Sir John Edge :-

This is an appeal from a decree, dated the 16th August, 1916, of the Additional Judge of the Court of the Judicial Commissioner, Upper Burma, which affirmed a decree, dated the 10th August, 1912, of the Additional Judge of the District Court of Magwe. Maung Po Ya and his wife Ma Hnit were originally the plaintiffs in the suit in which this appeal arises. Maung Po Ya has died, and Ma Hnit on her own behalf and as his legal representative has brought this appeal.

Maung Po Ya on the 24th March, 1909 by an agreement in writing contracted to sell to Hamed Ebrahim Madari an oil well No. 2076, at Natsin Quarter, Twing-on, for Rs. 40,000, of which Rs. 5,000 were paid as earnest money, Rs. 15,000 were to be paid at the expiration of 45 days from the date of the agreement and at the expiration of such 45 days for the balance of Rs. 20,000 and interest thereon-Madari was to re-mortgage for a term of six months to Po Ya two oil wells as security. The earnest money and the Rs. 15,000 were paid by Madari to Po Ya and it was subsequently arranged between the parties that instead of the mortgage Madari should give to Po Ya promissory note for Rs. 20,000 and interest thereon. In pursuance of that arrangement Madari on the 7th May, 1909, gave to Po Ya and Ma Hnit the following promissory notes :-

" Yenagyaung.

"The 7th May, 1909.

"The 4th Waning of Kason, 1271.

" Rs. 20,000.

"On demand we the undersigned Ali-Hashim Meter and guardian, Fatima Bibi, do hereby promise to pay to Twinza Ko Po Ya and Ma Hnit or order the sum of Rs. 20,000 (twenty thousand) with interest at Re. 1 per cent. per mensem.

"Fatima Bibi,

"Guardian of Ali Hashim Meter.

"Ahmad Madari."

It is stated in the appellants' case and may possibly be the fact that Maung Po Ya and his wife Ma Hnit were the owners of the oil well, but if they were, their legal title to the well was incomplete until after this suit had been instituted. Fatima Bibi, who is one of the respondents to this appeal, is the wife of Hamed Ebrahim Madari, and is stated in the respondents' case to have been a minor at the date of the note. Ali Hashim Meter is a nephew of Hamed Ebrahim Madari and was a minor at the date of the promissory note. He is represented in this appeal by Hashim Ebrahim Meter, who is described as the guardian of Ali Hashim Meter, but their Lordships do not know whether or not Hashim Ebrahim Meter is the legally appointed guardian of Ali Hashim Meter. Their Lordships have been informed by Counsel that Ahmed Madari, who signed the promissory note, is Hamed Ebrahim Madari. Hashim Ebrahim Madari may be, and possibly is, Hamed Ebrahim Madari.

It is stated in the appellants' case that the promissory note was executed by Hashim (Hamed) Ebrahim Madari in the benami names of Ali Hashim Meter and Fatima Bibi. In a counter-claim, which will be again referred to, Hamed Ebrahim Madari alleged that he in the names of Ali Hashim Meter and Fatima Bibi had purchased the oil well from Maung Po Ya. However that may have been, the names of Ali Hasham Meter and Fatima Bibi do not occur in the agreement in writing of the 24th March, 1909.

The promissory note was dishonoured. Thereupon this suit, No. 13 of 1911, was brought upon the promissory note in the District Court of Magwe by Maung Po Ya and Ma Hnit against Ali Hashim Meter and Fatima Bibi to recover from them Rs. 21,160 principal and interest alleged to be due by them under the promissory note. In the plaint it was alleged that the "two defendants had executed and signed" the promissory note. Subsequently, on the 3rd February, 1912, Maung Po Ya presented a petition to the District Court, in which he stated :-

"1. In this case, in the presence of the first and second defendants and with their consent their representative Hamed Ebrahim Madari signed (the promissory note).

"2 Therefore under Order VI, Rule 17, I pray that I may be allowed to amend the plaint as follows, namely : "In the plaint I have stated that Ali Hashim Meter and Fatima Bibi signed; in pl