MAUNG KYIN Vs. MA SHWE LA

JUDGEMENT

(1.) This is an appeal originally brought by the defendants Maung Kyin, since deceased, and Maung Kyaw, from a judgment and decree of the Chief Court of Lower Burma in its Civil Appellate Jurisdiction, dated the 3rd August, 1914, reversing the judgment and decree of the Chief Court in its Civil Original Jurisdiction, dated the 17th June, 1912. The matters in suit between the parties have, on a former occasion, formed the subject of an appeal to this Board. The judgment upon that appeal was pronounced on the 11th July, 1911, and is reported in Hanif-un-nisa v. Faiz-un-nisa (1911) L.R. 38 I.A. 85 : 13 Bom. L.R. 391. The moaning and effect of that judgment will be presently. referred to.

(2.) The property which is the subject of the appeal consists of four different parcels of land situated in Kemmendine, a suburb of Rangoon. The facts of the case may be briefly stated thus. The owner of these plots of land was one Ko Shwe Myaing. On the 30th November, 1901, Myaing, having borrowed from Maung Kyin and Ma Ngwe Zan, his wife, 8,500 rupees, to bear interest at 18 per cent. per month, granted an out-and-out conveyance of two of these properties, which may be called (a) and (b), in favour of Kyin and his wife. No possession passed; interost was paid by Myaing and repayment of the loan to the extent of 3,500 rupees was also made. This left an unpaid balance of 5,000 rupees. On the 4th March, 1903, Kyin and his wife obtained payment of this sum from U Shwe Pe and his wife, and conveyed the properties (a) and (b) to the latter.

(3.) There were two other plots of land, which may be called (a) and (d). Kyin and his wife on the 13th February, 1902, having advanced 11,565 rupees, purchased these properties, which then also belonged to Myaing, by public auction. No possession passed. On the 4th March, 1903, Kyin and his wife transferred these properties to Shwe Pe and his wife in consideration of a payment of 11,000 rupees, 565 rupees having in the meantime been paid by Myaing. The state of matters accordingly was that, on the date last mentioned, namely the 4th March, 1903, U Shwe Pe and his wife became by ex facie absolute conveyances from Kyin and his wife vested in all the properties in suit.