Joint Tenants[ ပူးတွဲပိုင်ဆိုင်သူများ ] နှင့် Tenants-in-Common[ ဝေစုအလျောက်ဘုံပိုင်ဆိုင်သူများ ] [ Part Two ]

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

Joint Tenants[ ပူးတွဲပိုင်ဆိုင်သူများ ] 

                       နှင့် 

Tenants-in-Common[ ဝေစုအလျောက်ဘုံပိုင်ဆိုင်သူများ ]

[ Part Two ]

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VOL. V INDIAN LAW REPORTS. RANGOON SERIES. 296 ( 359 )

FULL BENCH (CIVIL).

Before Sir Guy Rutledge, Kt., K.C., Chief Justice, Mr. Justice Heald, Mr. Justice Chari, Mr. Justice Maung Ba, and Mr. Justice Doyle.

MA PAING 

           Vs.

MAUNG SHWE HPAW AND EIGHT OTHERS.*

Civil Reference No. 14 of 1926 arising out of Civil First Appeal  No. 132 of 1925.

1927 March. 11.

စီရင်ထုံးတွင်ပြဆိုထားသည့်အတိုင်းပူးတွဲပိုင်သူများအနက်တဦး​၏အကျိုးခံစားခွင့်[ ဝေစု ]ကို[ ကွက် ]၍လွှဲပြောင်းခြင်းမပြုနိုင်။

ပစ္စည်းတရပ်လုံးကိုသာလွှဲပြောင်းနိုင်သည်။

အထက်ဖော်ပြပါအမှုအား၊ Divisional Bench တွင်တရားသူကြီး Chari နှင့် Heald တို့​၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၂၉၇မှ၃၂၃ထိရေးသားဖော်ပြထားသည်။

မြန်မာတရားသူကြီးဦးဘ​၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၃၂၃မှ၃၃၄အထိလည်းကောင်း၊

တရားသူကြီးချုပ် Rutledge​ ၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၃၃၄မှ၃၃၆အထိလည်းကောင်း၊

တရားသူကြီး Chari​ ၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၃၃၆မှ၃၅၅အထိလည်းကောင်း၊

တရားသူကြီး Heald ​၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၃၅၅မှ၃၅၈အထိလည်းကောင်း၊

တရားသူကြီး Doyle ​၏သုံးသပ်ဆုံးဖြတ်ချက်ကိုစီရင်ထုံးစာမျက်နှာ၃၅၈မှ၃၅၉အထိရေးသားဖော်ပြထားသည်။

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၁၉၂၇ခုနှစ်ကဆုံးဖြတ်ခဲ့သောအထက်ဖော်ပြပါစီရင်ထုံးအား-

နောင်လေးနှစ်အကြာ၁၉၃၁ခုနှစ်တွင်ဆုံးဖြတ်သော-

VOL. IX INDIAN LAW REPORTS. RANGOON SERIES. 524 ( 561 )

SPECIAL BENCH (CIVIL).

Before Sir Arthur Page, Kt., Chief Justice, Mr. Justice Car, Mr. Justice Das, Mr. Justice Maung Ba, Mr. Justice  Mya Bu, Mr. Justice Sen and Mr. Justice Dunkley.

N.A.V.R. CHETTYAR FIRM

                 V.

MAUNG THAN DAING.*

Civil Reference No. 24 of 1930 arising out of Civil Second Appeal No. 315 of 1930 of this Court.

1931 Aug. 18 

အမှုတွင်အောက်ပါအတိုင်းပယ်ဖျက်ခဲ့သည်-

[ Ma Paing v. Maung Shwe Hpaw, I.L.R. 5 Ran. 296; Ma Paing v. Maung Shwe Hpaw, I.L.R. 5 Ran. 478 - overruled. ]

အမှုတွင်မြန်မာဗုဒ္ဓဘာသာထိမ်းမြားမှုသည်၊သာမန်စီးပွါးရေးအစုစပ်လုပ်ငန်းနှင့်ထပ်တူထပ်မျှတူဖို့ဝေးစွ၊ဆင်တူခြင်းပင်မရှိဟုအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ A Burmese Buddhist marriage is not analogous to, still less identical with, an ordinary business partnership. There are no presumptions, de facto or di jure, that a Burmese Buddhist couple, living together, are agents for each other, or that the wife is deemed to consent to the acts of her husband, It is a question of fact to be determined according to the circumstanees of each case. ]

