A release clause in a partition deed prohibiting further claims regarding "properties which have been partitioned and taken" does not bar claims for assets that were not included in the partition and were not "taken" under the terms of the deed.

Lord Tomlin:-

This is an appeal from a judgment and decree of the High Court of Judicature at Rangoon, which affirmed the judgment and decree of the District Court of Myaungmya. The action is one by a sister and her husband against her brother and his wife in relation to property which the sister alleges formed part of their mother's estate, and is therefore divisible between her brother and herself, they being the only two children of their mother.

The matter arises in this way. In the lifetime of the mother a site for a mill was obtained by exchanging certain property of the mother for the site required for the mill. On that site there were built a mill and other buildings, which have been since their construction in the possession of the brother. The property itself has always been recorded in the brother's name. The sister, who was married during the mother's lifetime, lived with her husband with the mother. The mother died in September 1925. Thereafter the sister and her husband were in possession of all the property of the mother, with the exception of the property claimed in this action, which was in the brother's possession and consisted of the mill, another small holding of land, some motor and other boats and the sale proceeds of some paddy. It also appears that the son was in possession of another 100 acres, which he alleged had been given to him by the mother. The son also claimed that there were certain moneys of his deposited with the mother at the time of her death. Disputes arose after the death of the mother between the brother and sister in relation to the mother's estate, the brother asserting that the site of the mill and other property claimed in the action were his property and not part of the mother's estate at all, and asserting also that the 100 acres to which reference has been made was not part of the mother's estate. On 31st December 1926, a partition deed was executed between the brother and sister, and the point which their Lordships now have to determine depends on the construction of that deed. But before that deed is read it will be well to state what the course of events was. When the deed had been executed the sister paid Rs. 50,000 to the brother in respect of the money deposited by him with the mother. The partition deed itself did not purport to deal specifically with the mill or other property claimed in the action. It is said that it does deal with the 100 acres, but there seems some difficulty in identifying those 100 acres.

Some two years after the partition deed was executed, namely, on 17th August 1928, the sister and her husband launched the action out of which this appeal arises, claiming one-half of the mill and other property not included in the partition deed. The Judge of first instance held that upon the facts the mill and such other property formed part of the estate of the mother, and that on the construction of the partition deed there had been no settlement of the dispute in reference to the mill and such other property, so that it was still open to the sister to claim her moiety of them. The High Court on appeal affirmed the District Judge in regard to the facts, holding that prior to the partition the mill and such other property were part of the estate of the mother. In that respect there are therefore concurrent findings. The High Court also affirmed the District Judge upon the construction of the partition deed, holding that the deed did not in any way affect the position as regards the mill and other property which were outside the matter altogether, and that the rights of the parties in that respect were unaltered by it.

Against that decision the son appealed to His Majesty in Council. Recognizing that, having regard to the concurrent findings it is not practicable for him to question that the mill and other property were prima facie the property of the mother, he is here only able to contend that upon the true construction of the partition deed the mill and other prope