KADER MOIDEEN Vs. C. W. NEPEAN

JUDGEMENT

(1.) THE appellant Kader Moideen seeks to redeem certain lands situated in the district of Shwegyin in Lower Burma which the respondents, deriving title from one John Nepean who died in 1883, claim to hold free from any right or equity of redemption.

(2.) THE lands in question were originally waste lands, the property of the Government. In 1866 and 1867 they were sold to Kader Moideen in three lots under the rules then in force for the sale of waste lands in British Burma. On payment of preliminary expenses, and a fraction of the purchase money as required by the rules, each of the three lots was conveyed to Kader Moideen "in full proprietary right," subject to conditions intended to protect the interest of the Government as an unpaid vendor. In 1871, at the joint request of Kader Moideen and John Nepean, the property was transferred into Nepean'a name in the Government books, and thenceforth he was recognized as owner and acted as such. The question is : What was the real meaning of this transaction? Was it an absolute sale or a transfer by way of security? The question is one of some difficulty depending upon the construction of documents, not wholly unambiguous, and upon a consideration of all the surrounding circumstances. Very little light is thrown upon the transaction by what has occurred since, or by the oral evidence on the one side, or on the other, which to say the least, does not merit implicit confidence. The Judge of First Instance, the District Judge of Shwegyin, decided in favour of Kader Moideen. This decision was reversed on appeal by the Commissioner of the Tenasserim Division. The Commissioner's judgment was affirmed by the Judicial Commissioner of Lower Burma, from whose Court the present appeal is brought.

(3.) FORM D-the prescribed form of conveyance-so far as material is as follows: Know all men by these presents that the Chief Commissioner of British Burma has conferred on his heirs, executors, administrators and assigns the grant of a tract of land measuring British Statute acres situated in to be holden by him in full proprietary rights subject to the following conditions: