မြန်မာ့အိမ်ထောင်လင်ခန်းမယားခန်းပစ္စည်းခန်းနှင့်ပတ်သက်သောစီရင်ထုံး[ ၅ ]ရပ်အကြောင်း[ Part Three ]

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

မြန်မာ့အိမ်ထောင်လင်ခန်းမယားခန်းပစ္စည်းခန်းနှင့်ပတ်သက််သောစီရင်ထုံး[ ၅ ]ရပ်အကြောင်း။[ Part Three ]

တချိန်ကမြန်မာနိုင်ငံအမြင့်ဆုံးတရားရုံးတွင်တရားစီရင်ကြသောအင်္ဂလိပ်တရားသူကြီးတို့သည်အင်္ဂလိပ်လင်မယားစနစ်နှင့်ကွဲပြားသောမြန်မာဗုဒ္ဓဘာသာလင်မယား၏ပစ္စည်းခန်းကိုကောင်းစွာသဘောပေါက်ဟန်မတူ။

လင်နှင့်မယားတို့သည်မိမိအိမ်ထောင်၌ထွန်းကားသောပစ္စည်းများကိုအပုံလိုက်[အပိုင်းလိုက်]ပိုင်ကြသည်ကို၊၂၀-၁၂-၁၈၉၇နေ့တွင်ဆုံးဖြတ်သော၊ PJLB 403(408)အမှု၌ဆင်ခြင်ယူနိုင်ခဲ့သည်။

သို့သော်လင်သို့မဟုတ်မယားသေဆုံးသောအခါ၊ကျန်ရသ်သူမယားသို့မဟုတ်လင်သည်၊ကွယ်လွန်သူ၏အစု(ဝေစု)ကိုမည်သို့မည်ပုံအမွေဆက်ခံသည်ကိုမူသဘောပေါက်ပုံမပေါ်ဘဲ၊ကွယ်လွန်သူ၏အစုကိုကျန်ရစ်သူမုဆိုးဖို၊မုဆိုးမက၊၎င်း၏တသက်တာအကျိုးခံစားပိုင်ခွင့်ရှိသည်ဟုအထူးတရားရုံးက(၇-၄-၁၈၈၆)နေ့(သီပေါမင်းပါတော်မူပြီးနောက်လပိုင်းအတွင်း)၌၊ SJLB 378အမှု၌ဆုံးဖြတ်သည်။

————————————

၁၈၉၁ခုနှစ်၊ဖေဖေါ်ဝါရီလ၂၆ရက်နေ့တွင်ဆုံးဖြတ်သော-

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.

အမှုတွင်၊မယားဖြစ်သူမသိရှိပဲ၊ခွင့်ပြုချက်မရရှိပဲ၊သဘောတူညီမှုမရှိပဲ[ without her knowledge and consent ]ရောင်းချခြင်းသည်အတည်ဖြစ်၊မဖြစ်ပြဿနာနှင့်စပ်လျဉ်း၍ဆုံးဖြတ်ခဲ့သည်။

၁၈၉၁ခုနှစ်၌၊ကင်းဝန်မင်းကြီးဦးကောင်းပြုစုသောဓမ္မသတ်များမပေါ်ပေါက်သေး။

ကင်းဝန်မင်းကြီးဦးကောင်းပြုစုသောဓမ္မသတ်များသည်၁၈၉၆ခုနှစ်ကျမှပြီးစီးသော်လည်း၊အင်္ဂလိပ်ဘာသာဖြင့်ပြန်ဆိုခြင်းလုပ်ငန်းများမှာ၁၉၀၀ပြည့်နှစ်ခန့်ကျမှပြီးစီးသည်။

မယား၏အစုကိုလင်ဖြစ်သူကရောင်းချခွင့်ရှိ၊မရှိနှင့်ပတ်သက်၍အဆိုပါကာလ၌၊မနုကျယ်ဓမ္မသတ်သာပေါ်ပေါက်သေးသည်။

SJLB 578 စီရင်ထုံးအားဆုံးဖြတ်သူတရားသူကြီးချုပ် E. M. H. Fulton, Esq.က၊ကင်းဝန်မင်းကြီးဦးကောင်းအားတိုင်ပင်၍အကြံဉာဏ်တောင်းခံသည်။

ကင်းဝန်မင်းကြီးဦးကောင်းက၊လင်သည်မယား၏အရှင်သခင်ဖြစ်သည်[ Lord of the wife ]ဟူသောအတွေးအခေါ်အပေါ်တွင်မူတည်၍အကြံဉာဏ်ပေးသည်။

