Burma Law Reports 1952
Burma Law Reports 1952
Burma Law Reports 1952
SUPR.EM E COURT
1952
.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.
...
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.
SUI"REME COURT
PAG!':
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
I' AGE
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$. B.L.R. ( 1950) (S.C.) 196. followed
:r singer M~nufilct~ri~ co, v. L'o.~g. O.S8Q) 18 Ch.J?.
.;>: :.' .
.
39_5: at'4t2'
.
:.. : _. . . _: ..
.
:./
' ' ~IJ;l . Bhaigapta Bewali V. HiiiiniM Bl\dyakar, 20 c.w.~..
' ' "
. :. ....
. ,.
: J .
..'I;
.-
;.. :,
'~1~t~~ .;;.
~.'~
..;........... ..,.
~
1. t:~
.... ~. ;.: rr
..._.,.
GENERAL INDEX
OF
CASES REPORTED IN THIS VOLCME
(SUPREME COURT).
ACTS:
BURMA ACT No. 1 OF 1898.
---CUsTOMS AND TARIFFS 'ACT. '
--LAws...\cT.
Bt:REAU OP Si'ECJAJ;. INVESTIGATION ACT, 1951.
cnv oF RANGOON .M uNiCIPAL AcT.
CiViL PROCED URE CODE.
CONSTl~liTION OF ':(HE .U NION OF BURMA.
CON1 RACT ACT.
CoNTROL oF hi PORTS AND ExPORTs - (TE~iP9RARY) ACT.
CooPERATIV:E sociETIEs AcT.
COURT FEEs Ac.T.
DEFE!'<.:E .O F Bt:RMA ACT. :' .
DrsPOSALOF TENANCY AcT AND RULEs.
ELECTION OF TH PHE~IOEN'l' OF' THE tiNiON OF BURMA ACT, 1949.
EVIDF.NCF. ACT.
GOVERN~JENT OF BURMA ACT, 1935.
- HAGUE REGULATIONS.
HIGH CouRT HULES Al:ID ORDERS,,
- - TREASo.:-: ACT.
LAND NATIONAI,JZATJON ACT.
LHIITATION ACT.
LOCkL AUTHORiTIES (SUSPENSION) AcT., 1946.
LOWER B.U_RMA TOWN AND VILLAGE LANDS ACT AND RUI:ES.
MUN.ICIPAL ln;T ANI? RUX.ES.
- -- --- ELE.CTJON RULE$.
PARllAMENTARY ~-~ECTJON RULES.
P:ENAL cooE. .
PRESS (EMERGENC~ PoWE~S} ACT.
PUBLIC ORDER (PRESERVATION) ACT.
--
-PROPERTY .(PROTECTION}. AcT. :
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.
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
PAGE
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
!'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')=~$ct~:~oa~~ :
._ d3:Q)?:~oo.:Glfro~o~~~~ ~~~oS .-,sa~..,..:..:F.~':~?~~-~:;o~.
~t.4)-=>: . otSOil~~s~~ .oooSro~~~f -&9GC.'31?~:
oo-=>~E:_.:._rooo9 d3:4)~~~rf)S:~So:>_~d,l@ . ~~~-
GENERAL INDEX XXI}
PAGI
PAGE:
cultivators. The District Board di::agreed on both counts ; upon
an application for a writ. of certi,rari : Held: The fact that
r espondents;? and 3 are owners and wonld be in a position to work
the land has no bearing on the case. Under r~ule 10 of thr.:
Tenancy Disposal Rttles, if a tenant is not in clefault he is entitled
to work tl1e land in the next season. As there was no dispute
that rent had been paid and there wa$ 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
PAGE
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
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
I'AGE
3
:chffi.o!-<?~~jCOO??~ ~fue.c:cl6:ceccg"J~~ cee~o
3$ -~.~~s~ .~~o2~ee.G9gllegw::G~ ~~C.gc~~ :lee
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
~ c~&.~~i>l o:~ tfl~~~g~ggcroBe Cr!~ooeg~~ ~
~~e g>gcfe~C:copcog1cc~68:pro~ ug:ce~~cccg~3
f-~'fccsa::e!l:g!e::G~;:<pg8g~ggccoatpcc:g~~3~3Se.
~:fl"':foeg>:clbcro~ :f&roscccsolisoee~ 3 {P ''Pee~ .
