MAUNG KYIN Vs. MA SHWE LA

JUDGEMENT

(1.) The appellants are defendants in this action which was brought by the respondents in the Chief Court of Lower Burma on its original civil side. Judgment was there given in favour of the respondents, and was affirmed on appeal to the Court on its appellate side.

(2.) The action was brought to recover possession of certain parcels of land which may be conveniently referred to as the first, second, third, and fourth hereditaments. The respondents claimed under certain deeds which purported to be absolute conveyances, but which the appellants contended were meant to be, and had always in fact been, treated by all the parties concerned as mortgagees only, and they tendered evidence of the acts and conduct of the parties to that effect. This evidence was excluded by the Courts below under Section 92 of the Indian Evidence Act, 1872, and the principal question arising on this appeal is whether or not that evidence was properly rejected.

(3.) The respondents also claimed that the appellants were bound under the covenants for title contained in the conveyance they executed in favour of the respondents, to discharge a mortgage existing on the premises at the time of the conveyance.