Judgement

Appeal from a judgment and decree of the Chief Court, Appellate Side (August 3, 1914), reversing a judgment of Robinson J. upon a new trial.

The respondents, as heirs and representatives of U Shwe Pe and Ma Shwe La, his wife, instituted a suit in the Chief Court of Lower Burma against Maung Kyin (since deceased) and Ma Ngwe Zan, his wife. They claimed possession of immovable property in the neighbourhood of Rangoon under two deeds of conveyance, both dated March 4, 1903. The defendants contended that the deeds, though in form absolute conveyances, were intended by the parties to be transfers of the rights of the defendants under deeds by which the property was in form absolutely conveyed to them, but which they contended were intended by the parties to operate merely as mortgages.

The facts appear from the judgment of their Lordships.

The suit originally came on for trial before Ormond J. on April 17, 1901, when it was held, upon the authority of the Full Bench ruling in Maung Bin v. Ma Hiding (3 Lower Burma Rulings, 100.), that the defendants, the present appellants, were precluded by s. 92 of the Indian Evidence Act, 1872, from giving oral evidence to show that the conveyances were intended to operate as mortgages or transfers of mortgages, and a decree for possession was made. On December 16, 1908, the decree was affirmed upon appeal. The present appellants appealed from that decision to His Majesty in Council, contending, in substance, that they were not precluded by s. 92 from adducing evidence as to the acts and conduct of the parties to the deeds with a view to establishing the nature of the transaction.

The Judicial Committee, by a judgment delivered on July 11, 1911, reported at L. R, 38 Ind. Ap. 146, held that the case for the appellants disclosed a charge of fraud against the respondents in relation to matters antecedent to the deeds of March 4, 1903, upon which charge much of the evidence tendered would be material; further, that s. 92 did not preclude evidence as to a fraudulent dealing with a third persons property, nor proof of notice that the property purporting to be absolutely conveyed belonged to a third party who was not a party to the conveyance. Their Lordships, without expressing any opinion upon the construction or application of s. 92 in relation to the deeds of March 4, 1903, held that the evidence tendered should be admitted, subject to objection, and they ordered a new trial.

Upon the new trial Robinson J., by his judgment delivered on June 17, 1912, held that Myaing and Maung Kyin intended the transfers between them to be merely mortgages ; that Myaings object in the negotiations which resulted in the deeds of March 4, 1903, was to transfer the mortgages to U Shwe Pe, and that the latter knew this and agreed to take over the mortgages; and that U Shwe Pe was guilty of fraud in taking absolute conveyances. He accordingly dismissed the suit.

Upon appeal the learned judges (Hartnoll and Ormond JJ.) agreed with the findings as to the knowledge of U Shwe Pe and the intention of the parties, but were of opinion that as Myaing knew the nature of the instruments there was no antecedent fraud, and they pointed out that fraud at the time of, or antecedent to, the deeds of March 4, 1903, was not alleged. They held that in these circumstances the defendants were precluded by the Full Bench ruling already referred to from showing that the deeds of March 4, 1903, were not absolute conveyances. They accordingly allowed the appeal and made a decree for possession.

1917. June 26, 28. Sir Erie Richards, K.C., and F. J. Coltman, for the appellants. It is now established by concurrent findings that the conveyances were taken with the knowledge that Myaing was the owner of the property. Under those circumstances the former decision of the Board in this case is conclusive that s. 92 does not apply and that the evidence was admissible. (( 1911) L. R. 38 Ind. Ap. 146, 153, 154) The appellants have acquired the e