အထက်ပါအမြင်ကိုပရီဗီကောင်စီက၊ 10 Ran 261( P C )အမှုတွင်လက်ခံအတည်ပြုခဲ့သည်။

ထို့ပြင်[ ၁-၁၀-၁၉၃၂ ]နေ့တွင်ပြဌာန်းသော၊အစုစပ်လုပ်ငန်းအက်ဥပဒေပုဒ်မ၅၌၊မြန်မာဗုဒ္ဓဘာသာလင်နှင့်မယားတို့သည်၊လင်မယားအနေဖြင့်မိသားစုလုပ်ငန်းကိုလုပ်ကိုင်ရာ၌အစုစပ်ဝင်များမဟုတ်ဟုအတိအလင်းပြဌာန်းကာ၊ VOL. IX INDIAN LAW REPORTS. RANGOON SERIES. 524( F B )တွင်ပြဆိုသောအမြင်ကိုလက်ခံလိုက်သဖြင့်၊၁၈၈၆ခုနှစ်၌မွှေးခဲ့သောမီးသည်[ ၁-၁၀-၁၉၃၂ ]နေ့တွင်မှအပြီးသတ်ငြိမ်းသွားသည်။

အမှန်စင်စစ်ဗုဒ္ဓဘာသာလင်မယားတို့သည်လင်မယားအနေဖြင့်မိသားစုလုပ်ငန်းကိုလုပ်ကိုင်ရာ၌၊အစုဝင်များဖြစ်သည်ဟုယတိပြတ်မပြောနိုင်သကဲ့သို့၊အစုစပ်များအဖြစ်လုပ်ကိုင်ခြင်းမရှိဟူ၍လည်းယတိပြတ်ပြောရန်ခိုင်ခံ့သောအထောက်အထားရှိသည်မဟုတ်။

1951 BLR ( S C ) 158 စီရင်ထုံးတွင်မြွက်ဆိုထားသော suspicion [ ထင်ကြေး ]သာရှိသည်။

တရားဝင်သက်သေခံ[ legal testimony ]မရှိ။

——————————————————————

အထက်ပါအမှုသည်တရားသူကြီး(၇)ဦးရုံးထိုင်ပြီးဆုံးဖြတ်သောအမှုဖြစ်သည်။

ထုံးပြုသောစီရင်ချက်ကိုဦးဆောင်ရေးသူတရားဝန်ကြီးချုပ် Sir Arthur Page သည်၊ကာလကတ္တားတရားလွှတ်တော်ဝန်ကြီးအဖြစ်မှရန်ကုန်တရားလွှတ်တော်တွင်တရားဝန်ကြီးချုပ်အဖြစ်[ ၉-၄-၁၉၃၀ ]နေ့မှ၊အငြိမ်းစားယူသည့်[ ၂၇-၄-၁၉၃၇ ]နေ့အထိ[ ၇ ]နှစ်ကာလတာဝန်ထမ်းဆောင်ခဲ့သူဖြစ်သည်။

VOL. IX INDIAN LAW REPORTS. RANGOON SERIES. 524 ကဲ့သို့၊လင်ခန်း၊မယားခန်း၊ပစ္စည်းခန်းနှင့်ပတ်သက်၍ပြောင်မြောက်သောစီရင်ထုံးယနေ့ထိထွက်ပေါ်ခြင်းမရှိသေး။

[ မင်းတိုင်းကြေ ]စီရင်ဆုံးဖြတ်ခဲ့ကြသည်မဟုတ်။

အဆိုပါစီရင်ထုံးတွင်[ vested interest ][ tenants in common ]စသည့်အတွေးအခေါ်များပါဝင်လာသည်။

လင်သို့မဟုတ်မယားသည်၊ခင်ပွန်းသို့မဟုတ်ဇနီးမသိပဲ၊အဆိုပါသူ၏အကျိုးသက်ဆိုင်ခွင့်ကိုလွှဲပြောင်းခွင့်မရှိ။

သို့သော်မိမိ၏အကျိုးသက်ဆိုင်ခွင့်ကိုမူလွှဲပြောင်းခွင့်ရှိသည်။

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အမှုတွင်စီရင်ထုံးစာမျက်နှာ၅၃၀နှင့်၅၃၁၌၊တရားသူကြီးချုပ် Sir Arthur Page ကအောက်ပါအတိုင်းအစချီသည်-

On a second appeal being preferred to the High Court Das, J. referred the following question for determination by a Full Bench :

"Whether the joint property acquired by the husband and wife, possibly out of the property brought to the marriage by the couple, is liable to pay the debt contracted by either of the couple before the marriage." 

At the hearing of the reference the Full Bench (Page, C.J., Das and Maung Ba, JJ.), being in "doubt whether in Ma Paing's case the law was correctly laid down," propounded the following questions for determination by a Special Bench :

(1) Whether the joint property of a Burmese Buddhist husband and wife can be attached in execution of a decree obtained against one of the spouses in respect of an ante-nuptial debt contracted by such spouse alone ;

(2) Whether in such circumstances the interest therein of the judgment-debtor can be attached ;

(3) Whether in such circumstances the separate property (if any) of the judgment-debtor can be attached ;

(4) Whether the principles of law enunciated in Ma Paing's case are correct?

