လင်မယားအဖြစ်ပြတ်စဲနိုင်သည့်နည်းအမျိုးမျိုး

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

မြန်မာ့အိမ်ထောင်လင်ခန်းမယားခန်းပစ္စည်းခန်းနှင့်ပတ်သက််သောစီရင်ထုံး[ ၅ ]ရပ်အကြောင်း။[ Part Four ]

SELECTED JUDGMENTS AND RULINGS 578

Before E. M. H. Fulton, Esq.

MA THU (APPELLANT) 

                  v. 

MA BU (RESPONDENT).

Civil Second Appeal No. 16

1891, February 26. ဆုံးဖြတ်ချက်အား

၁၉၀၅ခုနှစ်၊ဖေဖေါ်ဝါရီလ၆ရက်နေ့၌ဆုံးဖြတ်သော-

VOLUME III LOWER BURMA RULINGS. 66

Full Bench-(Civil Reference).

Before Sir Herbert Thirkell White, K.C.I.E., Chief Judge. Mr. Justice Fox and Mr. Justice Birks.

MA SHWE U v. MA KYU.

Civil Reference No. 8 of 1904.

February 6th, 1905.

အမှု၌ပြန်လည်စိစစ်သည်။

အယူခံတရားလိုဘက်မှ Messrs. Agabeg and Maung Kin တို့ကလိုက်ပါဆောင်ရွက်သည်။

ဦးခင်ကတရားသူကြီးချုပ် Mr. Fulton ဆုံးဖြတ်ချက်မမှန်ကန်ကြောင်းနှင့်ကင်းဝန်မင်းကြီးဦးကောင်း၏ဓမ္မသတ်အရ၊လင်သည်မယား၏အရှင်သခင်ဖြစ်၍၊မယားသဘောတူညီသည်ဖြစ်စေ၊သဘောမတူညီသည်ဖြစ်စေ၊ရောင်းချခြင်းတရားဝင်သည်ဟုလျှောက်ထားတင်ပြသော်လည်းစုံညီခုံရုံးကလက်ခံခြင်းမရှိ။

သို့သော်လည်းဥပဒေသဘောသည်ရှေ့တဆင့်တက်သွားပြီး၊၁၈၉၁ခုနှစ်ကဆုံးဖြတ်သော SJLB 578 အရ၊မယားမသိရှိပဲ၊သဘောမတူပဲမယား၏အစုအားလင်မှရောင်းချခွင့်မရှိဟုဆုံးဖြတ်ပြီး SJLB 578 စီရင်ထုံးအားအတည်ပြုခဲ့သည်။

ဒုတိယအချက်အနေဖြင့်လင်သည်မိမိ၏အစုအားရောင်းချခြင်းအတည်ဖြစ်သည်ဟုဆုံးဖြတ်သည်။

————————————-

VOLUME III LOWER BURMA RULINGS. 66

Full Bench-(Civil Reference).

Before Sir Herbert Thirkell White, K.C.I.E., Chief Judge. Mr. Justice Fox and Mr. Justice Birks.

MA SHWE U v. MA KYU.

Civil Reference No. 8 of 1904.

February 6th, 1905.

အမှုတွင်အောက်ပါအတိုင်းစိစစ်ဆုံးဖြတ်သည်-

Buddhist law: Husband and wife-power of husband to alienate joint-property.

Subject to the reservation noted below, a Burmese Buddhist husband cannot sell or alienate the hnapazon property of himself and his wife without her consent or against her will.

Ma Thu v. Ma Bu, (1891) S. J.L. B.: 578, followed.

Maung Ko v. Ma Me, (1874) S.J. L.B., 19; Maung Twe v. Ramen Chetty,(1900) 1 L. B. R., 11; On Sin v. Ma O Net,2 U. B. R., 1892- 96, page 303,referred to.

A sale by a Burmese Buddhist husband of the hnapazon property of himself and his wife made without her consent constitutes a valid transfer of his share and interest in the property sold.

Maung Weik v. Shwe Lu, (1902), 1 L. B. R., 184, overruled.

Ma Me v. Maung Gyi, (1893) 2 U. B. R., 1892-95, 45: Guna v. Kyaw Gaung,(1895) 2 U. B., R. 1892-96, 204; Ma Thaing v. Tha Gywe, (1902) 2 U. B. R. Ex: of Decree, 1 ;Maung-Hmon v. Maung Meik; (1904) 2- U. B. R. Buddhist law-Divorce, 1; Ma Po v. Ma Shwe Mi, Chan Toon's L. C. L., 418; Ma Saw Ngwe v. Ma Thein Yin, (1902) 1 L. B. R., 198; Ma Kyi Kyi v. Ma Thein (1905) 3 L. B. R., 8; Soobramonian Chetty v. Ma Hnin Ye, (1899), P. J. L. B., 568; Maung Tha Nu v. Maung Kya Zan, (1903) 2 L. B. R. 167; referred to.

