INDEXOF

UPPER BURMA RULINGS, 1892-17.CIVIL

A

AJIUSE-Mere wlgar-defamation as distinguished from-is· action.. able without proof o! special damage-See Tort,defamation [ '904­

to1906

A,c::cOUN''1'-Scttlcmentof-omission ofan item-Estoppel ...

INDEX.

ACQ.tTiESCENcE-Binding efiect of division of property made withthe-of interested parties

A(lQ.UISITION OJ' LAND-Suit foe recovery of money paid as compen­sation for-by Government-not a land suit....Jurisdictionof township court .•oo

AC"1'~t(GLlSa BILLS OF ExCHANGB.....SectionsO--;No provisioo·inthe Negotiable Instruments A.~ similar to-See NegotiableIn5tt'uments .00

INDEX.

A-contd.

.ACTS OF BAD FAITH-Provincial Insovency-Adjudication.t;See Pro-vincial Insolvency ... ... . ... .. •••

A ot.ll1RNMENTs-Practice as regards-duty of advocates when theycannot themselves be present to conduct cases

ADMINISTRATION:-Letters of-A suit fonowing five months after theissue of-of property in the possession of persons to whom ithad been distributed by the administrator, did not invalidatethe suit-Decree should have merely specified the share towhich plaintiff was entitled of deceased's interest in theundivided property and should not have defined the extentof the d~eased's interest.-See Probate and Administration

-Letters of-Application for revocation of grant of-Refusal ofCourt to grant revocation-Duty of courts in regard toapplications under the Probate and Administration Act ..

- Letters of-Merits of parties to beconsideredJn granting- ..

3 1902to

1903

533JI897531 to

19o1

G

IV

A-contd.

ADMISSIBILITY: OF EVIDENCE-Promissory note not proved-In-dependent evidence regarding obligation ... . •••

--- 'Ouestions as to the-shouldbe decided as they arise and should... notbereserYed till judgment in the case is given •••

_. of independent evidence in suit on promissory note- oJ! SECONDARY EVWJ&NCE-Question of-ordinarily for Court

of First lnstance-Party t-enderin~ must show that it isadmissible •••

3901

3t6 11897391" to

\ 1901:

382)

ADMISSION hr defendant of pterious ()wnersbip of partof landclaimed by plaintift's' predecessor in int-etest-Mortgage­Burden of proof •••

- Oocumeri'tadm~ b,)' oppOsite party need not be proved- Relevancy,.effect and value of- ••. ... '"

Z2Z 18g~

toISgO

379} 1891.377 .to: 19°1

INDEX.

A-contd.

ADOPTBD CHILD-Kittima child-Duties of a-similar to those ofa natural child

- CHILDREN AND NATURAL CHILDREN-Laws relating to shares. awardable lo---under Buddhist Law in parti.tion of property

- SON-Adoptive parents-Natural parents-Buddhist Law-Jnheritance '" ...

- CHILDREN. Natural Children-Shares of-under BuddhistLaw

- CHILDR&N-objection by persons claiming as-Letter~£.Administration.-See Probate and Administration-

ADOPTION-Buddhist Law-when a Buddhist parent has given hischild in-to another, he is entitled until the child has grownup to cancel the-and recall.the child.-See Buddhist Law­Adoption

-- Child given in-loses claim to inherit any share of the estateof his natural parents-Partition of property between brothersand sisters

- Gift-prcof of possession-widoVi's right of disposal of share ofher estate-Buddhist Law-Inheritance ~.. '0

- Kittima-to establish a-proof of publicity and notorietyessential ••• ... ... ..

- of children by Mahomedans-guardianship of illegitimate child- proof of-for kittima adoption "0 •••

- Share of adopted and natural child under Buddhist Law- Held-that an-made shortly before death is not opposed to

Buddhist Law ...

PAGE YEAR

22 1892to

'896

I31}1891to

135 1901

176 1892to

1896

101 1914­to

1916

I 1902to

1903

10 4 1891to

19oX

171134

118g3»to4~~J 1896116

87 1914­to

1916

i~DEX.

A-contd.

AnOPS'IYE l'AREN'l'S stand in the same position as natural parentsand bave the Same rights so long asthe relationship constitutedby adoption subsists-also that parents are entitled to inheritin the absence of direct descendants ••• •••

-Evidence of bringing up and treatment as child of-and publicI"ecogn.ition as such is sufficient proof of kittima adoption •••

ADUL'l'ERY--Rule of Buddhist Law with respect to the disposalof property upon divorce on the ground of wife's-Where thehusband andwife had been married from youth but separatedand subsequently re-united ••• .•• •••

An VALORSM I'u-in a suit for a declaratory decree or order whenconsequential relief was prayed· fot so as to faU under theprovisions of section 7 (IV) (C), Court Fees Act, it was heldthat the plaintiff should pay an-thereon •

AnvANCs--Subsequent-Glaim to r-edeem mo.-tgage founded on~Evidenc&--Corroboration-Discrepancy. ••• . •••

~. Subsequent small-to keep .alive an old mortgage of which ther~tionwouidotherwise be barred by limitation should bemost~refuny tested and considered •••

PAGB YUR

log 1891to

19°1

:ZZ 1893to

1896

SS5 1897to

1901

INDEX.

A-·contd.

ADVERSE possession of land-Title to ownership ..•- possession of land-redemption of a mortgage-iimitation .,-- possession for upwards of twelve years-claim to share of family

estate-Effect of land passing from one branch offamiiy toanother-Burden of proof-Limitation ••• ...

•_~ POSSSSSLOlI: -Suit r..rredemption of land alleged to have beenmortgaged-Limitation ... . . •••

- Period of limitation when property is in-and in possession oforiginal mortgagee ..•. .• .•• ..

•- I'OSSESSION-Trespass on m«'tgagor's interest by person whoredeems in his own right-Limitation

ADVOCATB-An agreement with an- making payment of feescontingent on the success of the proposed suit comes within themeaning of clause <d), section 407, Code of Civil Procedure­Application to sue in forma pauperis-Champerty .~.

-- Appearance of-of partY-Equivalent to appearance of partyhimself ••• ... . ••• . .•. '"

-- Control and taxation ot fees of-Civil C()urts Regulation '"- Extentof authority of-under their power of attorney-Adjourn-

ments-Practice as regards- .•• .•• .••-Professional miscondu<;t.-Where an Advocate for one party

apPeared seven years afterwards in a subsequent suit on thesame subject for the opposite party, and it was not shown thathe had. carried any secrets away from his first client-Held­that the circumstances did not warrant an order prohibitingthe Advocate from appearing further in the case for hissecond client,

I.L.R., I2 Born., 85; LL.R., 26 Born., 423; 16 L.T. {N.S.)715; P.R., r914. Cd., NO.2; U.B.R.,I897-o1, II, 368. .......

Mr.-v. Tin Byu U ••• ... . ... ~.. 50 1:9£0.to

1:9££

viii INDEX.

A-contd.

PAOB YEAR

ADTOCATBS-Transfer of brief by an advocate orally to another advo­cate-recogt)ized practice and notcontrary to law.-See Power ofAttorney I t9d~

to19°3

AGEN CY- Principal and Agent-Scope of authority-Burden of proof 1892to

1896

AGENT-Effect of fraud On 'the part of persons dealing with the­construction of the six general principles of powers ofattorney.-See Power,of Attorney

INDEX.

A--contd.

AGIlNT AND PRINCIPAL-Agent mistaken for principal, personally­Dealings with-in such assumed char~cter--Fraud-Negli­genre-Responsibility-Tort .•••••

-- Principal untruly representing himself to be the-of anotherperson-Sections 230 and 231. Contract Act. inapplicable­Section 236 applies .•. ....... eo'

- Personally bound by contract of sale when he'does not disclosename of principal, and liable to 'be personally sued for losscaused by deprivation of thing sold by reason of invalidity oftitle-Whether he has paid away price to prinl(ipa~rnot­Action apparently founded on Tort rather than. on Contract

- Principal and--scope of authority-Burden of proof •••.- extent to which bound by COntracts in the absence of a contract

to that effect-presumption as to contract when the' agent doesnot disclose the name of his principal .•. . •.

- and principal. Non-liability of ag-ent of disclosed principal-substitution of subsequent verbal agreement for writtencontract ... .. ~ .• '

- and principal-general power of attorney-Suit for dissolution ofpartnership-Limitation ••• ~.. .... ...

AGREIlMBNT-A iecret-between two partners that implies a civil. injury to a third partner is an agreement with an unlawfulobject and is void-. See Contract ....

_. An-by which a village headman transfers his official dutiesto another person who in consideration of performing them isto obtain a proportion of the commission. is one of wbich theconsideration and object are unlawful and opposed to publicpolicy. and which should not be enforced by a Court ofJustice-See Contract ••. ... . .••. .•

- An-to refer to arbitration is a contract aI!d the award is part ofthe contract '" ... 0..·... ...

- with an advocate making payment of fees eontingent on thesuccess of the proposed suit comes within the meaning ofclause (d), section 407J Civil Procedure <:;:ode ...

- hire-purchase equivalent to", an -to purehase-eompensationthat may be claimed for a breach of ... .~ ...

~ Effect of-to refer to arbitration after institution of suit underSpecific Relief Act, section 21·... ••• "0

- Whereby one person engages for a sum of money not to out-bidanother at a public auction of an opium license is unlawfulwithin the meaning of section ~3 of the Contract Act ...

- oral-evidence of-when admissible ••. •..- bond-difference between-duty chargeable on- ...

ix.

FAGE YEAR.

347'1

33J 18g7')oroIt:I

341)I1

3061 i~)- to

,18g6

470

535J

41Il~>}-toItgG1

6)

151

It8g~'272" to

11¥e9d.

541JI~'311 19O!'3S4JI8g~'629 tG

1896

INDEX.

A-conti.

PAGE Y&AR

...ALLEGED sale after mortgage:-Burden of proof 575 1892to

18g'

ALTBRATION-Material-in promissory note-addition of· signature.of maker's wif/l ...... ;593 1892

to1896

INDEX.

A-con/d.

PAGB YEP...,.

AMBIGUITY-Admission of oralevidence to clear up-in documentaryevidence . S59 l~g

tot$g6

AMENDMBNT OF PUUlT-Return of application for-instead ofrejection·... ......

- Courts should be allowed freedom in the-when parties areignorant of their rights and of tM law

ANCESTOR.-Claim to land on· ground of descent from remotecommon-omi:£sion to sbow possession or enjoyment withintwelve years of imtitution of suit-Limitation ••• '" 501 IBg%~

..XlI [NDEX.

A-contd.

PAGE YEAR

.ANCESTRAL ESTATE-Conflicting claims of alleged co-heirs-Evi­dence of s""parate possession by one branch of family-Effect ofmortgage by that branch ..•

Divided and undivided-Husband and wife dying withoutissue-Rights of inheritance to estate of-

_ PROPERTy-Sale of-to perso:ls not belonging to the family-.Pre-emption.,...Buddhist Law-Inheritance·... ...

- Sale of undivided-pre-emption under Buddhist Law- LAND. Claim to-Family compact-Estoppel... ...-:- PROPERTy":"Clairil to share of-by certainco-heir~against other

co-heirs in possession lor upwards of twelye ye.ars.,...Limitation_ property-presumption from circumstanc~,$;> to division of­

Proof required when one member of afamily claims the rightof redeeming land separately mortgaged by other members ., .

._ When one co-heir mortgages undivided-a suit byanotherco-heir. to compel partition of the'mortgage morley is, in the absence of

any agreement for partition, not "maintainable-See Mortgage.

..ANCIBNT DOCUMENTS-Necessity for great caution in Upper Burma. in making presumptions as to-produced from proper custody- Need for clear proof of allcient claims to land after long undis-

turbed possession-Copsideration ••• • .... ..•..- MORTQAGE. When ari__is set up it must be satisfactorily

proved against persons being in possession who deny itsexisten~ ... ...

INDEX.

A-contd.

ANTE.NUPTIAL CONTRACT-not the usual incident of a ~ddhistmarriage-to be proved by clear evidence that marriage wasthe consideration of the promise.-See Buddhist La~­Marriage

Af1'BAL against a decree under section $22. Civil Procedure Code-. Award-Arbitration-Reference to- ... •••

- Against _x..part. oIder under section 258. Civil Procedure Code-Governed by section 108. Civil Procedure Code-Appeallies... ,... ... ... ... .••

-against order under section 26 of the Stamp Act limiting claimin suit to the highest amount for which the stamp used On aninstrument would have been sufficient... ... •••

- appellate decree sho¢d Provide for case otparty who bas notappealed .., ....., •••

-- Arbitration witbout the intervention of the Court. -See CivilProcedure'

_. Attachment by respondent of duly stamped-eonsidered suffi.dent cause for delay in presentation of-Limitation ...

.- Civil-A-should ordinarily be fixoo for hearing so as to allowat least an interval of a month between the date of servingthe m>tice and the date of h--..aring the-See Civft Procedure •••

52 1904­to

·90645~ 189a

tot¥

XIV INDEX.

A-contd.

PAG'!! YEAR

ApPEAL Cross-Filing of memorandum of objection-Civil Procedure,. section SOl .•• ... •.• ... •••

- computation of period of limitation under section [2 of theLimitation Act ...

- An order refusing to execute a decree is a decree within the.meaning of section 47, Code of CiVil Procedure, and an-from"such an orderlies.-See Civil Procedure ... . .•

'-- A Respondent in an-is not ordinarily entitled to urge cross.objections except against the- Appell::tnt.-See Civil Procedure.

- Delay in presentation of an-Plea of sickness-Sufficient cause-Limitation ...

Dismissal ('£'''..for default, and 'circumstances under whichappellant would be entitled to have the appeal re-opened.-SeeCivil Procedure '" ... .•• . •..

_ Duty of Appellate Courts to deal thoroughly with cases thatcome before them in- ...

- High Court may allow fresh points to be raised in second-andwill ordinarily do so when the matter is one which goes to theroot of the plaintiff's suit •. ,

- Improper admission of-after altered period oflimitation ..._ Irregularity in-by Judge disregarding the findings of his pre-

decessor and deciding the whole case afresh... '"

- No-lies' from a decision on a preliminary issue in a suitwhere such decision does not determine any of the reliefsclaimed in the plaint~-SeeCivil Procedure' '"

. _ Lies against order ~efiising to file an award_ Lies from an order determining that there was no valid re--

.ference to arbitration and rejecting the. application •••-- Lies from a decree passed in accordance with an award of arbi­_ tratorswhen thevalidity or legality oftheaward is questioned- New ground of objection in-framing of issues at first hearing

of suit

_- Plea of limitationcan be raised in- _ i ..

__ Rejection of-as peirig beyond time limited therefor-Rejectionof application for revision in the Same case-Limitation ...

306 1897to

19°1

456 1892

to1896

U9 J1914- to58 1916

451 1891to

19°1

IS 1907to

19°9-

6 1892to

1896

333 1897'to

19°1

547J 1892 'to

615 1896-

.1 19171stQr.

29111 1897

5} toI Igor

14-)

265 189:a­to

1896

446 1897to

1901" .

450 18g3­to

1896

INDEX.

A-contd.

.ApPBAL. Suit. decided on merits cannot be remanded for a freshdecision under section 56l- section <;60 applicable

- The best evidence producible and not secund-hand evidenceshould be brought forward 10 establish Ihe facts necess."!ry tobe proved-the reasonable finding- d a Lower Court nn apoint of facts should not be d.slurbed in-\\ithout substantialgrounds ..

- Award-Arbitration- Reference 10- .,. '"-- W.hen points are all(.wed to be raised on-which are not rais2d

in the Court of Firs! Instance Il'Jr in the pelition JJ!- theAppellate Court should be especialh careful to s~ twat tt.epoint is made out before effect is given to it .. '-' ...

-APPZI.LAlIrT-Competent for an-in his appeal a~ainst a decree tocontest an order of the court setting aSide an arbitrationaward

XY

.c478 18Q:t

to189~

310 iS97to

1901

IND·(oX.,

,4.P.1'ELL-ATE {;OURT-Duty of-A Civilappeatshouldordinarily be. . fixed for hec:ring so as to allow al lea!'t an interval of a month. between the date of !'en'iJ1g the nl,tlc.e and the date of hearing

the appeat.-See Civil Procedure

-... Document not. stamped admitted in evidence by Court of FirstIn~aocecanr.ot be excluded by- . .•.

_ .Dut)! of-to reclify error in appeal when question of jurisdiction. hash-pCn over.IOoked ••. .. ... .••.-Error of-in ~liSIO.,jn!,! of a case Oil a point which had never

been raised thn'.ughout ~be tr-al_ Necessity for-IO deal thoroughly witheases that come before

.' tm'm in appeal ..._ Out)' of-with reference to a part· of a decree not appealed

ag~.inst . ..,. ..' ... ••.Duty of-in an appealable case to see that satisfactory cause isshown !C'r n't pre!t-rring an ..ppc..1 under the provisions ofsection 14 of the Limitation Act before admitting an applica­tion for re\ isil,n . .. . •••

......... shc.uld not re\crseiheC'ecisknof the Court of First Insta.nce ona lfChnical point not ~fleding Ihe ",erit!:> of the case '"

Dut,)' lJf-1O gh e its reasc.ns for belieVIng the evidence of onesi~e}n prelerence to that of the other when the evidence iscQn-ftlctmg ••. ... ... ... ..,

_ DUly of_hen points are allowed to be raised on appeal, whichwere lIot rai-edin the LOurt of liirst Instance nor in the peti­tion of appeal •.. ••• . .. ... •••

_. Objection tore<"pening of a case not having been taken in thearia-inal court,the p<>intcannot be r?ised in the- ...

._ Pioduction ofadditiOllal evidence in-Civil Procedure, seCtion5t8-Evidcnce--Section liS ••. .,. "

_ Where a promissocy note bearil1g a stamp which was not 'dulycancelle-d.hadbeen admitted in evidence-in tbe Court of Firstlilstance, 11elcl-that tJIe-could not question its admissibility.-:SeB Stamps to.

IS IC}OZto

Ic)o3

5591I 1897­

443} toI Igor

231)

6)

71

24SL~} to

2Sa 1896

371

478j

2371 [~1

309S 190~

5 1901tG

1909-

A-C01Ztd.

ApPLlC&,TION for' leave to sue in fonnd}o,uperil.Interest in subjectmatter of suit-Champerty ...

. .-- }Jell-that thou1{h a Juclge may refuse to make an investi~a~

tion under O. XXI. r. 58. if he is of opinion that the-has~n designedly delayed, hecnnnc;t.:lism1ss;ln, on lhatg~ound

onre he has made an investigation but is bound to pass anorder under r. 60 or r. 61.-5/1e Civil Procedure ••.

- for review of a judgment on the ground of ~on-production ofcertain evidence at first hearing. Upper Burmil Uul Justicet<e~t1Ia1.ion. s· ction 8e; .. ,'. : .

- for review of jud~ment. Conditions under which-can beg-ranted· ....

- for revision. Rl"jection of-..Mt a case w.here the remedy ofappeal r'innot be had (Limit;,tion) ...

ApPOINTME~Tof a guardian of a minor whose father is living- Prohibition of-ordeclaration of gi13fdian of person of minor

whose father is living and not. in ('pinkn of (:l>urt, unfit -"- of one priest in succession to another felr the perf. rmance of

rehgious duties. Hindu Law-Law and custom of ponnas orManipuri ~rahminssettled in Upper Burma

fAGa YBA~

136.', I9t 4to

1916

28.f.l.I I4J9:i

281 ~ t:JI I8i)6

450 )'

412)1rSg2

413 ~ toI 1896

420J

mii." ~ , .' . INDEX•

. A-con/d.

ARSITP.ATiON-A I'eferenc-e tn _. in Upper Rurma d"ec;not necessarilyinclude auth,.rity to disp'·s... of the "'at.e·· ~..ferred on a point

· of limitation unless such auth' riiy is expr~!>~ly given

-- ·A suit toenf"rce an ;J.wan{ is nOt:tn application tofile nn awud.A pal{yto ~I imbm s,.io c· nn·.t rev"ke II o"I··s.. for good causeshown. If a party gh·es notlc' of h .. u'ithdr I\val to tbe arbi.h'aters the arbitwtoTS ar" n,'t bud to gh·t: him' notic,,: offurther hearin~s. - .

