum in which he is afterwards sued; or
(iv) where he, the defendant, had voluntal'ily :1ppeared in
that Court and submitted to its jurisdiction ; or
(v) where he, the defendant, had contracted to submit
himself to the foreign forum in which the judgment
,,as obtained "

And this led to the rule that cau,se of action is not a

general ground of jurisdiction recognised by Int~r
national Law. These rules formulated in Dicey's
Coi1flict of Laws would appear to have been also
followed in Vithalbhai Shivbhai Patel v. Lalbhai
Bimbhai (2). The same principles on which a Court
act.s in enforcing judgments of foreign Courts are
found discussed in Rousillon v. R ot1sillon t3) and in
Emanuet and others v. Symon (4).
It . w~uld thus ap.pear that the principle of law
enunciated in these cases cannot be appealed to. with
a view to deprive this Court of its jurisdiction at the
initial stage where an action is beigg brough t against
an absent foreigner a~~ against whom the cause of
(11 I.L.R. pj Cal. 1033 . C3J U88<)) 14 Ch. r>. 351.
(2J I,L.R. (1942} Bom. 688. {4) (1908} 1 K.B. 302.
374 BURi\L\ L~ \V REPORTS.

H.C. action is alleged to ha\e taken place wholly \,ithin the

19S2
Court's jurisdiction. Sec tion :CO of the Civil Proc edure
M~~~:Eo Code generally and section 15 of the Union Judiciary
v. Act specifically, invests this Court with jurisdiction to
D AMAYANTHl
PAREKH AND try a su!t where the cause of action is alleged to have
OTHRS. t ak en p 1ac>e w1't).1.m t}1e t ern'tona
TWO _ . o f th t: c our t's.
. }}'tmits
{1 AUNG THA d' t.
GYAW, 'J. JUflS lC 100.
Section 15 of the Union Judiciary Act reads :
"The High Court in the exercise of its ordina1y original
civil jurisdiction shall have power lo receive, try and determine
suits of every description if, in the case of suits for hncl or other
immovable property such land or property shall be situ1tecl, N' in
all other cases if the cause of actiou shall have arisen either wholly
or, in case the leave of the High Court shall have been first obtai1~cd,
in Pt~rt within the local limits of the ordinary o"i~inal t-ivil
jurisclictio~t of the High Court, or if the defendant at the
commencement of the suit shall dwell or carry on business, 01"
personally wo1'k for gain within such limits. "

This question of the Court's jurisdiction to enter-

tain suits against absent foreigners was discussed at
le.ngt.h in Gaekwar Baroda State Railway v. Habi&
Ulla (i) and the conclusions arrived at by the Bench
are found summarized in the headnote at page 829 in
the~e words :

"According to international law, pure and simple, a Court

has no jurisdiction to entertain a suit against a foreigner who
neither resides .- within, nor has su.bm'itted to its . jurisdiction,;
mereiy b'ec ause the cause of action, wholly 'or in part, arose
within its juris.diction. Rut diffe~ent consider~tion~ aris~ where
the legislature h:ts. conferred such jurisdiction upon the
.,........,,1'7,.'!~~--rh speciallocallegislati.on is a . recognized exception
.s aid rule of _international law.; and it follows that if the
n legislature has conferred jUl:isdiction upon the British
Courts to entertiin suits against non-resident foreigner~
the c<i.use of actio~ wi10ily or in part, arose within their

(~) l.L.R. St>. ~II. 828.

 . 1952 J 13URi\IA L A\V REPORTS
.
jurioci.ct,c'! , s uc l1 CoLds undouh:tclly h:1,.e jurisd:cti< n, ii tl:e H. C.
195Z
con<i:ion., providt:d by the law to which they are !<nbject exist.
T he b n).!.;al,!e of st:ction 20 (c) of the Ci,il Procedure Code is l\IoH A)ID
general r; -~ \\'i..le enough to apply to th e case of nt: n-re:;ic~en t I<~~~
foreigners. :tnd there is nothing in t he sectiou 1\'hich make:; an DA~lAYA:-:THt
exceptir' n as regards them. A Court i n British l11c!ia, cannot !;,~-~F.:;;~;~s~
disclaim jt>risdictic n ngainst a no n-reside nt fcrei~ner if the
plainti !fs c::use of action, w holly o r in part, arr se within its U GY.~\i',
AUXO THA
J.
jurisd icli HI ; what sanctity will allach to its decree if it is q ues-
tione :l i :1 n foreign country is a different question."

T his view of the law ..vas also followed in

Neelakanaa Pillai \'. K. A. Kunju Pillai (1 t where it
was held that having regard to the provisions o f section
20 of the Civil Procedure Code, a British Indian Court
can pass a decree against a n on-resident foreigner
when the cause of action has arisen within it~ Jocal
limits. The sa~e High Court in Swami11athau
Cheltiar v. VE.N.K.RM. If.RM. Somasu11daratll Chetfiar
and others (2) regarded it as settled law that <:ven as
against a non-resident foreigner the Court in British
I ndia had jurisdictiou in personam in suits based upon
a cause of action arising in British I ndia. As long
t;J.go as 1892 it was pointed out in 'Cvmpauhia De
Mocambique v. British South Afdca Company-
De Sousa v. Same (3):

''The question, whether the Courts of a nation will or will
not entertain jurisdiction o any dispute, is to be determined hy
the nation itself, i.e. by its municipal law. If by express legisla-
tion the Courts are dir~cted to exercise jurisdiction, the Courts
mus1 obey."

This case was referred to in CJzunilal Kasturchand

Marwadi v. Dundappa Damappa Nagalgi (4). The
B~nch after a review of t he case law on the subject
. 1eld
.
the view that " under section 20 (c).. of .the Civil
..
. (l ) A.I.R. (1935) Mad. 545. CJ) 11892) 2 Q.B.D.. 358 at 394
.l2f A.I.R. (1938) Mad. 741. 141 52 I:Jom. L.R. 660.
376 BURMA LAW REPORTS. [1952.
H.C.
1952 Procedure Code, 1908, a Court in India cannot
MOHAMED
disclaim jurisdiction against a non-resident forei.?"ner. ''
!{HAN if the plaintiff's cause of actio.r., wholly r.r in part,
DAMA~~NTm arises within its jurisdiction". It \Yas held further
PARRKH AND that a decree pronounced bv a Court of foreign state
TWO OTHERS. .
-T in a per~nal action in absentern, the absent partv not
U A UNG HA
GYAw, J. havmg submitted himself to its authority, is a nullity.
The question now before this Court is not whether
after a decree is passed a foreign Court will recognize
it, but, whether having regard to section 20 ot the
Civil Procedure Code and section 15 of the Union
Judiciary Act, it can assume jurisdiction in the case
and .. try the suit brought against a non-resident
foreigner when the cause of action has arisen wholly
within its local limits. On this point Starling J., in
Girdhar Damodar v. Kas.,igar Hiraga1' (1} observed
~hat it would be the duty of ~he Cour~s acting_ in the
execution of a statutory enactment, to give effe~t to it,
it being immaterial whether the judgment ~endered
would be in the circumstances recogn~zed by
foreign tribunals as being consistent with International
Law and the general principles of justice. The
observations of James L.J. and Cotton L.J., in ex parte
Blainz, in re Sawers (2) were cit~d in supP.ort of this
view. .
This being the state.of the law .onthe.point in issue
it must .be accepted as settled law th~t the Gourts of
this country can exercise jurisdiction over non-residel_lt
foreigners, despite their refus<i1 to submit to the same
in suits in which the cause of action is alleged to have
arisen within the locallimi'ts of the Court's jurisdic-
tion.
On the answers to the issues found above, it is
hat'dly neces~ary to dwell . at-. length oh the ..furth.er
obje~tion on the:d.efendan~'s ~e~~lf ~hat even.if. the Is~
. . (I) (1893j i7 B~n1. 662 at 665: (2i (18791 12 Ch. D. !mat 526.
. 1952] BURMA LAW REPORTS . 377

defendant had been legally married to the plaintiff, tbe H.C.

1Y52
declaration for restitution of conjugal rights asked for
in this suit should not be granted by the Court, firstly, M~HHA};:u
Qn the ground that a decree passed against a non- t:,
. ld DA )IAY.~XTHI
resident foreigner would be null and votd and wou .PAHEKH AND
not in any way be effective, and secondly, ior the Two oTHERs.
reason that the decree would not put an e~d to the uGYA\\', AvxG TH A
J.
dispute between the parties. The grant cf relief
under section 42 of the Specific Relief Act is entirely
discretionary with the Court but this discretion has to
be guided by well recognized principles having
reference to the \'arying circum::;tances present in each
particular case. See Ram Tmrakal Tewari v. Mt.
Dulari and oflias (1 ). A Special Bench of the
Calcutta High Court in Noor] ehan Begunz v. EuJ!.ene
Tzscenko (2) in circumstances similar to those now
under consideration held the view that as the declara-
tory decree sought for would not put a stop to the
dispute between the parties, the Court should not
exercise its discretion in favour-of the plaintiff. At
page 330 of the. Report, Nasim Ali J., remarked :

"Plaintiff is not domiciled in this countrr. The defendant

is a non-resident forei~uer. He has not in any way submitted
himself to th~ juri~diction of this Court. I am therefore of
opinion that the declaration sought .fqr by the plaintiff in the
present suit will not put a stop to the dispute in this case. I do
not therefore consider this to be a fiJ case in which the Court in
its discretion shonld pass a decree unc~er section 42, Specific
Relief Act, declaring that the marriage. of the plaintiff wiih the
<lefendant has been !=lissolved. . . . . ''

The same principle is found affirmed in R. B. B.

