1966 BLR ( C C ) 252 စီရင်ထုံးပါအဆုံးအဖြတ်ကိစ္စ။[ Part Four ]

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

1966 BLR ( C C ) 252 စီရင်ထုံးပါအဆုံးအဖြတ်ကိစ္စ။[ Part Four ]

မြန်မာဗုဒ္ဓဘာသာဝင်လင်၊မယားက၊လင်မယားပိုင်ပစ္စည်းပေါင်သဖြင့်အပေါင်မှုစွဲဆိုလျှင်၊ပစ္စည်းပေါင်ရာ၌မပါသောမယား၊လင်ကိုလည်း၊တရားမကျင့်ထုံးဥပဒေအမိန့်၃၄၊နည်း၁ပါပြဌာန်းချက်နှင့်အညီတရားပြိုင်အဖြစ်မပျက်မကွက်ထည့်ရန်လိုအပ်သည်။

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VII  LOWER BURMA RULINGS. 135

Before Mr. Justice Twomey.

MA SEIN 

            v. 

M. M. K. A. MUTHUCURPAN CHETTY.

အမှုတွင်လင်မယားပိုင်ပစ္စည်းပေါင်ရာ၌မပါသောမယားသည်၊အပေါင်မှုတွင်မပါမဖြစ်ပါဝင်ရန်လိုအပ်သည့်အမှုသည်ဖြစ်သည်ဟု၊စီရင်ထုံးစာမျက်နှာ၁၃၆တွင်အောက်ပါအတိုင်းပြဆိုသည်-

[ Civil Procedure-Mortgage suit,-Parties to-Effect of non-joinder,-Order 34, Rule 1, Civil Procedure Code, 1908.

Although a Burmese Buddhist wife may sometimes be held to be bound by her husband's acts, as her agent, in mortgaging joint property, yet the mortgagee, if he neglects to add the wife as a party to his suit on the mortgage, cannot enforce the decree so obtained against her.

Bhawani Prasad v. Kallu (1895) I.L.R., 17 All., 537, referred to.

The plaintiff-appellant Ma Sein's husband Maung Paw mortgaged the land in suit to the defendant-respondent, a Chetty firm. 

The defendant-respondent brought a mortgage suit against Maung Paw and having obtained a decree for the sale of the land, bought it with the permission of the Court.

Ma Sein then brought the present suit alleging that the land was the joint property of herself and her husband, pleading that her interest in the land was not affected by the mortgage or the subsequent decree against her husband and praying that her title to one half the land should be declared and that the sale should to that extent be annulled.

The Lower Courts have found concurrently that Ma Sein consented to the mortgage and have dismissed her suit. 

The circumstances of the case give rise to a strong presumption that Ma Sein assented to her husband's action in mortgaging the land. 

She had been suffering from paralysis for some years and the management of the property was entirely in the hands of Maung Paw who was living with and supporting his wife and children. 

There is reason to believe that the loan was contracted for family purposes, and that Maung Paw acted on behalf of his wife as well as himself in mortgaging the land. 

As in the somewhat similar case of Ma Nyein Thu v. P. S. M. L. Murugappa Chetty (1) 6 B. L. Times, p. 113. it may reasonably be held that the husband's mortgage was effective against his wife's share as well as against his own ard to that extent the decision of the Lower Courts is in my opinion correct.

But the Lower Courts went beyond the rulings of this Court in dismissing the plaintiff's suit. 

They failed to consider the effect of the Chetty's omission to join Ma Sein as a party to the mortgage suit. 

It is clear that she was a necessary party under Order 34, Rule 1, which renders it imperative in a mortgage suit to join as parties "all persons having an interest either in the mortgage-security or in the right of redemption." 

In this case there was no excuse for the omission as the land stood in the joint names of the husband and wife and they were living together. 

The mortgagee does not and cannot now plead that he had no notice of the wife's interest in the land. 

In his written statement he merely urged that the mortgage debt was contracted for the benefit of Ma Sein and her family and that Ma Sein was fully aware of it. 

This is a good plea as against Ma Sein's claim  that she was not affected by the mortgage but it is not a good plea as against her claim that she is not affected by the decree in the mortgage suit to which she was not a party. 

