JUDGMENT

Baguley, J - This appeal arises out of a declaratory suit. Tan San Mar attached in execution of a decree against Abdul Hamid and Ma Sha a piece of land covered by a rubber planting grant. The plaintiff U Kya Zip is Abdul Hamid's father, and he applied for removal of attachment, but his application was dismissed, so he filed the suit from which the present appeal arises, asking for a declaration that he was the owner of the property; that it was not liable to attachment and sale; and that he might be given an order for refund of the costs in the miscellaneous proceedings. The trial Court dismissed his suit, but on appeal the learned District Judge found in his favour and gave U Kya Zin the declaration prayed for with costs in both Courts; but although he seems to have stamped his memorandum of appeal with the stamps necessary to obtain a refund of the costs asked for, the decree does not give him costs of the miscellaneous proceedings, but no cross appeal has been filed with regard to this matter. The present appeal is filed by Tan San Mar and is really on the evidence alone. The facts of the case are that Abdul Hamid, sometimes referred to as Durhamed, was sued by Tan San Mar on 8th January 1931, on a promissory note transferred to

2. Tan San Mar by the original payees, Ma Shwe Ma and Maung Po Tun. A decree was passed in Tan San Mar's favour on 8th October 1931. The promissory note itself is dated 3rd May 1928, and it was endorsed to Tan San Mar on 20th December 1930.

3. U Kya Zin claims this rubber estate by virtue of a registered transfer dated 4th December 1928, and the consideration for that transfer is the money due on a promissory note dated 10th September 1927. There can be no doubt that, if the bona fides of that promissory note, dated 10th September 1927, is established U Kya Zin bas a very strong case indeed, for that promissory note is dated several months before the promissory note which forms the basis of Tan San Mar's suit. The present appellant casts doubt on the genuineness of the transfer because U Kya Zin is Abdul Hamid's father and also because the grant of the rubber estate was not transferred to him within a reasonable time after execution of the registered deed of transfer. From Ex. 2 it would seem that an application for transfer to U Kya Zin's name was not made until 11th September 1931. The reason for this seems to me to be that, although the grant was issued in Revenue Proceedings No. 33 of 1923-24, for some reason, which is not clear, the grant was not issued to Abdul Hamid until 12th January 1931; so it is quite manifest that the grant could not have been transferred to U Kya Zin's name before it was issued. The promissory note is sworn by U Kyaw Htu alias K. Ahmed. This man is a member of the Bar at Mergui and therefore, it must be assumed, known to both the Subdivisional Judge and the District Judge. His evidence is not seriously challenged by cross-examination, but the trial Court disregarded his evidence, because he is U Kya Zin's son-in-law. The learned District Judge says that he does not find it easy to believe that a gentleman, who is a pleader, would lend himself to what can only be regarded as the fabrication of evidence, if the view taken by the lower Court is to be followed.

4. To discard evidence merely on the ground of relationship is rather a rule of thumb method of proceedings, particularly when the witness in question is personally known to the Judge. If the District Judge from his personal knowledge of the witness thinks that he is not a witness who would lend himself to perjury, even to help his own father-in-law financially, I must say that on this point I agree with the learned District Judge. Unless there is something shown against the witness, I would not discard his evidence merely because he is related to the plaintiff when he is a man who prima facie must be regarded as respectable and reliable. There is other evidence also of the plaintiff having paid Rs. 3,500 on beh