'Saran Singh . and one v. Ch. Mujtaba Husain and
others (3). !V.{:oreover, it is incumbent upon a Court
~f . Justice to .take notice . of..the
.
events which have.
{1) A.I.l~. (19j4) All. 469. , ~2j A,I.R. (1942r C~l. 325.
. (3) I.L.R.' 16. Luck. 74-2. .
378 B U R.!\1!\ L:\ \ \:' R E PU R.TS . f1952 .
H.C. ha1'Pe n ed sirtce the inc;ti lution of the suit and to mould
1952
its decree according to th e ci rcumstances as th ey stan d
MOHAMED
KHAN at the time the decree is made . [See R. B. B. S01-an
v. Singh (1) ibid.] .
DAMAYA)ITJII
1-'AllE"~I Al'; !l Evidence has been given in the case that sin ce the
TWO UTHERS.
institution of thi s su it tb e 1st .defendant had c. ontracted
~

U AUNGTH.~
GYAW, J. a Hindu marriage in India vvitb one Omerchand and
had settled down there permanently and th is fact
would seem to raise tbe further question as to whether
she had not by her apostasy implied in her conduct.
deprived the plaintiff of his ri ght to make his present
claim; for as was held in Hussain Umvar v. Fatima
Bee (2) and Ali Asghar v. Mi Rra Hla U .(3) her
subsequent apostasy would have the effect of cancel-
ling her marriage \\ith th'e plaintiff and the latter cannot:
in the circumstances get a decree for restitution of
conjugal rights against her. I'he 4th Issue will
accordingly be answered in the affirmative.
The suit, in the result, w ill be dismissed with co sts.

llJ I.L.H. 16 Luck. 742. 12) (1872~18921 :>.J.L.B, 368.

(3) 8. L .RR. 461. . . . .
 1952 ! BURMA LAW REPORTS. 3/9 '

A P PELLATE CR IM I N AL.
Be f ore {' Smz Mtl ml!J , J.

PO SA vV (a) SAW fvf A U .~G (A PPE L UNT) H.C.

195Z
v. Noz. 24
T HE U NION O F BURMA d~ ESPONDENT) .'~
Criww al P r<>ced111 e Code, s. 412-P/~a ,>{ guil/ y- .4Na! 11 gain~/ ex lc11l of
u n!c:uce-Napc-Penal Code, :;. 37(1- A gc <>/ valid cou swl.
H el d: Th e offence was rape only bec;_~use the girl was 13 years of a:!e, the
minimum age :\t which a girl can consent to sexua l intercom se with her
being 14. The circumstances obtaining in the case are such as to indicate that
she was a constnting party . She was on terms ol intimacy with the appellant
being his pupil. She adm itted receivi ng presents froll1 him. After the a lleged
r:\pe she: did not tell her mothe r about it 1ill abo1t se\'en tl;~ ys later. The
s:ntence of seven years erred on the side of severity.

Kyaw Thau111l (Government Adve cate) for th e

respondent.

U SAN MAUNG, J.-The a pp ell a nt P o Sa w (a)

Saw Maung was convi cted of an offen ce punishable
under section 376 of the Penal Code and was sentenced
to seven years' . rigorous imprisonm ent on the charge
tha t he had raped a minor girl by the name of Ma Ah
P u afte r pointing a dagger at her. As the appellant
pl eaded guilty to the chaige there is no app.eal again st
t he conviction so that the appeal "has b een admitted
.merely for the purpose of considering the sentence.
Ma Ah Pu, no doubt, alleged that s he had been forced
to submi t to illicit intercourse with the appellant.
However. the circumstanc~s obtaining in the case are
such as to indicate that she was a consentin g party.
She was on terms of
intimacy with him being his pupil
S h~ admitted receiving presents fr~rp him . ..After th.e
'
~ Criminal Appeal No. 463 of 1952 being Appeal from the on' eF of the
5th Additional (Special Power) . Magistrate, Yenaugyaung, in . Criminal
'Reular Trial Np, 31 of 1952,
380 BURMA LAW REPORTS. [ 195~

H C. alleged rape she did n0t tell h~r mother about it till
1952
about seven days later. Th e report to th e police
Po S.tw (a\
S A W MAU:o;Ci station was made the day after she made a complai nt
''
THE U~ION
to h~r mother. The reason she gave for keeping
OF BoR~fA. silt:nt for so lon g \:l.:a~. fhat whenever she tried lo open
u SAN her mouth to speak about the in cident sb e found that
.M AUNG, ] .
her lips had been sealed in some magical way. This is
not an explanation which we can easily accept. T he
probabilities are that Ma Ah Pu was a consent ing
party and that th e offence was only rape because
she was a g irl of 13 years of age, the minimum age
at whic h a girl can consent to sexual intercou rs~
wi th her being 14. In this view of the case the
sentence of seven years' rigorott's imprison men t meted
out to the appellant seems to err on th e si d e of severitY
and the learned Government Advocate who appears
for t he Go,ernment himself agrees that the sentence
of t\\'O or three years' rigorous im prisonment would be
sufficient to meet tbe case. I would accordingly reduce
the sentence to three, ye1rs' rigorous imprisonment.
1952] BURMA LAW REPORTS. 381

APPELLATE CRIMINAL.
Before U On Pe nml U 8<J Gy i , JJ.

H.C:.
PYON CHO {APPELLANT) 1952
'/}, Sept. ZZ.

THE UNION OF BURMA (RESPONDENT).

Special Judf!eS A.ct, 1946, ss. 3 aud S (l)-l4ll SessioltS Judges ttrtd Addt/ioual
Sessio1!s Judges are by virtue of ofjice SfJeci.tl Judges-Dunl ca paciiY-
Distiudiou iu trial oj case-Crffllill(t/ PrOcedure Code, s. 193 g~nerns
method of lnking !eognizance of offences by a Se~sions aud AtlditiOual
SessicmsCourl-Contrttvet~tiotl reuders the trial twll attd void-De5criptiOt~
of officer ddermiues I he capacity iu 7Vhiclt he tries l ite case.
Ileld: The law governing the cognizance of offences by a Court of
Sessions is laid down in s. 193 of the Criminal Procedure Code. An Addi-
tional Sessions Judge can only try such cases as the President by l(eneral or
special order may direct him to try, or as a Sessions Judge may make over to
him for trial. Where an officer holds a dual capacity, the powers and jurisdic-
tion of the two officers remain distinct and different so that the description of
the <.>fficer ml:St naturally determine the cap:acity in which he tries (be case,
The Uniou of Burma v. llfa Aft M r, (1 951) B.L.R 1 CF.BI; Ramnclamtra
Ga11es/J Khadkikar v. Emperor, A.I.R (1933) Bom. 58 (S.B.), followed.

Ba On for the appellant.

Mya Thein (Government Advocate) for the
espondent.

The judgment of the Bench was delivered by

U ON PE, J.-The appellant Pyon Cho has been

:onvicted under sections 302 (1) (c) and 392 (1) of the
>enal Code and sentenced to suffer death on the first
harge and to suffer three years' rigorous imprisonment
n the second charge by U Kin Maung U, Additional
essions Judge, Pakokku, in his Crimina{ Regular Trial
CdmJnal Appeal No. 39Zof 1952 bein( Appeal from the or der of lhe
lditionlll Sessions Judge, Pa.ko_kku, in Criminal Regular Trial No. _3 of 1952.
382 BURMA LA\V REPORTS.
l-l .<.:. No. 3 of 1952. U Kin Maung U, in trying the c.:a::-<
J-,152
acted all throughout as Additional Se~sions Ju dge an
PYON CHO
l'. nowhere dse in the case is there anything to sho\
T~~~:Ho~~T.:-: that he acted otht:! wise than as Adclition<1l Ses~ic-n
'U 0-;-;ll, J, Judge. ' . . '
It mav be mentioned that U Km !\Iaung U is a1sc
a Special Jud~e under section 3 of the Spt:cial Judge~
Act, 1946, which reads as follows:

"All Sessions Judges and Aclciitional S essions jud~es

appointed under section Y of the Code, shall, by vinm: oc
their office, be Speciai Judges."

A. point of considerable importance has arisen in this

case relating to trial of a criminal case in original
jurisdiction by an Additional Sessions Judge p<lrticularly
when he holds dual capacity of Additional Sessions
Judge and Special Judge. For some 1ime past, an officer
holding dual capacity as a SpecialJ udge and a Magistrate
\.vas guid.e d in trying a .criminal case by the princ iple that
l.' it is tbe procedure adopted by a Spec:al Judge in trial
of the case, and not the manner in 1.\hich he designated
himself, that determines whether he tries it as a Special
Judge or a Magistrate." It appears that U Kin
Maung U in tryin~ this case has followed the:. proce-
diue adopted by a Special Judge although he has
de!)ignated himself as Additional Sessions Ju dge. I.f
U Kin Maung U ean be 11eld to have tried the case as
a Special Judge he certainly had jurisdi-ction to try it.
See section 5 (1) of the Special Judges Act, 1946. On
.t he .othet hand, if ii: cannot . be so held for reasons
hereafter to be gone into, then the. question arise s as
to whether he ~1ad .jurisdiction . to do so. The law
. governing the ~oghizance of offe_n.ee~ by a Court of
Session is laid dpwn in section 193 of the Criminal
Pr9cedure Code. According to. thi~ provisio.n firs~ly
no Court oft Sessi~ns .shall take , cognizance. of.. any

.; i
195?) BURMA LA\V RE PORTS. 383

offence as a Court of o rig inal jurisdi cti on unless the H.C.