သို့သော်တရားသူကြီးချုပ် E. M. H. Fulton, Esq.က၊ကင်းဝန်မင်းကြီးဦးကောင်း၏အကြံဉာဏ်ပေးခြင်းကိုလက်မခံ။

တရားသူကြီးချုပ်သည်မနုကျယ်ဓမ္မသတ်အားဖတ်ရှုလေ့လာ၍၊ကင်းဝန်မင်းကြီးဦးကောင်းပေးသောအကြံဉာဏ်နှင့်မကိုက်ညီဟုယူဆပြီး၊လင်သည်မယားမသိရှိပဲ၊သဘောမတူညီပဲ၊မယား၏အစုအားရောင်းချခွင့်မရှိဟုဆုံးဖြတ်သည်။

SJLB 578 အမှုတွင်၊တရားသူကြီးချုပ် E. M. H. Fulton, Esq.ကအောက်ပါအတိုင်းအစချီသည်-

THE question which has arisen for decision in this suit is whether a Burmese husband can sell or alienate the joint property of himself and his wife without her consent or against her will. 

The great delay which has occurred in answering this question has been caused by the variety of the opinions prevaient on this very important subject, the ambiguity of the texts bearing upon it, and the desire to discover the true solution of the difficulty.

With a view to ascertaining what might be the general opinion of persons likely the practice prevailing in Burmese families, the question was referred to all Commissioners and Deputy Commissioners in Lower Burma with instructions to submit their own opinions on the point and also those of other gentlemen, official or non-official, whom it might be thought desirable to consult. Copies of it were also sent to the Judicial Commissioner in Upper Burma, with a request that he would be so good as to collect the opinions of the officials subordinate to him and of all other gentlemen whom they might think proper to refer it to.

The result is that a very valuable mass of evidence has been obtained, and that the opinions of 389 gentlemen have been collected from various parts of the province. 

These will now be printed for future reference in case the question may again arise, and will serve to explain the grounds on which this judgment is based. 

A perusal of these opinions shows that three different viens are taken :-

i) that the husband can sell or give away the joint property of himself and his wife without her consent because the husband is lord of the wife;

(il) that he can sell or give away such property without such consent provided the object of the sale or gift is beneficial to both husband and wife ;

(iii) that he cannot do so without such consent.

တရားသူကြီးချုပ် E. M. H. Fulton, Esq ကစီရင်ထုံးစာမျက်နှာ၅၇၈နှင့်၅၇၉တို့တွင်အောက်ပါအတိုင်းဆက်လက်စိစစ်ပြဆိုသည်-

A study of the answers will prove the extraordinary diversity of opinion that prevails. 

It will also show that this diversity prevails; not only in Lower Burma but equally so in Upper Burma, where it might be supposed that the customs of the people would retain more of their primitive character and be less influenced by new ideas imported from western countries.

For instance, the Kin Wun Min Gyi, C.S.I., whose position in the service of the late King makes his opinion of great importance, and who is the compiler of the Atta Sankhepa Wunnana Dhammathat, considers that a husband can sell or alienate the joint propery of himself and his wife either without her consent or against her will as he chooses, and gives as his reason that the Manu Kye Dhammathat provides that the husband can either make offerings of the property or give it away without the wife’s knowledge because he is the lord of the wife, and the Manu Wunnana Dhammathat authorizes the husband to sell his wife to pay his gambling debts, while the Atta Sankhepa Wunnana Dhammathat gives her no control either over the property or over the children. 

On the other hand, Maung Pala, Myook of Mansi, who was formerly at the Court of King Mindon Min and Wun of Hmanwaing, considers that joint property cannot be alienated without the consent of the wife, and has known cases in which the Hlutdaw decided in favour of the wife and ordered the restoration of her property improperly alienated by the husband.

Unfortunately the decisions of the Hlutdaw are not available.

Similar divergences of opinion are to be met with in all directions among the answers that have been received.

Many quote section 406 of the Atta Sankhepa Wunnana as a proof that the husband has no control over the wife's property.

The translation with which Mr. Ripley, the Registrar of this Court, has favoured me, is as follows :—

The law respecting Eindaunggyis when cohabiting, that payin(separate)property may be given away by the owner thereof without leave (of the other).

When Eindaunggyis cohabit let 'payin' property be given away at the will of the owner thereof without knowledge or leave (of the other).

