JUDGMENT

Dunkley, J - The first and second respondents, Daw Ngwe Bwint and U Nyun, are husband and wife. In the year 1930 U Nyun purchased some paddy lands from the appellant firm at a price of Rs. 14,000. The purchase money was made up in the following way. He paid Rs. 5,600 in cash belonging jointly to himself and his wife, and, executed two promissory notes for Rs. 1,000 and Rs. 400 respectively, and finally executed a registered mortgage of the property which he had just purchased, for the balance of the purchase price, viz., Rs. 7,000. This mortgage was executed by U Nyun alone, and the conveyance was taken by him in his own name only; but it is clear however that as the land was purchased, so far as the cash transaction was concerned, with the jointly owned money of the married couple, and as it was purchased during their coverture, the land became lettetpwa property in which Daw Ngwe Bwint was entitled, from the date of its acquisition, to a half-share. It is however clear from her own evidence that her husband managed all the business transactions of the family and that she acquiesced in his purchase of this property and in this mortgage, Moreover so far as the equities of the matter are concerned, it would certainly have had to be held, if this matter had been brought forward at the right time, that Daw Ngwe Bwint's interest in this land was subject to the mortgage executed by U Nyun alone, on the sole ground that the mortgage was executed for the balance of the purchase price, which was not paid at the time of the acquisition of the land. In fact, the principle which is laid down in Section 55, Sub-section (iv), Clause (b), T.P. Act, would be held to be applicable. Moreover, in due course, in Suit No. 22 of 1932 of the District Court of Tharrawaddy, the appellant firm brought a suit on their registered mortgage against U Nyun alone. Daw Ngwe Bwint was not joined as a party. A mortgage-decree against the whole land was passed, and in December 1932 the land was brought to sale. Undoubtedly, Daw Ngwe Bwint, who had an interest in this land, ought to have been joined as a party to this mortgage suit. She was not so joined, and consequently the question of the equities, which I have already mentioned, as between her and the appellant firm were not considered by the Court which dealt with the mortgage suit. When the land had been proclaimed for sale Daw Ngwe Bwint brought a suit against the appellant firm and her husband, the latter, of course, being only a pro forma defendant, for a declaration that the mortgage-decree passed in Suit No. 22 of 1932 of the District Court was not binding on her half-share in the mortgaged properties. In the original Court her suit was dismissed, but on appeal to the District Court she was granted a declaration in accordance with the terms of her prayer, and this is a second appeal against that decision. In this appeal it is admitted that Daw Ngwe Bwint is entitled to a declaration that her share in the mortgaged property is not affected by the mortgage-decree which was passed by the District Court in Suit No. 22 of 1932, but it is argued that oh equitable grounds this decree should only be granted subject to terms, and the argument is that the declaration should be in the form that her share in the mortgaged property is not bound by the decree on her satisfying half the amount due under the mortgage-decree. Such a decree, of course, would render the declaration in her favour infructuous so far as she is concerned. The argument really rests upon the provision of the Transfer of Property Act, to which I have referred, viz., Section 55, Sub-section (iv), Clause (b), which is to the following effect:

(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase money, (the seller is entitled) to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of