1952
accused has been committed to it by a Magistrate duly
!'YON CH O
empowered in that behalf, and se condly, an Ad ditional v.
Sc ~sions Judge can on ly try s uch casts as th e THE C.KIO:-<
. <F HUIOIA.
President, by general or s r<; c ial c:rd t r, may d.ir eet l1im
to try, or as a Ses~ io n~ Judge may make over to him for
trial. U Kin Maung l , a:; Ad dition al Ses5ion s Judge,
tri ed the case without a commi ttal proceeding and even
if his Court were a Co urt oi Session, which it is n ot, it
would not have the po n-t: to t<J k e cogn izan ce as
a Court of original ju risdiction . !\[o reover , the present
case is not a case \\hich the Presi d en t had directed to
be tried nor was it one made over by the Session s Judge
to be tried. It is t herefore cl~ar th at U Kin Maung U
had no jurisdiction to try tl1~ case as Additio nal
~ess ions Judge and the same . mus t, therefore, be
considered as n ull and V(Jid.
The next question is whether U Kin Maung U can
be deemed to have tried the case as a Spec ial Judge
inspjte of the description of hiri?self as an Additional
Sessions Judge. If it can be deemed that he tried the
case as a -Special Judge, he had jurisdiction to do so and
the question of .l ack of jurisdiction would not arise.
But the trend of judicial opinion is against that view.
If any doubt arises as to whether 0 Kin Maung U did
try the case as a Special Judge ins pite of the description
.of "himself as Additional Sessions Judge, that doubt
must now be set at rest by the Full Bench decision of
this Qourt in Criminal Reference No. 28 of 1950, The
Uni01~pj Burma v.Ma Ah Mar (1). In t_hat case it has
been hCld to the effect that where an officer holds
a dual capacity as in this case,. the (:JOWers and
judsdietion of the two <;>ffices remain distinct and
different so that the description of the officer must
naturally determine the capacity in which he tries
W 119.511 B.L.R. l !F.B.I .
384 BURMA LAW REPORTS. ( 1952

H.C. the case. A similar view has also been held hy a

1952
Special Bench in Ra111aclzandra Ganesh f<lwdkik71' "
Pvo!'l CHo
v.
Empero1' ( 1). I n the light of the decision of the Full
THE UNJO~ Bench of this Court referred to above, we must hold

-
OJ BURUA. th a t u .T{'m Maung U' s d escn. p t'10n o f 1umse
. If as.
u ON Pu. J. Additional Sessions Judge would determine the capacity
in which he tried the case. In this view of the
case, U Kin Maung U as Additional Sessions Judge,
had no jurisdiction to try this case, and the procet!dings
before him must therefore be held to be null and void.
The proceedings bdore U Kin Maung U are therefore
quashed and we direct the retrial of this case according
to law by the Sessions Judge, Myingyan-Pakokku
Sessions Division, as Special Judge or by some other
Special Judge of his Division b esides U Kin Maung U to
whom he may transfer the case.

----------------------~~--------~------
. (1} A.I.R. '(f933} .Bom . 58 {S.B.l.
 BURMA LAW REPORTS . 385
'

APPELLATE CRIMINAL.
Before U Sau Mtlung, I.

SOBIKA RAHMAN (APPELLANT} H.C

1952
v. Dec. 1.

THE UNION OF BURMA (RESPONDENT).*

Evid( IIU Act, .<s. 23 aml27-Con.ft'Ssiou-Vat11e and admiSSibility of statements
made to the Police-Statement accompauyit<g discovery and statement
leading to rliocovcry, contrast .
Held: A scatement which admits a substantial portion of the facts w.Uich
constitute the offence wlth which the appellant was charged is a confession
and having t>een made to the Police is inadmissible in evidence under s. 25
of the Evidence Aci.
Mauug Ha~anr! others v. The King, (l947} R.L.R. 371, followed.
Held further: S. 27 of the Evidence Act is inapplicable as statements
alleged to have heen made by the appellant are statements which accompanied
the discovery of the bundle containing the contr<Jband and did not leart to its
discovery.
Tlla Nge Gyi and Maullg Jfya v. Tke King, (1946) R.L.R. 229, followed.
Reld also :. There being no other proof of ownership a conviction for
illegal possessio01 cannot be sustained.
Ma Ein Tha a11d one v. Kitt~-Emperor, 5 L .B.R. l31, referred to.
"
R. E. Hende1'son f,or the appellant.

U SANMAUNG,J.-In Criminal Regular Trial No. 416

)f 1952 of the Court of the Second Additional Magistrate,
~angoon, the appellant Sobika Rahman was convicted
mder section 5 (1) of the Control of Imports and.
~xports (femporary) (Amendment) Act, 1947 and/.
1as sente:nc~d to f9ur ~cm,ihs' rigorous imprisonment!
0

>criminal App~al " No. 541 ~f 19.52. bein~ Appeal from the order of
~~ ' 2nd Additional Mag!sirale (S.P.)';Rangoon; in Criminal Regular Trial
a. 416 of 195 2.
25.
386 BURMA LAW REPORTS. [ 1952
H.C. The facts of the case are brieAy as follov;s :
1952
Soau;:A
RAHMAN At about 8-30 p.m. on the night of 11th July 1Y52,
THE u~roN S.I.P. Maung Soe Tint and two Police Constables
oF BvRMA. Maung Aye Maung (PW 1) and Sein Tun uf the

t SA~ Rangoon Port Police were on duty at Lanmadaw

MAU~G, J. f
oreshore when they saw a sampan r.oming away
from the S.S. 1 ' Staffordshire", which was anchored
midstream, towards Lanmadaw foreshore. The sampa n
stopped at the landing stage near Nyaungbinlay Bazaar
and the:: Police party saw an Indian leaving it carrying
a bundle in his hand for a tea shop near by. This
Indian was next seen entering the tea shop, but he
was not recognised by the Police party who sa\\" him
from a d1stance of about 25 yards when he entered that
shop. Accompanied by two witness~s, one of whom
was Maung Tin Pe (PW 3), the Police party visited the
teA. shop and found the appellant Sobika Rahman at
the entrance of that shop. Ther.e were 4 or 5 persons
in that shop, including those who were found drinking
tea. Maung Soe Tint then made an enquiry as to who
was the Indian that hael come into the shop with a
bundle and according to Maung Soe Tint and other
witnesses for the prosecution the appellant himself
said that he was the man. Maung Sbe Tint then
said that he would make a search in that shop
whereupon the appellant was alleged to have brought
down a bundle from a shelf sayi_n g that it was the
bundle which he had brought. T his bundle when
opened was found to contain the. three exhibit carpets.
T hey were wrapped up in a pieceof cleth upen which
was written the words " Bibby Line. ". Presuming
that it was contraband _which the appellant had
brought from the steaip~r . midstream the Sub-
inspector of Police took hhn_.under arres~ to the Police
Station where the first information report, Exhibit' A,
1952) BURMA LAW REPORTS. 387

was lodged. In that report the Pof ice Officer did nut H.C.
1952
mention that the appellant admitted the bundle to be
SOBI KA
his and that it was the bundle which he had brought RAHMAX
fr om the steamer. He mentioned that action was TH& U:-:IOS v.
:aken against the appellant because he was suspected OF BURMA.
)f having 'stolen the goods. E ventually when the U SAN
MAUl'G, ] ,
~harge sheet was made out against the appellant it was
ound that he was to be prosecuted under section 5 (1)
,f the Control of Imports and Exports (Temporary)
Amendment) Act, 1947.
'l> The appellant who gave evidence on oath stated
hat he was not the man who had brought the exhibit
arpets from the S.S. "Staffordshire'' but that he was
1 the tea shop n ear Nyaungbinlayzay when the Police
arty arrived and that when he was questioned as to
hether an yone brought something into the shop he
enied any knowledge of that fact. The Police then
~eing a bundle on a shelf asked him to produce it
1 d he merely obeyed that behest. The bundle when
pened was found to contain the exhibit carpets.
[ashi Ulla (DW 2) and Mazunda (DW 3) said that
le appellant e~rned his living by selling betel leaves
the tea shop and that they were present when
e Police arrested ~he appellan,t who denied all
10wledge of the exhibit carpets. Abdul Rahman
>W 4), the assistant in the tea shop, also supported
e appellant.
Now, on the evid.e nce given by the .Sub-Inspector
Police Maung Soe Tint whq himself lodged the
st' information report Exhibit- A, it is clear that
.t for the alleged admission by the appellant h imself.
tt he was the person in possessiGn .of the bundle
_n taining the exhibit carpets . which he ~~<;i prought
til the steamer midstream, there was rio evidence
,atsoever to connect him with the crime;of .having. ..
porteo the goods without a licence. Besides the
: . ,
388 BURMA LAW REPORTS. 1 952
H.C.
l(J5 2 appellant there \H:re many other }}t rsons i11 th e tea
SoBIK,\
shop when the Police party made the raid, so that
RAHMAN it will be impossible to say who was actually in
-:.
THr. .;:-;ro!i possession of the bundle seized by the Police.
01' RURMA.
In tQ.e case of M a Ein Tha and one v. King-
u SA:-; E,n.peror (1) it was held that an admission as to the
MAUNG, ].
ownership of boxes found on search i.o contain
opium and cocaine made to the Police before the
search is a confession and cannot be proved under
section 25 of the Evidence A.ct and that when there
was no other proof of ownership a conviction for
illegal possession of those drugs could not be
sustained. I n the present case the appellant was
alleged to have admitted to the Police that he was
the man in po$session of the bundle containing the
carpets and that he had brought this bundle from the
steamer midstream. This is a confession becauset
if true, it admits a subslaBtial portion of the facts
which constitute the offence with which the appellant
had been charged. See Mau.ng Han and others v.
The King (2). Th e confession having been made
to th.e Police is therefore inadmissit>le in evidence
under section 25 of the Evidence Act. Section 27 of
the Evidence Act is inapplicabl e as statements alleged
to have been made by the appellant are statements.
which accompanied the discovery .of the bund le
. containing the carpets and did not'Je.a d to its discovery.
See Tha Nge Gyi and Mau.ng Mya y. J:he .King .(3).
Apart from this aspect it is .to say the least.
somewhat doubtful _:that the appellant did make
the statements ascribed 'to him. The first information
report is sile"ht pn the point and it is improbable
that if the .appellant did make the a.dmi~sioh alleged
to ..have b~en . ~ade by :bin~ such admission wo.uld
(1) 5 L.B.R. 131.' (2) (1947) R.L.R. 371.
(31 (1946/ R~L.H. 229.
 .
1952] BURMA LAW REPORTS. 3o9
.
not find a place in the report rr.ade by no other ll c.
1952
person than a Sub-Inspector of Police.
SoutKA
For these reasons I would set aside the conviction K~HMAN
and sentence under section 5 (1) of the Control of t '.
THE 'GNIO~
[mports and Exports {Temporary) (Amendment) Act, Oi' BuR~(~ .

l947, and ,direct that the appellant be acquitted and U "iA'l

eleased so far as this case is concerned. MAU:\G, J.
390 !3 L R;VIA Li\vV REPORTS. [1Y52

APPELLATE CRIMI NAL.

Before (' Aung Kltmc, J.

