JUDGMENT

Mya Bu, J - This appeal arises out of a suit under Order 21, Rule 63, Civil P.C. The plaintiff-appellants are the kanitha-children of Ma Khine Pru, respondent 3, and deceased U Hla Phaw Zan. U Hla Phaw Zan died about eight years ago leaving him surviving a daughter by his first wife, and his wife Ma Khine Pru and six children by her of whom respondent 4 is the eldest son. In execution of a decree against Ma Khine Pru and her eldest son, respondent 4, a piece of land forming part of what is known as the Chaungba Grant in Minbya Township was attached by respondents 1 and 2. The plaintiff-appellants then applied for removal of attachment but their application failed, and consequently they filed the suit out of which this appeal has arisen. In dismissing the appellants' suit the learned Assistant District Judge held that even the allegations made in the-plaint did not show that the appellant had in law, acquired a title to the portion of the grant which they claimed. This finding is assailed on the ground that the learned Assistant District Judge has decided the case prematurely, inasmuch as the question of law as to the acquisition of title in the property by the plaintiff, appellants depends upon certain facts regarding which the parties should be given an opportunity of adducing evidence. Upon this contention, the learned advocate for the appellants asks that the decree of the Assistant District Court be set aside and the ease remanded to the Court below to enable the parties to adduce evidence upon the issue raised. The allegation in the plaint upon which the plaintiff-appellants made their claim to title to the property in question is that

about Tabaung of the year 1287, B.E., there was mutual division of the estate of the said U Hla Phaw Zan between the heirs aforesaid, and each of the plaintiffs obtained eight doons of land in the property of the said U Hla Phaw Zan in the Ghaungba Grant, Minbya Township, Akyab District, which are specified in Schedule B.

2. Inasmuch as upon the death of U Hla Phaw Zan the only, persons entitled to a share in his estate under the Burmese Buddhist law were the child of the first marriage and the widow Ma Khine Pru only, and possibly the eldest son of Ma Khine Pru, respondent 4 the plaintiff-appellants are not entitled to succeed to the estate except upon remarriage of their mother Ma Khine Pru, and it is not contended that she has since remarried. The plaintiff-appellants were therefore not the heirs of U Hla Phaw Zan at the time of the alleged partition and therefore there could have been no partition in law of the estate of U Hla Phaw Zan to which the plaintiff-appellants were a party and in which the plaintiff-appellants obtained a share. Whatever they had been given on that occasion must have been given therefore by way of gift only from their mother, and as under Section 123, T.P. Act a valid gift can be made only by means of a registered instrument, the property in the land which is alleged to have been given to them at the alleged partition did not pass to the plaintiff-appellants at all. The learned advocate for the plaintiff-appellants contends that the appellants were at the time of the alleged partition heirs by virtue of an arrangement which their deceased father had made before his death with the consent of his wife and his other children, directing that a certain portion of the Grant land should be given to the plaintiff-appellants after his death. These circumstances were not alleged in the plaint in which without showing the basis, the plaintiff-appellants merely described the parties to the alleged partition as heirs. In order that they should be granted an opportunity of adducing evidence as to the alleged arrangement an amendment of the plaint would have to be sought for, if the present appeal be allowed and the case remanded, and this is what the learned advocate for the appellants actually intends doing in this case. Therefore the case turns mainly on the question