In the Allahabad case Bhawani Prasad v. Kallu and others (2), (1895) 1.L.R. 17 All., 537. it was held by a Full Bench that "when a plaintiff mortgagee institutes a suit for sale against his mortgagor who is the father of sons in an undivided Hindu family without joining as parties to the suit the sons of the mortgagor, of whose interests he has notice, and obtains a decree and an order absolute for sale against the father only, the sons can successfully sue for a declaration that the mortgagee decree-holder is not entitled to sell in execution of his decree for sale the interests of the sons in the property comprised in the mortgage given by the father, although the sole ground of their suit is that they were not parties to the suit by the mortgagee."

I have examined the proceedings of the Civil Suit No. 4 of 1910 in which the Chetty sued on the mortgage.

There is nothing in that suit to suggest that Maung Par was being sued in the capacity of representative of his wife as well as in his personal capacity, and it is only when a defendant is manifestly sued as a representative that a sale in terms of his interests is allowed to convey the interests of others. 

If Ma Sein had beer a joint executant of the mortgage instrument the necessity of joining her as defendant in the mortgage suit would not have been questioned and there is no reason to hold that the necessity for joining her is any the less because she was an implied and not an express joint mortgagor. ]

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VOLUME X LOWER BURMA RULINGS. 36

FULL BENCH.

Before Sir Daniel Twomey, Chief Judge, Mr. Justice Ormond, Mr. Justice Maung Kin and Mr. Justice Pratt.

MA NYUN 

             v. 

1. MIss E. E. TEIXEIRA, 

2. MIss C. B. TEIXEIRA, 

3. MAUNG NAUNG PO, 

4. MAUNG SHWE KO.

အမှုတွင်လည်းအောက်ပါအတိုင်းပြဆိုသည်-

[ The opinion of the Full Bench was as follows :—

Twomey, C.J.-There can be no doubt that the mortgage effected with the wife's knowledge and consent bound the wife's interest in the property as well as her husband's interest. 

But it is going a step further to hold that the mortgagee who has sued the husband alone can execute the decree against the wife's interest too. 

The general rule is laid down in Order 34, Rule 1 of the Code of Civil Procedure which renders it necessary in bringing a suit on a mortgage to join as parties all persons having an interest in the property. 

But it is admitted on the part of the wife in this case (and there is ample authority to support the view) that a decree against a benamidar binds also the beneficial owner, the reason being that the benamidar represents the real owner for the purposes of the suit.

The question for consideration therefore is whether the husband is benamidar for the wife in the circumstances stated in the reference.

The joint property in question is stated to have been “mortgaged by the husband with the full consent and knowledge of his wife." 

We are not justified, I think, in assuming that the consent and knowledge of the wife extended to the husband's action in mortgaging the property in his own name as sole: owner, suppressing the fact that his wife had an interest in it.

And it-seems to me that nothing less than this assumption would be involved in holding that the husband was his wife's benamidar as regards her interest in the property. 

It may well be on the facts stated in reference that the wife intended the husband to mortgage in his own name only his'own share, and as regards her share to mortgage it openly as her agent. 

It is going too far in my opinion to impute to her an intention to set up a fictitious owner of her share. 

It is not stated that she ever in fact transferred her share benami to her husband and I think we have no solid ground for deciding that she was privy to her husband's action in holding himself out as sole owner.

I would hold therefore that the husband was not benamidar for the wife in the circumstances stated. 

And it is only if he was her benamidar that helcould be regarded as representing her in the mortgage suit. 

In answer to the question referred I would say that the husband is not the wife's representative for the purposes of the suit, and the wife's share is not affected by the decree. ]

တရားသူကြီးချုပ် Twomey, C.J.-၏စီရင်ထုံးစာမျက်နှာ၃၉၌၊အောက်ပါမြွက်ဆိုချက်မှာမှတ်သားဖွယ်ဖြစ်သည်-

[ It is not stated that she ever in fact transferred her share benami to her husband and I think we have no solid ground for deciding that she was privy to her husband's action in holding himself out as sole owner. ]

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1966 BLR ( C C ) 252 

Before U Thet Pe, J.

STATE COMMERCIAL BANK (APPELLANT)

                       V.

