U PE Vs. U MAUNG MAUNG KHA

JUDGEMENT

(1.) This is a suit in which U Maung Maung Kha, the plaintiff seeks to set aside a conveyance of certain property gifted to U Pe, the defendant, by Ma Ma Gale, wife of the plaintiff, but now deceased. The plaintiff and his wife were Buddhists and their mutual rights depended on Burmese Buddhist law. They were married in 1892 having both been previously married and they had no children but adopted two girls Ma Khin May and Ma E Kyi. The father of Ma Ma Gale was U Pan ; he lived in Henzada. The plaintiff lived at Rangoon and his wife lived sometimes with her husband at Rangoon and sometimes at Henzada. She traded on her own account at Henzada.

(2.) In 1910 U Pan died leaving two daughters, the said Ma Ma Gale and one Ma Ma Gyi a spinster, and some grandchildren the offspring of a deceased child. In 1912 U Pan's estate was divided between his two daughters. It consisted of two houses, one the pucca house and the other the little house and some paddy fields. The plaintiff then came to Henzada permanently and lived with his wife in U Pan's little house. In 1916 the plaintiff built another house and when it was finished his wife and he lived in it. The adopted children lived with Ma Ma Gyi in the little house. Ma Ma Gyi began to rebuild the pucca house but died in 1923 ; the rebuilding was finished by the plaintiff and his wife. On Ma Ma Gyi's death her share of U Pan's property passed to Ma Ma Gale. Ma Ma Gale looked after the two houses and received all rents from them so far as let and also the rents from the paddy lands. A conveyance was then executed by the plaintiff and Ma Ma Gale of the houses and lands in favour of the adopted children, but as it is admitted on both sides that this was benami and did not represent any real transaction it may be ignored. After Ma Ma Gyi's death the little house was sold by the plaintiff and Ma Ma Gale to one Olivari. The adopted children then moved to the pucca house which was nearly finished. In 1924 the spouses quarrelled and after that did not live together the plaintiff living in his own house and Ma Ma Gale in the pucca house. They never lived together again. In 1927 Ma Ma Gale fell ill. The plaintiff attempted to enter the house where his wife was but the door was shut against him. Following on this, on 2 March, 1927, Ma Ma Gala removed to the house of the defendant And appellant and on the next day she executed a deed of gift of all her properties inherited from her father U Pan in favour of the defendant. The plaintiff thereupon instituted a suit for restitution of conjugal rights against her but before any progress had been made Ma Ma Gale died on 28 June 1927. Thereupon the plaintiff raised the present suit to have the conveyance in favour of the defendant declared void.

(3.) Before stating the grounds of action it will be well to state the Burmese Buddhist law in regard to the property of married persons so far as it is not a matter of controversy between the two parties. Married persons hold during the subsistence of the marriage an interest in all property belonging to either or both. What that exactly means will be discussed afterwards. Partition takes place either on death or on divorce. Property consists of three kinds : "payin" which is the property which had belonged to the spouses individually before marriage; 'lettetpwa", which is the property accruing to either spouse individually either by particular exertion or by succession after the marriage; sometimes therefore described as of two kinds, viz., ordinary lettetpwa and lettetpwa by succession ; and "hnapazon," which is the property acquired by the spouses during the marriage by their exertions or from the produce of the property they already have. On partition lettetpwa goes two-thirds to the spouse who actually made it or succeeded to it and one-third to the other. Hnapazon and payin is equally divided.