H.C. SURYA NATH SINGH (APPLICANT)

1932
Ang. JJ .
SHIO ~ KARAN SINGH (RESPONDENT). "' ,_.

Defamatton-S. 500, Penal Code-A~<szuer giveu w cross.examinaliou. as

tflstinguislltd from a voluutary sta!emcnf-Priti/ege of, whether
absolute or qttatifil-S. 132, Evrdmce Act - Ni11.!h Exc~ptio1-z, s. '{99,
IPe1tal Code.
Held: A witness is bound lo answer all relevant quelotions even though
the answer may criminate him. An answer so ,given is one whicl~ the
witness is" compelled to gire" within the meanin)! of s. 132, E\'ide.nce Act.
Except for the offence of perjury he will not be liable to any prosecution for
making that statement.
Etavarthi p,,ddabl-a Riddi " lyyala Vartltl.a Rcddt, I.l . K 52 i\lad.
432. di~sented from.
SITeo KaraT& Lal v. 8 .11tdi Prasad, I.L.R.21 Pat. i78, ~pplied.
H eld f,rther: As there has been a great deal of litiga ti<>n betw~en the
P<!rlies it would be safe to presume that the remarks were made by tile
respondent boml (ide in the protection of his own intcre~t, and as such he
would also be protected by the Ninth Exception to s. 499 of ti1e Pe nal Code.

]. B. Sanyal for the applicant.

Aung Min {1} for the respondent.
U AuNG KHINE, J.-This is an application in
revision against th~ order passed by the 7th Additional
Magistrate, Rangoon, in his Criminal Trial No. 605 of
1950 acquitting the respondent Shio Karan Singh.
The applicant Surya Nath Singh was the complainant
in the case and he had charged the respondeut Shio
Karan Singh with having defamed him, an offence
punishable under section ?OO of the Penal code.
-The parties are brothers but. they have been at
logger-heads for the. past.few : :Years.. Differences
arose over the-settlement of undivided a-nd joint family
--------~ -- .. . . . ..
Criminal Revision :Ko. 401! ol 195 2 being Revie\~ of the order of the
7th Additional Magistrate, Rangoon, in Criminal Reg11lar Triaf No. 605.of 1950.
 1952 ! UURM A LAW REPOR TS . 391

property. There have been numerou~ cases, bot h H.C.

1952
civil ::md c riminal, be tw een them. As a m;ttter of fac t
S c; RYA NATH
the d efa matory stateme nts ;1ttributed to tb-: r c:s pon ck nt S1:-:GH

emana ted from the record of proceed in gs, Criminal SHto ~KARAN
Regular Trial No. 18 of 1949 of the Court of the -Hh . SINGH.
Addi tional Magistrate, Rangoon. That \Yas the <:ase in u At:NG
' KHI N , J,
whi ch the respondent Shio Karan Singh accused the
applicant of having committed a theft of some jaggery.
Jhe respondent during his cross-examination is
alleged to have volunteered a statement to the effect
that the applicant is an expert forger. The respondent
was being questioned about a certain docum ent fi k d
before a Civil Court when he is supposed to have
come out with this statement. There is no concrete
proof that the respondent volunteered the statement in
question and no record had been made in the body of
the d eposition to that effect.
It has been contended on behalf of the applicant
that this statement even if made during cross-examina-
tion is not privileged. Reliance is placed on the case
of Elavarthi Paddabba Reddi v. [yyala Varada Reddi
l1). It was held in that case that the statements made
by a witness are entitled not to an absolute but only to
a qualified privilege and that a witness who answers a
question or questions put to hin~ by counsel without'
seeking the protection of section 132 of the Evidence
.i\.ct is not entitled to. that protection. This in effect
means that before a witness gives an answer which he
considers defamatory he must seek the protection of
the Court first before he answers the question. Now
section 132 of the Evidence Act reads :

'' 132. A witJ~ess shall uot be excuse!! from answering any

question as to any,-m1tter relevant to the mit.t.er in issue in any
sui~ or in any civil. or criminal proceedi11g, up9nl the groupd

II) I.L.R, . Sl Mad. 432.

 BURMA LAVv. REPORTS.

H.C. that the answer :o st1ch questiou " iJI criminate, o r mal tend
1952
directly or indirect ly to criminaie, !;uch witnes:;;, or that it will
St.:RYA ;>;ATH expose, or tend di rectly or indirec tly to expose, such 11itness to a
Si:-;<.;H
v. penalty or fol"feiture ni any kine! :
SHIO !{.UI .H I Provided that no such a ns11er, which a witness !'hall be
SINGii.
compelltd to giw~. shall subject llim to any arrest or prosecution,
U AU:-<G or be proved against him in any criminal proceeding, except a
KHINE, ~
prosecution or giving false evidence by such answer.';

A different view of ibe matter ':;as taken by a

Bench of the Patna High Court in the case of Sheo
KaTan Lal v. Saudi Prasad (1). I shall quote the
words oi Chatterji J., in that case :

" l do not tbink section 132 requires that the witness,

b efore he can claim ptotection under the proviso, must first ask
to be excused from answering the question on tbe ground that
the <)nswer will criminate him. What the section really m eans
is that tbe witness is bound to answer all relt vant qt~es<icns,
even though the answer m.1y criminate him, but he wifl not be
li;tble to prosecmion except for ,:erjury. Questions "hich are
allowed by the Conrt in spite of objection by the pleader m ust
be deemed to be relevant, so far as the witness is concerned, and
he is bound t0 give answer. Answer so given is an answer
which the witness is compelled to give' within the me1ning of
section 132. ''

With respect, I am in entire agreement with this

'view expressed. Considering that the respondent is
an ordinary layman perhaps he thought h.e was under
compulsion to answer every question put to him. Ap
average person in a witness box, I consider, would be
under the impression that he is to answer every ques-
tion put to him either by Court or by Advocates. I
have already pointed out that there i~ no concrete
proof that the respondent made the . statement com-
.plained against him.. voluntarily. The respondent has
denied that h e had
. made the statemeQ.t voluntarily
. and
( 1) l.L.I~. 21 Pat. 778.
1 Y52] BURMA LAW REPORTS. 393'
H.C.
his version is that ill~ statemt;nt he made v,ias gi\en in
\ 1952
answer to th~ question put to him in cross-examin;tt icn SURYA NATH
by Advocate Mr. Henderson. In these circums t:tnct:s Sr:'\GH
::.
I must hold that the respondent is fully proteclecl SHIO l{ARA:-1
SINGH.
under section 132 of the Eviden ce Act in this matter.
U AUNG
Furthermore, it has got to be borne in mind that KHrNB, J.
there has been a good deal of liti gation between the
parties, and it would be safe to presume that the
remarks were made by the respondent bomi fide in
the protection of his own interest, and as . such he
would also be protected by the provisions of the Ninth
Exception to-section 499 of the Penal Code.
Finally I am to point out that the revisional jurisdic-
tion of. t he High Court should ordinarily be exercised
spari11gly in cases of this n::ture. For all these reasons
I am of the opinion that no interference is called for.
Tht application is dismissed.
 BURMA LAW REPORTS. [1952:

APPELLATE CRIMINAL.
Be fore U Ba T!touug, J .

H.C.
1952 THE UNION OF BURMA (APPLICANT)
Sepl. 2 v.
u SAW LWIN AND OTHERS (RESPONDENTS) ...
Crim;nal Procedure Code, s. 350-Whe/lrer the Previous charge agaiu#
the acwsed must be quasltcd before comme12ccmt11t of de novo t rial.
Held: \Vhen a Magistrate exercises his option under s. 350 (l) of the
Criminal Procedure CodP. of starting a de novo trial and do~s not merely
rehear the witnesses to the extent demanded by the accused, the previous-
charge is no longer in force, and there is no need to quash it.
Tukamm v. The Kwg-EmPeror and o/h.ers, I .L.R. (1936) Nag. 92,.
referred to.

Chit for the applicant.

U BA THOUNG, J.-Four persons namely, U Saw

Lwin, Maung Than Nyun, Maur:g San Tun Aung and
MaungTun Kyi were sent up for trial under section 408
of the Penal Code for misappropriation of Rs. 25,980-
6-0 werth of goods of the Civil Supplies Department
Employee Concos, before the First Additional
Magistrate, Rang()on. After a prolonged trial, the
learned Magistrate ~framed a charge under section 408-
of the Penal Code against U Saw L:win, Maung Than
!n
Nyun and Maung S;~n Tun Aung his Cr~minal Regular
Trial No. 368 of 194.9, and discharged Maung Tun
Kyi. After the charge was framed against the three
accused and befort: the trial was concluded; the learned
to
Magistrate submitted a report the District Magistrate,.
Rangoon, that he could not proceed further with the
trials as ther~ w ts "misjoinder of charges of the accused,
* Criminal Hevisions NQs: 86-B/87-:6{88-& of 1.~52 being Re,iew oi the
order of the District Magistrate, Rangoon, in ~riminal Revisions Nos. 44/~S/.!
46 of 1952.
 l~URl\IA L.-\\V REPORTS.

and Ire ~uggested that the cas\.' should be split up into H.C.
! 952
three cases. The learned District 1\tiagistrate, in ihe
THE 1.::-:ION
diary order, dated 16th July, li.J51, in Criminal Regular oF Bt:RMA
Tri;1l No. 368 of 1949 ordered that the case should u SA~: Lwr:-~
be: St>lit in the light of the First Ad_ditional A:\o oTHERs.
Ma~istratl"'s report and he for\\"arded ;,t to the u BA.
8th Additional Magistrate, Rangoon, for disposal. The THot:xG, 1
8th Additional Magistrate, Rangoon, U l\:Jaung Gyi,
split the case into three separate prcceedings against the
three accused, U Saw Lwin, Maung Than Nyun and
Maung San Tun Aung in Criminal Regqlar Trial Nos.
267, 268 and 269 ot . 1951. U Maung Gyi was then
transferred to Pegu and he was succeeded by
U Maung Gale (1) as the 8th Additional Magistrate,
Rangoon. U Maung Gale then submitted a report to
the District Magistrate, !~angoon, stating that a mere
splitting up of the case and opening of separate
proceedings against each of the three accused, \Vould
not cure the defects while the charges subsist against
them ~n the original proceedings in Criminal [~egular
Tri::tl No. 368 of 194 >and he suggested, either to have
the case withdrawn and to execute fresh proceedings
~g:1i nst the accused separately, or, to submit the
proceedings to the High Court for quashing the
:harges against the accused and.for order for retrial.
The learned DisfJ.ict Magistrate has now submitted the
record of proceedings in Criminal Regular Trial
~ o. 368 of 1949 of the Court of the First Additional
Yfagistnte, Rangoon, as wel~ as its connected proceed-.
ngs in Criminal Hegular Trial Nos. 267, 268, 269 of
l951 of the 8th Additional Magistrate, Rangoon, with a
_e com:nendation for separate trials ag~inst the tl}.ree
.ccused aftex: - quashing the charges . fran~ed agai-nst
i1em in the .original proceedings, i.e., Cri"n}inal Regulci,t
frial No. 368 of 1949 of the Court of the . Firs.t
\dditional "Magistrate, Rangoon.
 BURMA LAW REPORTS. [ 1952