စီရင်ထုံးစာမျက်နှာ၅၃၄နှင့်၅၃၅၌၊တရားသူကြီးချုပ် Sir Arthur Page ကအောက်ပါအတိုင်းသုံးသပ်သည်-

In the view, however, that I take of this problem a reference to the law of partnership in considering or discussing the nature of a Burmese Buddhist marriage would appear to be out of place. 

Burman Buddhists were in the habit of contracting marriages centuries before the law of partnership was in existence or contemplation, and there is no text relating to the customary law of Burman Buddhists that could be cited to give colour to the notion that a Burmese Buddhist marriage is analogous to, if not identical with, an ordinary business partnership. 

The doctrine appears to have been evolved by the Courts as providing a way of escape from the impasse to which it was thought that a rigid adherence to the customary law that governed a Burmese Buddhist marriage would necessarily lead.

It, however, the legal status of the parties to a Burmese Buddhist marriage is such as I apprehend it to be the introduction of the doctrine upon which I have ventured to animadvert into the common law of Burma was neither appropriate nor justifiable. 

I cannot help thinking that a Burmese bride and bridegroom would be as astonished-I had almost said shocked-as I was to learn that all that they had achieved by marriage was to bring themselves within the ambit of the Indian law of partnership and of Order 21, rule 49 of the Code of Civil Procedure.

There is no magic in a firm, wich is only the collective name uf two or more people who are carrying on business in partnership; there is, or ought to be, magic in every marriage. 

To carry on business together is one thing, to live together as man and wife is something very ditterent. 

Partnership is merely a form of agency, and, no doubt, a Burmese Buddhist husband and wife not infrequently carry on a business together, but to lay down that a Burmese Buddhist husband and wife are merely business partners as defined in the Indian Contract Act is to state a proposition which appears to me to be unsustainable in law, and incorrect in tact. 

As May Oung pointed out in his treatise on Buddhist Law (1919 Ed. at p. 52)

"The conception of a relationship akin to that of trading partners does not appear anywhere in the texts or in the general literature of the country, and pushed too far, may lead to complications undreamt of by the older jurists."

စီရင်ထုံးစာမျက်နှာ၅၃၇၊၅၃၈နှင့်၅၃၉၌၊တရားသူကြီးချုပ် Sir Arthur Page ကအောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

Now, the husband and wife in a Burmese Buddhist marriage do not hold the property as joint tenants but as tenants in common. 

This obviously, must be so, for on the death of the husband or wife the other spouse takes the interest of the deceased in the joint property by inheritance, and not by survivorship; and it seems to me that the fallacy that underlies the reasoning upon which Ma Paings case was based, if I may venture to say so, is that it leaves altogether out of account the fact that the parties prior to the marriage possessed an interest in the property that they severally brought to the marriage. 

It will be admitted on all hands, and the learned Judges who decided Ma Paing's case would have conceded, that the husband or wife or both of them, if they brought property to the marriage, possessed a definite and vested interest in such property at the time when the marriage took place; it follows, therefore, if the legal position of the parties to the marriage was correctly stated in Ma Paing's case, that on the marriage taking place the parties automatically became divested in toto of the definite vested interest that up till the happening of that event they had possessed. 

Such a proposition appears to me opposed alike to good sense and good law. 

Even assuming (contrary to the view that I take that while the marriage lasts neither the husband nor the wite without the consent of the other party to the marriage is entitled to dispose of the joint property of the marriage or any part of it, it does not follow merely for that reason that on the marriage taking place the parties thereto lose the interest which they respectively had possessed in the property that was brought to the marriage. 

It is one thing to possess a vested interest, it is quite another to possess a present right to alienate it. 

Moreover, it is common ground that the husband and wife by mutual consent are competent to alienate the joint property of the marriage, and that fact presupposes and connotes the existence of a present vested interest in the property of the marriage which the parties are at liberty to dispose of as they will.

Now, if it is conceded that the husband and wife on the marriage taking place do not ipso facto become divested of the interest that they had possessed in the property that they respectively had brought to the marriage (although, no doubt, the quantum of the interest of the husband or wife in such property might thereby be affected) it follows that during the subsistence of the marriage each of the parties thereto had a vested interest in the joint property of the marriage, and there can be no doubt that such an interest is liable to attachment and sale in execution of a decree against the party entitled to it.

