JUDGMENT

Baguley, J - This is an appeal from an order passed by the Additional District Judge of Tharrawaddy. The respondent applied for an order of adjudication against the two appellants, who are husband and wife. The act of insolvency referred to in the petition was that when the respondent filed suits for recovery of her money the appellants transferred the only piece of land which was free from encumbrance to one Maung Sein; and it was alleged that this transfer was collusive, fraudulent and without consideration, and made with intent to delay and defeat the claims of the petitioner and other creditors. It was also set out in the petition that they had suspended payment of their debts. When the case came up for trial it was found that the position was that the respondent had a mortgage over certain land belonging to the appellants. She had also another mortgage in her favour covering the same land as second mortgage, and also another piece of land measuring 5.38 acres in area. She also held a promissory note signed by the appellants. For some reason best known to herself she filed suits on the promissory note and the first mortgage, but she gave up her second mortgage. When the appellants found the second mortgage to have been given up they executed a mortgage over the piece of land of 5.38 acres which had been set free from the respondent's mortgage in favour of one Maung Sein because they owed money to Maung Sein on two promissory notes. The fact of these pre-existing debts is set out in the body of the mortgage deed. The burden of proving that this mortgage was fraudulent or without consideration undoubtedly lay upon the respondent. She had to prove an act of insolvency: and the same considerations would apply in her case as applied in Official Receiver v. P.L.K.M.R.M. Chettyar Firm .

2. What she does prove is very little. She proves that money was due to her. She proves that she had filed suits on her mortgage and on a promissory note. She said that Po Yin owed no money to Maung Sein; but the source of her knowledge is not disclosed. She has produced a copy of what she called a "transfer deed," which is really only a mortgage. But it is clear that she has no personal knowledge of the case. She calls her assistant, Maung Tun Yin, and he also says that the land included in the second mortgage was transferred to Maung Sein with a fraudulent intention and without any consideration. He says that judging from their conduct the transfer was fraudulent. It is quite clear that he is simply giving an opinion. Maung Tha Zan, her witness, says that To Yin has no paddy land now; and that is the whole of the respondent's case. The learned trial Judge has given an adjudication order because he says

the effect of the transfer to Ko Sein was to defeat Daw Hnin That in respect of her money decree.

and therefore the transfer (which, as I have said, was a mortgage and not a transfer) amounted to an act of insolvency under Clause 6, Provincial Insolvency Act. If Clause 6 is read carefully it will be seen that it says nothing at all about the effect of a transfer. If the learned Judge will read Clause 6(b) again carefully he will see that it refers to a transfer of property or any part thereof with intent to defeat or delay his creditors. A mere finding that the effect of the transfer would be to defeat one creditor is really quite immaterial. The transfer has got to be made with intent to defeat the creditors as a whole. For these areasons the order clearly cannot stand; it is therefore set aside. The appeal will be allowed, and the adjudication order will be quashed. The respondent will bear the costs of this appeal, advocate's fee three gold mohurs.

Mackney, J.

3. I agree.