B.C. A $ regards quashing of th e c harges framed a r.:_ai nsf

J951
the three accused, U Saw Lrin, l\laung Th an Nyu " and
T i l E IJ:>:IVN
<>r Bu~<MA Maung San Tun Aullg in Crimi nat Regular Trial No. 368
u :>A,:L.n:-; of 1949, there is no need to quash these charges since
All:o oTfi E ~ts . . the case has now been spliited into three separate
VJ:3A proceedings, i.e. , Criminal Regular T rial Nos., 267 , 268
TH n UNG,J. and 269 of 1951 of the Court of the 8th Additional
Magistrate, Rangoon, and as the learned Magistrate is
about to start trial afresh under section 350 (1) of the
Criminal Pr~cedure Cede in the~e three cases ag:1inst
the three acctised.
In the case of Tuka ram v. The King-Emperor and
others (1) it h s been held that, if the Magistrate
exercises his option under section 350 (1) of the Crimina!
Procedure Cude of starting a de novo trial and does not
merely rehear the \.vitnesses to the extent demanded
by the accu:sed, the previous charge is no longer in
force.
I therefore consider that the charge framed
agaimt each of the three accused U Saw Lwin;
Maung Than Nyun and Mauug San Tun Aun g, in
Criminal Regular Trial No. 368 of 1949 of the 1st
Additional Magistrate's Court, Rangoon, can no longer
be in force.
For the::;e reasonS~, I clir ect that the cases .against
the three accused, U Saw Lwin, Maung Than Nyun
and Maung San Tun Aung in Criminal Regular Trial
Nos. 267,268 and 269 .of 1951 of the Col.itt of the ~th
Additional Magistratt-:.R~ngoon, be proceeded on their
merits. l am to add that since the three accused have
already had a protracted trial in the Court of the 1st
Additional Magistrate, Rangoon, the cases against them
now i~ the Court of the 8th Additional , Magistrate 1
Rangoon, sh<i'uld .be disposed of as speedily as possible.
. .

l.lJ I.L.R. (L9361 Nag. 92.

1952] BURMA LAW REPORTS. 1
397

A P PELLATE CRIM I NAL.

Before U San Maung, J.

THE
... U~ION OF BURMA (APPLlCl\N';') H.C.
195~

v.
SEIN PO (RESPO~DENT).*

rimmal Procedure Code, s. 341-Trial of persons deaf or dumb or insane-

Correct procedure to be adopted by tr1a/ Court-Finding that accused
understands nature of procccdil,gs and criminal cltarac;lcr of act must
l>c recorde.l before collvictron-Disliucfiou belt:eeu rmderstaud111g /he
crimin.rl uat11re of the act at the lime of the /rial and tile criminal
nature of t lu uct at tlu: lime of its comruission-WIIelhe,. t11t offe~tce
pun isflab/e tmder the Penal Code has been commilltd must I e rl.:dded
i;y the rule cnuncraled in U Damalal.J'S c.rse.
Helcl: It was wron~ on the p;u t of the Magistrate to ha\e proceeded
pass sentence on the accu~ed when s. 34 1 of the Crimjnal Procedure
<le provides Uta! when enquiry or tri;tl result.; in a conviction, tl1e
Jceeding shall be forwarded to the High Court with a report of the
cumstances of the case for that Court to pass such order as it thinks lit
reon. It is essential for the Magistrate before convicting the accused to
or:! a finding that he had sufficien t intelligence to understand the criminal
tracter of his act and the nature of tile judicial procet:dings taken a:,:ainst
1.

EmPtror v. Gtmga, A.I.R. (t'J:'OJ Lah. 64, referred to.

Held: Normally, ~. 341 of .the Criminal Procedure Code is intended to
vide for cases where the a.:cused is uuable to under~tancl the proceedings
>ugh deafness or dumbness or ignorance of the language of the country
is inapplicable where the inability to uttde~tand the proc~edings arises
.1 uns0undness of mill!d.

?-mPress v. Husen, I.L.R. 5 Born. 262 ; Queen-Empress v. Somir Bowra,

;al. 369, referred to.
iclcl further : As observed inK iug-Emperor v. U Damapal.a the test is not
ther the accused has proved beyond all reasonable doubt that he comes
in any of the exceptions to the Penal C'o<le but whether there is a
)nable doubt in _tl:.e case for the prosecution wheth!r the accused had
nilted an oSJence punishable under the Ptnal Code. In the ci~cumstancc:s
ning in the case, reasonable doubt seems to exist whether the accused
lane enough to be capable o( l-nowing the ilature of his act or t_bat be
doing what was either wrong or contrary to Jaw.
illg-Emperror v. U Dama~la, I.L.R. 14 Ran.666, followed~

Criminal Revision No. 105-B "of 1952 being a Review of the ordec of the
dditional Magistr-ate, Pyap()o, in Criminal Regular TrialNo 6 of 195:?.
 398 BURMA L AW RE PORTS. [ ~ 952

H.C Kyrzw Thaung (GO\ernment Ad vocate) fer ti .e

1952
applicant.
T Hr:: U:-.!!ON
I JF B UR)fA
. v. U SAN l.V! A U~ G , J.-IIl Criminal Regular Trial No. 6
SEIN Po.
of 1952 of the Court of the 6th Additional Magistrate,
Pyapon , t!; e Magistrate convicted the accuse(; Sti n Po
of an offepce punishable under section 326 .of the P~ nal
Code for causing grievous hurt to Maung )'i (PW 1 ), by
means of a da/z .and, after sen t~ncing Sein Po to rigorous
imprisonment for one year and six months, sent a report
to this Court to passsuclJ orders as it t hinks fit under
the provisions of secticn 341 of the Criminal Procedure
Code. Tb e matter came before U Bo Gyi J., wl!o, by
an order dated the 23rd of M ~y, 1952, set aside the
sentence of one year and six months' ngorous imprison-
ment passed upon Sein Po after pointing out that it
was wrong on the part of the Magistra~e to have
proceeded tq pass sentence on the accused when
section 341 of the Criminal Procedure Code provides
that when enquiry or trial results in a convicti <~ r., the
proceeding shall be fonvarded to the High Court with
a report of the circumstances of the case for that Court
to pass such or9er as it th inks fit thereon .
T he facts of the case
. are briefly these :
T he accused. Sein Po used to reside in a zayat,
within the precincts of Pyissima-yon . Phongyi-Kyaung
of Kyaiklat, with Maung Yi and his .wife Ma Ngwe Yin
(PWs 1 and 2). The accused, as well as Maung Yi arid
his wife, were lay servan ts of the Phongyi and the
accused used to cook fr-od while Maung Yi af! d his wife
performed other menial duties. T be accused was, by
l1abit, a very morose person and he seldci~ uttered any
word though he was . capable of making intelligible
speeches. On the day of..f>ccurrence; the7fl;l Lasan o
Tabodwe, 1312 B .E., corresponding to . tl;le 2nd of
February, f 9SZ, while Maung Yi was . si~ti~g at the

,,
52]
1 BURMA LAW REPORTS. 399

or-way of the kitchen of tht zayat where he and the H.C.

1952
cu sed were residing, the accused came back from
.
! pon d carrymg wa t er. Tl 1erea ft er, Wt'tl1ou t saymg
. THE UNION
oF BrRwA
ything, he picked up a mamootee from the kilcl:!en v.
SEIN Po.
j attacked Maung Yi who w;~s unable t::l defend
U SAN
nself because of paralysis. Three injuries were MAuNe, J.
icted on Maung Yi and th ese were found by the
J-Assistant Surgeon, Kyaiklat, Mr. K . Choudhury,
V 6), who subsequently examined him, to be as
ows:
1. One incised gaping wound 3 11 x t 11
on the
left side of the head cutting the bone
partially.
2. Ari incised wound n" X iII on the right
side of the heact cJtting the bone partially.
3. An incised wound 2! "x 1" on the left side
of the back of the neck.
injuries were so serious that a dying deposition
to be taken on the day of Maung Yi's admi~sion to
ital but Maung Yi recovered sufficiently to be
targed from hospital about sixteen days after -_h is
ssion. There was no motive for this sudden and
:e attack as the accused and Maung Yi were on
terms. The accused was not addicted to liquor
:here was uo previous history of insanity except
s moroseness. After the accused was arrested, he
onfined as an under-trial in Pyapon jail where the
actor, U Ba Pu, had the opportunity of observing
)r about two months. After his admissio:ain jail,
hibited certain peculiarities such as, refusal to
L bath or to eat properly and faijufe to utter any .