စီရင်ထုံးစာမျက်နှာ၅၃၉နှင့်၅၄၀၌၊တရားသူကြီးချုပ် Sir Arthur Page ကအောက်ပါအတိုင်းမြွက်ဆိုဖော်ပြသည်-

Now, the customary law of the Burmese Buddhists is the common law of Burna, and a fundamental and wholesome characteristic of the common law is that it is not rigid and inelastic like a code, but can be moulded to conform to the customs and needs of the people as they change from age to age.

It appears to me that the progress of the Burmese nation along the road to civilization has been so rapid in recent years that the conventions and habits of the people have outrun the principles of law and rules of conduct which embody the customary law of the Burmans, and by which in times gone by Burman Buddhists were content to be governed and controlled. 

That, no doubt, is a healthy sign of the times, for in the life of a nation as in the life of an individual to stand still is to retrograde. 

But as Burma progresses the common law should be " broad-based upon her people's will, " and " from precedent to precedent" adapted to meet new conditions as they arise. 

At the same time it must be borne in mind that when the law is too far in advance of public opinion it loses its sanction, and if the conclusion at which I have arrived with respect to the subject in hand had involved a departure from well established principles of Burmese Buddhist law I should have differed from the ruling of the learned Judges in Ma Paing's case with much hesitation and diffidence, for I recognize that the experience that they possess of Burmese customs and law is far greater than I can hope to acquire.

After examining the relevant texts and authorities, however, I am persuaded that in Ma Paing's case the Court executed a complete volte face and laid down propositions of law which cannot be justified under the Dhammathats, and which run counter to a cursus curide in Upper and Lower Burma of nearly half a century.

စီရင်ထုံးစာမျက်နှာ၅၄၂၌၊တရားသူကြီးချုပ် Sir Arthur Page က၎င်း၏အမြင်ကိုအောက်ပါအတိုင်းဖော်ပြသည်-

I have not been able to discover any text or any authority prior to Ma Paing's case in which it was laid down, or even suggested, that the parties to a Burmese Buddhist marriage do not retain alter marriage a vested interest in the property that each of them respectively brought to the marriage, or did not obtain on marriage a vested interest in the other joint property of the marriage. 

စီရင်ထုံးစာမျက်နှာ၅၄၄၊၅၄၅၊၅၄၆၌၊တရားသူကြီးချုပ် Sir Arthur Page က Ma Thu v. Ma Bu S.J. (1872-92) p. 578.စီရင်ထုံးနှင့်ပတ်သက်၍၎င်း၏သဘောထားအမြင်ကိုအောက်ပါအတိုင်းဖော်ထုတ်သည်-

In 1891 the leading case of Ma Thu v. Ma Bu (3) S.J. (1872-92) p. 578. was decided. 

In that case a husband and wife had mortgaged certain joint property to the defendants, and the defendants without the knowledge of the wife obtained a sale deed of the property from the husband alone.

The wife then sued the defendants claiming that she was a co-mortgagor, and entitled to redeem the whole of the mortgaged property on payment of the whole of the mortgage debt. 

A decree was passed in her favour, the learned Judicial Commissioner observing :

"if I were 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 Dhammathats, and justifiable only it it were found to be upheld either by the clearest text or at any rate by the generally recognized custom of the country.The learned Judicial Commissioner applied "the principle that a husband cannot sell the joint property without his wife's assent, express or implied," and in Ma Paing's case the learned Judges cited this ruling as an authority in support of the propositions of law that they laid down in that case. 

No doubt, in Ma Thu v. Ma Bu (1) S.J. (1872-92) 578. the learned Judicial Commissioner purported to apply the provisions of Book VI Chapter 43 of the Manugye, but when the facts are understood, in my opinion, Ma Thu v. Ma Bu (1) S.J. (1872-92) 578. is not an authority which can be cited in support of the ruling in Ma Paing's case,

As I have pointed out the question that fell to be determined in Ma Thu v. Ma Bu (1) S.J. (1872-92) 578. was whether the husband as "the lord of his wife" was entitled without her consent to alienate by sale or otherwise the whole of the joint property of the marriage. 

It was held that he was not entitled to do so, but the learned Judicial Conmissioner observed that if the defendants had “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 reclemption, 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 hnapazon property without 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 " (at page 585).

The question left open in Ma Thu's case arose, and was finally decided, in 1904 by a Full Bench of the Chief Court in Ma Shwe U v. Ma Kyu (1). (1905) 3 L.B.R. 66.

In an elaborate judgment it was held "that a sale by a Burmese Buddhist husband of the hnapazon property of himself and his wife made withcut her consent constitutes a valid transfer of  his share and interest in the property sold: "

Until Ma Paing's case the decision of the Full Bench in Ma Shwe U v. Ma Kyu (1) (1905) 3 L.B.R. 66 was never challenged, and it has been accepted throughout Lower Burma as correctly laying down the law. 