စီရင်ထုံးစာမျက်နှာ၆၇နှင့်၆၈၌အောက်ပါအတိုင်းစိစစ်ပြဆိုသည်-

Notwithstanding the ruling of Fulton, J . C., in Ma Thu v. Ma Bu, (1891) S. J. L, B., 578. it has been contended that a Burmese Buddhist husband has a right to alienate the hnapazon property of himself and his wite without her consent or against her will.

Mr. Fulton based his ruling upon his interpretation of one section of the Manugye Dhammathat.

Since the time when the decision was given many more Dhammathats have become available to the Courts than were then available, and the texts given in sections 251 and 252 of the ex-Kinwun Mingyi’s Digest appear to me to throw some doubt on the correctness of the above decision It was accepted as correct by this Court in Maung Twe v. Ramen Chetty (2), (1900) 1 L. B. R., 11. but I am not aware that any question as to its correctness was raised or argued in that case, which turned upon the question of whether the wife's consent had been proved or not.

In the present case a further question arises which was expressly not dealt with by Mr. Fulton in the case of Ma Thu v. Ma Bu ( 1 ). (1891) S. J. L, B., 578.

The Divisional Court having given a decree for redemption of the whole of the property, a claim has been put forward on behalf of the defendant for retention of half of the property on the ground that the sale to her by Maung Kya Gaing put her in his shoes as regards his share in the equity of redemption.

It is therefore according to Mr. Fulton's judgment necessary to consider whether the husband could sell his own share in hnapazon property without his wife's consent, and whether his sale, although possibly ineffectual as a transfer of the whole property, is to be held effectual as a transfer of his share and interest in it.

The questions raised are important, and I have doubts as to the correct decision of them.

I accordingly refer to a Bench of the Court the following questions :-

(1) Whether a Burmese Buddhist husband an validly sell or alienate the hnapazon property of himself and his wife without her consent or against her will ?

(2) Whether a sale by a Burmese Buddhist husband of the hnapazon property of himself and his wife made without her consent constitutes a valid transfer of his share and interest in the property sold ?

The opinion of the Bench was as follows:—

Thirkell  White, C. J .—The questions referred to the Full Bench are:-

(1) Whether a Burmese Buddhist can validly sell or alienate the hnapazon property of himself and his wife without  her consent or against her will.

(2) Whether a sale by a Burmese Buddhist busband of the hnapazon property of himself and his wife made without her consent, constitutes a valid transfer of his share and interest in the property sold.

စီရင်ထုံးစာမျက်နှာ၆၉၌တရားသူကြီးချုပ်ကအောက်ပါအတိုင်းမြွက်ဆိုသည်-

In my opinion the texts cited in section 251 of Volume Il of the Digest are not suificient authority to overrule the authorities on which is based the ruling in Ma Thu and Ma Bu (1). (1891) S. J. L, B., 578.

Apart from the texts in section 251, in so far as the matter is governed by Buddhist Law, I am prepared to adopt Mr. Fulton's judgment without modification or reserve.

I am particularly impressed by the fact which is a matter of common knowledge, that as a matter of practice husbands and wives do usually join in the execution of the documents alienating joint property.

စီရင်ထုံးစာမျက်နှာ၇၀၌တရားသူကြီးချုပ်ကအောက်ပါအတိုင်းနိဂုံးချုပ်၍ဆုံးဖြတ်သည်-

Whichever of these views is accepted, my answer to the first question in the reference is that, subject to the reservations stated in the case of Ma Thu v. Ma Bu ( 1 ) (1891) S. J. L, B., 578. a Burmese Buddhist husband cannot sell or allienate the hnapazon property of himself and his wife, without her consent or against her will. 

The second question under reference was answered in the negative by the late learned Chief Judge of this Court in Maung Weik v. Shwe Lu (5).(1902) 1 L. B. R., 184.

But in so far as that decision purported to be based on the authority of Ma Thu v. Ma Bu ( 1 ) (1891) S. J. L, B., 578. it must be regarded as open to reconsideration.

For in the case last cited, as is pointed out in the present order of reference, the question was explicitly reserved.

The ruling in Ma Me v. Maung Gyi (6)(1893) 2 U. B. R. 1892-96,45. is a distinct authority for the position that a Burmese Buddhist husband can alienate his share in joint property of himself and his wife. 

So is the decision in Guna v. Kyaw Gaung (7)(1895) 2 U. B. R., 1892-96, 204. and the latter ruling in Ma Thaing v. Tha Gywe (8)(1902) 2 U. B. R. Ex of decree, 1. is to the same eftect.

That the wife's share in joint property can be attached is assumed in the latest Upper Burma case of Maung Hmon v. Maung Meik (9):(1904) 2 U. B. R., Budd Law-Divorce 1.

No authority except that of Maung Weik v. Shwe Lu (5)(1902) 1 L. B. R. 184. has been cited to the contrary; and no text of Buddhist Law precisely applicable can be traced.

The nearest analogy is that of a gift by a husband of joint property to a person whom he wishes to take as a lesser wife or concubine. 