But to a paramour the woman may not give away property on the ground that it is her payin, and to a concubine the man may not give away property on the ground that it is his payin.

To one not a paramour or concubine may not be given away all or nearly all the payin property without leave, but a not disproportionate quantity (what is sufficient to meet the case or business matter) may be given away.

However, because the husband is the lord of the wife, and because the wife is the head of the house, the giving away of a not disproportionate quantity merely " after one has acquainted the other' is very meet.

In hardly a single district is there unanimity of opinion on this point.

As a typical instance I may refer to the answers received from Mergui, where ten elders were consulted, of whom four, consisting of an advocate, a head pongyi, a pensioned Myook, and a Myook on furlough, answered the question in the negative, and six, composed of three head pongyis, one advocate, one pensioned thugyi, and one Myook, replied in the affirmative.

One Deputy Commissioner points out that while the Manu Kye seems opposed to the sale of joint property by the husband alone, the actual practice of the country enables him to do so, as is proved bv the fact that the Burman wife never dreams of attempting to set aside such a sale. 

Another, while uncertain whether for religious purposes alienation without the wife's consent is allowed or not, regards it as both unjust and contrary to the existing customs of the country to allow alienation for any other purpose without the wife's consent.

စီရင်ထုံးစာမျက်နှာ၅၈၀၌၊ SJLB 19( မောင်ကို နှင့် မမဲ )အမှုအားရည်ညွှန်းပြီး၊အောက်ပါအတိုင်းဆက်လက်ပြဆိုသည်-

From the uncertainty of the answers received it is quite evident that the practice is unsettled. 

Doubtless many instances could be cited in which husbands had apparently disposed of joint property without the wife's consent in so far as they alone had executed the deeds of sale or mortgage or had alone conducted the verbal negotiation, but from such instances it could not be inferred that they were acting without the consent of their wives or in opposition to their wishes. 

Even where a husband did so, the mere fact that the wife acquiesced would be no proof that he was within his legal rights, for it would only show that she was the weaker of the two, and that she was disinclined to resist his wishes. 

On the other hand, the fact which is undoubted that in Burma it is usual for both husbands and wives to execute deeds of sale, to join in filing and defending suits, to have land registered  in their joints name in the Governments  books, and to be spoken of jointly as owners of the property, goes far to show that their power of disposal of it is joint. 

The suit now under appeal is an instance.

The defendants are husband and wife, and while contending that the plaintiff's husband had the right to sell the land which stood in the names of himself and his wife, they are jointly defending their own title to it. 

This joint action of husband and wife is, so far as my experience goes, unknown in India amongst Hindus or Mahomedans.

Hindu wives have their stridhana, and Mahomedan wives frequently have property of their own, but I do not think that anything like joint property of husband and wife is known.

That there is such joint property among Burmans is fully recognized, not only in actual practice but also in the Dhammathats. 

It is designated by a special name as napazón or lettetpwa. 

As held in the case of Maung Ko v. Ma Me (I) Selected Judgments, P. 19 by Mr. Sandford, so long as the marriage subsists neither party is entitled to absolute dominion over it, though the husband is entitled to possession in trust for both. 

Careful provision is made in the Dhammathat for the partition of the joint property in case of divorce.

If then it be conceded, as I think it must be, that the wife is joint owner with her husband of the napasón or lettetpwa property, it seems unlikely that Burmese law which has put her in a position so unlike that of a Hindu wife should simultaneously have given to the husband an uncontrolled power of disposition.

It is necessary therefore to consider carefully whether it has done so.

စီရင်ထုံးစာမျက်နှာ၅၈၀၊၅၈၁၊၅၈၂၊၅၈၃တို့တွင်၊တရားသူကြီးချုပ်ကမနုကျယ်ဓမ္မသတ်အပါအဝင်ကျမ်းများကိုရည်ညွှန်း၍ပြည့်စုံစွာသုံးသပ်သည်။

စီရင်ထုံးစာမျက်နှာ၅၈၄၊၅၈၅၌၊တရားသူကြီးချုပ်ကအောက်ပါအတိုင်းနိဂုံးချုပ်သည်-

This text, however, cannot be taken as implying a power of sale; for it is clear that the husband has no such power over his wife's separate property, and therefore, although it implies some controlling power over his wife's action in regard to the property, it does not seem to show that he has any right to sell it without her consent.