စီရင်ထုံးစာမျက်နှာ၅၄၆နှင့်၅၄၇၌၊တရားသူကြီးချုပ် Sir Arthur Page ကအောက်ပါအတိုင်းနိဂုံးချုပ်၍ဆုံးဖြတ်သည်-

For these reasons, in my opinion, the ruling in Ma Paing v. Maung Shwe Hpaw is not in accordance with law, and I am of opinion that Ma Paing's case ought to be overruled.

I would answer the first and second questions by saying that the interest of the judgment-debtor in the joint property of a Burmese Buddhist husband and wife can be attached in execution of a decree obtained against one of the spouses in respect of an ante-nuptial debt contracted by such spouse alone.

I would answer the third question in the affirmative, and the fourth question in the negative. 

The appellant is entitled to his costs in the reference to the Special Bench-Advocate's fee 20 gold mohurs.

စီရင်ထုံးစာမျက်နှာ၅၅၂၊၅၅၃၊၅၅၄၌၊တရားသူကြီး CARR က၎င်း၏အမြင်ကိုအောက်ပါအတိုင်းဖော်ပြသည်-

For the rest I agree with the learned Chief Justice that Ma Paing's case was wrongly decided, and since he has dealt fully with the authorities I do not think it necessary to do more than set out the points on which I think the decision errs.

These are : Prior to that case there had been a long series of decisions the effect of which was to establish as recognised law the following propositions :

(a) The interest of a party to a Burman Buddhist marriage in the joint estate of the husband and wife is liable to attachment and sale under a decree against that party alone.

(b) The interest of the other party to the marriage is not liable o attachment and sale under such a decre.

(c) Both parties are liable for a debt incurred by one of them if it has been incurred with the consent, express or implied, of the other party; but in order to enforce this joint liability the creditor must join both parties as defendants in his suit and must obtain a decree against both.

(d) A transfer by one party of his or her own interest in the joint property is effective to convey that interest, and such a transfer purporting to be of the property itself, and not merely of his own interest in it, operates to convey the interest of the other party also if it was made with the consent, express or implied, of that party.

I do not wish to say that these rules completely solve all difficulties that may arise out of the Burmese system of joint property. 

They provide, however, the best solution that the wit of a long succession of judges has been able to devise, and they constitute at least an intelligible and workable system. 

On the principle of stare decisis those rules should have been allowed to stand unless there were reasons of the greatest potency for their reversal.

This was to some extent recognised by the late Mr. Justice Chari who said in his judgment (at page 337 of 5 Rangoon) :

"I may also add that I concur in the answers proposed with a good deal of hesitation, since their effect will be to unsettle a long series of decisions.This consideration, which in ordinary circumstances would have led me, in spite of my own opinions, to conform to those decisions, is not of much force now, as the codification of Burmese Buddhist Law has already been taken in hand."

This last consideration would have led me to the opposite conclusion and I should have said that if the long standing previous decisions were wrong it might very well be left to the legislature to correct them if it thought fit.

In my view there were no such reasons as to justify the learned judges in reversing the previous decisions. 

Indeed, for the reasons given by the lead chief lustice, think that the was much and in the ordinary practice of Burman Buddhist married couples for the earlier rules than for those substituted for them by Ma Paing's case.

The earlier rules were, as I have said, both intelligible and workable; in my view the rules laid down in Ma Paing's case are both less intelligible and less workable.

In particular I think that the learned Judges erred in attempting to apply the law of partnership to the question. 

There are, of course, some analogies between the relationship between a Burmese husband and wife in relation to their property and a commercial partnership, but there are also many differences, and it is in my opinion entirely wrong to nake any attempt to bring the former relationship within the scope of the law relating to the latter. 

စီရင်ထုံးစာမျက်နှာ၅၅၄၊၅၅၅၊၅၅၆၌၊ တရားသူကြီး CARR က၎င်း၏အမြင်ကိုဆက်လက်ဖော်ထုတ်၍အောက်ပါအတိုင်းဆုံးဖြတ်သည်-

I think that they erred even more greatly in holding that a decree passed against one spouse only can be executed against the interests of both in the joint property, and that there is a presumption that in a suit brought against one spouse only that spouse represents the other also. 

These findings are not in consonance with the law of partnership itself; a suit brought against an individual partner is not a suit against the partnership, and is not binding on it or on the other individual partners. 

Nor is it in consonance with the well recognised principle that a decree is binding only on those who are duly impleaded in the suit in which it is passed. 

The effect of this part of the decision would be to relegate to execution proceedings the determination of the liability of the spouse not impleaded in the suit, which is clearly a question proper for decision in the suit itself. 

I am most firmly of opinion that a plaintiff who wishes to charge both spouses with liability for a debt contracted by one only must implead them both as defendants and must in the suit establish his right to a decree against both.