His condition improyedafter abouta .~<;>~th and

s f0und to eat; drink, -sleep and bathe like. a
1 person. -'. In the opinion of . the . Dpctor,- the
d was insane at the time of his admis:Sion in jail. .
400 BURMA LAW REPORTS. [1952'
H. C. The Doctor also opines that the accused was not
1952
sufficiently sane to stand his !rial. But, with this.
THE l"NIOX
01' B l:RMA opinion, the learned Magistrate disagreed because the
V.
Sr.o: Po.
acr.used u~ed to Sh.ikoe him whenever he carne to Court
and was, even able to put a question to l\IIaung Yi as,
(J S A:-1
MA v~>'G,J. i< Go1o5a;?:~~Go1oS::uro-:>: "u The Magistrate also found that
the accuseci should not be given the benefit of section
84 of the Penal Code as he could not be said to be a
person who, at the time of cutting Maung Yi, was
incapable of knowing the nature of the act or that
he was doing what was either wrong or contrary
to law.
Normally, section 341 of the Criminal Procedure
Code is intended to provide for cases where the
accused is unable to understand the proceedings
tln;ough deafness, or dumbness, or igporance of the
language of the country and is inapplicable where the
inability to understand the proce~ dings arises from
unsoundness of mind. See Empress v. Husen. (1).
Therefore, in a case under section 341, it is essential
for the Magistrate, before convicting the accused, to
record the finding to the effect that he had sufficient
intelligence to understand the criminal character of
his act and the nature of the judicial proceedings taken
against him: Where . no such finding is Jecorded
by the Magistrate, the accused cannot be convic~ed.
See Emperor. v. Gunga (2). In t~e present case, the
learned Magistrate had recorded the findings necessary
to give him jurisdiction to record a conviction against.
the accused under section 326 of the Penal Code.
He said that the accused was intelligent enough to
understand the .. nature of the judicial proceedings
taken against hi~ and that., .at the time he committed
th:e offence, lie ' wa:s intelligent enough t6. understand
the criminal .<;haracter of his act.
. (1) I.L.-R. ~ Bom. 262. (21 A,l.R. (1930) L ab. 64.
l952] BURMA LAW REPORTS. 401

No..,v, while I am inclined to agree with the learned r9~i

Magistrate that at the time of the trial, the accused was -
. . THE UNION
ntelhgent enough to understand the nature of the oF BuRMA
:riminal proceedings taken against him, I am not. SEI~ Po.
nclined to agree with him that, at the time he ass.a ulted u SAN
hung Y,i, he was capable of knowing the nature of .MAuNG, J.
is act, etc. As observed by a Bench of the Calcutta
ligh Court in Queen-Empress v. Sonrir Bowra (1),
roceedings under section 341 of the Criminal
rocedure Code are anomalous and, in all.respects, do
ot represent a complete trial. The High Court, in
case triable by a Magistrate, pass sentence on what is
:rmed a conviction, though it cannot strictly speaking
e so termed, seeing that the accused cannot in such a
LSe make a proper defence. In a case referred under
;ction 341 of the Criminal Procedure Code, the
gislature seems to have contemplated that there
wuld be a finding by the Magistrate either by what
called a conviction, or a commitment that primd
cie,. that is to say, on the evid~nce for the prosecution,
l offence has been committe.d and that the accused
ough not insane cannot be made to understand the
oceedings and there are cases where, on such a report
:ing made, sentence has been passed by the High
mrt in the abs.e nce of any defen<;e for such reason.
From the fact that the accused attacked Maung Yi
thout aQy rhyme or reason, that prior to the
Currence of this case, tht accused was by habit a
rson prone to l?e morose and that when he was
nfine4 to jail soon after the occurrence, he appeared
the Jail Doctor to be insane for abo.ut a month, I
l of the opinion that at the time the accused c ut
mng Yii he ~as, by reason of unso,undness of min:d,.
;apable:.of knowing the nature of the acf or that ht
s doing . wha~ was either . wrong or COJltr~fY to la.~.
. (1) 27 Cal. 369.
26
~02 BURMA LAW REPORTS. [1952
H.C. As observed''In King-Emperor v. U Danwpala (1), the
1952
test is not whether the accused has proved beyond
To~~.> s~:~~~ all reasonable doubt that he comes within any of the
SEr~ Po . exceptions to the Penal Code but whether there is a
U SAN
reasonable doubt in the case for the prosecution
MAONG, J. whether the . accused had committed a:q offence
punishable under the Penal Code. In the circum-
stances obtaining in this case, reasonable doubt seems
to exist whether the accused was sane enough to be
capable of knowing the nature of his act or that it was
doing what was either wrong or contrary to law.
However, I am of the opinion that the accused is a
dangerous character and that it will be unsafe to allow
.him to be at large until it can be reasonably inferred
from his conduct that he will not harm either himself or
other persons. I accordingly direct that he be kept in
I nsein Jail until the order of the Govern rnent sball have
been received and that the case be reported to
Government for orders. For analogy, see the action
taken in Queen-Em.press v. Somir Bowra (2), .cited
above.

(1) J;!:.F.'H Ran. 6>6. (2) 27 Cal. 369..

.. l
952] BURMA LAW REPORTS. 403

APPELLATE CRIMINAL.
Before U Attng Kltme, J

TUN TIN (APPELLANT) H.C.

11)52
v. Nov. 24.
THE UNION OF BUR;\IA (RESPONDENT).
ium Act, s. 9 (a)-Possess toll ,,rl Owu(rSitiP-Whctlta t1;o or only one
senleuce to be inflicted if it~ addllio11 to po~Stssiou, O'W11trshiP is found
proved-Proviso t:J s. 2 12). Opium (A mcmtmcnt) Act, 1949-Meaning of.
Held: The proviso in s. 2 (21 of the Opinm !Amendment) Act mea ns that
c shall be oolv one sentence, and in that 'entence a term of rigorous
risonment not lt:ss than six months 5hall be inRicted as part of the
ishment for being the owner of the oprum. Two separate sentences are
allowtd by the la w on one charge.

San Hlaing for the appellant.

U AuNG KHINE, J -This appeal arises out of

minal Regu\ar Trial No. 378 of 1952' of the Court
the 8th Additional Magistrate, Rangoon. In that
l the appellant Tun Tin was found guilty under
:i()n 9 {a) of tbe Opium Act and was s~ntenced to
ergo 6 months' rigorous imprisonment, and in
ition he was also d irected to suffer another term of
: mths' rigorous imprisonment as he Vl~as considered
e the owner of the opium seized. The facts of the
are quite simple and they are briefly these.
~cting on information received, the house of U San
n, No. 51, 7th Street, A.F.P.F.L. quarter, was
!d by the Police and inside the house 12 viss and
:icals of raw opium was found in a box. It is not-
!d that this box was in the possession of the
Hant who was put.ting up there. ., It is his version
he came d9~~ to Rangoon from Yamethin by
imina! Appeal N~~ .4S9 of 1952 being Appeal from the order of the
i tion:Ll Magistrate, Rangoo~. in Criminal l<egularTrial No. 378 of 1952.
 404 B URM A LAW REPORTS. [1952

H.C. train. When t he train stopped at Pyinmana, a man

1952
by the name of Kyaw Sein came into the same compa rt-
TuN TJN ment in which he was travelling and sat down next to
v.
TBE UNIO~ him. Kyaw Sein left the train at Nyaunglebin and
<:IF BuRMA.
before doing so be entrusted with him (appellant) a
U A UNG
l{H!N E, J. box to be''taken away to Rangoon saying thai he would
call. for it in a day or two at the house where he
'(appellant) was going to put up. However, before
Kyaw Sein came to take delivery of the box, on the
day of the raid, his (appellant's) young niece while
playing n ear the box belonging to Kyaw Sein, opened
the same and it was only then that he discovered that
the box contained opium. He made a report abo~t
this fact to the A.F.P.F.L. leader of the quarter and
later to the ward bead man. Soon afterwards the Police
came and raided the house and seized the opium found.
The. story as told by the appellant is too tall to be
believed and I consider that he has been rightly
convicted.
The learned Magistrate directed the appellant to
suffer 6 months' rigorous imprisonment and in addition
.he furthei' directed the appellant to suffer another term
of 6 .months' rigorous imprisonment as the owner of
the opium. In awarding a further 6. months' rigorous
imprisonment, probably the learned Magistrate did so
not fully understanding the proviso in section 2 (2) of
the Opium (Amendment) Act, 1949 (Act No. XIii of
1949). The proviso reads :

" Provided, that if a person convicted under this section is

in the opinion of the convicting Magist~ate the true owner of the
opium i.n respect of which he is convicted, rigorous imprisonment
for, a term which. sh;.ll not be. less than. six .months . shall be
i~flicted upon him as part of tl:re punishment.~.' _.

What this proviso . really ll).eaas. is t~at : ti>:ere . shall _~e

only one sentence, and, i~ :that sen~ence a term of

~, .
1952] BtJRMA LAW REPORTS. 405

rigorous imprisonment of not less tban 6 months shall H .C.

195Z
be inflicted as part of the punishment for being the -1

owner of the opium. A cursory reading of the v.

THE UNION
judgment would make it appear that the appyllant has OF B t:~~MA.
been awarded two separate sentences of 6 months,
G AUifG
rigorous imprisonment each. However, in' the Jail KH!~E, ].

Warra~t I notice that only one sentence of one year's

rigorous imprisonment is mentioned. The question to
be decided now is whether it was the intention of the
Magistrate to impose only one sentence or two separate
sentences. But the law does not allow two separat~
sentences to be passed on one charge and the learned
Magistrate must have been fully aware of this. I take
it that the learned Magistrate fully intended to pass
:mly one sentence of one year's rigorous imprisonment,
but that in doing so he has not expressed himself very
;.:veil. As stated above, his intention is made clear by
Nhat has been mentioned in the Jail vVarrant. The
}uantity of the opium is large and the sentence of one
'ear's r:i.gorous imprisonment is not too much.
The appeal is dismissed.
406 BURMA LA\V HEPORTS. l:195z

APPELLATE CIVIL.
Before V Tun Byu, C.l., ami U On Pe. J.

H.C. U MAUNG MAUNG (APPELLANT)

1952
Oct. 24. v.
fl4A AYE BU (RESPONDEKT).*
Guardians at!d Wards Act, s. 25-Gus/ociy of minor i/Jegitintale child-Legal
clamt of fath er-Paramouttl consideration tlte interest a"d we lfare of the
mittOT.

Held: It is the interest and welfare of the minor which should have
paramount consideration. T!te rights of guardianship under the Jaw to which
the minor is subject or on the grou nd of propinquity must be assigned t<J a
subordinate position.
Tan Swee I(yu v. Clum Chain Lyau, (1947) R.L.R. 107, followed.
' H elll also : The father of an illegitirmtte child cannot be said to J1ave a
legal claim to the custody of such minor.
MamJ! Myo a11d one v. Matm'g Kya11, 8 L.B.R. 415, referred to.