It seems to me, then, that as Buddhist law has declared the husband and wife to be joint owners of the property acquired after marriage: by the joint exertions of both, it would not be right in disregard of the express provisions of section 43 of Book VI of Manu liye to hold: that the husband can sell the joint property without his wife's con-sent. 

That consent may, it is true, often be implied. 

When the husband and wife live together and the former, ostensibly with his wife's assent, manages the business or the property on behalf of both, she will doubtless be estopped from subsequently denying that he was authorized to act on her behalf.

The extent to which he may make gifts, to which the law holds that it is the wife's duty to assent, cannot be determined in this case. 

But the mere fact that in certain circumstances such gifts may probably be held valid does not affect the validity of sales which depend on wholly different considerations.

Where the wife has benefited by the sale equity will probably compel her to make restitution for the benefit she has réceived before it can be set aside in her favour, but such cases will be decided according to general principles without special reference to Buddhist law.

Mr. Sen contended that even if a sale by a husband could ordinarily be set aside, one effected in order to discharge a debt could not be avoided: 

I can find, however, no ground for accepting this contention.

It seems useless to me in a case like the present to seek for analogies from Hindu law, for there can be no doubt that Buddhist law on this subject is now widely divergent. 

One of its leading principles seems to be the equality of husband and wife in all questions connected with property.

No doubt in some matters traces of a less liberal system prevail. 

The husband for certain purposes is still lord of the wife, and where religious offerings are concerned his supremacy is distinctly recognized. 

But so far as interest in the property is concerned, the husband and wife seem almost on terms of equality. 

To have recourse, then, to Hindu law for the purpose of establishing the husband's power over the joint property would be to endeavour to arrest the progress which has been inade in this country towards the emancipation of women by having recourse to a system based on less liberal and wholly inconsistent ideas.

If I were now to hold that sales of joint property by the husband alone were permissible, the wife's interest in the property would be very precarious, for any evil-minded husband wishing to divorce his wife could first make away with the property and thus render useless the special provisions of the Buddhist law which had been expressly framed for her protection. 

Such a result would, in my opinion, be inconsistent with the general spirit of the Dhammathat, and justifiable only if it were found to be upheld either by the clearest text or at any rate by the generally recognized custom of the country. 

But the answers which Ihave received show that there is no generally recognized custom at variance with the provisions of section 43 of Book Vl of Manu Kye, and no text can be shown which in clear terms overrules or explains away those provisions. 

Under these circumstances my duty, I think, is to be guided by them.

Applying, then, to the present case the principle that a husband cannot sell the joint property without his wite's assent, express or implied, I find that here there was no such assent. 

The properly was mortgaged by both parties to the defendants, who, without the knowledge of the plaintiff, obtained a deed-of-sale from the husband alone. 

That there was any benefit to the plaintiff from this transaction is not proved, for very likely it she had been aware of any desire on the defendant's part for a settlement, she could have arranged in some way for the payment of the debt.

The evidence shows clearly enough that the defendants concealed this purchase from her, and from time to time promised to allow her to redeem. 

Had they put forward in their defence a claim to the retention of half the property on the ground that the sale by the husband put them in his shoes as regards his share in the equity of redemption, and that they were entitled to partition on relinquishing half the debt, it would have been necessary further to consider whether the husband could sell his own share in hnapazón property wilhout the wife's consent in the same manner that he seems to be entitled to give away such half to a concubine or lesser wife, or whether the express prohibition in section 43-of Book VI to such sales would invalidate the sale as regards his own interest as well as his wife's. 

As, however, no such claim has been put forward in the written statement, and no offer to relinquish half the debt has been made, the point cannot be considered in the present suit. 

The plaintiff stands in the position of a co-mort-gagor, and as such is entitled to redeem from the mortgagees the whole of the property mortgaged on payment of the whole debt.

I reverse the decree of the District Judge and direct that the plaintiff do, on payment into Court within three months from this date of the sum of Rs. 300, minus her costs in all Courts, which she is at liberty to deduct, recover the land in dispute, and failing such payment within such time, she be for ever foreclosed.

The defendants 1 and 2 are entitled to receive the money thus paid into Court.

In case the plaintiff pays the money within the prescribed time, the defendants must pay their own costs throughout. 

In case she fails to make such payment, they may recover from her their costs throughout.

In conclusion I must express my best thanks to all the gentlemen in both Upper and Lower Burma who have favoured me with their opinions on this important subject. 

Many of these opinions show that the matter has been very carefully thought out and discussed; and all have been most attentively considered by me before arriving at a decision.