I would add, although it does not directly arise out of the decision, that I am equally clearly of opinion that a plaintif cannot be permitted to sue both spouses as represented by one of them only.

I agree also with the learned Chief Justice that there is no legal presumption that the act of one spouse binds the other. 

It may do so oi it may not, and the question whether it does is a question of fact to be decided on the evidence in the case, having regard, of course, to the special nature of the relationship.

Coming now to the questions propounded by the Full Bench I have no doubt that a debt contracted by one spouse before marriage must stand on the same footing as a debt contracted by one spouse during marriage without the consent of the other spouse, and that therefore only the interest in the joint property of the spouse who contracted the debt is liable ordinarily to attachment and sale in respect of that debt. 

But this must be qualified by saying (1) that property actually brought to the marriage by one spouse who has also ante-nuptial debts remains liable to attachment and sale under a decree against that spouse for such debts, and (2) that both spouses may become liable for the ante-nuptial debts of one only, up to the value of the property brought to the marriage by that spouse if that property has since the marriage been dissipated by the couple, otherwise than in satisfaction of such ante-nuptial debts, or has become so merged in the joint estate as to become inseparable from it; but that such lability must be established in the suit and enforced by the decree and cannot be enforced in execution of a decree passed after marriage against the debt contracting spouse alone.

I have used the words after marriage here because a case might possibly arise in which the decree had been obtained before the marriage and in such a case the remedy open to the decree-holder would need further consideration.

I have deemed it desirable to state these qualifications lest my answer to the first question should be thought to have wider implications than I intend by it.

Subject to these qualifications I would answer the first question in the negative.

I would answer the second and third questions in the affirmative and the fourth in the negative.

စီရင်ထုံးစာမျက်နှာ၅၅၆၌၊တရားသူကြီး Das, J.ကတရားသူကြီးချုပ်၏စီရင်ဆုံးဖြတ်ချက်အားသဘောတူညီကြောင်းအောက်ပါအတိုင်းဖော်ပြသည်-

Das, J.-I agree with the judgment of my Lord the Chief Justice.

စီရင်ထုံးစာမျက်နှာ၅၅၆၊၅၅၇၊၅၅၈၊၅၅၉၌၊မြန်မာတရားသူကြီးဦးဘက၎င်း၏သဘောထားအမြင်ကိုအောက်ပါအတိုင်းဖော်ပြသည်-

MAUNG BA, J.--In the case out of which this reference has arisen it appears that Ma Mein Gale brought to her marriage a rice mill and some debts.

In spite of Ma Paing's case which is under review I think the mill or its sale-proceeds could have been made liable for her ante-nuptial debts, because her "payin" brought to the marriage was the mill minus her debts, i.e., her net estate. 

This is clear from Manugye Book VIII section 3 which shows that the wife's "payin" is at her disposal, and can be given away without the knowledge of the husband to a stranger (other than her paramour), but the husband cannot give it away without her knowledge, for the reason that what she brought was both "good and bad," that is assets subject to liabilities. 

However, in the order of reference by Das, J., the suit house was mentioned as joint property, and so further discussion is necessary.

Four questions were referred. 

Having had the advantage of reading the well-reasoned and lucid judgment of my Lord, the Chief Justice, I have very little to add, and I agree with him in the answers proposed for questions 1, 2 and 3, vis, that the interest of the judgment-debtor in the joint property of a Burmese Buddhist husband and wife can be attached in execution of a decree obtained against one of the spouses in respect of an ante-nuptial debt contracted by such spouse alone, and, further, that the separate property, if any, of such judgment-debtor can also be attached.

Question 4 reads: -Whether the principles of law enunciated in Ma Paing's case are correct? 

One of the principles quoted for consideration is that " during the subsistence of a Burmese Buddhist marriage the separate interests of the parties to the marriage in the property of the marriage are not only impartible, but are also indeterminate and indeterminable." 

While admitting that the interest of a spouse in his or her "payin" and in the "lettetpwa" is definite and vested, I venture to think that as between themselves the law that neither party has a right to alienate his or her interest in the "lettetpwa" without the consent, express or implied, of the other is still good law. 

The idea of the joint property of husband and wife is peculiar to Burmans, and unknown amongst Hindus or Mahomedans. 

The Full Bench case of Ma Shwe U (1) (1905) 3 L.B.R. 66. which took the contrary view, was mainly based upon a passage in Book VIII section 3. 

The learned Judge (Thirkell-White, J.C.) admitted that no text precisely applicable could be traced, and the nearest analogy was that of a gift by a husband of joint property to a person whom he wished to take as a lesser wife or concubine. 

Section 3 deals with various kinds of gifts. 