· Nga Pu v. U De H/ail1d.'l, U.B.R., IgQ~-<;6, II. Ii; K1'anPm v. Ya>l Nvein, U.·\ R•. ,S17-oI. II. to; Mi Ria Win

. v. Shwe Ya,z ~b•• 293' Pe.,fcJI1ji NnSflY'lpanji v i1Ja',ukji,12 M..ore's I.A., Ill: Subraya Prabhu. V•. Manjun4thBhakta. IL.R" 29 \ia'L,.p ... ... ••

- Award-Held-that a su l may b~brou,-.-ht to $et asirle an un-· stamped i"5trument without duty and I enalty being paid,4 M. & W. :,66.

Ma Sh'we Pit v. /;faul1g Po Dana' d annther ••. ........... Award by arbitrators-Oi-agreement by arbilrat'lrs-Effect

of-Admissibility of <>ral endenr.e to exrlain a p,int on whichag-r.eemem is sil-:-nt . . .•• .••

-- Awa.d-D,c.ee passed inacccrdance with-Condition,> underwhich appe.1 lIes-\Vaive. ·Paltie,. es:oppcrlfr'im qllE·..tionin~iTregular conduct of .:J.rbitrat"rs when they bave consented. tosuch conduct during C'»Ij-sJol. enq"iry . •..

--. .Aw,l' d obje<:ted to on the ground th'lt the arbitratcr failed. todisclose the fa t that he was. consulted. en~a~ed or retamed byDefendanb-fflfnondert; previous to arbitration .... , ..•

-- Award objected to on tl-te ground that one 01 the arbitrators wasinteresled in the case--Knowledge of parties previous to:.p,;,htment of arbitrator .•. ... .,. .••

- 1\,~ a d of private arbitrators-Suit lies to set aside .__ A\\ard-Omission to ghe notice as required by section 516,

Code of Civil t'roceclure. constituted a material irregularity­U award has to be remitted, notice should b": issued undersectif'ln 516 when the award inils final shape is filed in ,.court•

......... A"'·'aD-ln aC<lse where a Court has ~rdered an-to be filedunder section Sa:;, Civ,l Prace lurl:; Cade,-Held-that anappeal impugn:ng the--on grou 'ds falling tinder section 521dOes not lie.-SeeCivil Procedure... •..

_ Awat'd of arbitrators-Grounds for setting aside an award ...---Award of arbittators-Consent of all the arbitrators appointed._ A wal'd of arbitlators-Bffect of decision of majority ...___ Extent to which parties who mutually agr'~'io l'efer questions

. of the division of pr"perty on divorce to the-of lugyis arebound by the award - ~~." .'

_ ~ftect of agc.eement to refer to-after "~nsEitution of suit undersection :u, Specific Relief Ar.t. .' .... ••• •••

_ Estoppel-Mortgage deed executf:4 for' fraudutent.purpose-Fraud nnt effected .,..... •••

_ Irregularity of procedure-'Objection waived by parties-Bar tosame objection being taken subsequently' •••

.9 .1892to

1896

2611'9t 4~to

119r61~6J

INDEX.

A-contd.

ARBITRATION, Reference to-Award-Appeal against a decreeunder section 522,·Civil Procedure Code

- Reference to-Award-Appeal-Cnmpetent for an appellantin his appeal against a decree to contest an order of thecourt setting aside an arbitral ion awacd •.. .•.

- 'Reference to-Bar to suit- i efusal essential to bring a casewithin sfction 21, Speclfic Rdld Act- ..- ...

- Rulp.s regarding-A\\·ard by ecclesiastical authorities on asecular matter not exempt from usual- .t.

-- Abuse of-necessity for care in impugning an :lward .to

- Legality of award filed in Court signed by the majlJrity and notby all the a, bitrators t', ... ... .,.

\Vant of pc.wer (,f private arbitrator to procure attendance ofwitnes~es-General rule that parties agrecmg to private arbi­tration accept this limitation-Exception in circum~t<inces ofparticular case owing to special undeltaking of arbitrator toexamine aU witne5l>es .

- \Vhen an award has beeR.1illade in -proceedin~s heM withoutthe ir.terventi< n of a COUlt of Justice duri. g the pendl'nc\' of asuit 0 r appeal, a p:Uly can bt ing a regular loU it tu enforce itunder section 30. Specifi;: Helief Ac'. even though theexb­tenee 'Jf the :lward was not bruught tv .h~ n<'tice of the COUltbefore the suit ,r appeal was d('cidcd-S:e Specific Helie! .,.

Where arbitrators rt'Solve that their award shall be pnt in theform of a document a ..d s'gned by them. n thing but· thatdo( ument 'an be heated a- the aW.lfd- One arbitral. rC.,nnut del€:gate his powers ( f dt d· ion to another· when arbi·tra~ors have been appoinlt d by agl£eltlent and no, provl-i<onhas been nJade for a clift! rence of opinion, the award ,isinvahd unless it .is unanimous

Without the intervention of the Court-Appeal-Ses CivilProcedure

PAGE TRAit

1290 r 1891

} to3m !19011

54z j1"

II I 18?:J13} to

11896276J

4 r8~ito

19°1

'f l!)oilJto

1903

S2 1904to

1906

INDEX~

A-contd.

.ARBITRATOR. An -cannot' df'legate bis POW5"S of decision toanotber-. -See Arbitration ,

........ Award of-Gffbnds for setting aside­i-- Award of -:- Effect of decision of majority- Award of-"B.inding cliect (,n parties when refereed to arbitra­

tion-Buddlust Law-Inh&itance

'- [{eference to-\Vitndl'awal of suit on-which provedinfrllctuous nota bar t<. institution 1>t froesh suit on the sameC<'1use otm:tion .. ' . .., .•

Refel errce to-Wilhdcawal of suit with the consent of defend­ant on- which proved infruetllous-not a bar to instituti·,n ofa fresh SUIt 0J1 the same calise of action. ...

--When-have been appointed by agreE'ment and no provi,ionhas been made for a dIfference of opinion, the award is invalid

. unless it is unanimous.-See Arbit-ralivn

FAGS YEAR

I 19M. to

~~l.:~1896102

1905to

1903

INDEX.

A..;...,..conttl.

PAGE DAR

ASC£,NT-of pr:operty when there?Xe no direct. descendants, under.Buddliist Law... ". lsi 1891

tQrgol

ASSENT of son to gift by father not necessary-Thingika gift Ofm•.rtgaged land

ATTACHMENT. Musical instruments are not industrial implements or'machinery and do not come within any other part of thecategory of articles referred to in section 19 of the Co-operativeSo<;ieties Act I I of 1913, nor are they artisans' tools and ther.are not exempt from-under section 60 (I) b, Codeof CivJlProcedure-s8' Co-operative Societies Act ...

397 I~to

18g6

133 1914to

Igl6

INDEX.

A-contd.

AftA(:BMENT-of joint property of Buddhist husband and wife in'execution of decree against husband alone-Divorce for pur-

, pose of defeating credItor '" '" •••--' Suit to establish light to properly-Removal of-of which had

been refused •••- of property before juogment- Procedure •••- by actual seizure-'Iawful:--of joint property-to extent of wife's

interest husbancl and wife being Buddhists- when decree is.passed against a wife atone-:mal~e-See Execution ofDecree

-ElCocutionofdecree against one of several partners-Onlyjudgment·debtor's inte1'est in pa,tnership liabletc-Pn>(;edureto be followed "- .... ... ... ...

- Property uilderm!)rtgage with .possession-Not liable to-Right to tedeemliable to- '" .• . ..

- .Removal ol-Return .of plaint to be presented to the properCourt-Jurisdictton or Court-Regular suit... •..

--- Wrongful'-Decree·holder TesponsilJle far damagecaused by-

ATTENTION Called to the provision of taw under section 36. ·StampAct _ .' .••• ... ....

145 11893

}to25SJ18g6·274 .

1 19oa.to

1903

INDEX.

_A-_-contd.

ATTOItN&Y-I'ower of-Estent of authority of advocates under-

-- Power of-eonstruction of-Six general principles-Etreet offraud onthe part of persons dealing- with the agent.-SeePower of Attorney ••• •.• "•• ' ...

Atel oksa and ark Dks_Suit for share of inheritance bet"'"eensecond wife ofdeceased and sons of tim wife-<..hildr.en entitledto three-fourths ofproperty to which they have a double and.half of that to --bich they have a single claim... •..

AIel and lAItee",. preperl}-Division of-on divorce by mutua!f:Onsent-NirsGyc-Nissito-See Buddhist Law-lJivorce .0.

i'AGE ~

52$ IBWto

19O€

5 [go.:;to

190J-

tSS flg,­to

(go&:-

INDEX•

.. A-contd.

·AUCTION-Public-The cOllsid~r:ltionof an agreement whereby oneperson engages for a sum of money not to outbid another ata­of an opium license is unlawful within the meaning of section23 of the Contract Act, and the agreement itself void

Auk Dksa and Atet oksQ-Suit for share of inheritance in-betweensecond wife of deceased and sons of first ~ife-Children.entitled to three-fourths of property to which they have adouble and half of that to which they have a single claim ...

!'AGR YEAR

lISento

317 1901

lNOOXO··

A-·contd.

.AUNT-Deceased-Property of-division of-between survivingnephews and nieces nnder Buddhist Law

AVllrTS AND UNCLEs-Buddhist .Law-Inheritance-Heirs on eitherside being-or their representatives'-Shares to which eachentitled

..~

.Auratha SON-Definition of-Property inherited during marriage-See Buddhist Law-Inheritance .. . ••• .....66

.- Widow with eldest-ri..aht of di$posat of her share of estate I'll

1914to

IgJ6ISpto

1896

INDEX.

A-contd.

AUTHORITIES., Buddhist ecclesiastical-orders and proceedings of­:, cannot be questioned in the Civil Cour~ so long as they keep

within their jurisdiction and do nothing contrary to law ...AUTHORITY. Scope of-Agent and Principal-Burden of proof •••-- EcdesiastiC;lI-Order of-Award-Arbitration ... ••.- of the Thathanabaing and Thuaama Council in matters of

, ,ecclesiastical discipline and con~rol ... '-.- cf the Thathanabaingand Buddhist hierarchy in matters of

ecclesiastical discipline and control

AWARD~ A reference to arbitration in Upper Burma does not neces­saril\' include authority to dispose of the matter referred on aque~tion of Itmitation unless such authority is exp,rebsly given.Rule" of limitation of Uuddhist law not applicable '"

A sui! may be broul{ht to enforce an-irrespecth-e of the pro·visiuns of Cha;:>ter XXXVII of the Code of Civil PlOcedure.Awud by ecclesiastical authorities on a secular matter notexempt {rom the usual rules regarding arbitration

---- Suit tu set aside an-Gnmnds for impugning an-Grotlnds for setting aside an- .•. ... ..'Where a refetence to arbitration was made to four elders and noprovision was made that, in case they did not agree. the awardof a minority or.of amlljority should t>e binding, the ~ard,

unless made by all four elders could not be enforce~- of ArbitratOls-Arbitration-Effect of decision oftW6 arbitrators

out of three ... .. ,_.- Extent to which parties who mutually agree to refer questions of

the aivision of property on divorce to the arbitration of lugyisare bound by the- ... '. ' "

by ecclesiastical superior should be treated as an order of eccle­siastical authority or as an ordinary arbitratiQn award

Arbitrators-Buddhist Law-Inheritance ... .,- Legality of-signed by majority and n.ot by all the arbitrators- .Where there is an-in eXIstence Nali~~, 'u,l~til set aside, property

effected by the-cannot be followed after. the period of limita­tion of setting sucll.award aside has expired... ..

A partition by a Ywogaung is not nechsarily an':'-and' thereforestill less a contract. Application of Article OS. Limitation Act

An-'-not followed by posse~sion: without effect in stopping run·ning of time--Limitati.on ••• "',."

---' Effect of-regarding clAims of parties and period of limitationin consequence. Adverse possession from date of- '"

- Settling matter in dispute cGnditionally on one of the parties, making oath to a certain eftect

PAGE YBAlt

159 11 189:11'82 ~ to

118960

59

7~J

INDEX;

A-cnn:td.

AWARD-Appeal-Arbitration-Reference to- ...-- Arbitration-Reference to-Appeal against _a decree under

stetton 522. Civil Procedure Code .•• •••'-- Power of Court on appiicatiQn to file an-Court has no power

toenrreet-Appeal again:;t order refusingto file an- ...-- Suit 'l,r recovery of land assigned by-Article 1.14· or r48 of

Scl-iedu!e to Limitation Act applicable-Plea of limitatj,m canbe raJs~d in appeal... -'-."

--Suit lor sped6c performance of an-Evidence tfs-EstOQPel '"._- A suit 10 enforce an-is not an application to file an award. A

party to .a 5ubmission cannot revoke it tln!ess fOt" goo:! causesho\\ o. II a part\- l! ives notice of his withdrawal to the arbi­trat;'rs the arbitrators are not bound to give him notice offurther hearillgs-,jed Arbitration

In a ~ase where an-has been ordered to be filed in Courtunder sectl<1n 520, C,vil Pr"cedure Code. the COlllt havingdis­allowed an ubjection as 1-0 the va1idily of the' submission, noappe:ll Ires except on the grounds specified in sectionsz2-See

_. {ivil Pr ctdure _ •••- When an - h'<s been m::rde in Arbitration proceedings held with­

'·utthe int<:rvention of a Coui'flol justice. during the pe.ldency01 a suit or nppeal. a part}' can bring a regular suit to enforceit under secti n ;0, Specific Helief Act, even though the exis­tence of th&-was not broug~t to the notice of the Court beforethe suit or appeal was decided-See Speci"fic Relief

- In a suit fer money due under an-or for specific Performanceof an-the period of limitation if not three years under Articlet~5 ~r ~rticle u3. would be silC years under Article 12o-SeeLImitation ... . ... ... ... . ••

_ In deciding whether an-of compensation in a seduction caseshould be enforced or not, the Courts have only to look to theprovisions (,f seetionsszo and su, Code of Civil Procedure.and determine whether any of the grounds mentioned orreCerred' to in those sections is ,.h ,wn again<t tbe-. The fnetthat the subjeet.,.rnatter ,of an-io; 1\ t such that it could be·acause of action in a Civ,. suit is nOl necessarily an objectionto the legality of the-$ee Civil ·Pr-oced:.,rp ••• •••

- When arbitrators resolve that their-shall be pIn in the form ofadocument,andsi~ by them. nothing but that documentcan be treated as the-. See Arbitration ••• ,••

1

S2 ftl)O.f.• to

(9063)

")

91t 1901

. f to

J"

INDEX.

A~conc!d.

A,o-or _ "Twinyo.-An-is an - interest in State land," andeoriseque,ntly;in view of section C;3 (2) (iii of the Lafld andRevenlle.,.i.{egulatiCin, the Civil Courts h;lve no jurisdiction toentertain· a suit to recover an-See Land and Re"'enueRegulation

PAGB TZAR

B

Benami TRANSAC'l'IONS-Hdl--t1tat in dealing with-the question,,"hich the Court h"s to c.·nsider is \\hether the intendedfraud ha,,; been carried out to the actual detriment ofinnocent third parties.Wltere the intere!>ls of thirdpactiesa.re not involvedtbe transaction should be tr-ea.tedas a.nullity "

i'£QAl 't'JUA"

331 1SJ»"&0>19o~

INDEX.

BILLS 0' EXCHUfQI!: ACT-English Sectiol'i!)C"""'Ilo 2fovision ·inthe·. Negotiable Instruments Act similar to--:See Negotiable

instruments ...

BILL-Ol"-EXCBANQIl: qr promissory note. How interest should be cal·culated on-... ... '"

I 1902to

1903

591 1891to

18g6

INDEX.,

B-contd.

BllNllilNe effect of di'fision of property when once made with assentof interested parties under Chin I2w ... •••

8mTJI-Imperfection of-not cured by.subsequent regular union ofparent.. Buddhist Law-Inheritance .••• ••.

81.000 aILA'l'Iolfs-2xcepting undivided ancestral prbflerlY; estateof .deceased step·parent or grand-parent iO~ by detCent

. ~ the step••hildren or step.grand-c:hildren in preferenceto eoUaterm;... ••• . _ '" .,. ,••

14K 18911to'

1896

INDEX.

B':"'-@ontd.

416 11g7to

1900

lJo1IalJaint. Claim to waste land as~and not State land-title·arising from possession of land after and before annexation .•• 224 1892

to1896

=- Sisa:-Thugyisa-Land-Possession of-Distinction betweenclai~sfounded.on official and on private title-Burden ofproof

BOliD-Agreement-difference between-duty chargeable on-

_ Held-that a suit for an amount due on a-is not a suit £Or thespecific performance of a contract as contemplated in ArticleI5 of the 2nd Schedule of the Provincial Small Cause CourtsAet-$u Provincial Small Cause Courts

_ SCG:urity-jointly exeeuted after an alleged agreemenfwas cometo that only one party should be held responsible-Admissi-bility of evidence ()[ an oral agreement ••• •••

-- Suit for th~ recovery of dOuble the amount lent on a- '.0- S.uit on a-Breach of contraet-penalty-rate of interest •••.......... Suit on a -exeCuted for anunlawfut coQsideration-Bond void

and suit not enforceable.-S.,Contract •••

3 190,to

190f

35.4} 1891290 to300 1896

0' rgGSto

1903

INDEX.

B-·contd.

B••ACH OF CoNTRACT-Penalty payable in accordance with the pr·in.ciple of section 74. Contract Act .•, . ...

_ of contract-Penalty-rate of interest .•. •..- Unless and until the contrary is proved the Court shall presume

that the-to transfer immoveable property cannot beadequately relieved by compensation in money •••

'BlUACH OP PaOMIsE OF MARRIAGE-A female minor cannot suefor compensation under the Contract Act for the-made toher, but where the circumstances entitle ber to compensationunder the Buddhist Law, S¥ can succee4 independently ofcontract-See Contract... ... .•. .•..

-OF PROP,IISB OF MARRIAGE-Burmese woman can sue for damagefor-but not for seduction ,.. ... ••• •••

'BROTHBRS. Shares of elder and younger-Buddhist law-Inherit..ance

539 1897to

I9@i

S 190'1toI~

499 1897to

190'1(

~ Children have nO W6ted' interest inparenta1 propocty during. the..lifetime of either parent..;,.,General principles to be followed. _ in mortgage cases .•.. ••.:, __~-..CO.H&lRS. Rights of'=-to contract between themselves irre&­-. pective ohhe rules of Buddhist Law

====HUSBA.ND OR WIFE.~[nterest_of-inpropeny acquired by theother alone upon divog-ce by mutual consent \

BVaM..sBBt;DDIIIST~-A ~omfln among-whether a minor oc notcannot be legaily marritd without·her consent oragains!: herwill

S".DRIS'I'-Girl-Suit £01' cestitution of conjugal rights against-, under the age of IS .•.

_ HOR.lRCBY AN~ TIiAYIlANABAINGo Authority of-in mattersofecclesiastical di~ipUlleand control ••• ••• . ..,

_ JroSBAND AND W ••B. .Property jointly owned by-shouldordinarily be deemed to be in the possession of the former-Saleof-by one joint-owner .•• .•• ... ...

_BVSBA!i'~ANJ>'YQ &. JOln,t PXVp.¢y ¢~attached in ex~ti.9l1". :;=" of·a. det;reeagamst the husband alone ' ••• •..~ HUsband legal representative of deceased wife-Defence

divorce-Decree for divorce set aside-Plea. that divorceeftected by husband abandoning .wife for more than threeyears beginning before date of decree ....' •••

~IIVSBANn. S\lit by-for himself and as sole represe"Ptative ofhis deceased wile ••• •••

PAOli) 'I'DK

497':189"­to

'19OS

Sill 189:110:1 to

'1196­.4t J

INDEX.