In that case, the gift is declared valid to the extent of the half which is said to be the husband's property: 

If the matter is to be decided on general principles and not by Buddhist Law, I think there can be no doubt that the transfer would be valid.

Section 44 of the Transter of Property Act states the general principle in the case of immoveable property.

My answer therefore to the second question in the order of reference is that a sale by a Burmese Buddhist husband of the hnapazon property of himself and his wife made without her consent constitutes a valid transfer of his share and interest in the property sold.

စီရင်ထုံးစာမျက်နှာ၇၀၌၊စုံညီခုံရုံးတွင်ပါဝင်သောအခြားတရားသူကြီး Fox က၊တရားသူကြီးချုပ် Thirkell White ၏ဆုံးဖြတ်ချက်ကိုသဘောတူညီကြောင်းအောက်ပါအတိုင်းဖော်ပြသည်-

Fox; J. - I adopt the views of the learned Chief Judge, and concur in the answers to the questions referred.

စီရင်ထုံးစာမျက်နှာ၇၀နှင့်၇၁၌၊တရားသူကြီး Birks က၎င်း၏အမြင်ကိုအောက်ပါအတိုင်းဖော်ထုတ်သုံးသပ်သည်-

Birks, J. -The questions referred tò us by Mr. Justice Fox involve a reconsideration, not only of the ruling in Ma Thu v. Ma Bu ( 1 ) (1891)S. J. L. B.578 but also of two rulings of this Court in the cases of Maung Twe v.

Ramen Chetty (2) (1900)1 L. B. R.11 where that ruling was expressly followed; and Maung Weik v. Shwe Lu (5) (1902)1 L. B. R.184 decided by the late Chief Judge of this Court in which the doctrine laid down in Ma thu's case was still further extended to limit the right of the husband to alienate even his own share in the joint property without the consent of his wife. 

It is conceded that this ruling of Mr. Justice Fulton's has never been questioned till now; and that it is in conformity with the previous ruling of the special Court in Maung Ko v. Ma Me (3): (1874) S. J. L. B.,19.

Maung Kin for the appellant argues that as Ma Thu's case was decided in February 1891, and the Kinwun Mingyi's Digest was not published till November 26th, 1896, sections 251 and 252 of that work were not brought to Mr. Fulton's notice; nor was the 2nd Volume on marriage, translated in June 1900, when Mr. Fulton's ruling was followed by a Bench of this Court in Maung Twe's case.

စီရင်ထုံးစာမျက်နှာ၇၄နှင့်၇၅၌၊တရားသူကြီး Birks က၎င်း၏အမြင်ကိုအောက်ပါအတိုင်းဆက်လက်ရေးသား၍ဆုံးဖြတ်သညိ-

Maung Kin's chief argument has been that Mr. Fulton's judgment draws a distinction between charitable gilts made by the husband without his wife's consent and sales of the joint property.

It is argued that in the former case the property is lost to the joint family while in the latter the proceeds of sale remain and will benefit the wife on her husband's death. 

It is only in the case of gifts for religious purposes that the Courts are bound to follow the Buddhist Law of gift and the case mentioned in Book VIII, page 238, 2nd edition of the Manugye, would have to be considered subject to the general  considerations of equity.

It may be noted that the same passage denies the right of the husband to give away the separate property of his wife while section 251 of the Digest seems to give the husband control over the separate property of the wife.

I am of opinion, therefore, that no grounds have been made out for disturbing Mr. Fulton’s decision in Ma Thu’s case, though I still adhere to the opinion I expressed in Soobramonian Chetty v. Ma Hnin Ye(13) (1899) P. J. L. B.568. that these provisions as to the husband being the, lord and master of the wife and her property raise the presumption that when they are living together and the husband acts alone in dealing with the joint property he is acting as his wife's agent in respect of her interest as well as his own.

This is, however, purely a question of fact, which will depend upon the circumstances of each case.

I would answer the first question referred to us in the negative.

With regard to the second question the late Chief Judge's opinion in Maung Weik's case was probably based on his construction of section 43 ot Book VI of the Manugye, which seems to treat the interests of the teacher and scholar and husband and wife over each other's property as joint and indivisible and this seems also to be the view taken in section 16 of Spark's Code. 

In neither passage is anything said about the right of the husband or wife to alienate his own or her own interest in the joint property.

The rule laid down in section 43 is that the receiver has no right to buy the joint property if sold by one only of the joint proprietors and must restore it but this would be inequitable unless he had notice that the husband or wife was acting without the authority of the other.

I do not think this ruling of the late Chief Junge has been generally followed, and as pointed out by my learned colleague it is not the law in Upper Burma. 

The only reported case I can hand in Lower Burma since this decision, is Maung Tha Nu v. Maung Kya Zan (14) (1903) 2 L. B. R.,167. where Mr. Justice fox held that the widow had a right to alienate her own share in the joint property of herself and husband after the death of her husband and before it was divided.

I agree in the observations my learned colleague has made on this head and may note that the late learned Chief Judge admitted that the matter had not been argued. 

I would answer the second question in the reference in the affirmative.

———————————-