JUDGMENT

Baguley, J - In the trial Court the respondent sued on a mortgage executed by U Waw Po and his son Tun Myaing. They joined as defendants, Ma Toke, who is now Waw Po's wife, Maung Aung Pe, another son of Waw Po by a former wife and Ma Thaung Sein and Aung Sein, the children of a deceased daughter of Waw Po by his first wife. The trial Court gave a decree against all the defendants, and the four defendants who did not execute the mortgage now appeal claiming that their interest in the mortgaged lands was not bound by the mortgage. The learned Judge has given a decree against all the defendants mainly on his finding of issue 5, which runs: "Is the mortgage binding on the 3rd, 4th, 5th and 6th defendant?" The basis for his finding that it does bind their interest seems to be that Waw Po has been acting with the implied consent and in the best interests of the whole family and that the purpose of the loan was to confer benefit on all the members of the family and he, therefore, held that the mortgage was binding. If seems to me a very dangerous doctrine to allow A to bind B's interest in the property simply because B has benefited by the transaction. I know that the Privy Council case of Bon Kwi v. A.K.R.S.K.R. Firm 1930 P.C. 26, is frequently quoted to this effect, but a careful study of that judgment seems to me to show that their Lordships' finding that the mortgage in question bound all the owners of the property is based on the principle laid down in Section 41, T.P. Act, rather than on the principle that A can bind B's interest if the transaction is for B's benefit. It is however in my opinion, unnecessary to deal with this question at length. Mr. Basu for the respondent said that he was prepared to support the decree on an issue which was found against him by the trial Court. It was strenuously urged that this mortgage was executed by Waw Po before he married Ma Toke. If this were the case, Waw Po could bind the entire interest in the property because his children, there being apparently no orasa child had no vested interest in the property until Waw Po married and of course Ma Toke could have no interest in this property if it was the property of Waw Po and mortgaged by him before he married her. The date of the mortgage is May 1928, more than five years before the date of the finding, of the suit, and the evidence was recorded in November and December 1933.

2. The first point which strikes one is that if Ma Toke and the other defendants are claiming to derive benefit from the fact that Ma Toke was married to Waw Po before the date of the mortgage, the least they could do would be to go into the witness-box and to testify to that effect, and it is a remarkable fact that the only defendant who chose to give evidence was Waw Po himself. His interest in the lands is obviously bound by the> mortgage but it is he, who is trying to save something for the remaining defendants. He says that his first wife died about 11 or 12 years before the date of giving evidence. He does not know the exact date. He admits that none of these lands has ever stood in the name of himself and Ma Toke. He admits that he has never been assessed to capitation tax together with his wife Ma Toke. He explains this by saying that be got exemption because he was over 50. Section 34, Land; Revenue Act, does not give exemption to males until the age of 60 is reached, so he was only entitled to exemption five years before giving evidence. If he married Ma Toke after the date of the execution of the mortgage that would account for Waw Po and Ma Toke never being assessed jointly to capitation tax. That learned Judge found that it was proved that Ma Toke married Waw Po about ten years ago, on the evidence of certain of his villagers, whereas the witnesses called by the defendants did not belong to the same village as Waw Po. He examined four witnesses.

3. It is rather remarkable that his witness list contains five names of whom only the last was examined in