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1934 Supreme(Rang) 20
HIGH COURT OF RANGOON
Dunkley, J.
Maung Po Htike – Appellant
Versus
Maung Thi Baw & Ors. – Respondents
Decided On : 05-07-1934
JUDGMENT
Dunkley, J - The plaintiff-appellant brought a suit for a declaration of his title and possession of four pieces of land. Admittedly the land originally belonged to his mother, now deceased and he based his suit upon a registered deed of gift executed by his mother in his favour. It has been held by both the lower Courts that this gift was merely an attempt to evade the principles governing inheritance under the Burmese Buddhist Law, and that as it amounted in fact to the making of a will, it was invalid. The principles applicable to this subject are laid down in the case of Ma Thin Myaing v. Maung Gyi 1924 Rang. 13. The gift involved the whole of the property owned by the appellant's mother. He admits that he is out of possession of the property, and he has been unable to prove that he has ever obtained possession of any part of it. The deed of gift was executed only one year before his mother's death. He has further been unable to establish that he has ever exercised any rights of ownership over any part of this property, and it is in evidence that after his deed of gift had been executed his mother mortgaged the greater part of this land to one Tun Hla with possession, and the appellant was not a party to that mortgage. The appellant alleges, and has brought some evidence to show that he consented to this mortgage by his mother, but that is entirely beside the point. If this gift was a valid gift he was at this time the owner of the property and therefore the only person who could mortgage it. But, on the contrary, it was mortgaged by his mother. This shows that it was obviously the intention of his mother in executing this deed of gift that the ownership of the land should not pass immediately. Therefore as the deed was never intended to take immediate effect, it was obviously of the nature of a will and invalid under Burmese Buddhist Law.
2. This appeal fails and is dismissed with costs, advocate's fee in this Court three gold mohurs.