.G~6~~eeeg>'lig?c:cg g>:,lh:JG~<l<pg8ggcco~ tpeecoocg,
' llf ::rv (0"6T) 's.tnuo. puv V!QUffllO:J 1JS!1FEl -tOj l1JA.:JU~f)
iC~U.l011lf 11. VpvUV:J .l!J{lVJ;aU'f)-iC111AOIHI ! 9~ ~rV (Lf.61}
.,. .t~rJilvttv9 !ozg. ov .t. u'l rzs-tssn 'rt,n{J :111.L ~~.
'z~u.-'1
zm~H . 's3.i.tvq:J.. nJccGe~Jmro ?&ceo2~ ~:scoosee&
:38~:Loe:>sR:oe:DR:o~g&rocwcro5~38t'!eo2~~ec~G~o8:cec
. co:c~ro:c.lhw gfusochel!:.6 :3&es~croce.G3839~~o8 ~ec.o.
. ~~~GMC t~ee~~eGeeeG ~SOW.eG 11peb~G~ ccctf~roeeec.
,. ~~u~ 1.sqns ?UI! tn_!tt ,,~a~qag, lgoochso:~gbsC.O:cc:pcJ:'&
ICo :goowccaJce.Gg8gg~ceo2 ~~ro~ceo8pcc:le 1g:lcegbro
. Geo29-'eG ,;<:.?a:~~cccW,Qe.G:fCC:OeleG ~bGegg~e.Ge:f~~~
col!.cksb1f>lgSCFP"SCC9~~:g&l:gSc~~ccclig:>:cl!<i&ccce~~
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
<;JiieG
( :g\S:ooe&:fb) s.c.o~~8e~:;g~~ 3ceA:fOOeG '~'e e> eJ oc
~~: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
PAGE
: 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
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
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
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
PAGX
41
~:G>'):'' ~!33So1o5
u
... 261
.,
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.
"TRANS'FZ!! OF PROPERTY ACT, SS, 108 (d) AXD Ill (c) L46
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.
PAGE
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
SUPREM~. COURT.
u RA TU (APPLICAN.T) ts.c.
1951
v. Sept. i1 .
THE RETURNING OFFICE R, LASH IO
. AND OTHERS (RESPONDENTS ).*
SUPREME COURT.
f S.C. CASSIM EBRAHl M MALIM (APPELLANT)
1951
Sept. 24. v.
MARIAM BIBI (a) HAJI B IBI AND OTHERS
(RESPONDENTS).*
SUPREME COURT.
SUPREME COURT
SUPREM E COURT.
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. .
E'
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~
SUPREME COURT.
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.
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 : - -
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.
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
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
.~: 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~
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 .
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. "
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~
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.
SU PREME COURT.
.f
San H laing -for the applicant.
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<'
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
To
~
Clerk.
Judge,"
SUPREME COURT.
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.
"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., "
SUPR EM E COUR T.
SUPRiEME COURT
THE RANGOON ELECTRIC TRAM\i\T AY & t S.C.
1952
SUPPLY Co. LTD., RANGOON (APPLJC~NTS)
Feb.11.
'L'.
oo 6'f8 ~~c;-oo~'1lls"
T
oo~t:~t ~ood3eoGo<fG s ::>) (m) ;~ ~aso5::>Jtn ooGt
roc~c:@c: ~G)::>j?~OOGtt oo::>Jc804>~mt~ oo@~aa~ o1~::>J~
oo02d3t~~ceoGo <(bG <1 ( ::>) (C)) ;~cut: ~~o5mtu ~':1
roo1: r~:~~cc::Dt ~o-i~'J;~G0'JC~ ~~ :~~cfGoo~mCJ6C :o ~~
Go:rr.lb~GX'JG6'J~tgt;~rot ~OCcbeOGO<(fiG <1 ( 0) ( ro) l~rot:
~~o56::>Jtu .
