JUDGMENT

Dunkley, J - The plaintiff-respondent brought a suit in the Sub-divisional Court of Amherst against the defendant-appellant and her husband, and their children, on a mortgage by deposit of title-deeds, and obtained a decree. This decree was save for some slight variation upheld on appeal to the District Court. The first appeal was prosecuted by the present appellant and her children, her husband, Mg Shwe Htoo, being cited as the second respondent in that appeal. The children have not joined in this second appeal, and the only respondent is the original plaintiff in the mortgage suit.

2. The mortgage by deposit of title-deeds was alleged to have been made in respect, in the first place, of a promissory note of Ra. 500, which was executed in the year 1928, and then of smaller amounts of Rs. 100, Rs. 150 and Rs. 140, respectively, which were subsequently borrowed. It is common ground that the promissory notes in question were executed by the appellant's husband only and that he alone made the deposit of the title-deeds. There is however clear evidence that, after he had deposited the title-deeds of the property as security for the amount of Rs. 500 borrowed on the first promissory note, he took the subsequent advances on the other three promissory notes and at the same time agreed that the mortgage by deposit of the title-deeds should be valid in respect of these subsequent advances also. Now, the sole point for consideration in the present appeal is whether the appellant is bound by the acts of her husband in creating these mortgages by deposit of title-deeds. In respect of the first advance of Rs. 500 she has not appealed, and her appeal is confined to the three amounts subsequently advanced. In the case of N.A.V.R. Chettyar Firm v. Mg Than Daing 1931 Rang. 262, which is now the leading case upon the question of the liability of a wife for loans contracted by her husband; it is laid down that there are no presumptions de facto or de sure, 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, and it is a question of fact to be determined according to the circumstances of each case. Consequently the question as to whether the present appellant consented to the various loans borrowed by her husband from the present respondent, and to his deposit of the title-deeds of their joint property, thereby creating mortgages, as security for these loans, is a question of fact, and both the lower Courts, the Sub-divisional Court and the District Court on appeal, have come to a concurrent finding on this question to the effect that the appellant did so consent to the acts of her husband. With this concurrent finding of fact T should not be disposed to differ unless it was shown that the lower Courts have entirely failed to appreciate, the evidence upon the point, but it seems to me that the evidence is clearly against the appellant.

3. One point strikes me with particular force, and that is that in May 1932 the appellant and her husband sold this mortgaged property to their own children by registered deeds. At that time the title-deeds were, of course, in the possession of the respondent, and the fact that the appellant took no steps to obtain these title-deeds from the respondent, or to assert at that time that her share in the joint property was not bound by the mortgages created by her husband, raises a strong inference that at the time the mortgages were created she must have consented thereto. Moreover, it has been urged on behalf of the respondent, and in my opinion correctly urged, that the provisions of Section 208, Contract Act, must be held to apply in this case. In regard to the original loan of Rs. 500 and the original deposit of title-deeds the appellant has not appealed, and consequently it must be held that she now admits that this loan and the original deposit of title-deeds were made by her husband with her approval and consent. It t