U PO DAN AND SIX OTHERS (RESPONDENT).*

အမှုတွင်လည်း၊တရားသူကြီးဦးသက်ဖေက၊စီရင်ထုံးစာမျက်နှာ၂၅၃၌၊အောက်ပါအတိုင်းပြဆိုသည်-

[ Under the Burmese Buddhist Law the husband and wife held during the subsistence of their marriage the interest in all the payin, lettetpwa and nitpasone properties belonging to either or both. Vide U Pe v. U Maung Maung Kha (I). 10 Ran. p. 261 (P.C.).

In the present case since the respondents U Maung Maung Saw and Daw Khin Than are admittedly Burmese Buddhist spouses the latter will have an interest in the properties that belonged to her husband U Maung Maung Saw. 

Out of the various items of properties mortgaged with the appellant-Bank four belonged absolutely to U Maung Maung Saw, and the remainder to U Maung Maung Saw jointly with his parents and children.

The appellant-Bank had therefore rightly impleaded the respondent Daw Khin Than as a party-defendant inasmuch as Rule 1, Order 34 of the Civil Procedure Code enjoins that all persons having an interest in the mortgaged security or in the right of redemption should be made parties to a mortgage suit. ]

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1966 BLR ( C C ) 252 

Before U Thet Pe, J.

STATE COMMERCIAL BANK (APPELLANT)

                       V.

U PO DAN AND SIX OTHERS (RESPONDENT).*

စီရင်ထုံး၌၊ပူးတွဲမိသားစုလုပ်ငန်းအကျိုးငှါငွေချေးယူခြင်းဖြစ်သည်စသည်ဖြင့်အောက်ပါအတိုင်းအကြောင်းပြသည်-

[ Held: The defendants U Maung Maung Saw and Daw Khin Than are

admittedly Burmese Buddhist spouses and the latter will have an interest in the properties that belonged to her husband. 

The appellant Bank had therefore rightly impleaded the respondent Daw Khin Than as a party-defendant.

The loan in suit was taken for the benefit of the joint family business in which the respondent U Maung Maung Saw appeared to be an active member and the circumstances of the case indicated that the respondent Daw Khin Than must be deemed to have consented to the acts of her husband. 

Therefore the respondent Daw Khin Than is liable for the debt contracted by her husband. ]

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VII  LOWER BURMA RULINGS. 135

Before Mr. Justice Twomey.

MA SEIN 

            v. 

M. M. K. A. MUTHUCURPAN CHETTY.

အမှုတွင်လည်း၊စီရင်ထုံးစာမျက်နှာ၁၃၆၌၊အောက်ပါအတိုင်းအကြောင်းပြသည်-

[ There is reason to believe that the loan was contracted for family purposes, and that Maung Paw acted on behalf of his wife as well as himself in mortgaging the land. ]

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1966 BLR ( C C ) 252 စီရင်ထုံးပါအကြောင်းပြချက်နှင့်၊ VII  LOWER BURMA RULINGS. 135 စီရင်ထုံးပါအကြောင်းပြချက်တို့သည်သဘောချင်းတူသည်။

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VII  LOWER BURMA RULINGS. 135

Before Mr. Justice Twomey.

MA SEIN 

            v. 

M. M. K. A. MUTHUCURPAN CHETTY.

အမှုတွင်လင်အပေါ်ချမှတ်သောအပေါင်ဒီကရီကို၊အပေါင်မှု၌အမှုသည်အဖြစ်မပါသောမယားအပေါ်အတည်မပြုနိုင်ဟုအောက်ပါအတိုင်းထုံးဖွဲ့ထားသည်-

[ Although a Burmese Buddhist wife may sometimes be held to be bound by her husband's acts, as her agent, in mortgaging joint property, yet the mortgagee, if he neglects to add the wife as a party to his suit on the mortgage, cannot enforce the decree so obtained against her. ]

ပစ္စည်းပေါင်ပြီးနောက်အပေါင်ခံပစ္စည်းကိုဝယ်ယူသူသည်၊အမိန့်၃၄၊နည်း၁၏အဓိပ္ပာယ်အရ[ အပေါင်ရွေးနုတ်ခွင့်တွင်အကျိုးခံစားပိုင်ခွင့်ရှိသည် ]ဖြစ်၍၊VII  LOWER BURMA RULINGS. 135 စီရင်ထုံးအရ၊အပေါင်မှုတွင်မပါမဖြစ်ပါဝင်ရန်အမှုသည်ဖြစ်သည်ကိုသတိချပ်ရန်ဖြစ်သည်။

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