,~ooGtroc::l65:~-:J~~p:mtrooG0'JC~ ooG0'JC~oct~ooOSeoG!J
ctfi~ <1 ( o)"'(m) (C)) ( ro) ;~ .~aso5mt ::>.:>'J~mt O?G4>'='CQ'6C
813(3-:>:ooG~-:>C~ G)te2~:(3C:ro~cr-'6f>~O~G~G<jjll O?G0-:>C::>Jt oo(3-:>:
O'JG0':C~~~~~ ~G<Jto5 m~~oo~cf~G-:t:o:>~OC6pGO1~~G~U
0C0~oo'=':~ ~=<lJ~ccr~oS~cmoc~ctgt~o~o5GOO~e~~~
G~ 0CJ2CI oo~to:>C::l6C:~-:>;~G0'JC@~~GfGEJ?C;o ~~~:tGC:~;~y~l
o:>~O?t:<Jt03':1c~6)~ ~~~Gcu::>.:>tn 19a::>i?o~cGroS) 8~~001
~~Go:>~~ ~G)C~:@<41~ ~mbG::>J-:>0-:>CJ2tl g)\813<jjd3~~ 4>~01J:
Goo':ld3o1oo~C:Gq:::>J'J:o1~o1mtn
"gjcn\06d5-t~~ oo5:oc~r ~=~~c$lE~ G~o<llo?y-;,j qE:oo-;,:oo~t
ooSogE:C; oo-;, cr<ru o5~-;,: :ot oo~tooEog E:<;g:>ooyoot:02E OOflOOGO15:oot:
coc~o5GG}:~:E:~~~CG:o-;,c;-;,~r glo?~ oo~aooEogE:c:}S-;,~&;yoo~:~~CI!6
qo1o:>t<J?~O 1ootu!Tcl~too6ogE:96-;, ~~<?cf? OClatooEogS:c:}S-;, oo~C?tror
oooS!7a,oS~'l~c;@-;,~o1:otu"
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.
~~
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
SUPREME COURT.
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.
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.
.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
O@~J C1jC)1g ( G~T) <1J~::DlD'J )l ( G~'JrbOO'J~~)
.. .
g-~ o~u ~
bi~~~c o3g~-:>g9]00'J~G~g~~effi~-~Gstg~c~cg~~~
O)~g ( Gcgj~rboo'Jg~st~~pg) *
0@ ~0 ~~bl o3:()?1~00?:Gq:;;t:eo~!3 00-~&Go:>S5m oo::8oo~c&')G:>J?
ooS~-dS:Gcc?c~GO:'lt'llcf.i~~~~
~~:oo:>S5~!Ja~~o.2t~G;>Qo:>?G03J?00~?~9 ~G03J?o5~?GO T02tG~ll? .
o3:()?:~oo'J;G'l:~oc~-:>~t C?~d)G'l:~:soo?:G:>J?!JaSi~ ~~:oo:>S5ro
!Jad3!Ja~oS~G'l!~tn oo~~o.;?C~o1G:>J? oo@-:>:rraS~c:lt~Go:>?()ro?:~ ~~:.
oo:>5m rorb~~6E:~'l~~tl
d!:GCD?cb~~ ~tc:ltG~'lcb02CGO:q~~ md3!JaCY.lj:>Jcb~caoo-:>:f:.
~SI o'3:Gi?l'l!CD?!&)~G03J?cf5~')0)t~tG:>J:OjJCIGCI3j?cf.i~-:>o:>C~: Gpcbo:>G~~
o3:Goo?cf5~~ G0:@6::>Jtt G~~CbCY:lfC'g::xltlJ{~~~Cn ~roo1: GC/l:l?
~:()-:> 1~CD?!G'l!rr.l~~ ooSiSI?rot:t o3:GCD-:>cf.i~Go:@t:. G;>':>cb01Jc:lt~~
ooG?t:'lloS~ol~G~ ~g~G:J:>?G6?~ ~~to3:v-:>:~CD?!G"!!00~0)f ~:Gi?:.
:>J~ d3:GOO?J3~GO:&)~qrECJ6c~gCJtd)G6?t:l ;>t:eoGO 00 00&)1 ~G@~
;;ooSroro~C\fS~58~!.1~oSOilsbG@?5: Gro-:>oSOjl~:oS@c::>J~ :>J~G~$3~~
ro~c:Jtll
SUPREME COURT.
t S.C.
]. KI MATRAI ~ Co. (A PPLICANTs) 1952
v. July 2.
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~)'.
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.
.
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
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~
. '
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.
" 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
" 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."
July 2I v.
T HE COLLECTOR OF HANGOON (RESPONDENT).*
i
o
.hall prescribe in which cases and to what extent the owner shall
e compensated;''
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.
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."
SUPREME COURT.
. ' .
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."
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."
