JUDGMENT

Baguley, J - The appellant Ma Gyi holds letters of administration to the estate of one U Aung Myat, deceased. Her ease is that U Aung Myat, at the time he died, owned among other things a house with compound, a godown, kitchen, etc., in which he was living. She states that the defendants, two of whom are the present respondents, had come to live with U Aung Myat before he died, and they were allowed to live on the premises. She however states that after U Aung Myat died she allowed the defendants to continue to live on the premises on condition that they looked after them. The defendants' case as put forward in the written statement filed by the above respondents and as stated in evidence by Ma Kalama is inconsistent but what really can be determined from a perusal the whole case is that their claim is as follows: U Aung Myat had a wife who was sick. He sent for the respondents and they arrived, one before and one after the wife died. They continued to live with U Aung Myat and, taking Ma Kalama's deposition, soon after their arrival U Aung Myat had said that as he had no wife or children they should stay on with him and take possession of the house, compound, godown, etc. In her evidence she distinctly referred to this as an oral gift. Later on, in her deposition she refers to U Aung Myat distributing his estate between herself and others. In cross-examination she again refers to the transaction as a gift. The trial Court found that the burden of proving the title lay upon the defendants and decreed the plaintiff's suit. On appeal the learned District Judge held that as respondents were in possession it was for the plaintiff to prove that she had a right to oust them. He also found, as seems obvious, that Ma Gyi had failed to make out that she had definitely given the respondents a permit to stay on the premises. He therefore dismissed the plaintiff's suit. Hence the present appeal.

2. The first comment to be made on these two judgments is that the cases cited were old ones from the Court of the Judicial Commissioner of Upper Burma. These rulings were pronounced at a time when the Transfer of Property Act was not in force in Upper Burma, so that their applicability to present day circumstances is in any case very doubtful. It is quite clear, as Ma Gyi has got letters of administration to the estate of U Aung Myat she must be regarded as taking the place of U Aung Myat. The respondents' case so far is a direct admission that they entered upon the premises originally with leave and license of U Aung Myat, and they set out facts which, if accepted and they cannot now be denied, show that this possession originating in leave and license still exists because the facts which they set out to change the nature of their pos. session in the eye of the law made no difference whatsoever to the nature of the possession or to the title to the property. They say that they have got an oral gift of the property from Aung Myat. The law does not recognize oral gifts, so the oral gift could effect no change in the possession of the respondents. They still remained in possession with leave and license of U Aung Myat, and this leave and license can be determined by U Aung Myat or his administrators. There was another line of defence put up by Ma Kalama to the effect that she got these premises by virtue of a partition made of ancestral property which had devolved upon herself, her half brother D Aung Myat and other persons. An oral division of joint property would, if proved no doubt be valid, but there is no proof of any kind that this property was joint ancestral property.

3. Yet another line of defence put forward was that the respondents iwere not given proper notice to quit. A notice to quit is only necessary in the case of a lease of property being determined. I do not see how the position of the respondents can be held to be that of lessees. It is urged that the definition of a lease in Section 105 is very wide. This may be so, but th