N. R. J)![ajundar for the appellant.

The judgment of the Bench was delivered by

U TuN BYu, C.J.-The appellant U Maung Maung

applied, on the 22nd November, 1951, under section 25
of the Guardians an(l Wards Act for the custody of his
illegitimate.son, named Mohan;Jed Yase(fn (a) Kala, who
was .said to have been born in Decemoer 1946. The
respondent Ma kje Bu is a grandmother of the minor
who had been living with his mother Ma Zaw Ta since
his birth. Ma Zaw Ta died on or about the 20th
October, 1951, and she ~as, before her death, living
withh-er lflOther ~1a Aye Bu. The appellant's applica- .
tion for the custody--qf hi.s illegitimate son was dismissed .
by the lear~~d Di_strict Judge, with costs; on the
.., Civi~ Misc. Appea~ No. 39 of 1952against the order of the District Court,
Pyinmana, in. Civil Misc:.;No. 11 of 1~51.

,.
..: ~ . ' I
 1952] BURMA LAW REPORTS. 407
17th April, 1952, who, in effect, came to th e conclusion H.C.
1951"
that it would not be in the welfare of the minor to
U !1-!A tiXG
allow U Maung Maun g to have the c ustody of the child. MAUNG

It is not disputed that it is the intere st and welfare MA

"-'
AYE Bu.
of the minor which should have paramount ~o nsidera UTUN BYli,
tion in stfch matter. It was observed in Ta11 Su:ee Ky1-e C.] .
v. Chan Chain Lyan (1) :
" The question of the welfare of the minor is of such
pmamount consideration that t he rights of the guardianship
under the law to which the minor is subject or on the ground of
propinquity must be assigned subordinate position."

T his consideration becomes more important in the

present case, where the appellant has also, after the
birth of the child, denied the paternity of the minor.
We are also of the opinion that the father of an
illegitimate child cannot b e said to have a legal claim
to the custody of such minor.
Fox C.J., in Mau11g Myo and one v. Maung Kyan
(2) observed :

" It appears to me that the girl is likely to receive far more

affection and-attention from her mother's sister who has known
her and cared for h er from infancy titan she is likely to receive
from a father who repudiated her f.r:-om her birth , and only
contributed towards her support because he was compelled to
do so."

This observation applies appropriately to the circum-

stances of the pt:esent case.
The appellant U Ma utig Maung must therefore
clearly establish that it will be in the interest and
welfare of t_h e fl"!.inor if the latter b~ placed under th.e
custody ~f the appellant. The minor was born in
December 1946, Tpere is no evidence to prove that

(I) (194.7.) R.L.R. 107. (21 8 L.B.R. 415.

408 B U RMA LAW REPORTS. [195 2

H. C. the appellant took any inter:est in the welfar.e o f th is

1952
child at any t ime, or that he was seen in th e com pany
'tJJ.Vl AUNG
.M AUNG of the minor or had been observed to have treate d h im
v. affectionately. The appellant U Maung Maung
MA AYE Bu .
admitted that in the application, which Ma Zav\' Ta
U TUN 13YU,
C.J. filed against him suon after the birth of t~1 e minor
under section 488 of the Code of Criminal Procedure,
that he even d enied the paternity of the minor. The
Court, however, decided against him in that case, and
ordered him to pay Hs. 5 per month for the maintenance
of this child. Although the app.e llant was compara-
tively wealthy he did not, moreover, pay for the
maintenance of his illegitimate son regularly in spite
of the fact that an ord er of maintenance had been
passed against him. This is also a circumstancP. which
goes against U Maung Maung.
. U M~mng Maung is also a married-man ; and he
had already been marri ed to Ma Aye Kha for some
years when Mohamed Yaseen w;:~!' born. Moreover;
we do not find any evidence in this case which will
show tha~ either Ma Aye Kha or U Maung Maung had
any real affection for the child. The moneys that -were
pai<:l either by U Maung Maung or by his wife Ma Aye
Kha were apparently made in pursuance of the -:rder
of maintenance pass~d a~ainst U Maung Maung In
any case, there is no evidence in .this case to prove
that they had paid anything more for the minor
child jn excess of the amount whiGh U Maun,g Maung
was bound to pay under the order of mai1,1tenance
passed 'a gainst hi~. The appellant has also not shown
that he has taken any interest in the health or comfort
of the minor since its birth.
The evidence afso indicate~ that his wife Ma Aye
Kha appears, at the present,:to be soine~h~t sickly.
w~ have perused the evidence:of baw.Mi and .Ma Aye;
and we are unable tq see anything in their evide'n ce

... .. '
1952] BURMA LAW REPORTS. 409

which will indicate that C Maung Maung. had, at any H. C

. 195!'
time , shown fatherly affection towards or taken any
lJ il:lACNG
real interest in the welfare of the minor. The appeal
is dismissed, but without costs. u.
:'.lA AYE BU.

U Tux BYU,
C.J.
4l0 BURMA LAW REPORTS. [1952

APPELLATE CIVIL.
Before U Auug Kltitle, !.

H. C. u PO THI AND ONE (APPLICANTS).

1952
Oct. 30. v.
MAUNG KYAW SINT (RESPONDENT).*
Cir1il Procedu re Code, Order 7, Rule 11- Cause of action, meaning of-11
sine qua non to acc~ptmt.ce of plaint.
Held : " Cause of action " n1eans every fact which, if traversed, will be
necessary for the plaintiff to prove in order to support his right to the
judgment of the Court. The cause of action mnst be antecedent to the
institution of the suit. 'When the plaintiff files his suit for any r~lief before
he is entitled to it, his suit is bound to fail for want of a cause of action .
Order 7, Rule 11 in very clear terms lays down that the plaint shall be
rcjeded where it does not disclose a cause of action.
In re IT. K. f'. Cltockaliugam .4.mbalant v. Mc~unP, Tin (lttd. otllet'S, I.L.R.
l4 Ran. 1,13 at 185, referred to.

Nyt.tn Han and Tin The-in for the applicants.

S. T. Leong for the respondent.

U AUNG KHI NE, J.-This application in rev~ sion i&

con nected with Civil Second Appeal No . 6 of 1952 of
this Court. ~
I'n Civil Regular Suit No. T of 1951 the Subdivi-
sional Judge, Myingyan, acting under Order 39, Rule Z
(3) of the Civil Procedu:-e Code, passed a11 order after
an enquiry that the 2nd Defendant in the suitr
Maung Kyaw Sint, be imprisoned in civil Jail for a:
period of two months for an alleged disobedience of a
temporary injunction order passed by the Court. On
appeal the District 1udge set aside the Order of t he
Subdivisional Judge and Maung k yaw Sint was;
Civii .R~~i&ion Na. St of 1952 against the order of fue Distri~t Court ?fi
Myin.gyan in C.i:"il Reg!llar Suit N'o. 4 of 1951.
 BURMA L A \t\ REPORTS. 411

released. After hi~ release Maung Kyaw Sint H.C.

1952 '
instituted a suit for reccwery of Rs. 6,000 a~ damages
U PoTHI
for false and malicious proceedings aga inst U Po Thi AN o ox E

and Daw Ngwe Su, husband and wife, t he plaintiffs in JVI:~~'G

Civil Regular Suit No.7 of 1951 of the Com~t of the KYAWSINT.

Subdivisj onal Judge, Myingyan. u Aur-:G-

A preliminary objection was taken to the effect that KHzNE. J-
there was no cause of action existing at the time of the
institution of the suit in view of the appeal before the
High Court and before the High Court had given its
decision. Arguments were heard and the learned
District Judge in summ ing up said:

'' l\lly ans"ve1 to the issue is, no cause of action arises yet.
but the interests of ju~tice require that this suit shall be stayed
pending result of Civil Second Appeal No. 6 of 1952 before the
H igh Court. when the result is known, the plaintiff mal'
conti.1ue the suit if, and so advised."

Thus, there is a definite decision by the Court that

there was no' cause of action at the time of the institu-
tion of the suit. It is clear that this curious order of
the learned District Judge cannot be sustained~
Order 7, Rule 11 of the Civil Procedure Code reads:

'' 11. The plaint .shall be rejected i~ the following cases :-

(a) where it does not disclose a cause of action.
,

11
Cause of Action " means every fact which, if
traversed, will be necessary for the plaintiff to prove in
order to support his right to the judgment of the
Court. Th e cause of.action must be antecedent to the
institution <:)f ti1e suit. When the plaintiff files his
suit fo"r any reii.e f before he is entitled. to, his suit is
.bound
. to fail for' want of .a:
. cause .of action.. In re
412 BURMA LA\V REPORTS. [ 1952
H.C. V. K. P. ClzockaliT-Igam Ambal.1m v. Maung Tin and
~952
others (1), in the course of his judgment P age C.J.,
U Po THI
A ND 0:-IE observed:
'II.
M AUN<l
KYAWS!~T. ''The Court, however, is bouncl to exercise its inherent
power~ cauhously and \\ith circumspection, and it is not a t
U AUNG
KHJ:-IE, J. liberty to do so where the order proposed would contravene any
principle of the common law or equity, or would affect a m<tter
in respect of which provision has been made by statute either
expressly or according to the true intendment thereof.'

As stated above, Order 7, Rul e 11, in very clear terms

says t ~1at the plaint shall be rejected where it does not
disclose a cause of action. Civil Second Appeal No. 6
of 1952 of this Court, where the memorandum of
appeal has been treated as an application for revision,
has been dismissed but it does not alter the case for the
r e_sponden.t- so far as the institution of a suit against the
<l.pplicants in Civil Regular Suit No. 4 of 1951 in the
lower Court is concerned. The question is whether
he had cause of action at the time of the institution of
his:suit.
For these reasons the application is allowed with
-costs and the order of the learned. District Judge,
Myingyan, is set aside, and I direct that !he plaint be
rejected.

~--------~~----~--~------
. (1) I.L.R.14 Ran. 173 at 1S5.
 BURMA LA \V REPORTS.

APPELLATE CIVIL.
Before U rl.tmg ;;Ttiuc, J .

u YEvVADA (APPELLAx-r : H.C.