SWDDIIIS7 LA'W.;..;A¥on-.1!eJd,-that an adOption ~ade shortlybefore death is noto~d toliuddhist Law.

IIi Man anA (J.ft, v. JltJl!~g. G,i tJna three othlYs •••

- Adoption-when a Buddhist p2l'en~ bas pen his child inadoption to·another, he i$ entitkd until the.child bas grown up,to canc:~l the adoption and ~ecall the child ••• .eo

..- Adoptian....Wbat is a &ittima adopted child. Share of ki#ima. adopted child •.• ••• •••- Adoptio~to .aBlish a kittima adoption, proof of publicity

and iIotoriety is essential... .,. . .. •••- net applicable to Zerbadies or Native Mussulmans in Upper

Burma in matters of inheritance, but Mahomedan law

il17DDHIS'l' LAw-Divorce-A Burman Buddhist, husband or wife,may sue and obtain adivorce on condition of surrendering anthe jOint property :and payi~g the joint debts and the costs..oflitigati"n' w:h~ the o~~er party is wi.thout faq)t and dQes notCQnsent ••. ••• ••• . ...

- There is no distinction in-between the respective interests 9f :'/>husband and a wife in jointly acquired property, ~n.en th~parties have been married ~fo~ (einaaungg.:i),:and wb,eil tlt~parties have not been married before...· ...... u:

X l~

to4119G.3

li211:f34}1~

S3gJ - .-

INDEX.

~1JDDHI6T LAw-HelJ:-.on the authority of the Manugye Book XII.section 3, that ml divorce by mutual con!ent, (I) a wife isentitled to one-third of qfet propertywliere the, relation ofNissaJo and Nissito subsists wIth respect to that property. andshe is the Nissito, (2) she is entitled to one~third01. undividedancClitral property inherited by her husband during thema£'1'iage. (3) the profits of such ate/. and inherited property arelettetpwa, (4) the wife is entitled to a half share of sucl~

lettetpwa. property, where it appears that it was acquired bythe joint exertions of the parties •••

~ Divor(;e~lnterest of Buddhist husband or wife in propertyacquired by the other alone upon divorce by mutual consent­Collusive divorce te avoid attachment of property ...

D ivor-ee-Persons who mutually ageee to refer questions of thedivision of property on divorce to the arbitration of lugyis are~und by the award of the lugyis unless and until it is set aside-Lettetpwa andpayin property ••• •.. •••

___ Divorc~When a Buddtiist wife is not a party to a suit againsther husband. andthedec£ee is against the husband alone. only

..the husband's interest in the joipt property of his wife andhimself is liable to attachment and sale in execution ...

- Djyot-e~Sujt by wife for divorce with claim for half the jointproperty. 'Grounds of cmelty by husband in taking a secondwife. and imputing adultery to first wife. Defence that divorcealready effected by wife leaving husband with count-er-cIaim forproperty taken by her. Decree for divorce as b)' mutual con"sent and equal division of property e.. ... ...

- Divorce-Although three years' complete separation may ofitself effect a divorce without a formal proceeding or declara.ration, at the,end of that time, the period could not be reckonedbackward beyond the date of the judicialdecr-ee, which mustbe taken as the starting point for the calculation ... •••

- Divon»-A divorce cannot be granted merely on the ground ofan allegation that the destinies of the husband and wife arenot cast together. . Nor can a divorce be granted merely onthe ground that the husband has not supported his wife for ayear. the latter having left her husband's protection without.reasOnable cause ••• ••• ••• '

--.. Divorce-As by mutual consent between parties not prev.iouslymarried-wife entitled on partition to one-thi'rdshare of pro-

, perty inherited by husband during cover41re and 'Dice'iJel'sa- .MiSconduct on the part of a hl,lSband, which may not in itself be

sufficient to entitle a wife to divorce under the rule of separa­tion. where the husband is the offender may nevertheless besufficient to entitle her to insist on a divorce as by mutual~0nsent.-SeeBuddhist Law-Divorce e.. ••.

-= Di-vorce-Callse of actiOn-Suit for divorce without divisi"n ofproperty will not lie ••• ••• ...

-. Divon:e.-Held-that al5uit for bare divorce without and asdistinct lrom partition ofproperty will not lie under BuddhistLaw;

Mi Gymn v. Sa We. U.B.P-•• 1891-H)OI. 11.28. explainedand affinned. . .

Nga Pye v. Hi Me. U.B.~•• 1902<03, II B.L;Oiv.. 6. pa.rtlyoverru.led. ' .

. 191904to

1906

43

s8 1891to._go"

1, Ig10·

so} Ief91SJ

ltND£X.

B-contd.

rna So v•. M; Min. Gaung. U.B.R.. Igo2003.·11 B.L. Diy••u, superseded.

Jii Lon Jill Gal, v. Nga Pe, 5 L.B.H., 114, partly disseuedfrom.

Mi Kin Lat v. BaSo, U.B.R.. 1904-06. II B.L. Div., 3.referred to.

Nga Chit Nyo v. Mi Myo Tu ... ~.. ...BUDDHIST LAw-Divorce-Heltl that when a couple re·uWte after a

divorce they revert to the status guo ante and il'\vhen theymarried for the first time they had never been married beforethey must be treated on a second divorce as np lin nge mayaand not as eindaunggyis.-Heltl also-that on a divorce bymutual consent betweeen eintlaunggyis the principle of nissayoand nissito is applied to lettetpwil property but not to payinproperty. .

S.J.L. B., 14.-175. ...U.B.R., 1904-06, II, Buddhist Law-Dil'orce 19$ .- 1897-01, 11,39.- 1902-03. Buddhist Law-Divorce 6.Jii Saing v. Tan Gin... ... ... ...-.- Divorce-Heltl-t'lfttt the decision of the Privy Council

inNga P, v. Mi Lon Ma Gal, did not effect the ruling inChit Nyo v. Mi Myo Tu. .

IU.B.R., 1910-13,3°, U.B.R., 1902-03, II, Buiidkist Law­DifJ(Wce 6, U.B.R., 1904-06, II, Buddhist Law-Difloree3, 6 L.B.R., 18.

Mi Sa Bwift v. Nga San Nyun... ... •••_ Divorce on grounds of husband's misconduct-Husband pre­

vi()usly married-Wife a maiden at time of marriage-Divisionof property ••. ... •..

_ Divorce,-Rule of Buddhist Law with respect to the disposal ofproperty upon divorce on the ground of wife's adultery, wherethe husband and wife bad been married from youtb, butsepa­rated and subsequently re-united ... ... ...

_ Suit for restitution of conjugal rights-Divorce by mutual con-sent-Question for decision .

P£GllI 1i'1:~

IhfDDllllS'l' r..1W"""",h~n ulld","_a$Uit has b~n 1If9ught for divorce.itho~t partition o! proP,erty.. a. subsequent suit for paftitiolHIlthe ioantpr'~Yt15~..n~lIlble-... . i ••

......... Ecclesiastical~A Civil Court cannot give effect to an order'Qlthe rhath~na1Jaingor any other ecclesiastical aut.horityuntil such order is confirmed by a judgment and decree of the

. Civil C6urt, ~lso-thatso far 'as the Civil Courts are concernedthe Sanal granted by the Local Government is merely anauthoritative declaration 'that, for the time being the TaURg­

. gwin S4J'~'W .istbe ECclesiastic who hassupre!Jre connola, Thathanablnng , .••• '" •••. .••

- '&.cleSiasticaL Natllre of ,a suit to enforce a decision of theThat/uJ,,~Z;aing~iJrt-fecipayable on 5llme

_ Ecclesiastical-The orders and proceedings of the Buddbist, Ecclesiastical authorities, so' tong as they keep within theirjurisdiction and do nothing contrary to law, cannot be ques­tioned in the Civil Courts' •.. •.. '" ...

....... EeClesiastical-Jurisdiction of tpe heirarehical authorities of theBuddhist community-Poggalika and Thiflgikq gifts-Autho­rity, of. the ThatiUI1Iabaing and the Budclhist hierarchy inmatters of ecclesiastical discipline and control

--- Ecclesiastical-In Poggalika gifts the person to whom the offer·.ing is made has a- right .to keep it. In Thingiklr gifts itbecomes theptoper.t:Y of the chief of the assembly of priests ...

==- Ecclesiastical-Award by ecclesiastical sltperior-efiect eitheras order of ecclesiastical authority or as ordinary arbItrationaward-Buddhist .priesthood-Succession of one member toanother in. respect of religio.us buildings and other kinds of

. ptoperty' ••. .•. •••"""- Ecclesiastical-eivil Courts should abstain from' deciding;

points which fall within the sphere ·of ecclesiastical jurisdiction.-See Buddhist Law-Ec:clesiastical •••.

_ Erroneous application or-to sale of property by one joint-awner.

IJ... 1~7S' .1909

591

.,11aI'. ISga

.. to181.1891

JI 190"

to1901

3°3 I~to

ISgG

INDEX.

B-conld.

8~»DJUSTLAw-Ecclesiastical-eivil Procedure-g.-In a dispute. betwen a Buddhist laytnan and a mon~ ~tating ~o land on·

which a monastery stands a Civil COurn13S jur~iction to trythe suit on its merits; and the proper basis for the decision ofthe suit should be the texts of the Vinaya as far as they can,roperly be applied.Semble-A monastery dedicated to an individu~Buddhistmonk does not become his absolute property and he·can onlyclaim exclusive rights over it for 12 years at most.Hila-that a pt by a monk wllether to a layman or toa monk of a monastery or of a site for a mQnastery, whether ithas been dedicated to him personally or not is invalid

UTe Za aM one v. U P"innya, U.B.R., 18g3"'96, 11,59U Thatdama and one v. U MetliJ a1ld one, U.B.R•• 1897-

1901, 11,.(2. -UTeik Ka-ltntlt'l18o others.v. Nga Tin Byu, U.B.R., 1910'13

1,78.Maung Hmon and one v. U Cho and one, U.B.R., 1892­

96, II, 397.Maung On Gaing v.f!ttl?andisa, P.}., L.B., 614.Mau.ng Taloh and one v.},fa Kun find t'l180 atlle1's, U.B.R.,

1892"96, n, 71. .Rhys Davids and Oldenberg's translation of Vinaya texts.

Ngo, Po Thitl v. U Thi Hta ••• "....-.. Ecclesiastical--Where the plaintiff, a layman, applied to the

Thathanabaiftg for the restoration of 'l»uttagan land origi­nally the subject ofa dedication by his grand-father to a monas­tery and then confiscated and re-dedicated by the BurmeseKing, the defendants, the monks in occupations, objectedpleading the eonfiscation, and after the parties were under· theThathanabaing's instructions heard and their evidence exa­mined by the Gainggyohs, the ThathaMbaillg and his Councildecided on ground of a religious rule laying down the duties ofmonks towards their supporters that the land should berestored to the plaintiff-Held, that there was nothing toprevent the Ecclesiastical Authorities from making such anorder, that the defendants could not object to it, that questionsof res judicata and Limitation did not arise and consequentlythat the Lower Courts were tight in granting the plaintiff adecree to enforee the order.

- Wun Chit v. Za'Wta, U.B.R., 1897-01, II, 52.U T.eiUa 110M IfRO others v. Nga Tin By"

-==== Ecclesiastical-Suit for possession of a monastery based onthe decision of ·the Thafhanabaing.-The defend"ilnts contendedthat they were ~hismatics and were not subject to theThathanabaing's authori~.-Held--that the Thathanabaing'sauthorit>y was based on a~cient custom and that as the monas­tery in dispute was thingihaproperty, which had been dedi­cated to the monastic body before the sect to which the defen­dants proposed to belong came into existence. the Thathana­baing had jurisdiction in the matter and his decision ought tobe enforced.

U Thi Ho •• U Thudifithatla and 14 others, U.B.R., 1917"'oq. B..L. Ecc.. 5, referred to.

U Kuthala v. V Sanda •••

-1

II'"

IIIJ

idol

rl~

If!!

II

78 f

I35J

INDEX.

B-contd.

BUnD1l!!!'l!' LAw-l:celesiastica1-Duly constituted Buddhist ecclesias·tical authority-Decision of-enforceable by Civil Court

- Suit for ejectment from a monastery.-Appointment of:T'h4thanabaing •••. '" ••• •••

......... Ecclesiastical-Suit for possession ora l:yIXung-AuthorityofBuddhist ecclesiastical authorities in ecc1e?iastical matters ...

INDEX.

B-contd.

:&UDDUfSl' LAW-Gift~Agiftmade by a Buddhist monk nO(:accompanied or followed by delivery of poS5e5Sion. and in1ren~ded to take effeet \}nIy on the death of the donor is invalid.

-Gift-Gift b, Buddhist monk under,.-A layman. upon embra­eir,ga religious life bEcomes ipsofacto divested of all property.which thereupon vests as it would upon his divorce Of decease•

..0.;,.- Gift-Validity of-Necessity for strict proof, qpecially oftransfer of possession. which is the crucial tes&· ••• •••

-== Gift-Poggaf.i~_Thingila ....... .•••

........ Gifts-Helt/-It depends on circumstances whether the Bud­dhist or Muhammadan Law applies tb Gifts.,-Where a giftis not a question of inheritance, succession. religious institutionor usage. it is governed by the Contract Act. Ac-...ording tothe latest authorities actual delivery of possession is not necetosary under Muhammadan Law. By Muhammadan Law thehusband's share, where there are children, is one-fourth ..•

- GiIt-Held-tbat under-a death-bed gift to a stranger, evenif delivery of possession is made. is invalid as against thenatural heirs •••. ~.. ••• ••• •••

- :Gift-Buddhist Law cordinarity is not applicable to gifts but isapplicable to death-bed gifts-See Buddhist Law-Gift

IN})Jl;X.

:S-tunttl.

BVDPJIl1l1T ~A",,-G.uatdhhsbiP of child and" of child'sp~op.enya~d e'l'l'n~h'ip of '1!~cbproperty upon second marnage (if6.tS I~father s~bl~lO- . . to

(81)6

_ .Inheritance-A kittima adopted son takes position of naturalson when there are no natural children.

- On death of father leaving widow with eldest auratha son and noother children the widow has an absolute right of disposal overher share of three-fourths the estate ... .. ..•

- lnheritance-A surYhring parent cannot give one heir status tosue another for a share of inheritance without ~eing inposition to put the former in possesSion of the share to beclaimed .•. .... .•. • ... ....

.:- Inheritance among' Hindus-Buddhist of Arakan and Chitta-. gonl[ ... . . -.. . ... .~. '".- Inheritance-Adoption-Adoptive parents stand'm the same

position as natural patents and have the same rights so longas the relationship constituted by adoption subsists-also thatparents are entitled to i.berit in the absence of direct descen-dants .. ....

-- Inheritance-Ascent 'of property where there are no directdescendants _..

'-lnheritance"':'Adopted son-Adoptive. parents-Natural.puena

J.~I

to1896

I38

60S),

1091

r18~7

157 to·. 1901

I3S)

INDEX, xlii.;.' :-::..

B-cantd.

.~

__ jnheritance-Clairn of eldest datight~r against h~r mother afterfather's death ·for one-fourth the .mother not having remarriediheld to beunsust.ainable. .. ..,

U.B.R., 1892-96, II. S8~, 1.U.B.R.. i910.13i, 125, s.,.,LB., 115. lb. 2 [2, lb. ~8, I.L.B.R.. 23. ll, lb. 255, Ill. ~92.4 L.B.O:, ISr, U,B.R.; 189'-10. 11, 79. U.B,R., 19°4..00,II Buddhi$f uw-lnhcrifan", I r.

Hi H:aingv. lIiThi and thrq

BUDD8IST LAw"":Inherit8nee-Arbilrator's award."..Binqing etiect!Of-Rights of Buddhist co-heirs to contract between -tbem1lclves~rrespeCtive of rules of Buddhist Law... ••• . ••.

~ lnheritance-As it was not proved that any of the estate was'payin p~operty of the grand.father in the time of the grand..plotherof the grand-children, the widow alone was. entitled!to the prop"'..rty ••. ... .•. .•.

"""'-" Ilnheritance-A wife who is unfaithful to her de----eased hU$band'forfeits all claims to ir;lherit his estate although there mayhave been no formal divorce ... . ... ..;

--= Ifnheri~nce-Clai.mof the eldest son to one.fourth~Right ofjthe wIdow. .. ..: Held...-theeldest son being a m.inOf the right to c1aim·one­jf9urth. did not accrue, and· whole es tate was theprQperty;ofthe widow. ...

U.B.R.; 1892-96, ll, 581,:1 L.B.R., 292, I.U.B.O., 1910-[3,125 Nga Ev. Nga Aung Thein (miner) by hisguardianMaung Thwe·...· .,•.... 31 191'.

to.1916

-.. Inhel'itanee-CIaim to share of joint property of brather­and sister working together both belag alive-Law;of inheritance not applicable . ...

_. lnheritance-Children who volunta~ily separate from their:motheron her second marriage ·and perform.no filiaLduties

. are excluded from·inheritance· ... ••• ..•.,..... Inheritanee-D.aughter .of div.oreed husband and wife living

with mother and separatil,lg entirdy from ber father IQIel-claim to inherit any share Qf;h~ father's esta~ ••• N. .. I~fl'.

- Inheritanee-Descent-Step-ehiJdren-Step.grand children-Blood re1ation!i-Exceptingundivided ~cestral property. theestate of a deceased ·step-parent or grandparent goes by des­cent to the step'children or step-grand-children in preferenceto collateral relatives by blood. The rule as to reaching ~ 1'::"_.inlteritance or obtaining a vested interest applies only where ::the claimants to inheritance are of different classes, tRat is, in ..:s-different degrees of propinquity to the deceased. '(hus, if rp'" -there is no nearer· heir than a grand-ehild, all the grand- Ic:hildren belong to the same class and .are on an equal footing

i:h=::~~thou~~ their pa~~~tsRave .~ied befo~.~ching t~.~· ~ I,- Inheritance-Doubtful whether Article 127. Schedule II of the •

Limitation Act, is applicable to a case between Buddhistsin Burma 4SI).

INDEX.

B-contd.

:BVDDlIUST LAw~Inheritance-Distinctionbetween WIfe and cono

cubine.-Held-that the Buddhist Law reCognized polygamy,and that a Buddhist ttlight marry two Qr more women at thesame time, and that they might all have the status of a wifeand not that of a concubine; that the woman first marriedwas the chief wife, and that as long as she was not divorcedher status coulp ~ot be lowered by any conduct of her husl?andexcept, perhaps, If she were barren.

Bled also,-that wives were entitled to equal shares of theirhusband's atet property, and that the rules laid down insections 231 and 234 of the Attathankepa that a superiorwife takes three shares, and an inferior wife two shat'eS;bave

• reference to. the ~te l!ystem and have. no appilcationsto Burman BuddhIsts. .

S.J., L.B., 6; U.B.R., 1892-96, II, 145 and 194: U.B.R.,J897-190I, n, J38 and 16c.Mi Kin GaJe v. Mi Kin Gyi

.-- Inheritance-Held-that under Buddhist Law on the death of. a husband; his widow succeeds to the estate with the exception

of certain specified propeJ;ty and one-fourth of the estate which.go to the eldest son, and of certain specified property whichgoes to the eldest daughter; that with the exception of thisportion the widow is at liberty to spend the whole of the estate.if she choe,ses to, and not merely ror necessities, and that thetexts of the DhGmmathats on which the doctrine that theWidow can only spend the estate for necessities is based refer tothe spending of the specified property set· a.part for the eldestdaughter and not to the spending of the bulk of the estate.

MaTai axd one y. Ma Myin and one, U.B.R., 1897-1901.II, 193. .