THE
COLLECTOR
OF R AKGOON
AND
.~NOTHER,
1952] BURMA LA'vV REPORTS. 135
00 ~ g :g'~ G'OO~ 11 Is
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* * * *
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nS2ccpcocwcrogro:db~4sc nsccc~gbco
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ccce~:sscP~o:~?r~4~38ggccoe~ eo~b0e~gSeg9e~&pe g>:cibSe~cm~<X.! ub~gesscoa
pccGaoc:peGg, nsccc~cccgce~:gso~soccscceG:slb:sc0~4<}g8ggcma ~g~ce!
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,tOf fV,t,n+:JfJ"fllll.lO/ll/ 'A Vp <11lVJ AOj lV,t.3Ui191int.I0711/ : 98 .':)'If (l6I) 'nn~'J' .
'A .t:Jt{IJV1/V9 '6Z <i '':)v L -~}"'1 (ZS 88 I) 'M1111Q 1/t/.L .o. ll"SSniJ soz.tvtjJ fGelc
ZS61 ] sJ.~Od 3~ M.V1 VW~flH 9n
1952] BURMA LAW RE PORTS. 137
~
~8:o.:>tcotl?:G0-:>t:n ~o:>uSG'J~~G::rl~ ~crcd3eoGo rt6~
qs5 (~crcd3eoGs8'aoot~OJt~4:l eoo-:>: ::> qs5o3:@'J:G<9i@
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~:~c8~Ge)) at o1~b[J'liro~tl5m~0316Bt?~S:~~5tJt@~Go.:>?
~'J~o:>Gept:1g)t;>~:~rooSoo'J~B~'J~~ E~J3"1j'J:m~t
138 BUR1MA LAW REPORTS. [1952
'' 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
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
.: 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.
SUPREME COURT.
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.
,,
. 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. "
* * * *
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."
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.
0
@~J oc9JC~@~rooSG@(:ij?W~t ocoooS028GGT@~o:>toc~5~l ~oS~ooc
~K)>Gm')t ~~'J~GOJ'J ~ oW:ro@~ 1 GOTGoc~o:>~ro ICJ;I~ 1~:~:o:>tGf>'JMI o2::r.>rh
_::>;>~: ~~
S o:>~'Jc8~:@d)~ ~W)lGOC'JC~:ro m~tro rocDG@~'J:~ o3:~:C\(o~ _
~ ~1t ~. ~o;? GoTBGJCI ~G~ctl @:~a:>cE~~ ~:@GID'J~OC'J:t ~ 0J~~Go:t 0
~G~p:~ <:HoW:~:~G'Jt:t ~oc02oS ~G@'=lp:~ :;:oCbrooS
o3:1D'J:oc~~~ Q.:(O~Go:>:Oj!CI O)~'Jc8~;~:~'J:oo GcgpoSco'J:
Ei}Gi~G'Jt: ocG'Jf:'J: ~oSGroo:>tn ~t;p068 ~~ro-
~~o O'J~ID'J'~ d;>~ro~ OEj} G[9oJ I GOiJ:l'J o3:1D'Jg 9jCO'J:G,GJ:
GroSS~~~~ ~G~p:~ . ssca-OC'J:I"::S:ID'J:~oo'J:olGJ~ GOj!'Jc
~O'J'JC:~Groo:>tu GOiJ:l'Jo3iiD'J:~oo'J:GGJ: Gro6~d3rorot:r ~rooS
GB~'J:~ LGJ~~:b:>ro'Jooo.1:o1;oo G6)1!:loS~q;p31~:f:GfSlGJGo:>:E:
4!3')~1 d5roo:>G::D')o:>o50CGOJ'J OJ'JOJf>'JG~:~ GG&pd)~GOJ:
~troooG6'Jt:t GGJ~~~ ID'J<lj[0?2CI G~~:o:>'J~~f: ~~~OJ'Jo1o5
~r ot~<@d)rra~OC1Dt:~~GOJ'J~mo:~) ocf>1~@t~~'J I:IG6pd)
-~G~:o:>tmooG6'Jf: GB().)'J~OO'J:GGJ:<j>t:eo;GO . 0 (3 ( 0 ) -~9 G~
~oSGo:>:~ G().)~(X)')gG~:GooS)~d3(:ij'J:O'J 9\l:;:Q6o:>too~Cg] ~~
__OC'J:I o3~1D.'J:Go:>'JC:~'J:ocd)~~ :;:orhCQa)'Q.:(O~CGJ~ g~@~c.
SUPREME COURT.
