JUDGMENT

Mya Bu, J - This appeal arises out of a suit under Order 21, Rule 63, Civil P.C., in which the plaintiff-respondent firm prayed for a decree declaring that the properties in suit were liable to attachment and sale in execution of their decree obtained against Ma Kin, wife of the defendant-appellant, for a debt which she had contracted before her marriage with the defendant-appellant.

2. The defendant-appellant was a Buddhist monk until shortly before he married Ma Kin, and the properties in suit were originally the property of Ma Kin. The defendant-appellant's case is that while he was a pongyi he lent to Ma Kin Rs. 10,000 on two promissory notes, and subsequently in satisfaction of the amount due on the promissory-notes he took an out and out transfer of the properties in suit under a registered deed of sale from Ma Kin. This deed is dated 1st December 1931. On 8th January 1932, he left the priesthood, and married Ma Kin on 11th February 1932. The question in issue is whether the properties in suit were the payin property of the appellant or of Ma Kin to the marriage between them.

3. On behalf of the plaintiff-respondent it was alleged that the deed of transfer was a bogus one, brought about for the purpose of defeating or delaying the creditors of Ma Kin, and that therefore, the properties remained all along to be the property of Ma Kin. The learned Assistant District Judge upon the evidence and surrounding circumstances came to the conclusion that the transfer was not a genuine but a fraudulent transaction in order to defeat the creditors. He however held that since the suit was by only one of the creditors of Ma Kin, and not filed on behalf of the general body of Ma Kin's creditors, the provisions o? Section 53(1), T.P. Act, prevented the respondent from having the transaction set aside. Upon these premises the learned Assistant District Judge regarded the properties in suit as those belonging to the appellant and taken by him to his marriage with Ma Kin and consequently as his pay in property to the marriage, and upon this footing the learned Judge held that Ma Kin had a half interest in the properties, which interest was liable to attachment in execution of the decree against her. Upon two points the judgment, in our opinion, is wrong. One is that the transfer, which was found not to have been a genuine one but made without consideration and fraudulently in order to defeat or delay the creditors, should stand in the way of the respondent to attach the properties as those of his judgment-debtor, the original owner, i in execution of his decree. Here the learned Assistant District Judge is wrong in treating the suit as one under Section 53, T.P. Act, and overlooked the ruling of this Court in R.R.O.O. Chettyar Firm v. Ma Sein Yin A.I.R. 1928 Rang. 1, where it was held

that a creditor whose attachment has been raised and who avails himself of the right given by Order 21, Rule 63 of the Code can sue on his own behalf alone for having the alienation declared void, without mention of any other creditors or their debts.

4. The next point of error in the judgment is the declaration that in the payin property of the husband the wife has a half interest. This is not in accord with the settled state of the Burmese Buddhist Law as to the interest between husband and wife in the payin property, which may generally be stated as being two-thirds for the party bringing the payin and one-third for the party who did not bring it. The authority relied on in support of the learned Assistant District Judge's proposition, which is given in U Pe v. U Maung Maung Kha , is a mere obiter stating

On partition lettetpwa goes two-thirds to the spouse who actually made it or succeeded to it and one-third to the other. Hnapazon and payin are equally divided.

5. This pronouncement by their Lordships of the Privy Council in so far as it relates to payin property was undoubtedly not upon the question that arose before their Lordships for decision, but