Among them are mentioned gifts of "hnapazon" (joint property) and of "payin" by the husband or wife without the knowledge of the other. 

As regards "hnapazon" the husband can give away the whole of it to a stranger, and the wife cannot interfere, except in the case where the receiver is one whom the husband wished to take as a lesser wife or concubine; then the wife may take back her half share. 

But the wife cannot under any circumstances give away any portion of the "hnapazon" to a stranger, be he her paramour or not.

This rule is, in my opinion, quite inequitable. 

It gives the husband an undue advantage. 

That the wife is entitled to equal rights with her husband cannot be disputed. 

This rule is also plainly opposed to the well recognized rule in Book VI section 43, still accepted as good law since Ma Thu's case (1891), vic, that a Burmese Buddhist husband cannot sell or alienate the joint property of himself and his wife without her consent or against her will. 

It was a well-considered judgment written after the opinions of 389 gentlemen had been collected from various parts of Burma. 

The learned Judicial Commissioner relied upon Book VI section 43 and in somewhat forcible terms said:

"Due effect iust be given to section 43 of Book VI. It does not seem to be necessarily inconsistent with the power of the husband to make gifts to a limited extent from the common property, because whether devoted to religious or other proper objects the exercise of generosity confers benefit on the family, and it therefore, becomes the duty of the wife to assent to it."

I fully endorse this. 

The main beliefs of a Buddhist are 'kamma' (cause and effect) and'gati'(transmigration). 

It is even believed that a man and a woman become husband and wife because of merit acquired together in previous lives. 

We have, therefore, such an expression as 'kanmasat' in Dhammathats meaning destinies not cast together.

Moreover, this rule of gift in Book VIll section immediately follows another in the same section, authorizing a man to give away his own wife as it she were a chattel. 

Such a rule is archaic, and unacceptable in the present state of civilisation. It is true that the law laid down in Ma Shie U's case (1), (1905), 3 L.B.R. 66. had remained unchallenged till Ma Paings case in 1927 without much injurious effect. 

It may be that the law lad not been approved by the Buddhists in general, and so had not been taken advantage of by Burmese Buddhist husbands and wives. 

So long as the rights of creditors are safeguarded, I venture to think that the salutary principle of law that while marriage subsists neither the husband nor the wife without the consent, express or implied, of the other shall have power to alicnate his or her share of the joint property (lettetpwa) should not be disturbed.

If there was any intention to confer such powei special provision would have been made in Book VI section 43. Subject to this reservation, I agree with my Lord, the Chief Justice, in the answer proposed for Question 4.

စီရင်ထုံးစာမျက်နှာ၅၅၉၊၅၆၀၅၆၁၌၊အခြားမြန်မာတရားသူကြီးဦးမြဘူးက၎င်း၏သဘောထားအမြင်ကိုအောက်ပါအတိုင်းမြွက်ဆိုသည်-

MYA BU, J.-Having had the advantage of reading the judgments of my Lords the Chief Justice and Carr, J., I find that there is hardly anything which I may usefully add to them. 

For the reasons which are fully set out in those judgments I agree that Ma Paing's case was wrongly decided, and that there was better authority to be found in the Dhammathats for the rules laid down in the long series of decisions which Ma Paing's case upset. 

In overruling Ma Paing's case the principle of stare decisis does not stand in our way, as it did in the way of the Full Bench which decided that case, and we are merely restoring the rules which in the very many years of their existence were never regarded as being inconsistent with the actual custom then prevailing among Burmese Buddhist married couples, and which are more intelligible and more workable than those recently laid down in Ma Paings case. 

The learned Judges who decided Ma Paing's case were anxious to secure the joint ownership of the husband and wife during the subsistence of the marriage. 

I am, however, of opinion that tlis consideration did not justify the drastic innovations which Ma Paing's case has introduced.

I agree——

(1) that there is no legal presumption that the act of one spouse binds the other, and whether it does or does not is a question of fact to be determined on the evidence in each case, having regard to the special nature of the relationship ;

(2) that a decree obtained against one only of the spouses cannot be executed against the interests of both in the joint proper-ty, but may be executed against the interest of the judgment-debtor in such property ;

and I would answer the first and second of the questions propounded by the referring Bench in the terms proposed by the learned Chief Justice. 

And I would answer the third question in the affirmative, and the fourth in the negative.

စီရင်ထုံးစာမျက်နှာ၅၆၁၌၊တရားသူကြီး SEN, J ကတရားသူကြီးချုပ်၏စီရင်ဆုံးဖြတ်ချက်အားသဘောတူညီကြောင်းအောက်ပါအတိုင်းဖော်ပြသည်-

SEN, J.— I agree with the judgment of the learned Chief Justice.