MaPon and two v. Maung Po Chana1f.ll two. U.B,R., 18~n­190t, II, u6•

. Na Nyo and 5 v. Ma Yauk, IV, L.~.R., 256.Mo Pe and one v. Ma Thein Yin, IV, L.B.a., 287.Mo On v. Ma Shwe 0, SeJ.L.B., 378.Ma Min. Tha v. Mo Naw, U.B.Ro, 1892-1)6, II, 581.Nga Shwe Yo v. Mi ~an By" and others,S.]., L.B••. 108•

. MaU1llg Po Lat T. MJ Po Le S.].. L.B., aIll.M; Sa'llJ Myin Gntlon, v. Mi Sh'llJe Thin f!.nd one

.1,II

4tI1910

J. to

11913

US}

INDEX.

B-con/a.

BUDDHIST LAw-Inheritance-Duties and share of kittima adoptedchild

"""""'"' Inheritance-Exclusion of husband from share in estate ofparents- Law when wife predeceases her parents

-- Inheritance-Family of chief wife-Family of lesser wife­Inheritance entitled to- •• -

...,..,.. Inheritance-Held that after the death of bel: father, t. eId-estdaughter cannot claim one-fourth of the estate froin hermother even though the latter marries again.S.:J.l.B., 378, P.:JL.B., 48,3 a.L.T.,45, U.S.N., I., 1910-13.

P" 125, 2 L.B.R., 255. -Mi The 0 v. Ali S'IIIe and four

-- Inheritance-HeM-that the children of a first 'marriage wereon the death of their father who had married again after thedeath of their mother, entitled to three-fourths of the lettetp'llltlof the first marriage taken to the second marriage, and thewidow was entitled to one-fol1rth.

U.B.R., 1892-g6, II, 2~.-- Ih,176•.- 1897-1901, II, 135.IV, L.KR.,lIO.I. L.B.R., 273. ,

Ali Chan Mya arul one v. Ali NP8 Yon

_ Inheritance-Husband and wife dying without issue-Rights toinheritance of estate of-Divided and undivided ancestralestate

_ Inheritance-In a case where the wife has inherited onher husband's death the share which he obtained at apartition in his lifetime with his co-heirs, and her deceasedhusband's co-heirs have sold their shares to a stranger and sheb,as a son by her deceased husband,-Hel4-thatthe widow hasthe right of pre-emption '

- Inheritance-In the case of collateral sU"..eession the generalprinciple of the nearer relatives excluqing the more remotetakes full effect, and so long as there is a surviving brother.he exdudes the children of a previously deceased brother •••

,- Inheritance-Inheritance can ascend when there are no descendoants-Authority of Manukye Dhammathat X, 62, denied ...

Inheritance-Illegitimate grand-ehildrenexcluded from inheri·tance of' grand-parents when the latter have left legitimatechildren surviving thern-Im~rfectionof birth not cured bysubsequent regular union of ,parents

xlf'

74 I9J.C.to

1916

[46 r8grto

1901

I: 19osto'

1905

5 rOO4-to

1905In r897

to19o1

141 18gSto

rBgO

INDEX.

B-contd.

...

........ Inheritance-Kittima son-Thah,ta son-Law relating to- ...

Mi l#n TlJaf,.A. No. 94 of 1905 (unpub.

v.Kin Nu, C.A. No. 65 of 1907 (unpub-

184- 189~to

189&14~ 1891

toIgOl

7 1C)0~

to1</0 3

III 1010to

1913

'BODDHlS'I· lAw-Inheritance-Jointly acquired property-Payinpreperty or property anterior to second marriage-Step'father's claim to estate of deceased wife, and to estate ofdeceased step-daughter-Claim of paternal relatives to Latter

Inheritance--Lidng apart from parents and not attending in ­illness does not of _itself rupture family ties, or disqualifychildren from inheritance;- See Probate and Administration

__ In1leritance-Marriage -~ [n Bunl1a polygamy is·. undoubtedlylawful, an4 it is not unlawful to marry the sister of the livingwife. Marriage with - a deceased wife's sister is looked uponas proper and even laudable. In the caStl of a mat'1'iagebetween persons who have becjl. married before, it is notusual to have any entertainment. The arra-ngement ofseparate establishments for wives is a mere matter ofconvenience, and probably _necessary -for the sake of peaceand quietness when each wi(e has a fam ily of her own. Eatingout of the same pot is rather an outward and visible sign ofsocial eguality than a proof of marriage.

Mi G~we v. Mi ThiDG (1891), U.a.R., 1892-96, II. 19".Mt Shwe Ma v. Mz' Hlaing (1893), U.B.R, 1892--96, II,145 and 153. -

Mi HmiJn v. Paw Dun (1899),U.B.R., 1897-1901. n. IsS.Mi Cllly'Uv. lJi Hmyitt (1900), U.B.R., 1897-1901, Ii,

160. -Mi Tun ltv.- lisbed).Mi Shwe Me

lisbed)., Mi Wundi v. Mi Kin, I4-L.B.R•• 175.M; Me and 10 othersv.Mi ShwI },fa

Inheritance-Partition of property-Laws relating to -shateS__ awardable to children and adopted children ••• ...- Inheritance-Partition of property between grand-thildren and

_ step-grandparent _ ..._ ... -'"'==Inheritance-Partition of property betwee~ two daughters as

sole successors and heirs-What rule of division P-Whethcr~qual~ty,orone of the-special methods o! computatiOli. mention~dIn the Dhammathats ?-U latter. which P-In the: absence of­proof on this point, rule of equality prevalent according to localcustom followed ...

-=- Inheritance-Partition of property between bmthers- andsisters-Equality of shares....Adoption-Child given - inadoption loses claim to inherit any share of the estate of his

_ _ natural parents--:Ev.idence-Burden of proof ••.~ Inhetitallcc-Position ofeollcubineor- lesser wife'living along­

with hrad' wife,· and of child -of such concubine" -living -withfather-Apparent principle of Buddhist:, law'with- respect- tdmarriage-effect of. subsequent reg.ul;ll' tna,tlaRe after -dealtof head wife on position of oftspring of concubine orleseci' wife

INDEX.

B-contd.

BUDDHIST LAw-Inheritance-Position of lesser wife or concubinetaken during fifetime of chief wife and with her consent. Rightof son of such lesser wife or concubine brought up by thefather like offspring of regular union to share the inheritancewith a second wife and child '" ...

Inheritance-Position of daughter of divorced wife who liveswith her mother or mother's family and not with her father _,

Inheritance-Property inherited during marriage-Definitionof Auratha son-A Burman Buddhist married three wivesin succession.-:ll'eld-that d the property inherited ~ himduring marriage the children of the marriage during which itwas inherited were entitled to a double share.

4 L,B.R., 189 dissented from.V.E.R., 1904-06, II, B.L., Div., 19.-- 1892-96, II, 159.-- 1897-0I, II, 185.P.j., L.R., 361.

Nga Lu Daw and one v. !Iii Mo Yi and one

Inherital1ce-OtJestion whether mere absence of joint livingexcludes a child or grandchild fr~m inheritance-Necessity forfilial neglect to exclude ...... ••• ... •••

Inheritance- Sale of ancestral property to persons not belong­ing to the family- Pre-emption ...

Inheritance-Sale of undivided ancestral property-Pre-emption... .•. '" ..-Inheritance-Second wife entitled to share in inheritance withfirst or chief wife when she has clearly the status of a wife .,.

- Inheritance-Share of grand-daughter in her own parents' estateas against her step-grandparent ... _.

Inheritance-Suit for possession of land-Heirs on either sidebeing uncles and aunts or their representatives-Shares towhich each entitled ... .•. ••. ...

Inheritance-Suit for partition between son of head wife, son anddaughter of second regular wife and son of slave concubine­Shares to which each is entitled-Heirs inherit the estate whenthe person from whom they inherit dies and not when theirinheritance is partitioned .. ' ... ... ...

Inheritance-Suit for share of inheritance between second wife ofdeceased and sons of first wife-at~t oha and auk oksa....Children entitled to three-fourths of·property to which theyhave a double claim and half of that to which they have asingIe claim .•• _.. . ••• ••• ••.

-- Inheritance--Shares of children of first wife and daughter ofsubsequent wife-rule for division of inheritance ...

-- Inheritance-Shares of elder and younger brother-Adoption-Shares of adopted and natural children ... •••

- Inheritance-Step-grandchildren-Shares entitled to-Original- and joint property-Joint living ••. '" - •••-- Inheritance-Step-son succ.eeds to the estate of the step-

mother (save in the case of certain ancestral propertyof hers) in preference to the collateral blood relatives .•.

_ Inheritance-The only restriction proved from the authorities to. exist in regard to the general rule of inheritance by husband or

wife from one another relates to impartible immovable propertyand not to ordinary partible estate. Deceased husband orwife may have married before or after death of parents, butmust have survived tbem so as to be in reach of inheritance

4

xlvii:

PAGE YEAR

66 19i;j.to

1916

1931

155

1162

160

164. 11891

}o to17211901

'76 /

I18S)

93118g2

I76JI~

126}1897to

531 1901

121 ISga.to

18g6

INDEX.

B-contd.

BUDDHIST LAW- Marriage-Joint Property.-Right of a husband orwife to alienate joint property without the other's consent.­Held-that a ~ortgage by a wife of her interest in a houseand land which .~as hnapazon lettetpwa without her husband's

. consent was valIa . •. . .•.. •••.- Held-that there is nothing in the Buddhist Law (explained in

J.Wi Kin Lat v. Ba So) as to divorce at the will of one party onsurrender oUhe joint property and payment of the joint debtsin the ab!!ence of fault in the other party, which is inconsistentwith the observance of the conjugal duties in a subsistingmarriage, or will bar a suit for restitution of conjugal rights

- Where the circumstances entitle a female minor under the-tosue for compensation for the breach of a promise of marriage.she can succeed.independently of contract-Su Contract

. - "Marriage-Restitution of conjugal rights-ill-treatment anddesertion a valid plea of justification under- ...

_ Marriage-Suit by a Buddhist husband for himself and a;·sole representative of his deceased wife-Union of husband andwife as it exists under Buddhist Law should be treated as apartnership... •• ... ... •..

MarJ:iage--When a divorce has taken place between husbandand wife and are-union is set up by .the former wife, on thedeath of the former husband, in order to support a claim to hisestate, strict proof is required of the renewal of connubialrelation:;. just as clear proof of mnrriage in the "first instance isrequired. when the question is whether the status oHhe wife hasbeen acquired at all ... ••• ... •••

- Marriage-Wives that live in separate houses from that of thewife with whom the husband takes his meals are not entitledto obtain, on the death of the husband, anything more thanhas already come into their possession. Living and eatingtogether is not an essential of marriage. but merely proof ofthe validity of a marriage ... ...

Marriage-Zerbaddi Muhammadans in Mandalay are not bycustom having the force of law governed in respect of5uc<:cssion and inhetitance by-they aregovemed in thosematters by Muhamma«m law-See Muhammadan",Law •••

PAGE YEAa.

II

I.""} to1 I I909

-,5J5 1904­

to1906-

'~lI18g2­

2M} toII8g6-

II94J

INDEX.

B-contd.

ti

INDEXo

B-conWo

INDEX.

B-contd.

BUDDHIST MONK. A-is prohibited by his personal law fromengaging in any monetary transaction and is therefore de­barred Irom suing for the redemption of a mortgage.U.B.R., 1897-01, II. 54; II Chan Toon's L.C., 236.U 1ila'Wka v. Nga Sh'W6 Kan and 5 others •••

- Gift by-to take effect after his death is invalid ••• _ ...- Gift by-under Buddhist law. A layman upon .embracing a

religious life becomes ipsofacto divested of all property. whichthe.reupon vests as it would upon his divorce or decease

. BVDDHIST PRIESTHOOD. Succession of one member to another inrespect of religious buildingSlllnd other kinds of property

BUDDHIST WOMAN emancipated from parental control and ceasesto be a minor so far as ma.rriage and its incidents areconcemedwhen she is duly given in marriage by her parents and is atthe time of marriage a minor ...

BUILDINGS. Building on another person's land by other than a meretrespasser-Nttice of adverse claim-Equitable right of. re­moving buildings-Custom or country-Maxim of Quad haJrlt

. in solo credit-solo cot applicable

Iiii

PAGE Y~AR

200 ISgl1to

·1896

1.114 1892to1896

liv INDEX.

B-,,-contd.

BURDEN OF PROOF. Agent and principal-Scope of authoTity .•,-- Mortgage-Renewal of mortgage-Within time set up-Original

mortgage. barred by limitation ., ." .,--.- Mortgage-Admission by' d~fendant of previous ownership of

part of land claimed by plaintiff's predecessor in interest ...- Suit for recovery of possession of:land -!:forcible ollster-Burden

of proof on wrongdoer !" •• , •••

When a claim is denied, satisfactory proof is required of itsgenuineness, and the ordinary tests of evidence CAnnot bedispensed with because the parties have had certain businessrelations

-- Wrongful or. forcible dispossession of land ... .••Defendant being in possession of the land the burden ()f provingthat the plaintiffs were entitled to deprive him of such posses-sion lay on the plaintiffs ••. ....

-- Fraudulent settlement to defeat orcle!av creditors... •..-- on mortga\?c:'-Amount of mortgage debt in dispute '"-- of ownership in a suit to recover possession of a piece of land ...-- In a suit for possession of .land on the ground of disposS"'...ssion

or discontinuance' of possession-'- to oust a perfon who is in possession of land ' ••

Shifting of-family property among Rurmese-pr'~'mmptio!l';asto portions being joint or separate property of heirs undervarying circumstances ..

Claim to share of an~estta:1 family property by certain co-heirsaga!"s~ot~erco-heirs in possession for upwards of twelve years-Limitation .. ,

Mortgage of-Redemption hyone'branch of family-Burden ofproof, fact and date of mortgage on the party alleging it andalso of redemption being in interest of others than th., personmaking it ;......

Claim to share of undivided family inheritanc.e-Limitation .,.Mortgage-Presumption from admission byaUeg-ed mortgageeof alleged mortgagor's original ownership of hnd-Evidence­Limitation ••; .• ' •.•

-- Claim toshareoffamilyestate-Adverse posse.ision for upwardsof twelve years-Effect of land .passing from one branch offamily to another-Limitation '"

Adverse possession-Estoppel •••......:-. Claim to land alleged t.o be mortgaged ..._ Application by judgmel1t-debtor to be declared inSOlvent_ 01' A·TRUST~Appointmentof trustees by any body or autho-

rity .__ AS TO OWNERSHIP' OF. LANO-Bobdbaing-Sisa-Thugyisa.

Distinction between claims founded. on official and on privatetitle . , .

Bailee - Care to be taken by- .- Exemption from mprisonment on plea of poverty, underseetion

331A, Code of Civil procedure-Burden of proof on jlldgment­debtor... '" •.• ...

- .Incases faning under Article T42, Schedule II of the LimitationAct, burden of proof on plaintiff-In cases falling under ArticleI44-Burden of proof on defendant.. ...

-.- On person out of possession in suit for ownership of land- Partition of property between brothers and sisters...."Equality of

shares-Adoption, Evidence ... .:. ...- Possession-Judgmimt-debtor-Judgment-creditor-Attached

property... ••• ... ... •..- Pr~mption as to usufructuary mortgage not carrying interest

plus us::fruct ...

pAGE YEAR

xl220I22Z I22.4.1

f:~;I

234-1

1

315350

37' f375 t892"t¥435 I

4311

48A493 ,

509 1518

1561565J

::j~I27911897

to}t901

461 I421

1041270I39J.

INDEX.

B-contd.

-BURDEN" OF PROOF:-Suit for redemption of mortgage-Evidence .••-- Suit for redemption of mortgage-Necessity for dear proof af

existence of mortgage when disputed ,.'. .., -When a creditor is allowed to retain written evidence of anexisting Obligation the-of satisfaction of the debt cannot bedischarg-ed without a reasonable explanation of such retentionand the most trustworthy or'll testimony of repayment

Defendant in possession l)f land there being no wrongful dispos­session of plaintiff-Plaintiff asserts permissi'leleccupation byDefendant-Defendant asrerts possession- of land by giftoutright. Burden of proof on plaintiff. See Evidence.,.

---, jn cases of wrongful dispossession in suits under section 9.Specific Relief Act, and suits on title-meaning of possession.See Evidence .,

Ina suit under_ section 283. Civil Procedure Code. _the--is notaffected by the summary order under sections 280, 2II or 282.See Civil Procedu.re ",... ,_,

Fraud-when a claimant under setion 278, Civil ProcedureCode. or plaintiff in a suit under section 283, proves possession,SectiOUllO, Evidence Act, applies, and he is entitled to succeedunJess the other party pr{lves that he is not the owner or thathe holdS in trust for thjjJudgrvent-debtor. See Civil Procedure

----- Res t'tldicata-Evidence-4I, no. See Prob.ate and Administra­tion

---- Mortgag-e-probabilities-- Alleged sale after mortgage._- Suit for redemption of mortgage by persons holding tandas

tenants on the allegation that they were representatives of theoriginal mortga~or a!ld tbe landlord r.epresentative of theoriginal mortgagee

.----. as to any special custom or usage varying the ordinaryBuddhist nIles of inheritance

PAGE y~

4(8)

412118l}1} toIt9lJl:

,wz)

7[901:to

II}GS

71

r6 t f9'l4}-ror906

-8)

61 19111ilto

IglS51(,'1515 1-

IZSp} to

579 iI8g$

608J

Ivi INDEX.

B-concld.

BURDEN OF PROOP AND SETTLEMENT OF IssuEs.-Need for makingparties clearly understand points on which evidence is required.

BURMA LAWS ACT, 13, See Buddhist Law-Marriage

BURMAN-Under ordinary circumstauces the pr~sumption would bethat a sale of cattle by a-is made with the assent of his wife

. and is valid if made to a bond /ide purchaser and cannotsubsequently be challenged by the wife ... '"

BURMAN MUSSULMANs-Mahomedan Law among-Divorce­Guardianship-Suit for custody of minor

BURMESE FASHION-Drawing up of a document after old-does notamount tosigning- Limitation Act. ~9 .• •..

- TIMEs-Documents of-proof required of-Suit for pos­session of land

BURMAN BUDDHIST-A-husband or wife may sue and obtain adivorce on condition of surrendering all the joint property andpaying the joint debts and the costs of litigation when theother party is without fault and does not consent. See BuddhistLaw-Divorce

BURMESE BUDDHISTS. - A woman among-whether a minor or notcannot be legally married without her COnsent or against herwill •••

_ 'WOMAN can sue for damage for breach of promise ofmarriage, but not for seduction •••

BUTER AND SELLER" Responsibility of latter to fo~mer

PAGE TEAll

306 1892to

18g"

INDEX.

c

CAUSE OF Acnow-Suit brought by parties without status to sue­-- Disclosure of-Suit for ejectment... ••• •••- Rejection of plaint GD account of omission of-- Return of plaint for presentation at proper court- ... ...CANCELLATION of mortgage deed executed for fraudulent purpose-

, Fraud noteiiectc:d-Estoppel-Arbitration ... •••

CERTIFICATB of adj~entof decree 'by dect"ee-holdei"-Cornpromiseof suit-Deccee to be passed in ac{;ordance with- '"

- Succession-Grant of joint-undel"section 7, Succession Certifi..cateAet

l'AGE nm

:~J.I.5°1 l~338 ,

544 'I'9fto

IgoE

CHAMPERTY. Application for leave to sue i,Z form4 pauperis-Interest in subject-matter of suit ••• ... ..,2']2 11g2

to189'

Iviii . "INDEX.

C-contd.

PAGE YEAR.