1952
v. A11g. IS.

~ AUNG THEIN AND ONE (RESPOI:\DENTS) .*

t-S. Il b- F.s:otPcl <H'ni1t.il lcnatlt-Gifls of tmtiiOf.'t"ablc pr,>perty

rcl!istered tlecd s - T<nanl ,,f origit1al owt1cr ttonted t o
)IJt donees.
though Maun g' Aung Thein had been in possession of the suit
tus was never that oi :1n owner, but all throughout at diff;;:rcnr
d altorned himself as tenant to the origin~! owne r Daw Oh,
T Thuseitta and th irdly to t: Yewada. He is estopped irom
itlc of the plaintifi-nppellant.
and otft cr s v. Robin son and anct fter, I.L.R. 5 Ran. 427 :
Son s v. Ko Lon ami one. I.L.R. 6 Ran. 657, followed.

'un Pru for the appellant.

!ung for the respondents.

w KHINE, J.-This is an appeal against the

and decree of the .District Court of Magwe
il Appeal No. 19 of' 1951 setting aside the
and decree of the Subdivisional Court of
Civil Regular Suit No. 5 of 1951. In the
, the plaintifl-appellant, U Yewada, filed a
~ the defendant- respondents Maung Aung
his wife M~ Sai I for recovery of possession
:ces of Ya land known as '' Yar-ga1,1k" and
t-kwet "r measuring rou.,ghly 3'32 acres and
espectively. Admittedly, these two pieces
longed to Ma Oh, dec~ased. D~ring the
Appeal No. 98 of 1951 against decree of the District
in Civil Appeal No. 19 of 1951. '
414 BURMA LAW REPORTS. [ 195~

H.<.:. temporary period of Japanese occupa tion , i\ Ll Oh

-~ 952
made a religious gift of all her immoveabl e property to
U Y E WAOA
v. a Phongyi by the name of U Thuseitta. Th e re \\as no
:MAu!\c;AuNc.; reaistered convevance executed at the time of the
THEIN A~D b " '
oNn. gift anJ before such a document could be drawn up
u AuNG and ref{istered, the donor, Ma Oh, died. Pri0r to the
.KHINE, J. f
gt t made by Ma Oh, she had leased these two pieces
of suit lands for cultivation to the fir~t resp ondent
Maung Aung . Thein. It is clear also on rect"~rd that
after Ma Oh had made a gift of these properties,
Maung Aung Thein continued working as a tenant for
U Thuseitta. The respondent Maung Aung Thein
denied he ever was a tenant of U Thuseitta but it is
evident from the testimony of his O\Vn brother, U Maw
(PW 10), that U Thuseitta leased the lands to Maung
Aung Thein and the rent was fixed at SO viss of oil.
When the time came for payment of rent, U T huseitta
told Mauug Aung Thein to keep the oil in his house.
Later, when U Thuseitta required the money, he called
upon Maung Aung Thein to give Rs. 500 in lieu of
the oil and U Ma~ had to intercede ;;~.nd ask
U Thuseitta to accept Rs. 400. Exhibit (ro) was drawu
up when Maung Aung Thein accepted the tenancy
from U Thuseitta and Maung Aung Thein himself has
admitted that the signature 11 Ko Au~g Thein " on
this exhibit is his.
Later, just before U Thuseitta died, he made a gift
of these two pieces of lands to the plaintiff-appellant,
U Yewada. This fact has. been accepted by both
.the lower Courts. This is what the learned . District
Judge said in his judgment :
" Fr.om . the evidedce on the.records I have no ctou bt in my
mind thai: Daw Oh w as "the.original owner of -the suit-lancs that
she did ~ake a gift 6 tbe same to U ';f,huseitta and: that
U T.hus~it.ta i_n t.u rn. ~ade :a gift of ihe same to t}J.e Pl.aintiff-
respondent ~ Y ~wad a. "
1952] BURMA LA\V REPORTS. 4-15

In the year 1312 B.E., when the def e: .<:. : ~ t-! e:= ronde nt H.C.
1952
Maung Aung Thein did not pay tll~.: :~:: : .d,L"n called
upon to do so by the plaintiff-app i:?.m, th latter u YE\\.AD.-1.
'II .

made a complaint about it to :.11.: Commu nist Mu:o~GAur>G ,TH~l!S" AND

insurgents 'vvho were then in occu.p:ltie>n of ti.;e area. ONE.

Apparently the Communis ts decided that" ih~ suit U A UNG

lands belonged to U Yewada and d eci~t reci t ha t the KHIN E, J.
defendant-respond~nt should pay the rent to U Yt\\ada.
The rent was paid and a few days later, :Vfa un.~ .-\ung
Thein himself went to C Yen-ada and asked U Y.:\rada
to continue to lease the =-uit lands to h im whil'l1 was
accordingly done as is eYich:nced by Ex :1i bit (:). The
Communists were later dr iven out of the area by the
Government Forces and again when the time came for
payment of rent, the respondent Maung Aung Thein
refused to pay th e same. Another complaint was
made by U Yewada to the l.-.M .P. Officer, Bo Thein,
about the respondent Maung Aung Th ein 's con duct.
Another enquiry was held as Maur\ g Aung Thein
declared himself to be the owner of the sui t lands.
Bo Thein, in the'presence of elders, after examining a
few witnesses, decided the matt~r in favour of
U Yewada and Exhibit (co) was drawn up declaring
that U Yewada was the owner of the suit land and the
defendant-respondent Maung Au~ Thein subscribt!d
his name along with the others at the foot of this
document.
The present suit had to be filed because Maung
Aung Thein and his wife again refused to pay rent to
the plaintiff-appellant for the lands. The trial Court
declared U Yewada to be the owner of the suit lands
and passed the decree for recovery of possession of
the same. On appeal the learned 'District Judge was
of the opinion t.Pat as the two gifts, namely the first
gi.ft by Daw Oh t9 U Thuseitta and tl}e second gift by
U Thuseitta to U. :Yewada were not accompanied by
416 BURMA LAW REPORTS. [195Z
H.C. registered documents, these gifts were invalid and that
1952
a suit for possession of the suit lands by the plaintiff-
u y~,~ AoA ap pellant basing his claim on title cann ot succeed . lt
MAuNcAulw is clear that the learned District Jud ge did not take
TH~~~~No into consideration the fact that the defendant-
u Aut:c responderlt Maung Aung Thein had attorned himself
KHINE, J. as tenant firstly to Daw Oh, secondly to U Thuseitta
and thirdly to U Yewada. Although Maung Aung
Thein had been in possession of the suit lands, his
status was never that of an owner but all throug hout as.
tenant at different times to the three persons named
above. Section 116 of the Evidence Act says :
"No tenant of immoveable property, or person claiming.
through such ten,m t, shall, during the continuance of the tenancy,
be permitted to deny t hat the landlon.l of such tenant had, at
the be~inning of the tenancy, a title to such immoveable property ;
and no person who came upon any immoveable property by the-
licence o the person in possession thereof shall he permitted to
deny that such person had a title to such possession at the time-
wbeu such licence was given " .

In Vertannes and others v. Robinson and ano'fher ( 1)>

a Christian resid.ent in Rangoon by his will appointed
his wife execu trix and devised and b equeathed to her
specified immoveable properties and when this man
'died, he was posse$sed of a piece of immoveable
pr9p erty in addition to those specified immoveable
properties mentioned in his will. His widow
mortgaged this property and later conveyed this
property in discharge C?f the mortgage deed. The
mortgagee agre~d to let the property to her eldest son
for 12 months. Later, the mortgagee filed a suit
for ejectment making the eldest son, the widow and the
younger children, $lS defendants. _It was held that so
far as the said property, not specifically mentioned
in the will was C9I?-Cetned, it was an intestate property.
\1) LL.R. 5 Ran. 427.

- '
 1952] BURMA LAW REPORTS 417

It was further held that the widow had no power to

convey the property as executrix and that the sale of
U YEWADA
the land by the widow to the mortgagee, did not t'.
l\fAUNGAU!\'G
conv~y a good title to the plaintiff so far as the.shares 'FR1N AND
of the children were concerned. It was ho\vever held ONE.

definitely that the eldest son, having accepted the lease U AUNG
KHIN, J.
from the plaintiff, was estopped under section 116 of
the Evidence Act from denying th e title of the plaintiff,
his landlord. Again in Dayalal and Sons v. Ko Lon
and one (1), it was held that a tenant who has been let
into possession cannot deny his landlord's title
however defective it may be so long as he has not
openly restored possession by surrender to his
landlord. In that case, the tenant was estopped from
denying the title of his landlord as he had been let
into possession of the property by the landlord. Now
in this case, it is clear that the defendant-respondent
Maung Aung Thein by executing Exhibit (c) accepted
the tenancy from th e plaintiff-appellant U Yewada in
the ye.a r 1312 B.E. Applying the principles set out in
the above two cases, there is no ~~ternative but to
ho1d that he is estopped under section 116 of the
Evidence Act from denying the title of the plaintiff-
appellant. It has been suggested puring the course of
the argument, that the respondent Maung Aung Th~ih
.h ad to put his signature on the Exhibits (c),(~) (ro)
through coercion. There is
no evidence so far as
. ,Exhibit (c) is concerned, to show that any coercion
. was exercised to get the respondent Maung Aung
:Thein to put his signature on this Exhibit. U Yan.We
(PW .7), who is related to both the parties, said that
after the decision had been given by the Communists,
Maung. Aung Thein himself went to the appellant
u . Yewada and . begged of him to lease out .the suit
.latids fo him.
Ul I.L.R. 6 :Ran.;. 657,
.2~
418 iH.JRMA LA\V REPORTS: J1952

\ ~9~2 - For these reasons, the judgment and decree of the

. lower appellate Court cannot be sustained. The
U YEWADA ,
v. appeal ts allowed and tbe JUdgment and decree of the
~:~~~~~ lower."appellate Court are set aside and that of the
0

oNE. trial Court restored with costs throughout. Advocate's

u AuNo fees in this Court, three gold mohurs.
KHINE, J.

G.U.B.C.P.O.-N~ 30, H.C.R., "30-9-55....:.1,750 - II.