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). *
SUPREME COURT.
t S.C.
BO KYI MYfNT ANI\ OTHERS (AI'PLICAt\iTS) 1952
v. Aug. 7.
SUPREME COURT
13
194 BURMA LAW. REPORTS. [1952
SUPREME COURT.
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 :
~
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
SUPREME COURT.
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 .
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.
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 .
~
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
~
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.
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
SUPREME COURT.
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.
S U PREM E CO URT.
t S.C.
1952 AH KAM (APPL ICANT)
sett. zz.
~.
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
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.
SUPREME COURT.
"' 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
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,
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.
SUPREME COURT.
t S.C. A. c. AKHOON AND Q;-.JE (APPELLANT)
1952
Dec. 4. v.
A. HABIB (RESPONDENT)/"'
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 .
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
-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.
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).*
.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
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
(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.
SUPREME COURT .
SUPREME COURT.
tS.C.
1952 u KO KO GYI (APPLICANT)
D-:c. 4.
v.
ENGINEER-IN-CHARGE, RANGOON CORPORA-
' TION AND ANOTHER (RESPONDE~Ts).*
.....,...,_
._,....,...-.,. :,"-,:
. __
BURMA LAW REPORTS
HIGH COURT
1952
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.
PAGE
P .~GE
PAG E
. 5
xvi LIST OF OASES CITED
PAGE'
PAGE
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:
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
EviDENCE ACT.
Gi':NERAL CLAlSES AcT AS AMENDED BY ..\cT II oF' 1945.
GUARDIANS AND \VARDS AcT.\./"'.
LIMITATION ACT,
MAJORITY AcT.
MARTIAL LAW 0RDINAl\CE; 19~8.
MOHAMEDAN L\w,
MUSLIM \VAKF VALIDATING ACT.
OPIUM ACT .
PENAL CoDE.
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~
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
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
PAGE
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
,
; 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
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
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
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
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
PAGE
PAGE
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
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~
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.
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
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
PAGt;:
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.
8
lvt GENERAL INDEX
PAGE
PAGE
APPELLATE CIVIL.
Before U Ttm Byu, Chief Justice, aud U Si Bu, J.
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).*
-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 : .
APPELLATE CIVIL.
Bcfote U 011 P.: nnd U Thattng Stitt, JJ.
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
. 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
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
~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 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
APPELLATE CIVIL.
Before U On Pc aud U Sau!Jf.u~ug, JJ.
* 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
APPELLATE CIVIL.
Bcf,rc U Still Mnuug, J.
H.<. .,
KO TI N (APPELLANT) 1951
v. Nov. $,.
CIVIL REVISION.
Before(.. Aung Kltiue, J.
v Nov. 15 ..
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
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.
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
(;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.
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.''
APPELLATE CIVIL.
Bcfor~ U Tu11 8yu, Clt ie/ JusliCf, mul U Si Bu, J.
-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:
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
.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:?
li.C.
Tht: judgment of the Coi.lrt \\a,; <kii\erecl by 1()52
.\i i~IIW
: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
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.
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:
. essential for
is . a plaintiff's case." i
,1
(1) {i905) 3~ Cal. 1"107 at llZJ. 1ZJ (1926) 53 cal. 718 at 728.
1952) BURMA LAW REPORTS. 71
H.C. ~ THE
MOOLLA HASHIM FAMILY
1951
ENDO\iVMENT vVAQF ESTATE \APPELLANTS)
.!1111. 23.
i .
~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."
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
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!,
APPELLATE CIV I L.
Bdore U OtL Pt" aud U Sn11 Jl[,, u ,~ . fl.
APPELLATl::. CIVIL.
H.C.
B.-\. BOO AND OTHERs (APPELLA:-;Ts) 1932
Jau. 25 .
-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."
-and is signeq by one '' 11ya JUi.in . for Secretary " and
the relevant passage accompanying the sanction reads
:as follows:
APPELLAT E CRIMINAL.
Bt-jo}rt (.' Tl1a1111g Seiu, 1.
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 .
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 :
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?
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 .
v. ]au. 3.
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.
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
CRIMINAL REVISION.
Before U Tltaung Scin, J.
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:
CRIMINAL REVISION.
Bcfo;e U Thnung Sd11, I.
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."
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
H.C.
THE UNION OF BURMA (APPELLANT)
1951
v.