CHIE!" WIFE-Possession of concubine or lesser wife taken duringlifetime and with the consent of-

- Family of-Lessor wife-Family of-Inheritance entitled to­"--- Second wife entitled to share in inheritance with-first-or." when

she has c1early.the status of awife""':Buddhist Law-CHILD-Adoption of-under Buddhist L~w-when child may be

called by parent and adoption cancelled.-See Buddhist Law­Adoption

Guardianship of-and of child's property and ownership of suchproperty up:m second marriage of father subject to Buddhistiaw ••• ... .•• '"

--" Illegitimate-appOintment of guardian of-father's claim-- Illegitimate-father of-if not personally disqualified, may be

entitled to the guardianship of the child "-- Kitt£i1w-what is a-duties ..•CHILDREN Adopted-natural-shares of-Buddhist law-Inherit-

ance .••-- Adoption of-by Mahomedans--guardianship of illegitimate

child ... ... '" '" ...CHILDREN AND ADOPTED CHILDREN-L,lWS relating to shares award~

able to-under Buddhist law in paftition of property "

Custody of-under Mahomedan law-The parties being Mogulsor Persians-Mahomedan law applicable to the Shiah com-munity .•• .•• .•. " ...

Le.g-itimate and illegitimate-Inheritance-Buddhist law__ Suit by-against their Widowed mother for protection of joint

family property ... ... ...-- Vested interest of-in 'parental property under Buddhist law ...

Who voluntarily separate from their mother lin her second mar­riage and perform no filial duties are excluded Crom inheritance

-- of firstwife and child of subsequent \viCe-rules for division ofshare of inheritance under Buddhist l;;Lw-Inheritance

6451.j [31415 189:1

22 ~ to

1

1896176

4-15J

131 18':}1to

19o1

54-01141 I 1891

~ to174J189 658 1

Il3 1897to

Ig01

93 189:1to

ISg6

INDEX.

C-c01ztd.

CF.IN LAw-Inheritance among Chins-joint family property­Customs-Acqurescellce-Binding effect of division of propertywhen once m2.de with assent of interested parties

CHRISTIAN MARRIAGE Acr-4, 60 (:a)-Suit for restitution of eon­jugal rights I.tDder the Chffi.tian Marriage Law-Marriageunder the Chrisban Marriage Law undissolved by death ordivorce bar to subsequent marriage in any fot~

1x INDEX.

C-contd.

CHEQUE-No privity between the holder of a-as such and thebanker on whom it is drawn-Construction of a hundi.-SeeNegotiable Instruments .

CIVIL CouRTs-A right of W!1y as an easement is an interest in landwithin the meaning of section 53 (s), (ii), Land and RevenueRegulation. and !he-~barred from entertaining a suit toestablish such a rIght of way over.State land-See Land andRevenue Regulation ui

--- bound of its own motion to consider whether it has jurisdiction­Duty of Appellate COUlt to rectify error in appeal when ques·tionof jurisdiction has been overlooked ... •••

_ barred from trying suits as to ownership or possession of Stateland ••• .•• ••• ••• •••

___ has no jurisdiction in any matter which a Revenue officer is em­powered under the Upper Burma Land and Revenue Regula­tion to dispose of-A suit will not 'lie in a-to execute theorders of a Rwenue .officer whether by restitution,. or other­

, wise -$66 Civn Procedure .••• ... ...i

- In a suit to alter or set aside a summary decision or order ofa-. not established by Letters Patent the proper court fee is that

prescribed by Schedule 1I, 17 (1)0£ the Court Fees Act-SeeCivil Procedure .t. ... ... ...

x 1904to

1906

443 Jt897to,

207 19°1

13 1C)l)ato

1903

181 1910to

1913

INDEX.

C-f:onttl.

CIViL COURTS. Jurisdiction of-State land-Upper Burma ILandand Revettue Regulations, s. 53(2), (ii) .•• .••

-- to be guided by decisions of Revenue authorities in decidingwhether land is State land ..• .•• •••

- Proceedings and orders of Buddhist Ecclesiastical authorities--cannot be questioned in-solong as they do nothing contl"aryto law

- REGUI.A'1'lON, S. 3{I).13-Suit for a declaratory decree ororder. where consequential ;relief was prayed for-Court-feepayab1e

- So 4-Suit for restitution ofwnjugal rights under the ChristianMarriage Law ••• ••• ••• - '"

- s. I4-Revision not ordinarily allowed where {ltherremedy isavatlable ••• ... .,. .•• .••

-- s. 27-Advocates-Controland taxation of fees of..- •••- should abstain {rom deciding points which fall within the sphere

ofecclesiastical jurisdiction. See Buddhist Law -:- Ecclesiastical

lxii INDEX.

C ......contd.PAGE YIIAlt

CIVIL PROCEDURE, 1882-13; Igo8·-II.-A judgment-debtor appliedunder section 258, Civil Procedure Code, 188~, to have anadjustment out of Court recorded. The Court, after hearingthe parties and enquiring into the facts, decided that thealleged adjustmei1l was not proved. This order was confirmedin appeal. The judgment-debtor afterwards brought a re­gular suit to recover the money he alleged he had paid outof Court. Held-that the suit was barred."by section 1~, Civil

·Procedure Code, 1882 .

- 13 (ii) ~V).-In. order to make section 13 applicable, It mnotnecessary that the matter of the subsequent suit should havebeen heard or have been fully decided by a competent Courtin.the former suit when the case is one to which ExplanationII applies

- 13.-0rders in execution proceedings are governed by prinCiplesanalogous to those of res judii;ata and are binding; if notappealed against, in subsequent proceedings in the same Court

- I3-Suit for restitution of conjugal rights. The point· of lawshould have been made a ground of attack or defence in theprevious proceedings, and that its practical abandonmentamounted to a substantial determination of the matter whichcould not afterwards be questioned in litigation between the·same parties

- S5. 13,43, J44-Suit for value of trees standing on land maynot be substantially in issue in a suit for ownership of land­Custom as regards standing crops and trees on land

- I3-Wheie an adjudication between defendants is necessary togive appropriate relief to the plaintiff, there must be such anadjudication, and in such a case the adjudication will be f'BSjudicata between the defendants as well· as between the plain­tiff and the defendants. But for this effect to arise there. mustbe a conflict of interest between the defendantl; intef' S8 .

- IS, ~44-A suit by a party to execution proceedings to have aCourt sale set aside on the ground of fraud will lie when the

. decree has ceased to be capable of execution, and it is nolonger open to the plaintiff to apply under section 244 to theCourt executing the decree~wherea Subdivisional Court hav­ing jurisdiction under section 10, Upper Burma Civil CourtaRegulation, entertains, in contravention of section 15. CivilProcedure Code, a suit which should have been instituted in aTownship Court; this is a mere irregularity which does notvitiate the proceedings-Limitation, 11. 12. 91• 95. 178-Specific Relief"";'39 ... ... •..

--- s. 16-Jurisdiction of Court~Return of plaint tobepresentedto the proper Court..,...Removal of attachment....Regular suit ...

13 1907to'

1909-

46 19°4to

1906

I 19°7to

1909·

g42 1892to

1896

213 1897to

19°1

5 1901to

1909'

,

36 1904-to

190 6

iU6 1897to

1901

SSe 2, 556, ss8-0rder under s. S56 dismissing an appeal fordefault not a decree under s. 2-Special procedure providedto be followed· .,~

CIVIL PROCEDURE, ss. 16, 19, read with section 43 operates as a barto a suit in which a claim is made to immoveable propertysituate in a different district from that in which a previoussuit has been brought on tht: same cause of action for immove­able property situated in the latter district

INDEX,

C-contd.

- Section 2-0. XXXIII, rr.. 5 & 7.-Heid, an order rejectingor refusing an application for permission to sue as a pauper isnot a decree and no appeal lies.

The SeC1'etaf'Y ofState foy India in Council v. '7illv (18g8)I.L.R.,21 All., 133, referred to.

Mi Mya v. 14i Gyi

--g -Buddhist Law-Ecclesiastical.-In a dispute between aBuddhist layman and a monk relating to land on which amonastery stanas a Civil ~o~rt has jurisdiction tQ try the suiton its merits; and the prOl>er basis for the decision of the suitshould be the texts of the Vinaya as far as they can properlybe applied. _Semble-A monastery dedicated to an individual Bu~dhistmonk does not become his absolute property and he can onlyclaim exclusive rights over it for r2 years at most.Held-tha.t a gift by a monk whether to a layman or to a monkof a monastery or of a site for a monastery whether it has beendedicated to him personally or not, is invalid.See Buddhist Law-Ecclesiastical •••

- 25-A Superic.r Court cannot make an order of transfer of acase unless the Court from which the transfer is sought to bemade has jurisdiction to try it

_. 31-32-Suit brought by parties without status to sue-No causeof action

- ss. 36, 96-Appearance of advocate of party equivalent to ap-. pearance of palty himself ...

- 36-II7-1l8-Duty of courts to frame issues and to allow areawnable time to parties to prccure legal advice and assis­tance and to take into consideration the circumstances underwhich alone such advice and assistance are obtainable inUpper Burma

-- 42.43 - When under Buddhist law a suit has been brought fordivorce without partition of property a subsequent suit forparti­tion of the joint property is maintainable.-See Buddhist Law­Divorce

Ixiii

PAGE 'YEAR

222 r897to

Igoi

206 1897"'toI901

183 191:0to

1913

28 1904to

1906

24.4 1892til

I8g6

:1.(.0 1891to19°1

245 1892to

1896

12 1902-1903

5

bdv INDEX.

C-contd.

PAGE TBAlt

CrirL PROCEDuRB, ~2, 43-Mesne profits, whi<;h C'lIl be cl:-timedin a suit for immoveable property up to d Lte of suit, butwhich were not so claimed, cannot be 5ubsequ~ntly sued .for,i.n a subsequellt suit because th~ cause of action is t'le 5"lme

-- s. 43-Suit fup partition o( a portion of joint propertv cannotlie-the whole estate should be brought into divisIon J •••

_.s....:1, read with sections r6 and r9 operates as ~ bar to a suit·, in which a claim is made to immoveable property situate in a

different district from that in which a previous sllit has beenbrought on the same cause of action for immoveable propertysituated in the latter district

- 43, 21 I, 2 :2. 244-Mesne profits for the period prior to institu­tion which can be claimed in a suit for immoveable property,must be profits which the person in wrongful possession actuallyreceived or might with ordinary diligence have received duringthat period . '

§ s. 47, O. XLI ll-Held-that all orders that come under section47, Civil Procedure Code. are not decrees but only those thatai:e not appealable under O. XLIlI.I.L.R., 19 Cal., 683.-- 26 Cal., 539•

.Mav.r.g Skw!! Myat .V.' llfauizg Shwe Bale and--z otkers

_ -.ii-Future mesne profits-Res-jutlicata-In a suitior immove­able pr.-percy and mesue prouts future mesne profits wereclaimed but were not granted-Held that notwithstanding thatin the present code. the penultimate p3ragraph of section:l44of the code of 188z has been omitted the plaintiff was entitledto bring a fresh suit for mesne profits which had accrued dueafter the institution of the first suit.U.B.R" t904-ob., H, Civil Pro.,so.LL.R" 22 AJI·,42S. .Mi Sa U v. NgaMeik find Olle

- 47. Schedule I-D. XXI, r. 2,-Noauthority fOi-permitting ajudgment·debtor in execution proceedings to prove in contra­ventiOll of-an adjusmient out of Court, if such adjustmenthasnot been certifie,d and he has not applied within the timeallowed by Article 174, Schedule I, Limitation Act, to have itcertified-:.)ee Limitation

_ s. 53;'" When plaint may and should be returned for amend­ment or amended .

__ 53__Silit .for enjectment-Cl.aimas representative of deC"'..asedlandlord-Rival claimants contending for possession of land­Disclosure of cause of action-Plaintiff entitled to -choose ownground for fighting defendant-:Return for amenClment insteadof rejection ofplaint.- . ••• ... ... •••

I: 1904­to

1906

:1291I}o 18/)7

rto

19o1222)

50 1904­to

1906

139 1/)14to1916

81 1914­to .1916

19r 1910to1913

231 1897to

19o1

INDEX.

C-contd.

IxV'

PAGE YEAR

••• 244

4. 1904to

'1906

11897

240 tl;~r254 J

53 I9[0to

19 t 3

1917.1stQr.

261 1892to

1896

237 1897to

Igor.

·CIVIL PROC~DURE, 53, 283, 280, 2~I, 282, 49~-Suit to establishright to property removal cf attachment of which had beenrefused ... . ...

-- 54-Can be applied at any stage of a suit as the sectioncontained no limitation as to time-Dismissal of a suit under-valued and understamped .•. ...

._- 63, 73- Where A, the holder of a decree in· the lfownshipCourt, attached and sold property in execution, and B, theholder of a decree in the Subdivisionnl Court against thesame judgment·debtor. applied for execution before theproceeds of the sale were received by the Township Court, andthe Township Court in contravention of section 63 distributedthe proceeds though it had notice of the proceedings in theSubdivisional Court, and without g-iving a share to B,-Heltl­that B was entitled to recover in a regular suit the share whichhe would have received, on a proper rateable distribution, fromthe persons to whom it had been wrongly paid.

?C.W.N., 126; I.L.B.R., 121; I.L.R. 23 All., 106; I.L.R. 12Cal., 333; I.L.R. 29 Cal., 173.Somasutlllram Chet~ v. AUagappa Chetty

-- 8o-~0 appeallies from a decision on a preliminary issue ina suit where such decision does not determine .any of thereliefs claimed in the plaint.Nga Meik and on' v. Nga Gyi

.- 64, 99A.-Erro~eous order for withdrawal' of.suit on account ofthe defendant s address not being known '" ...

-- 55. 103,578, 591-Objection to re-opening a case not havingbeen taken in the Original Court, the point cannot be raised inthe Appellate Court

- 108-A Court re-opening a suit without making any enquiryor giving the opposite. party the opportunity of opposingthe application, acts illegally 6r with material irregularitywithin the meanin.g of section 622, Civil Procedure Code

- s. loS-Application to re,open a case dispose4 of at a hearing" :) ;,. at which defendant did not appe;J.r, but his advocate put in an

appearance and was present at the examination of witnesses­rightly rejected by Court of first instance .•• ...

- s. loS-Ex parte order under s. 258, Civil Procedure Code-Governed by~AppeaIlies· ... . ", ...

.- loS-Care must be taken to effect service on defendantper~onally, ifpossible, and to give him a reasonable time [orappearing and defending the action if he wish~ •••

- nl-Set off and right to deduct distinguished-

255

253 Ji892to

1896

1892to

1896· .18g7

to1981

lxvi INDEX.

C-cordd.

CIVIL PRO(;~:DURg, lis-:Held-that when a (~ivil COllrt takes actionunder section 476 of the .Code of Criminal Procedure, theHigh Court cannot interfere under section 439 of that Code inrevision, as the power of revision is expressly confined to therecords of Criminal CourtS; but the High Court can interferein the exercise of its Civil Jurisdiction under the provisions of

, section I I'l of the Code of Civil Procedure.. U .B.R.. 1907-09. I. Crt Pro. I.

L.B.R.~ Vol. IV. 339. .LL.R.,40 Cal•• 411.. .N {Ja San Chein v. Sookaratl:t and one

--' lIs-Where an application of a decree·holder to forfeit thesecurity bond of a Surety of a judgment'debtor, who, havingbeen released in order to enable him to apply to be adjudgedinsolvent had failed to do so on the. grounds of illness wasrefused-Held-that the remedy of the decree-holder againstthe order of the Lower Court lay in an appeal and not in anapplication for revision under sectlon lIS, Civil ProcedureCode.

LL.H.. IS Alt., 183..Nga Kye v. Nga Kywe alld otie

146,S4z-At the6rst hearing of the suit--Framing of issues-new ground of objection in appeal ... '"

IS1.-() .. XXXIII, .r~1-Where the Lower Court dismissedan application for permi$ion to sue as a pauper on the groundthat the appli~ant had co-heirs with means who had not suedand might come in as defendants in' an administration suit, andthat these circumstances disclosed an abuse of process of theCourt,-Held-that no such abuse was disclosed and that the

. Lower Court was bouml to decide under O. XXXIII, r. 7. onthe grounds llpecified in r. 5.lI1i Hla Mill v.Mi Ket and 8. othel'S

_. s. 199-Judgment written by .a Judge afte:making overchargeof his office not invalid· ....

-- 230-ARTICLE 179. ScHEDULE II, LIMITATION ACT­. Ordering execution of decree more than three years from dateof last application of execution. an illegality within the mean­ingof section. 622---SeeCivil Procedure ... .••

--. 230, 235. 24S-A Civil Court may send a decree simultaneouslyto two other CourtS for execution and issue process in executionitself without waiting for the reports of the other Courts­Execution may not· be ordered on an application which· doesnot comply ,,-ith the provisions of~tion 235, Civil ProcedureCode-See Execution of decree ... ... •••

__ s. 23I-Application byjoint decree-holder-Exercise of judicialdiscretion by Courts in dealing with application under-

. .

~3 191 4­to'

1916,

103 1914­to

1916·

265 lS9sto

1896,

26 IgIo-·to

1913.

246 1897"to

I901.1,

26/ I90~)0 ro-

r906

1 j·247 1897­

to1901•

INDEX.

C-contd.

·CIVIL PROCEDURE, s. 244.-Decree-Execution-Question to bedecided by CGurt executing decree ....•.

- s· 257A-the provisions of-apply only as between patties tothe suit and decree •. .. . .•.. ...

._- s. 258.-Appeal against ex-parte order under- _..

.- ss. 258, 37s.-Certificate of adjustment of decree bydecree-hoJder-Compromise of suit-Decree to be passed in accordancewith- ..

258 (1882)-A judgment-debt( r applied under-to have anadjustment out of Court recorded. The Court, after hearingth~ parties and enquiring into the facts, decided that thealleged adjustment was not proved. This order was not·

.confirmed in appeal. The judgment-debtor afterwards broughta regular suit to recover the money he aJIt;:ged he had paidout of Court. Held-that the suit was barred by section 13,Civif Procedure Code, 1882-See Civil Procedure

55. 266, 274-Property under mortgage with possession-notliable to be attached-Right to redeem liable to attachment ...

-- s. 2~6.-Right of u~e a~d oCSijpancy in State land not liable toattachment and sale In execution of decree-Upper BurmaLand and Revenue Regulation, s. 25 '"

55. 278. 283- Investig-ation of claim to property attached inexecution of decree-Points for enquiry-Duty of investigatingcourt

ss· 278, 283-Pr"perty wrongfully seized in execution ofdecree-Special procedure laid down in section 2.78. intendedto provide a speedy and summary remedy and not to deprivea claimant of his remedy by way of suit .•• _.,

-- sS.278, 280,281,282, 283-Suit fordecIaratory decree-Whereconsequential relief was prayed for-Court-fee payable ...

- 278, 283-When a claimant under section 278, or plaintiff ina suit under section 283 proves possession, !section IIO,Evidence Act, applies and he is entitled to succeed unl.~ss the.other party proves that he is not the owner or that he holds intrust for the . judgment-debtor-Burden of proof-Fraud

280, 281, 282-ln a suit under section 283, Civil ProcedureCode, the burden of proof is not affected by the summary orderunder-See Civil Procedure .... ... ~.

- 283, S61-A deed of conveyance of property to one creditorwith the object of defeating another creditor is not .void p~o­

vided that it is bona fide, i.e., if it is not a mere clock f"r re­taining a benefit to the grant or-A civil appeal should ordi­narily be fixed for hearing.so as to allow at least an intervalof a month between the date of serving the notice and the dateof hearing the appeal •• . •..

- 295-A decree-holder who attaches and sells moveable pro­perty of his judgment-debtor, on which a third party has alien is liable to that third party for the loss that he sustains byhaving his lien destroyed or impaired ... '"

.- 283-A suit will lie to recover COStS incurred in unsuccessfullyobjecting to attachment of property in execution of decree,when the attachment was wrpngful, and it is not n-:,cessary forthe plaintiff to prove that the defendant acted maliciously orwithout probable cause in making the attachment or resistingthe apphcation to have the attachment removed

Ixvii

PAGJ>; YEAR

. 1249 I

252 I1891~ to

254- IIgor

256 J

31 190 1to

[gog.1

261 IlI897

258 r toI1901

262 )

26] '} 1897to

355 1901)

1190 4­} to

s 11906I

16 .J

1

'lg02IS }- to

1

1903

9)

18 1'04­to

190 6

lxviii INDEX.

