JUDGMENT

Mackney, J - These two appeals arise out of the same case and may conveniently be dealt with in one order, which will apply in both appeals. One U Zaw Po on 9th March 1925 mortgaged to plaintiff U San Ba six betel-nut gardens for Rs. 5,000. Again on 1st September 1925, he mortgaged to plaintiff for rupees 15,000 five of the aforesaid gardens, together with two others not included in the first mortgage. Various amounts on account of interest and principal were paid from time to time. U Zaw Pa died, and the plaintiff sued his legal representatives, who appear as respondents 2, 2(a), 2(b) in Civil First Appeal No. 37 of 1933, for redemption of the mortgages. He also included appellants 1 and 1 (a), Saw Shwe Zin and his wife Naw Shwe Sai, and appellants 2, 2 (a) and 2 (b), Bo Maung, Naw Hai Se and Naw E Po, (appellants in Civil First Appeal No. 37 of 1933 and respondents in Civil First Appeal No. 41 of 1933) as well as lour other persons, who do nqt appear in these appeals; inasmuch as they had pur-chased certain portions of the mortgaged properties. Saw Shwe Zin and his wife had purchased one garden on 20th March 1929 and another garden on 9th June 1930. In both oases the actual payment of the price was made before the exeoution of the sale deeds. Bo Maung, with Naw Hai Se and Naw E Po, had purchased a garden about July 1928, the sale deed being executed in the following year. All these parties claimed that they had purchased this property with the full knowledge and consent of the plaintiff who had agreed that the properties should no longer be liable to the mortgages. This was denied toy plaintiff D San Ba. In the result the learned District Judge found that neither the garden sold to Bo Maung nor the second garden sold to Saw Shwe Zin were now free of the mortgages, but that the sale to Shwe Zin in 1929 was with the plaintiff's knowledge and consent and the garden was now not subject to the mortgages. The learned District Judge calculated the amounts for which the two un-exempted gardens were still liable on the mortgages. Against the decree which was passed in accordance with this judgment, tooth the plaintiff in Appeal No. 41 of 1933 and Shwe Zin and his wife and Bo Maung, Naw Hai Sa and Naw E Po in Civil First Appeal No. 37 of 1933 have appealed. D San Ba claims that the garden sold to Shwe Zin in 1929 is still subject to the mortgage, and that the learned District Judge has not calculated correctly the amounts due on these lands. Shwe Zin and Shwe Sai, with Bo Maung, Naw Hai Se and Naw E Po, claim that the gardens sold to them, which the learned District Judge has not exempted from the mortgages, should be exempted.

2. The learned District Judge has considered the matters before him very carefully, and to my mind has come to a very fair decision. The three sales are not at all on the same footing. As regards the sale to Shwe Zin in 1929, there is definite evidence that U San Ba not only asked that the sale should take place but was aware that it had taken place and agreed to it, and, further, gave Shwe Zin to understand that the garden would be exempted from liability for the mortgages, and also actually accepted a sum of approximately Rs. 11,000 being the major portion of the purchase price of Rs. 13,000 from U Zaw Po, towards settlement of the mortgage debts. It is proved that this sum was received by U San Ba on 13th March 1929, whereas the payment by Shwe Zin was made on 12th March 1929. It is in my opinion quite impossible for U San Ba to resile from the position which he then adopted. The learned District Judge has set out the case in regard to this garden very completely, and I do not think it is necessary to add anything further.

3. As regards the sale of 1928 to Bo Maung and the sale of 1930 to Shwe Zin, the position is entirely different. It is true that it has been proved that U San Ba had announced that he was quite willing that U Zaw Po should sell some or all of the gardens in order to repay the debts d