Sept. 10.
u KHIN MAUNG LAT AND ONE \HESPONDENTS).*
.. 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.
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."
-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
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
''MEMORANDUM
'' 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."
APPELLATE CIVIL.
Befort! ll Tuu 8y11, Chief Justice, a11tl U Si Bu, I.
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~
APPELLATE CIVIL .
"'f<rc U 1uu Byu, Clue! Justice, and f.1 Si Bu, J .
:' 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
(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
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
,
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
"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
11
162 BURMA LAW RE PORTS. [1952:
APPELLATE CIVIL.
Before U Tun Byu, Chief lustiu, m,d U Si B11, !.
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.
" 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. "
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."
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
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
U TUN BYU :
C.J.
:.176 BURMA LAW REPORTS. [1 S/52
APPELLATE CIVIL.
lJefotc U Ou Pc autl U T!taung Sdu, fl.
12
180 BURMA LAW REPORTS.
APPELLATE CiVIL.
Before U T!<tJ Syu, Chief Justice, nnrl U On Pe, J.
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
APPELLATE CIVIL.
Btlore U T1111 By1~, Chief Justice:, anti U On Pe, ].
" 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
APPELLATE ClVIL.
Befcre U Tuu lJyu, Clzicf Justice, awt U Vu l'e, J.
Mar. IZ.
v.
MRs. CHAMPAKUNVA.R 1\:ATILAL MEHTA
AND OTHERS !)~ESPONDE NTS).*
Appellant in person.
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.
{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. "
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
APPELLATE CIVIL.
Befort U Sa" Matm5 a nd U Si Bu, 11.
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.
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
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.' '
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"
(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.
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
;,;,<''
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
APPELLATE CIVIL.
Before U On l'c and U S11n Mazmg. JJ.
~--------~------------~------~~--------~
{1): !193S) M.L.J. 688;
1952] BURMA LAW REPORTS. 229
APPELLATE CIVIL.
Before U Sou Maun{!. nnd U Aung /{/tine, II.
A:PL. 30. v.
MUNSH I MEAH (RESPONDEN"T ).*
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
APPELLATE CRIMINAL.
Be forelJ 011 l'c, J.
APPELLATE CIVIL.
Before U Si Bu, J.
I
I
242 BURM A LA\tV REPORTS. [1952
A P PELLAT E CI V IL.
Before U Atw.g Kltiue, J.
APPELLATE CRIMINAL
lirfo'c C .':o !.yi, J.
v.
THE U~fON OF BURMA (fh:sPO:\DE><TS).~
S1eppre.sion of Corruption Act, J9.J$, s. 4 {-!) (c) a111l 4 t2 i-S. 109 of lite
Peual Code.
The applicant; were charge!) before the Special Judge (1), Rangoon,
for lakin~ bribe for releasing (PW 31 on bail and for abetment
under s. 109, Penal Code. The char~e agaiust U Nyunt Maung was that he
obtained for himself and also for the other applicant a sum of Rs. 125 as a
pe-cuniary advantage for the release of Mauug Aung Khint!.
Held: That the charge disclosed no acts of abetment against the other
accused applicant. The el'iGence also did not support any such case. The
charge against Maung Hla !\iyint was quashed.
Tlte Pu.blic Prosecutor v. Georg,, Wtltiams, A.l.R. (1951) Mad.lC42.
San Thein } .
B. W. Ba Tun for the apphcants.
Ba Sein (Government Advocate) for the respondents.
.
. ..
U Bo GYr, J.-Th ese two applications, one by
U Nyunt Maung, Court Prosecutipg Officer of the
Co.urt. of .the Western Su bdivisional Magistrate,
;Rangoon, and: the other by Maung .Bla Myint, Bench
~lerk bf tbe same Court, will be disposed of it?- this
order. The charge against Maung Hla Myint runs .:
"That yc J,.On.or aboutithe 2 1st d~y of July 1951.(3rd las.ok
1
' . .
1~1 A.I.R. (1951) Mad.. 1042.
BURI\'IA LAW REPORTS. ' 1952
.June 6. 'll
Civil I !it Appeal No. 58 of 1950 against decree of.the District Court . of
Banthawadd~ in Civil Regular No.2 of 1949, dated 4th Au)!itst !950.
. 1952] BU RM A LAW REPORTS . 255
Doe\', Bridges, 1 B.& Ad. S47 at 859 ; T. ioptitlator$, 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.