C-contd.PAGB YlU-R"

CIVIL PROCI'.DURE, 283-A suit will lie to recover costs incurr~d inunsuccessfully objecting to attachment of property in executionof· decree when it is shown in a 'suit under-that the defen­dant had no colourable justification for attaching the propertynor for defending the application for removal of attachment .,.

28S-A Township Court has jurisdiction to try a suit broughtunder-to a~sert the same right which a Subdivisional Court·had:ciisaIlowed under section 28r-In such a suit the jurisidic­tion of the Court is determined by the amount in dispute andnot· by the amount of the decree in execution of which theproperty had been attached

2S3-In a 'suit under--the burden of proof is not affected bythe summary order'under section 280, 28r or 282.,.

-- s. 283-Proof-:Burden of....o:Possession-Judgment-dehtor--Judgment.creditor-Attached proper-ty .:.

s. 283-Suit instituted under-to est<loiish a right to immove­able pn petty must be brought in the Court within the locallimits of which the land is situate in accordance with s. 16{d)

29S--A suit under-is not a suit to .set aside an order-andArticle 13. Schedule I I, of the Limitation Act is inapplicable tosuch a suit-See.' Limitation

__·295-,-An. order as to priority of mortgages inexecution ofmortgage decr~es lor ,sale is. an order in execution and anorder under- ..

-- s. 29S-Execution sale-Proceeds of-Parties claiming interestin-should be given an opportunity of being heard nnd ofestablishing their claims to pmticipate in the distribution ...

- s.295-Mortgagee who has not obtained a decree in hismortgage has no right to obtain by an order in execution pro­ceedings or by miscellaneous applicatiun, payment of his debtout of the sale proceeds of the property under mortgage whensold in execution of a decree .•..

____ 3Uo-Holding an execution sale at an earlier hour tp.an that·specified' in thepr()Clamation of sale is a material irreg-ularityto be cO£rected in accordance with-and not an illegality'~endering the sale .void •

336, 253-Liability of person executing a security bond onbehalf' of a judgment'debtor absconding after applyingto be declared aninsolvt)nt .••

s. 337A-The judgment-debtor is the. party who. has to showthe Court his right to exemption from the provisions of Lawwhich the judgment-cremtorhas plit in force against him ...

_ S.373-Withdrawal of suit-Reference to arbitrators whichprovedinfructuous;~?tabar to institut~onof a; fresh suit onthe same'cause of aetlon-Mortgage-Redemptlon of-

4 Ig04-to

1906

2741i 1 897} to11901•

27t'i J

9 1901to

19O(l,269 1892:

to1896

INDEX.

C-conttl.

CIVIL PROCEDURF, s. 34I-Judgment-debtor arrested and releasedimmediately without being imprisoned may be re-arrested-s.341 inapplicable ,... ". •••

- 55. 345, 350, 351-Application by judgment'debtor to bedeclared insolvent-Burden of proof on judgment-debtor ...

- So 313-Withdrawal of suit with the consent of defendant-Reference to arbitrator which proved infructuolls-not a barto institution of fresh suit on the same cause of action .,

- 407-AppJication for leave to sue in forma pauperis~An

agreement with an advocate tl1aking payment of fees ~ntingenton the success of the proposed suit comes within'the meaningof clause (d)-Champerty ... ,.. . ..

- 463-1£ a person be admitted or found to be of nnsound mind,although he has not been adjudged to be so under Act XXXVof 18,,8 or any other law for the time being in force, he should,if a plaintiff. be allowed to sue through his next friend and theCourt should appoint a guardian ad litem where he is thedefendant

483-Held-that section 6~~ Civil Procedure CodE!, does notextend the operation of-to property outside the jurisdiction ofthe Court-See Civil Procedure

483, 485-Proccdurc under these sections to be followed beforean order for attachment of property before judgment issue~

-- 503-The appointment of a receiver is ~f step which should notbe taken without special reasons, particularly in the case of abond fide possessor with legal title. Parties who have acquies­ced in property being enjoyed against their ownalleged rightscannot obtain this form of relief •••

- s. 516-Arbitration-awatd-Omission to give notice as requiredby-constitutes a material irregularity-If award has to be re­mitted notice should be issued under s. 516 when the awardin its final shape is filed in Court

520, 521-1n deciding- whether,an award of compensation in aseduction case ~hould be enforced or not, the Courts have onlyto look to the provisions of-and determine whether any of thegrounds mentioned or referred to in those sections is shownagainst the award. The fact tha~ the subject-matter of anaward is not such that could be a cause of action in a Civilsuit, is not necessarily an objection to the legality of the award

_ 521-ln a case where a Court' has ordered an award to be filedunder sectioR 525, Civil Procedure Code-Held-thatan appealimpugning the award on grounds falling under-does not lie-See Civil Proc£dure •••

hdx

PAGE YEA~

..272 189:;;

to18\)6

go 1904to

1906

13 19°7to

1909

274 1892to

18g6

17 Ig07to

1909

24 1897, to19°1

"0 1904to

1906

lxx. INDEX.

C-contd.PAGE YEAR

£ZTlL PROCllDURE, s. 522-Appeal against a decree under-Award­Arbitration-Reference to- 290 1897

to.19°1

5 1907to

19°9

279 1892te

1896

24- 1904to

~906

206 1897to

IgOI

I

1190452 ~ toI19

06

40)

1I 1897

297.~ toI 1901

293)

276 J893to

.1896

3°1 , 1897to

1901

-- s. ss6-0rder under-dismissing an appeal for defal1lt - not adecree under 50 2 . .;.

-._.- 551-ln section 12 of the Limitation Act, the "time requisite. for obtaining a copy" does not commence until the appellant

does something to obtain the copy-Uelay.in signing a decreecannot be brought in to benefit a person who has not made anyapplication to obtain a copy .. . .,. . ••

-- 549-Security for payment of costs incurred in Court of FirstInstance as well fiS in Appellate Court when ordered to begiven, should be ordered with great caution and the carefulexercise of discretion

- 558-VV'here an appeal' was dismissed for defautt, and theappellant applied to have the appeal re-opened on the groundthat he was misled by his advocate who had misunderstood thedate fixed for the hearing,~Held-that a fair opportunitymust be given to the appellant to prove that he had sufficient.cause for his non-appearance. and the explanation. if made.out,would be a reasonable one. and the appellant would be entitledunder--to have the appeaIre-opened-See Limitation ... '907

to1:909

-~g-A.fter all appeal lias, beell rejected under-the applicantmay apply to have it restored on furnishing the requiredsecurity-See 'Limitation

-- s.539-Appointrrlent of. trustees by any body or authoT,ity­Burden of proof of a trust

-- -s.'S:I:"i-Power of Court on application to file an award-Courthas no power to'rnodifyoreorrect an award-Appeal againstorder refusing to .file an award . .•• ..., ...

...,-.... ..S.525-Suit for specific performance of' an award:-Evidence-s. II:;-Estoppal .•• ...526...,-Arbitration~Award-Filingof award in CourLsigned by

the:majority and not by all the arbitrators ... . ..

....i.- 525, 526-Arbitration without the intervention of the Court-. Appeal~ln a case where an award has been ordered to be

filed in Court under section 526, the Court having disallowed anobjection as to the validity of. the submission, no ap.peal tiesexcept on the grounds specified in section 522:- .•.

-525-lna case where a Court has ordered an award to be filedunder-Held,-that an appeal impugning the award ongroundsfalling under settion 525, Civil Procedure Code, doesnot lie

INDEX.

C-contd.

-CIVIL P~OCEDUREIs. s6r-Cross-appeaI-FiIing of memorandumof objection .•• ... . . ... ...

- 55.562, S66-Suitdecided on merits cannot be remanded for afresh decision under s. 562-5. 566 applicable ...

.-- s. 568-Evidence-AdditionaI-Production of-in AppellateCourt ...... ...

'-574-The judgment of the Appeliate Court should show on the" face of it that the points in dispute were clearly ~fore the

mind of the Judge, and that he exercised his ·own discrimin·. ation in deciding them

- 578-An Appellate -Court should not reverse the decision of theCourt of First Instance on a technical point not, affecting themerits of the case

-- s. 59I-Arbitration-Reference to-Award-Appeal

-622-A Court re-opening a~uit without making an enquiry or. giving the opposite party"1he opportunity of opposing the

application. acts iIlegalIy or with material irregularity withinthe meaning of-See Civil Procedure

-- 622-Secti(,n 230. Civil Procedure CtJ<ie, Article 179, ScheduleII. Limitation .Act,-Ordering execution of decree nwre thanthree years from date of last :Jpplication for execution anillegality Within the meaning of- ...

-'-. s.622,.-Revision not ordinarily allo....-ed where other remedyis available-Civil Courts Regulations, s. 14

-- 623-A review of judgment cannot be admitted for the purpose. .' of re-arguing a case on previous material -Error of law can

be a good ground for review only where the law is definiteand capable of <1istinct ascertainment

-;623-Application for review of judgment on the ground of non­. pr{)duction of certain evidence in the Court of First Instance,Upper Burma Civil Justice Regulation, section 85

--'0 623'- Conditions necessary on the entertainment of an appli­cation for review of judgment

- 648-Held-that section 648 does not extend the operation ofsection 483 to property outside the jurisdiction of the Court ...

-- O. II-I, 2-Where plaintiff sued for a share of produce ofland alleging that he was a co-heir, and the tand undivided·family propert)', and defendant denied these allegations,­Held-that the suit was one for partial partition and. as such,was not maintainable on the principle laid down in Mi Mya v.Hi Mye (U.B.R., 1897-01, II, page 229) ••• ...

lxxi

PA.GB YEAR

306 1t t891

307 }- t.ol'Igol:

30 9 J

c

34 19o(to

. 1906

282 1892to

1896310 1891

to19o1:

3 ll}Olto

1901

284)II 1~92

. } to11Sg6I-

281)

131'il~1

t90f

2IJ

lxxii INDEX.

C-col1.td.

PAGS YEAR:

CIVIL PROCEDURE, O. VII-IO-Held-that a High Court by direct­ing under section 22, Ch·i! Procedure Code, that a suit shallproceed in a Court in another jurisdiction and not in theCourt in its own jurisdiction in which it has been institllted,in eftt'ct .stays further proceedings in the latter Court andmakes the Court incompetent to proceed with the case, andhence the only course .open to it is to return the plaint to theplaintiff for presentation in the proper Court ... ...

O. VIII, r. 2-Although a case must be decided 011 the plead·ings and not what transpires in . the cast:, yet to non-sui.t aperson because there is not sufficient lega I advice to draw upthe pleadings as fully and carefully as they might be, wouldobviously involve great hardship on litigants, and hence wherea Court of· Firs~ Instance .framed only one issue on the plead­ings" but that issue was of sjIch a br<'ad nature as to cover notonly the question referred to in the pleadings but also anotherquestion which had been indirectly raised.-Held, that therewas nothing illegal in the Appellate Court taking- into con­sideration, when deciding the case. the question which was in­directly raised though not specifically referred to in thepleadings..

Chyistensln v. Suthi,c; L.B.R., 16.Mi Than v. Mi P~1Ia Hlaing, C.A. No. 1~3 of I90S (unpub­

lished).Mi Pwa Se v. Mi Tin Nyo, U.B R., 1902-°3,11 B.L., Gift, 1.Nga Mjat Thin v. Nga M"e and one, U.B.R., 1907-°9,

Execution-Signing, I.

Mylapore Iyasawmy Vyapoory Moodl£ar v. Yeo Kaya.ndothers, I.L.R. 14 Cal., 801.

U Thondaya v. Nga Ni and 17 others

O. IX, r. IS-:"Held-that a suit will lie to set aside an ex pa1·tefraudulent decree although no endeavour had been made toget the d.ecree set aside and· the suit revived under­Civil Revision No. 28 of 1914 (Uapublished).

I.L.R., 21 Cal., 437 and 605.-- 24 Cal, 541.- nBom.,6.-- 38 Mad, 203.16 C.W.N., 1002.Nga Vein and one v. Nga So

- O. IX, rr. 9. 13; O. XLI, r. 19-Principles by which Courtsshould be guided in dealing with. applications under theserules .

O. XXI, r. 7, section 41-Held-that under O. XXI, r. 7, aCourt to which a decree is sent for execution has no power toquestion the jurisdiction of the Court which passed the decree.An order refusing to .execllte a decree is a decree within themeaning of seCtion 47of the Code of Civil Procedure and anappeal from such an order lies.

I.LoR., 28 Bom., 378.- 28 Bam., 1940

27 1901to

1909

INDEX.

C-contd.

I.L.R., 38 Cat., 639 at page 668.I U.B.R•• 1910-.13, 82. Ma Jfe v. Maung Aung Min

CIVIL PROCEDURE, O. XXI. rr~ 60, 61-Held,-th:;.t though a Judge.may refuse to make·an investigation under O. XXI. r. 58, if heisof opinion that the application has been designedly delayed,he cannot dismiss an application on that g.round once he hasmade an investigation but is bound to pass an order under r.60 or r. 61. . l!

Nga Sail Balu alld another v. Mi Thaik fJlId'""another

-- XXI, r.6g-Court Fees-Schedule I1-At"tide 17 .(l)-Evi­dence-33, 145·-In a suit to alter or set aside a summarydecision or order of a Civil Court not established by LettersPatent the proper court-fee is that prescribed by sub-section(1) of Article 17 of Schedule II of the Court Fees Act. Sucha suit should be decided on the evidence tendered and takenin the regular suit and not upon any evidence taken in theSummary Case. . .

R. M. L. M. Subramal'.idf/l; Chett, v. Maung MaulIg Pe,U.B.R., 1891-01, II, 355. .Pht~l Kumari v. Ghamshyam Misr, I.L.R., 3:; Cal.. 202.,Nga Seik v. Nga Pu .•. ... ...

-- O. XXII-An amendment that would deprive a party of the. defence of limitation should 110t be ailowed-See Limitation

- O. XXXVIlI, r. S-Attachment before judgment-Held-that. a Court has not power to atl;.ch before judgment property

situate outside the local limits of its jurisdiction and that theCode of 1908 has effected no change in the law· in this respect.

Kin Kin v. Nga Kyan We and two others, V.B.R., 1907­09, II, Civil Procedure Code, 13.

Haji :Ji'Ua Nur Mahomed v. Abubakar Ibrahim Memam, 8,. Born., H.C.R•• O.C.J., ~9.

Bhai Khan v Des Raj .. .~.

- a.XLI., r. 22-Held-that a Respondent in an appeal is notordinarily entitled to urge cross-objections except against theAppellant.

I.L.R., 23 All., 93; I.L.R.,37 Bom, 51 I; f,L.R., 26 Cal.,IIlj.; f,L.R., 30 Ca.l., 655; 15 W.R. 26; 16 C.W.N., 612.

. Nga Tin ana one v. Nga Saw... ... •..- O. XLI, rr. 22, 33-Held-·that where a .party appeals against

that portion of the decree in respect of which he has beenunsuccessful, the Court is not ordinarily entitled, without anyformal cross-objection by the other side, to set aside so muchof the decree as has been in favour of the appellant.

I.L.R., 34 All., 32. .Maung Chit Pu and one v. Maung Pyaung ana three otners

- O. LXI, r.31-Held-that the provisions of .0. LXI,r. 31,C.P.C., were not applicable in their entirety to an appealdismissed under O. LXI. r. 11, but that the Judge of theAppellate Court should at least show that he understood thecase and had considered the grounds of appeal and that incases invoh-ing a decision of a question of fact he should readthe record and write a full judgment.

PAGE YI!:~

II9 19~

teI91:~

136 191"4­tll'19~

hxiv INDEX.

C-contd.PAGE YBAR

I.L.R, 25 Cal., 97.-- 30 All., 319.-'- 36 Born., 1I6~-- 37 Born., 610.13 C.W.N., 1631.Nga San Baw and five others v. Nga Lu E and one

·CIVIL PROCEDURE CODE, O. XLVB, r. 4 (2) (b) Pointed. out-thatthe provisions of O. XLVII; r.4 (2) (b) are imperative andthat a review of judgment on the ground of discovery of newmatter or evidence cannotbe granted without strict proof thatsuch new matter or evidence was not within the knowledge ofthe party npplying or could not be adcluced by him at thetrial. .

Nga Tet Pyo and two othe1's v. Ala Ngwe ](a and six (ltTtersSchedule 1,0. XXI, rr. 58-63~\Vhere land in possession ofthe judgment-debtor wasattached"and the Subdivisional Court;wrefused to entertain a claim bya person who a!leged that hewas the owner and mortgagor and that the judgment-debtorwas only a mortgagee in possession-Held-that the Courtwas bound to im'estigate the claim, and if satisfied'oof its truth'to remove the attachment tt) the extent of the claimant's in­terest, and-that it acted illegally or with material irre~111arity

in refusing to entertain the application.MonmoMlli Dasi v~ Radlza Kristo Das, I.L.R., 29 Cal, 543.Hamid Bakht Mojundar v. Baklztiyar Chand Maho, I.L.R.,

14 Cal., 617.Sheoraj NandalL Singh v. Gopal Suran Narayan Singh,

I.L.R., 1$ Cal., 290... ..Kumarappa Chett" v. Nga Pyi, U.B.R., 190!-06, 11 Civil'

Pro.I8.Lal Vas v. Jamal Ali, 9 W.R.,I87.Jogelldl'anath Malik v. Ram Narayan, 9 \\f.R., 488.Kalyall Das v. Sheo Nandan Parshed Singh, 18 W.I{.. 65.Nga Kye v. Po MilL, U.B.R, 1904--06, II, Sub·mortgage, I.

Nga Tok v. Subramonian Chetty .. •..

- 647-Provisions.ofthe-should be followed as far as may bein prcceedings under the Guardians and Wards Act

II.-In Revenue proceedings of a judicial nature a Revenueofficer has inherent power to execute his own orders. A CivilCourt has no jurisdiction in any matter which a Revenueofficer is empowered under the Regulation to dispose of­section 53 (1), Upper Burma Land and Revenue R.egulation.A suit wiII not lie in a Civil Court to execute the orders of aRevenue officer, whether by restitution or otherwise ,•.

- II..,-suit for rent of State lan.d not cognizable' by the CivilCourts,--See Civil Procedure ... .••

- s. II.-Jurisdiction of suit for redemption of mortgage of Sta.teland-Barred by Upper l1urma Land and Revenue Regula-tion, s. 53 (2) (ii)-Possession .,. "' '!'

- S. 1 I.-Civil .Courts-Jurisdiction of-State land-U pperBurma Land arid Revenue Regulation, s. 53 (2) (ii)

- s. II.-Civil Courts to be guided by decisions of I{evenueauthorities in deciding questions whether: land is State land ...

-- tI, i5..I7 & 57. Return of plaint for presentation at propercourt-eause of action

192 1

, 1914t to

"9'.I

I26J

75 1910to

1913

407 1893to1896

2 0 71I t897

20;) ~ toI '901

'JuJ

338 1893

to1896

INDEX.

C-contd.

Ixxv

CIVIL PROCEDURE CODE, II, 41.-' Where the lower appellate courtsummarily dismissed a suit decreed by the court of FirstInstance on the ground that it was barred by section 47J andthat the plaintiff had set up a new case in an amendedplaint.-Heltl-the order was bad as it ,"as not shown thatthe new plaint was inconsistent with the original case or thaton any ground the suit ought to be dismissed.

Nga K-ye v. Mi E Afe. {J.B.!?., 1897- 1901, Il249'Fakruddin Malunned Ahsan v. OtJif:ial Truste*,of Bengal,

I.L.R., X Cal., 538. ..Nga Sa Gyiv. Ye Ban, U.B.R., 1904-06, II Civil Pro., 36.Man'''bai v. Virchand.IX Rom., LR., 1020.Nga Po Tun v. Mirhd Pon ••• 66 I'i~'

to[<}l!.

lxxvi INDEX.