စီရင်ထုံးစာမျက်နှာ၅၆၁၌၊တရားသူကြီး DUNKLEY, J.ကတရားသူကြီးချုပ်၏စီရင်ဆုံးဖြတ်ချက်အားသဘောတူညီကြောင်းအောက်ပါအတိုင်းဖော်ပြသည်-

DUNKLEY, J.--I agree with the judgment of the learned Chief Justice.

———————————————

မြန်မာဓလေ့ထုံးတမ်းဥပဒေအရလင်မယားပိုင်ပစ္စည်းအားပူးတွဲပိုင်သည်ဟု၊5 Ran 296 ( F B ) [ မပိုင် နှင့် မောင်ရွှေဘော်ပါ၈ ]အမှုတွင်ဆုံးဖြတ်ခဲ့ခြင်းကိုနောင်လေးနှစ်အကြာ 9 Ran 524 ( F B ) [ အင်၊ကေ၊ပီ၊အာရ်၊ချစ်တီးယားဖမ်း နှင့် မောင်သံဒိုင် ]အမှုတွင်ပယ်ဖျက်ခဲ့သည်။

နောက်စီရင်ထုံး 9 Ran 524 ( F B )မှန်သည်ဟု10 Ran 261 ( P C ) [ ဦးဖေ နှင့် ဦးမောင်မောင်ခ ]အမှုတွင်ပြဆိုသည်။

———————————————

5 Ran 296 (359)( F B )

မပိုင် နှင့် မောင်ရွှေဘော်ပါ၈ အမှုအား 

Sir Guy Rutledge, Kt., K . C ., Chief Justice, Mr.Justice Heald, Mr.Justice Chari, Mr.Justice Maung Ba, and Mr.Justice Doyle.

တို့ကဆုံးဖြတ်သည်။

——————————

9 Ran 524 ( 561 ) ( F B )

အင်၊ကေ၊ပီ၊အာရ်၊ချစ်တီးယားဖမ်း နှင့် မောင်သံဒိုင် အမှုအား 

Sir Arthur Page, Kt., Chief Justice, Mr.Justice Carr, Mr.Justice Das, Mr.Justice Maung Ba, Mr.Justice Mya Bu, Mr.Justice Sen and Mr.Justice Dunkley.

တို့ကဆုံးဖြတ်သည်။

————————-

10 Ran 261 (281) ( P. C. )

ဦးဖေ နှင့် ဦးမောင်မောင်ခ အမှုအား 

Viscount Dunedin, Lord Thankerton and Sir Dinshah Mulla.

တို့ကဆုံးဖြတ်သည်။

———————-

မြန်မာဗုဒ္ဓဘာသာဝင်လင်မယားသည်အိမ်ထောင်တွင်ဖြစ်ထွန်းသောပစ္စည်း[ ခန်းဝင်အပါအဝင် ]မှာအတူပိုင်ဆိုင်သူများဖြစ်သောကြောင့်မိမိအကျိုးခံစားခွင့်ကိုစီမံခန့်ခွဲခွင့်ရှိသည်ဟု[ အင်၊အေ၊ဗီ၊အာရ်၊ချစ်တီးယားဖမ်း နှင့် မောင်သံဒိုင် ]အမှုတွင်အပြီးသတ်ဆုံးဖြတ်ခဲ့သည်။

မယားသည်မိမိ၏အကျိုးခံစားခွင့်ကိုသူတပါး[ လင်ငယ်မပါ ]အားအပိုင်ပေးခွင့်ရှိသည်ဟု-

10 Ran 261 ( 281 ) ( P. C. )

ဦးဖေ နှင့် ဦးမောင်မောင်ခ စီရင်ထုံးစာမျက်နှာ-၂၆၃တွင်ညွှန်ပြခဲ့သည်။

အဆိုပါဥပဒေသကိုလက်ခံကျင့်သုံးခဲ့သည်မှာအနှစ်၆၀ကျော်ခဲ့ပြီဖြစ်သည်။

အတည်တကျဖြစ်နေသောဥပဒေသဖြစ်သည်။

တဘက်တွင်လင်သည်မယားအကျိုးငှါမိမိအကျိုးခံစားခွင့်ကိုစွန့်လွှတ်လိုက်

သောအခါ မယားသည်ပစ္စည်း၏အပြည့်အဝပိုင်ရှင်ဖြစ်သွားသည်ဟုစာတွေ့သဘောဆိုနိုင်သော်လည်းလင်ခန်းမယားခန်းဆိုင်ရာမြန်မာဓလေ့ထုံးတမ်းဥပဒေအရမယားပိုင်ပစ္စည်းထက်ဝက်သည်လင်ပိုင်ပြန်ဖြစ်သွားမည်ဖြစ်သည်။