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.
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." , "
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,].
______ ______________ _
be a g~neral rule that the pe.-formance cannot be enforced ih
.any. other manner."
_.:.. .. ,
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.
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 \
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)
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."
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.
. .
18
27-l BURMA LAW REPORTS. [1952
APPELLATE CIVIL.
Bcfor e U Sau Matti!!!_ a11ll U A11ug /{hiue, 11.
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:
(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
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. ~
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 :
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.
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 (
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
(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,
APPELLATE CRIMINAL.
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.
maHer f ,._
; ":_ '. ;; 1.
for
!
investigation.
I '
However,
'
up till
, , ;
the
,
time
; , , f ,- ', , ~ ' 1
... ~
1952] BURMA LAW REPORTS . . 297
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.
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.
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.
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
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.
APPELLATE Cl VIL.
Before l} Eo Gyi, J.
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.
... i
.J 952 ] B U RI\IA LA\\. REPORTS. 31 3
ORIGINAL CIVIL.
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.
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
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.
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).]"
"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."
- '
BURMA LAW REPORTS. 327
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
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
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.~~
22
338 BURMA LAW REPORTS. [1952
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 :
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}.*
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
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 $!~ Tt !1
AND oTBBRs as no } anger any wterest
. .
m . d er of
t h e remam
"
'SAW l\IAUNG
Ma Khai Ma's estate. H1s share in the estate had
Pu A~o already been disposed of. As <1 son of Ma, Kh ai Ma
OTHERS.
his interest in her estate was exactly half and no more.
U AUNG
KH!NE, J.
1'J1e partitiou which the plaintiff-appellants seeks now
js really to s~parate their share out of the suit lanq
\\:hich s in possession of the 3rd and 4th defendant_
respondents. In the process they included those whom
th ey consid er to be necessary parties and among whom
was Saw Maung Pu. !n order not to fall into an error
it must be borne in mind that the essence of the
plaintiff-appellants' case .is that in spite of severa}
transfers in respect of the suit land their half share in
jt remains intact. The Illustration (1) under Order 2,
Rule 2 on page 529 of the Mullah's Code of Ci\il
Proced ure, 11th Edition, 1941, is very apposite to this
case. It runs as follows :
APPELLATE CRIMINAL.
Bcf'lre U J~o Gyi, f.
H C.
1152
MAUNG SH\VE (APPELLANT)
Dec. 11: v.
THE UNION OF BURMA IRESPO:-.JDENT). 'i:'
H eld: There remains only the fact th at short ly after the headma n h~.d bee-n
murdered articles belonging to him were found in appellant's possession
Fro1wth is fact alone it cannot be presumed that appellant murder ed the head
man ; for "the hi~hest presumption wh ich ca n be <lrawu from [lOS$eS$iOn
o~ stolen prcperty, by it$elf, is presence at the scene of theft."
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
-------:--------...,....._---~-------
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,
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.
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.
:'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:
..
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 .
,. ., '
;
1952 J BURMA LAW REPORTS. 361
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
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."
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.
A P PELLATE CR IM I N AL.
Be f ore {' Smz Mtl ml!J , J.
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.
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.
.; i
195?) BURMA LA\V RE PORTS. 383
-
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.
>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
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~(~ .
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 :
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.';
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.
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
THE
... U~ION OF BURMA (APPLlCl\N';') H.C.
195~
v.
SEIN PO (RESPO~DENT).*
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
,,
52]
1 BURMA LAW REPORTS. 399
.. l
952] BURMA LAW REPORTS. 403
APPELLATE CRIMINAL.
Before U Attng Kltme, J
~, .
1952] BtJRMA LAW REPORTS. 405
APPELLATE CIVIL.
Before V Tun Byu, C.l., ami U On Pe. J.
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.
,.
..: ~ . ' 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
... .. '
1952] BURMA LAW REPORTS. 409
U Tux BYU,
C.J.
4l0 BURMA LAW REPORTS. [1952
APPELLATE CIVIL.
Before U Auug Kltitle, !.
'' 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."
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.'
~--------~~----~--~------
. (1) I.L.R.14 Ran. 173 at 1S5.
BURMA LA \V REPORTS.
APPELLATE CIVIL.
Before U rl.tmg ;;Ttiuc, J .
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 .
- '
1952] BURMA LAW REPORTS 417
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