C-COlltd.PAGE' YEAR

CIVIl; SURGEON-Claim by a-an officer of the I.M.S. for two pro­fessional visits to the wife of a Government servant where no ­agreement had been come to as to fees-See Contract

>CLAlM.-As representative of deceased landlord-Suit for ejectment- for half joint property -an"d suit for a divorce under Buddhist

Law ..• ' •••- of wife to inherit the propet'tyof her deceased husband to whom

she was unfaithful '" .. ... .-- to est.ate of deceased by widow and by grand-ehildren descended

from former wives who had been divorced or separated from-"- to land alleged to be mortgaged-Burden of proof " "-- to land alleged to be ancestral-Family compact-estoppel ...- to share of family estate-Effect of land passing from one

branch of family to another-Burden of proof-Limitation ...- to share of inheritance before death of b:>lh parents-waiver of

" interest in portion of estate of surviving parent ...

CO-HEIRS-Buddhist."-rights of-to contract between themselvesirrespective of the rules of Buddhist Law ... ...

- cannot sue administrator for partition of the estate of an in­testate-See Probate and Administration

INDEXe

C-contd.

CO-HEIRs.-Claim to share of ancestral property by-against other­possession for upwards -of twelve years-Limitation

-- Conflicting claims of alleged-Evidence of separate possessionby one branch of family-Effect of mortgage by that b.ranch

-- Joint family property-Separate holding by one branch-adverse ~"SSion-Limitation ... .. '"

._- or co~mortgagorwho redeems ordinarily steps into the shoes ofthe original mortgagee and the 60 years of limitation run fromthe date of the original mortgage or from the date of theaccrual. of the right to redeem .,. .• •••

- Pre-emption before sale of a mortgage applies.agamst outsideronly and not against a- ... ". ...

Redemption by-elaiming in individual right joint familyproperty, portion of which was under mortgage-Time fromwhich period of limitation begins to run

Redemption by-:\Iortgage-Question whether mortgage isextinguished or merely transferred---:-Period of limitation .•••

-- Transfer of land by head 6"l'joint·family binding on-estoppel

.- When one-mortgages un~ivided anoestral .pr.operty a suit byanother-to -compel partition of the mortgage mOney is, in the

. absence of any agreement for partition, not maintainable-SeeMortgage .

- ·Claim to share of land on ground of-Burden of proof (jf factand date of mortgage on the party alleging it, and also ofredemption being in interest of others than the person makingit

Ixxvi

PAGE T~

4371

5SS !18qlr)ftc

44+ ~[Sq4i.

f490)

«$II . [891

toIgo!:

500 18g%to

I$¢i

413 IS9fto

I9Of.383 l~

tolSgli

171 191Gto

1915

487 IStz.to

ISg6

lxxviii INDEX.

C-contd.PAGE YEAR:

COLLATBRAL SUCCESSION-In the case of-the general principle ofthe nearer relatives excluding the more remote takes full effectand so long as there is a surviving brother he excludes thechildren of a previously deceased brother-See Buddhist Law- Inheritance

COLLUSIVE-Divorce to avoid attachment of property

5 19°4­to

1906

41 1892:to

18C}6

INDEX. IxxiJ:

C-contd.PAGB YEAlt

COMl'ENSATION-A stipulation in a bond for payment of interest atan enhanced rate (120 per cent. per annum) from date of exe­cution, in case of failure to pay principal and interest at 60 percent. per annum within a time specified, is by way of penaltywithin section 74, Contract Act-; and interest at the sameinstead of at the enhanced rflte is reasonable. See Contract _., 17

1901to

19oJ

18g?to

1901ISgZ

to189&

18g3to

1896-

40 \9ICt$

S9I3

548 18g:Eto

1896

Reasonable-permissible for breach of contract 290

--..:. IN SEDUCTION cAsEs.-In deciding whether an award of com­pensation in a seduction case should be enforced or not, theCourts have only to look to the provisions.of sections 520 and521, Code of Civil Procedure, and determine whether any ofthe grounds mentioned or referred to in those sections- isshown against the award~ The fact that the subject-matter ofan award is not such that:1t could be a cause of action in aCivil suit is not necessarily an objection to the legality of theaward. See Civil Procedure... 19

- Claim to-for improvements before allowing redemption inabsence of express condition to that effect in mortgage deed

- A suit for-for maliciously causing a search for stolen propertyto be made by the Police in the plaintiff's- house, is not a suitfor compensation for injury within .(Schedule II), Article 35,and is not excluded from the cogmzance of a S(llall CauseCourt. See Provincial Small Cause Courts ,...~ ...

-- Principles on which-should be assessed under s.ection 74,ConcractAct 333

- that may _be claimed for a breach of a contract.· Section 74,Contract Act ••• ••• ... ... ... 29&

6

lxxx INDEX.

C-contd.

COMPOSITION of non-eompoundable offence-Contract for-void;:;PASX YEAm

313 1897to

X90I

"COMPROMiSE 01' sUIT-Certificateofadjustment of decree by decree-bolder--Oecree to be passed in accordance with- ... 256 1897

101901

COMPuTATION of period of limitation tinder sectiOftI2. of the Limita-tion Act ••• ... ••• ••• ....c5o 189&

to1&)6

INDEX.

C-co1ztd.

lxm

CO-MORTGAGOR OR Co-HErR-Who redeems ordinarily steps intothe shoes of the mortgagee and the 60 years of limitation runfrom the date of the. original mortgage or from the date of theaccrdal of the right to redeem 490 I 8g~

to1.896

:COKCUBINa-Distinction between ....ife and-See Buddhist Law-Inheritance 4S

-Slave-Son of-Son of head wife, son and daughter of secondregular 'wife-Suit for partition betweea-Shares to whichentitled ... 176 1891

toIgOJ:

.<COlfWBINR OR LESSER WIPE-Position' of-living along ·w·ith head. wife and of chnd of such concubine living. with fath~; Effect

of subsequent regular marriage after death of head wife onposition of offspring of- ... ... •..

.cONCUBINE taken during lifetime and with the consent of the chiefwife. Position 01- ••• ••• .... •••

145J153

1892to

18ttS

lxnii INDEX.

C-contd.

-,:-

-!".-

CONJUGAL RIGHTs-Restitution of-ill-treatment and desertion avalid plea of justification under Buddhist Law. See BuddhistLaw- Marriage

-- Suit for restitution of-Marriage under the Christian Law

_ Suit for restittltionof-Divorce by mutual consent-Questi<?nfm: decision •••

_ Suit for restitution of-against a Buddhist girl under the ageof 1'8 ••• •••

_ Suit for restitution of-5econd suit on fresh demand-Resjudicata,

-CONS£l>T of parties1:aDnot co~fer jucisdiction where it does not exist

--,.. of both .parties necessary to a valid marriage under BuddhistLaw

COlfSIDERA.TION-N0!l·payment of-may be proved notwithstandingrecital in deed-Any fact may be proved which wouid invali-date! a contract .. '\>

-_ What amounts to a promise made for the benefit of the principald.ebtor ••• ;U ~ ... ... I.'

COliSTRt1CTION-OP It. Ut1NDI. See Negotiable Instruments

- of ContcaetWaiVer-penalty-compensation

._.of the wcrrds •• time ~qu~ite (or obtah~~copy of the decree. ap~ ~aip!!t.'· .1.iAli~~ AGt, sections (,121 ~ ••

5 1904,to

1906·

1971 .. J1

::

7

.4

00.1,001

335.

5 19oa,to

1903-

INDEX.

C-contd.

·CONSTRUCTION 01' ENACTMENT WHICH HAS PREVAILED POR SEVIlRALYEARs-Presumption in favour of that construction arises­No other construetkn unfavourable to suitor should after-wards be put upon the enactment except for some very cogentreason. See Court-fees... 'ee ... .00

1904­toI~

3 1907to

1909

1 1902'"

°3400 1891

to1901:

385 tSlneta

1901

CONTRACT·-A. lien over money lent may be created by deposit of anon-negotiable document which is evidence of the loan-Sucha transaction is not necessarily contrary to public policy

-- ante-nuptial contracts-to be proved by clear evidence thatmarriag-e was the consideration of the promise-not the usualincidents of a Buddhist Marriage. See Buddhist Law-Marriage ... ._. . ••

- Any fact may be proved which would invalidate a-

- Held-that asuit for an amount due on a bond is not a suit forthe specific performance of a-as contemplated in Article ISof the 2nd Schedule ofr the Provincial Small Cause CourtsAct. See Provincial Small Cause Courts

- A partition by a Ywagaunl( is not necessarily an award, andtherefore still less a-Application of Article 95, Limitation I\.ct .4781

- Award-:t part of-ag-reement til refer to arbitration a- . 15 18~2

- Breach of-rea"onable compensation for-permissible ..• 290 ~ to- between the parties to a suit --not reduced to the form of a . I 1896

document-admissibility of oral evidence .•• ... 354 J01' GUARANTEg.-Construction of document containing-Altera­tion with implied assent of obligee-Construction controlled byfinal expression of obligation written by obligee himself in hisown language ...

lxxXIV INDEX.

C-contd.PAGB 'f:EQ: ..

308 Jt892>.. to548 .1896

CON"'1'RA.CT OF INDEMNITy-Time when the plaintiff is actuallydamnified •••. . ••. ... •••

- OF MORTGAGE-necessity of proving established and acknow­. Iedged customs controlIing-accordingly-Madras mortgages

..,...-. Specific performaric.e of :iny-may in the<!iscretion of the Courtbe enforced when the Act agreed to be done is such thatpecuniary compensation ·for its non-performance would notaffotd adequate relier-Contract to transfer immoveable pro­perty-Presumption that it a.nnot be adequately relieved bycompensation in mQney •••

Where a mortgagee's right to sue for his money is a .rightarising from a-between the parties, Article J l5 or n6, Limita­tion Act, apply, but when it is an equitable and not a con,~ractual right the article which applies is 120. See Limitation

~ sections 2, (0, u:-A female minor cannot sue for compensation.under the ContraCt Aetfor the ·breach of a promise of marriagemade to her. But where the circumstances entitle her to com­pensation under the BuddhistLaw, she can ·succeed independ­ently of contract

_. section g-implied Contracls-Claim by a Civil Surgeon, anofficer of the I. M.S., for two professi9nal visits to the wife of aGovernment servant at Rs. 16 a visit where no agreement hadbeeneome to as to fees-Held-that it was for the Court todecide whether the da:im was reasonable and that it wasreasonable.Rawlins v; Daniel, 2 Agra,56.-Captain H. Lack,1.M.S.~v.· P. Gallagher

539

5

[897to

19QI:

1

section I I-Application oE..;,.to a suit for restoration of conjugalrights <igainst a Buddhist girl under the age of 18 . ••. 200 J89"·

to1.l8~

sections I I, 23.-Contract made with a miner is not void, but is ""'~---"

merely voidable at the option of the minor-Contracts for the ;-,~~~ccmposition of non-cQmpoundableoffences are void . . .. SIS J1891'

- section.s16 (S). :I9A-'--'Undue in~uence-Unconsciol1able con-;:'= totract-Power-of Couitto deal Wlth--... ••. 3IS . 190£

~ sections 2o-:-65"':"Seld--that where defendant sold and plaintiff... bought land as a hOU5e-s!te in the belief that it was bobabaing,

. and it afterwards turned out that the land was State, the partieswere under a mistake of fact within section 20 of the ContractA-ct and the plaintiff was entitled to recover the purchase,·money ullder se<:tion 65. See Evidence· .

INDEX.

C-contd.

CONTRACT, section 23':"'An agreement by which a village headmantransfers his official duties to another person who in considera.tion of performing- them is to obtain a proportion of thecommission, is one of which the consideration and object areunlawful and opposed to.public policy, and which should netbeenforced by a Court of Justi.::e

lxxxv

6

8 JI903

to4 1903

317 1891to

190t

1 Igorto.

1909

section 23-A promise to pay a .sum of money on de\!!and-to aspecified person or order or bearer (sic) is in contlP-aventionof section 24 of the Paper Currency Act, IiI ofig05, and theagreement is therefore void under-See Paper Currency Act

section 23-Money hmt for the purpose of unlawful gamingcannot be recovered ......

- sections 23, 6:;-Money paid under illegal contract not recover­able because the illegal contract was not carried out

- section 23-Suit on a bond executed, the consideration beingunlawful-Bond void and suit not enforceable ... . ..

sections 23. 257-Secret agreement between two partners thatimplies civil injury to a thHlli partner is an agreement with anunlawful object and is void"

-- section 23-The consideration of an. agreement whereby oneperson engages for a sum of money not to outbid another at apublic auction of an opium· license is unlawful within themeaning of-and the agreement itself void

- section 25-·\Vhere a gift is not a question of inheritance,succession, religious institution or usage, it is governed by theContract Act. See Buddhist Law-Gift

13 1944to

1916

11891to

1901

- sections 26, 57-When a Burmese Buddhist husband undertookto pay damag-es to his wife, if he took a lesser .wife and if hefailed to live in her house, work and support her-..Held-thatas the contract consisted of two distinct promises for one andthe same lawful consideration, though the first promise, '/Ji6.,not to take a lesser wife, may have been illegal as being incontravention of section 26 of the Contract Act, yet the secondpromise, '/Ji6., to live in the wife's house, work and support her,was a good and lawful promise to which section 57 of theContract Act applied and was accordingly enforceable.

Nga Ba v. Mi Ok, U.B R~. J902-03, II B.L. Mar., I.Mi San Shwe v. Po Thaik, 8 B.L~R., 24. .Must Panu Bibi v. MaulaiJi Faig Baksh, XXIII W.R., M.

Nga Po Gyi and one v•. Mi On . 108 1910to

1913_ section 30-In a suit to recover mon£y ~'hich the plaintiff has

deposited with a stake-holder the" paying over" which wouldbar the suit means paying over upon the event of the wager­where in such a suit the plaintiff does not repudiate the wagerbut claims not only his original stakes but the whole winnings,he can get nothing ;.. 3 1904-

to1906

INDEX.

C-contd.

CONTR,\CT, section so-Money entrusted to a stake-holder to abidethe result of a wager may he recovered if demanded before itis paid away ••.

-- sections 43, 44-joint promisors-Liability of-to joint-promi50ralthough the creditor's claim as against them was barred bylimitation

_ section4s-Applicable to a suit by a Buddhist husband for.himself and as sole r;epresentative of his deceased wife !lot

...

_ section S3--Money lent for the purpose of enabling the borrow- .er to gamble is not r-eeoverable by Civil Suit if the gamblingcontemplated by the parties when the money was lent is suchas is prohibited by law, but if the .gambling is not illegal, asuit for the recovery of the loan will -lie

- sections 55, I07-Where a party to a contract is at liberty tol'escind it under section 55, and does so, section 107 has noapplication-1 he meaning of section w7 is that « If defendant­respondent instead of i"escin"ling the contract had chosen to .r~seU at theplaintiff-appeUant's risk, then, in order to be ableto hold plaintiff-appeUant liable for any loss on re-sale, hewould have had to comply with section 107 by giving ~ason'

able notice to the p!aintiff~appe\lant." . ... . ..•- Where a party to a-is at liberty to rescind it undor section 55,

Contract Act, and does so, section [07 has no :lpplication­Menning of section· 107, Contract Act-See Contract

-.section 56-Impossibility discussed and explained.Follock's Indian Contract Act, 2nd edition, Notes to section 52.Cunnigham and Shephard's Contract Act, loth edition, Notesto· section56., .Pollock's Principles of Contrait, 7th edition; pages 398-431.Transfer of Property Act, section r08 (e).

Mi Me v. Nga On Gaing and one .•.

_section 73-Damages-Wherethe contract of hiring providesfor the payment of certain wages, although it may be optionalon the part of the master to find worlcandhe may, if he pleases,discontinue his business, yet. he must nevertheless pay thewages agreed upon whether he find work for the servant or not,arhe will render himself liable to an actIOn for damages-·SeeMaster and Servant

- section 74-'-A hire--purchas:e agreement is equivalent to anagreement to purchase and for breach of such contract aU thatcan be claimed is reasonable compensation in accordancewith the principle of section 74

7 ·1904­to-

1906

9 J1904­toI) 1906

1910to

1913

I

189:to

1896

INDEX.

C-contd.

Ii t907toI~

'!PO l~1896

41° }':-3°8

1S;6

331 1S91to

IgGl:

1L8g~}lo118g6

IJ

I

333

306

61 5

335

.- section 14- Suit for the recovery of double the amount lent onbond. Reasonable compensation ·for breach of contract per­missible ... ... ....... ...

-- section 108-The validity or otherwi'e of sale of property byone joint owner is a question ofeont'!:act law to be determinedby the provisions of the Contract Act, and not by the rules.of Buddhist law ... .... ... ...

- sections 109, 230-1£ the buyer is by reason ohhe invalidity ofthe seller's title deprived of the thing sold the seller is respon­sible to the buyer for loss caused thereby, unless a contraryintention appears from the contract. Extent of the responsi­bility of agent ... .., ...

_.- section log-TranSfer of Property Act-Sale of land-Stateland-Title - Occupancy... ... ... .•.

--- section 127-Consideration- What amounts to a promise madefor the benefit of the principal debtor

.- section 74-Master and Servant-In the absence of a bindingcontract by which the servant agrees to forfeit wages if hewithdraws without giving notice, a monthly servant, who leaveswithout notice, is entitled to be paid down to the date whenwages were last due but not for the period he has served sincethat date-See Master and· Servant----Contract

'CONTRACT, s.."Ction 74-Heltl-a stipulation in a bond for payment ofinterest at an enhanced rate (120 per cent. per annum) fromdate of execution, in case of failure to pay principal andinterest at 60 per cent. per annum within a time specified, isby way of penalty within sectionJ4; and interest at the sameinstead of the enhanced rate is reasonable compensation

·-~section 14-Loan made on a bond-breach of contraet-penalty-rate of interest ... ~.~~~...~§ ,,;,; ...

-- sections 133,135, 230-Money lent-principal and surety-dis·charge of surety by variance in terms of contract Or giving oftime without surety's assent - principal and agent-non·iiability

. of agent of disclosed principal-substitution of subsequent., verbal agreement for written contract .. , .,.

-- sections 134, 137-0ischarge of surety by omission of creditorto sue principal debtor within period of limitation. Contractof indemnity-time when the plaintiff is actually damnified .••

- sections 151, I52-Bailee-Care to be taken by-Burden ofproof

- sections 151, [52-Where the driving beam of a sewing­machine was bailed to a coppetSmith to repair it by solderingwith copper and excessive heat was applied whereby the top Ofthe driving beam was melted and the beam rendered useless,-Held-in a suit for damages against the'Coppersmitb thatsecti~n 151, Contract Act, applied. That the degree of care

- section 74-:-Principles on which compensalion should be., assessed under- ...

lxxxviii INDEX.

C-contd.PAGB YBAI%'·

required of the· appellant was that ·of a skilled coppersmith,and that the burden of proof lay upon the defendant to provethe exercise of such Care

CONTRACT, sectiol}s 230, 233-Agency-Agent personall,fbound bycontract of sale· when he does not disclose name of principal,and liable to be personally sued. for loss caused by deprivationof thing sold by reason of invalidity of title-whether he haspaid away price to principal or not. Action apparently foundedon Tort rather than on Contract ... .... ..

'- sections 230,231, 236-Principal untruly representing himself tobe the agent of another person-sections 230 and 23[ in:4ppli-cable-section 236 applies ... ' ..

- section 238-Principal and agent-Agent mistaken for prin­cipal personally-Dealings .with agent in such assumed cha­racter. .Negligence-Fraud-Responsibility-Tort -..

- section 239-Marriage under Mahomedan Law not a partner-ship as defined under the Acto-See Mahomedan Law .

- section J40-When one person advances money to anotherto enable him to 'take contracts, the fact that the former isremunerated by a share of the profits does not of itself consti·tute a palt.nership

341 '1

\ 1891339 )- toI19°1

3-1-7 JI '1

11903'). toI 1903

10 J

INDEXo

C-contd~

INDEX.

C-CO'lZtd.

·CONTROL AND TAXATION OJ!' FEES OF ADVOCATES. Civil CourtsRegulation 203 1897

to19°1

.cO-OPERATIVE SOCIETIES ACT, Ig-·Civil Procedure, O. XXI, r.58-Musical instruments are not industrial implements ormachinery and do not come within any other part of thecategory of articles referred to in section 18 of the Co-operativeSocieties Act, H of 1912.. nor are they artisans' tools and theyare not exempt from attachment under section 60 (I) (b), Codeof Civil Procedure.

A mortgagee who objects to an attachment under O. XXI, r.53, cannot be said tobe a representative of the judgment-debtorwithin the meaning of section 47. Code of Civil Procedure, and"no appeal lies from an order dismissing an application. "

U~B.R., 1397-01, II, 276.I.L.R•• I Mad.• 174.

- 32oBom., 10.

8 Mad.• H.C.R.,1i7'Maung Tha U v.Maung Hta ....~~~ 133 1914

to1916

CosTs-A suit will lie to recover-incurred in unsuccessfuJly'Objectingto attachment of property in execution of decree when the attach-ment was wrongful-See Civil Procedure· ...

_A suit will lie to recover-incurred in unsuccessfully objecling toattachment of.property in execution of decree when it is shewnin a suit under section 283, Civil Procedure Code, that thedefendant had no colourable justification for attaching theproperty nor for defending the application for removal ofattachment-See Civil Procedure '" ... ...

-incurred by decree-h.older in contesting the removal of attachment. cannot be added to amount of decree against thejudgnient­

debtor-when a court has jurisdiction and orders or refusescosts the parties cannot bring a separate action for such costs

-Security for payment of-incurred in Courts when ordered to begiven, should be ordered with caution. and the careful exerciseof discretion

18")

!~4111)06

4)

436 1897to

19°1

279 18g.to

1896

INDEX.

C-c01ztd.l!'AGE Y££:lit:

CouRTs-AopelIate-Duty of-in dealing with -eases thoroughlythat come before them in appeal... ... '"

-Appellate-Duty of-with reference to a part of a decree notappealed against . •. ... .' . ' ..

_bound to examine parties and ascertain real points at issue ..._ Duty of-to frame issues and to allow a reasonable time to parties

to procure legal advice and assistance and to take into con­sideration thedrcumstances under which alone such advice and

. assistance are obtainable in Upper BjJrtna ...__Duty of-to apply the provisi9IJs of -section 74, Contract Act, to

all i:a..<>es to which they are properly applicable, and to see thatno more than reasonable compensation is given for breach ofcontract . .,. ... '"

-Held-that an appeal from a District-unrler O. XLIn lies to theDivisional-and not to the-of the Judicial Commissioner what- .ever be the value of the subject-matter-See UpperBurma,CivilCourts Re.,aulation

- Jurisdiction of-Return of plaint to be presented to the propercourt-Attachment-Removal of-Regular suit ;.. ' ..

_Power of-on application to file an award-No power to modifyor correct-A~against·order rclusing to. file an award

_ Power of-to deal' with unconscionable contracts- Undue. influence ..

_ Duty of-to enquire into matters and deal with applications for. letters of administration on the merits-Recqurst:l to the provi­

sions of the Probate and Administration A.c:t ~ing optional,the Courts must not attempt to render it compulsory by indirec.tmeatlS •.. .... .., ••• .•.

~ Powers of-in respect of guardians regulated and limited by theGuardia~agd Ward!! Act. I$gQ ... ~.~ •••

6147~1

18g.a·

t m

"'l~290)

xcii INDEX.

C-contd.l'AGIt '(liAR

-COURT FEE-payable on a suit to enforce the decision of theThathanabaing-See Buddhist Law-Ecclesiastical

COURT FEES ACT-7(iv) (c), 5ch. II, Article 17 (c). In a suit forthe cancellation of a conveyance of certain property on theground that the plaintiff signed it in the belief that he did so as.a witness, but subsequently found that he was represented as thevendor and his signature'was that of the sole vendor and notthat of a witness, the prayer is for consequential relief and theplaint would require an ad 'Valorem stamp according to the'value of.the subject-matter.

Punjab Rf;!cord 1893 C.]., 109.s L.B.R., 266.

Nga Chi~ Wet v~ KfI1anan an4 one

5 '1901to

1909

102 1914to

1916

- Ii. 1 (iv) (c)-In a suit to obtain a declaratory decree or order,. where consequential relief was prayed for 50 as to fall under the

provisions of-it was held that the plaintiff should pay an ad'lJalorem fee thereon ... ... •..

'-. S. Io-does not conflict with section 54, Civil Procedure Code,and a dismissal under the former would not operate as"' a bar toa subsequent suit " ... ... ••• •••

_ 11,11 (vi)-A suit by land-lord to eject a tenant from hishouse is governed as regards Court Fees by-also when aparticular construction of the Court Fees Act which is a fis.caIenactment in favour of the suitor has prevailed for many years,a strong presumption in favour of that construction 'arises andno other construction unfavourable to the suitor should after­wards be put upon the enactment, except for some very cogentfj'lClSon •••

_ Schedule I l. 17· (I)-In a suit to alter or set aside a summarydecision or order of a Civil Court not established by LettersPatent the proper court·fee is that prescribed by-See CivilProcedure... ••• '"

sss I8g1to

19Ot

-53 tBgsto

iBg6

,

I 1902-03

. 1St IglOto

1913

INDEXo

C-contd.PAGE YEAR

iCRBDITOR-Discharge of surety by omission of-to sue principal.,debtor within period of limitation... ... ..,

- Fraudulent settlement to defeat or delay 1:reditors. Burden ofproof-application of principles of equity adopted in Englishlaw ••• ..•

.- Grant of letters of administration to- ... •..._- Transfer of property with view to defeat-Natural presumption

'ofhonestyand fair dealing not to be overoome by circumstanc::esof mere suspicion but evidence required sufficient to satisfy areasonable mind of existence of fraud ... ...

.- When debt is contracted in writing and the writing remains'uncancelled in the hands -of-strict proof of repa)'me~ req,uired

_ When a-is allowed to re'"..ain written evidence' of an eXIstingobligation, the burden of proving satisfaction of the debtcannot~ discharged without a reasonable explanation of sucn reten­tion and the most trustworthy oral testimony of repayment ...

CROPS AND TREBS-Suit for valuable of-standing on land may notbe substantially in issue in a suit for ownership of land-Custom

CItOSSoAf'PBAL~Filingof memorandum of objection-Civil Procedure,s.561

CItU&L'l..t-What constitutes-Suit for di\rorce under Buddhist Lawand claim for half joint property

.cUSTOI( among Chins with regard to division of inheritance

- AS REGARDS STANDIIiG CROPS AND TREES ON' LAND-Suit fortrees standing on land may not be substantially in a suit forownersbip of land

3081

~~L..... to .11896

3181393J c

238 ISgato

tSgti

213 t~to

JgoE

xciv INDEX.

C-concld.FAGE YEA~

CUSTOM. Burden of proof as to any special-or usage varying theordinary Buddhist roles of inheritance ... ...

_ Necessity of proving established and acknowledged-eontrollingcontract of mortgage-Madras mortgages ... ...

- No conclusive presump~ion that trees belong to owner of soil

_ ofcountry to remove buildings that have been erected

- Partition of property between two daughters as sole successorsand heirs-In 'the absence of proof as to what rule of divisionshould apply. Rule of equality prevalent according to localcustom followed ... '" .

- Practice ofannual letting being customary in Burma the pre-·sUIllption of a relationship of landlord and tenant once provedcontinuing to subsist not strong ••• ... •••

.-;.. Respective rights of two adjacent riparian proprietors of land tothe land in the bed of a stream situated between their respectiveholdings "

- Suit for cancellation of will made by Zerbadi-proof requisite-Mahomedan and not Buddhist Law applicable in UpperBurma .... u.

_ TwinsaJ and iwinsayos. Peculiar rules of succession amongthe owners of the right of dl$ging for petroleum oil at Yenan­gyaung-Evidence-Civil L-ourts Regulation-Land suit­immoveable property

608} 1:!3548 1896360 181)7

to1901

214 1892to

1896·

79}1897to

535 19°1

3:141

5:19 I 1 89:1~ to

11896

3'J7J

INDEX.

D

499J18

97to

429 IgO!

PAGE YEARDAMAGE-Burmese women can" sue for-for breach of promise of

marriage but not for seduction

_ decree-holder who wrongfully attaches property responsiblefor-

-- by owner of animal trespassing-plaintiff to prove such wascaused or rendered possible by defendant's negligence­Liability of owner only for the ordinary consequences of suchtrespnss-See ]'ort

If there be a right and if there be an infringement ~that right;it is not nec,ssary to show that there has been'any subsequentinjury, and if the Plaintiff's undoubted right has been invaded,he would be entitled to a remedy whether any-has accrued tohim or not-also the principle Qrdinarily applied to actions oftorti '" that the plaintiff is never precluded from recoveringordinary damages by reason of his failing to prove thespecial-he has laid, unless the special-is the gist of the"action-See Tort

DONE BY ANIMAL-Proof of negligence on part of owner required

DAlrUGES-Contract-73-Whe~ the contract for hiring provid~for the payment of certain wages although it may be optionalOn the part of the master to find work, and he may. "if hepleases, discontinue his business. yet he must nevertheless paythe wages a~reed upon whether he find work lor the servantor not, or he will render himself liable to an action fordamages-See Master and Servant ... ...

- In deciding whether an award of compensation in a sedul..tion'case should be enforced or not, the Courts have only to look tothe provisions of sections SilO and Sl! I, Code of Civil Procedure,and determine whether any of the grounds mentioned orreferred to in those sections is shown against the award.The fact that the subject-matter of at) award is not such tuatit could be a cause of action in a Civil suit is not necessarIly anobjectiun to the legality of the award-See Civil Procedure ...

Injury done by one animal to inother-Proofrequired-Fero­city-Tort-Scienter

- FOR DEFAMATIoN-See Defamation

- FOR SLANDER-Abatement"of Appeal-See Slander .••- Tort-Injury done by one animal to another-- Proof ..:eQuired- ,

Ferocity-Negligence """

\) 1904­to

1906570 18g1

to19°1

1I

I ~ Ig07

Ir~~9II

19)

565 1897to

Igol98} 1914­

to105 1916

567 1897to

Igor

INDEX.

O-contd.

116 lSot.to

Igor

- pAGE TSAItDAUGHTBR OP DIVORCED WiFE-Position of-who lives with her

mother or moth~'s family and not with her father j ...

-- o~ divorced hu.sband and wife tiving with mother :md separatingentirely from her father loes claim to inberit any share of herfather's estate

DEATH-BBDATTBNTIONS-and funeral obsequies-value of evidenceof .performance of-mca.ses for inheritance under Buddbistla.w... .•., ~4. •••

- Glp",-BUddhistLawapplica.ble to-See Buddhist Law.....oGjft

_ .. GlPT--Un<let Buddhist Law &-to ... stranger, even if deliveryof possession is ma.de. is invalid as against thenatUi"al heirs-See BuddhistLaw-Gift .

184 '18gato

18<}6I '1903­

03

'I 1907to

1909

INDEX.

D-contd.

D r.BT-- Mortgage deed containing no separate admission of-orpromise to repay it-not divisible and cannot be admitted inevidence

Written evidence of eXisting obligation returned by creditor­Burden of proving satisfaction of the-cannot bl) dischargedwithout a reasonable explanation of such retention ar.d themost trustworthy oral testimony of repayment

Contracted in w~iting which remains in the hands of ~reditoruncancelled-need for strict proof of repayment required ...

- meaning of-Succession Certificate, sections 4- (2) and 6

DEBTOR- deceased-legal representative of-suit against-Bud­dhist law

- Judgment-application by-to be declared insolvent-Burdenof proof ••. ... ••• ••. .••

- Judgment-arrested and released immediately without beingimprisoned may be re-arrested ••• ... .••

- What amounts to a promise made for the benefit of theprincipal-eonsideration •••

xcvii

PAG'B TIIAR

I

375 J

~i891

I toIgoI

402)

J18g.21

39~ to639 1896

S3 189:& •to

18g6.

28a11897lI8& to

. , 19o1

33SJ

xcviii INDEX.

D-contd.PAGE YEAR:

DECRASI>D husband or wife may have married before or after deathof parents, but must have survived them so as to be in reachof Inheritance ,... '" ,•.

- wife-husband legal representative'of-Buddhist law-DivorceDECLARATORY DECREE-right to a-as to uwnershipof property ...-- suit for-Specific Relief. 42 ..... '"- Suit for-of title to land- Refused where break in possession

.for about twenty years before annexation ot the country .n

DECREE-An order determining that there was no valid reference toarbitration and -rejecting the application is a-within the mean­ing ot section 2, CiVil Procedure Code, and an appeal liesfrom such order .,. ... '" ...

Under section 92, Transfer of Property Act, not absolute tillorder passed under section 93-A court executing- a-is boundby it and cannot question its validity or the validity .of anypart of it in execution proceedings effect and intention of~

to be ascertained .. .An order under section 556, Civil Procedure Code, dismissingan appeal for default not a-under section 2 ••• .•

Application to execute-governed by Article 179, Schedule II,. Limitatiqn Act .~. .•. .. ..,

-Cannot be given on unstamped document not produced, eventhough its production in evidence is not necessary

Certificate of adjustment of-by decree-holder-Compromiseof suit-decree tCl ,be passed in accordance with- ...

Declaratocy-in a suit to obtain a-or order when consequentialrelief was prayed for so as to fall under the provisions ofsecti(m 7 (iv) (c), Court Fees Act, it was held that the plaintiffshould pay an ad 'lJalOf'em fee thereon .. ,

Declaratory-of title of ownership of land refused where breakin possession for about twenty years before annexation of thecountry... .•. .... .•• '"

Execution of-Property wrongfully attached in-Decree-holderwho wroI)gfuUy attaches liaple for damage

Execution of-Question to bededded. by . CO~;l eXCC1.ltingdecree-Civil Procedure; section' 244 ••.

___ Investigation of -claim to.:.-Prop·etty attached in {lxe«;ution of-Points f<ll"enquiry-D uty of investigating Court ••. . ••

An order refusing to execute ,a-is a-,.within the .meaning ofsection 47. Code of Civil Procedure, and an appeal from suchan orderlies. See Civil Procedure ... .•. •••

_ Ex-parte-fraudulent:-Suitto set aside an.-See. Civil Proce-dure ••. .- .. , .••

_ Held-that aU ord~ that come under section 47, Civil Proce­dure Code, are not---:but only those that are not -appealableunder O.XLIIl. See Civil Procedure ....

_.__ H,ld-that where a party appealed against that portion of the-if' resoect of which he has been unsuccessful the Court is notordmarliy entitled, without any formal cross-objection by theother side, to set aside so much of the-as has been .in favourof the appellant. See Civil Procedure

!~Il'~3 [Sgz~. to

174 181)6623

554 (591to

19o£'

INDEX.

D-.contd.

XClX

PPAGB YIAE

'DEcREE-An order rejecting or refusin~an applicationHor permis-sion to sue as a pauper is not a decree and 110 appeal lies.See Civil Procedure 28 1910

to1913

- A suit will lie to recover costs incurred in unsucce5sfullyobjecting to attachment in execution of-when the attachmentwas wrongful. See Civil Procedure ......

- Delay in signing a-cannot be br(,ught in to benefit a "personwho hns not made any application to obtain a copy. S4A CivilProcedure ... ... ••. ..:. ...

Execution of·-A Court may send a-simultaneously to twoother Courts for execution and issue process in execution itselfwithout wa.iting for the reports of the other Courts. SeeExecution of decree ... ... ••. ...

Ordering execution of -more than three y~rs from date oflast ap:>lication for ell;ecution, an illegality within the meaningof section 622, Civil Procedure Code. See Civil Procedure .

Execution of -power of C·,urt to execute decree in excess of thelimits of its pecuniary jurisdiction as an Org-inal COllrt. SeeExecution of Decree .•• ...

-- part of-not appealed against.....duty of Appellate Court-- against legal representative of deceased debtor-should

mention that is against stich legal representative in thatcharacter ... ••• ... •••

-- declaratory-right to a-as to ownership of property- appeJlate-should provide for case of party who has not

appealed ... ... ... ..._.- procedure in exer:ution of a -Irregularity of procedure-Limita-

tion ...- suit for declaratory-Specific Relief Act-.p .- bar to -not to suit. Succession Certificate Act

Right of use and occupanc}' in State land not liable toattachment and sale in execution of-Upper Burma Landand Revenue Regulation, section ~5. .. .•.

Property wrongfully seized in execution of-Special procedurelaid down in section 278, Civil Procedure Code, intended toprovide a speedy and summary remedy and riot to deprive aclaimant of his remedy by way of suit .. , ..

._- The provisions of section 257.\, Civil Proceaure Code, applyonly as between parties to the suit and - ...

-- HOLDER-Certificate of adjustment of decree by-Compromiseof suit-Decree to be passed in accordance with-

-- Costs incurred by-in contesting the removal of -attachmentcannot be added to the amount of the decree against thejudgment-debtor - .. : . " ...

- Joint-Application by-Exercise of judicial discretion by courtsin dealing with applic~tions under section 231, Civil ProcedureCode

- Who wrongfully attaches property m execution of a decreeliable for damage

18)

241I}lgo4

I toI 1906

I~6J

5 1902­to

1903

Ir-:DEX.

D-contd.

DlWaBr;-HOLDE~who attaches and sells moveable property of hisjudgment-debtor- on whicli a third party has a lien, is liable tothat third party for the loss that he sustains by having his liendestroyed or impaired. See Civil Procedure- .•.

DEED-Sale-Non-payment of consideration may be proved no~­

with~tandingrecitalil1-

D£EQ orCONYETAt,'CE OF PROPERTY. A-toone creditor with the_()bj~ct .of defeating- anoth& creditor is not void provided thatit is bonii.fide. i.e., if it is not a mere doak for retaining abenefit to the grantor. See Civil Procedure ... ...

DERDS OF. MORTGAGE. In c<.nslr-uing-eti{.-cts should be given tothe intention of the parties

PAGE y~--

400 189J"to

1901

IS 190:­03

"5°9 1897­to­

19010

INDEX.

D-contd.

DEED OP SALB- Mere verbal evidence of contemporaneous oralagreement, showing that an apparent-was really a mortgngeinsufficient-such evidence not admissible against an innocentpurchaser without notice of the existence of the mortgage.See Evidence

D.BPAMATION-Damages for-the- true test of the right to maintaina suit for damages in consequence of-should be whether thedefamatory expressions were used at a time and tinder suchcircumstances as to induce the person defamed reasonableapprehension that his reputation had been injured and toinflict on him mental pain consequent on such belief.

B.L.T., VII 253.I.L.R., 28 Cal., 452.-- 26 CaI., 6~3.-- 8 Mad., 175.

Nga Nyo v. Mi Te

- As distinguished from mere vulgar abuse, is actionable withoutproof of special damage-See Tort ••• ...

DIll'BNDANT.-Care to be exercised in service of summons on­substituted service-Residence out of jurisdiction-Judgment.ex-parte

PAGE YEAR

I 190200

°3

98 .1914to

1916

r 1904to

1906

en 'INDEX.

D-contd.PAGE TRAIt

DISCRETION-judicial-tobe exercised in construction of words··sufficient cause J> in section S, Limitation Act, with referenceto Iipecial circumstances of particular Case

DIS~HSSAL' under section {O, COUlt Fees Act, would not oo&ate as'a bar to a subsequent suit a$ it does not <:onflict 'with section54, Civil Procedure Code ...

DISillSSAL OF SUIT instItuted after period of li!11itation-.~~know­, ledgment Cif liability

DISPOSSf.SSlON-suit for-of 1:lIld-f01'cibte ouster-Burden of proofDISPOSSESSiON OF LAlI:D-forcible or wfonr:-ful-Bnrden of proof, •••-- primary evidence-Burden,of proof

DISTRIBUTION OF SALW-PROCEEDs-in .contravention of section'63-:-Su Civil Procedure ••• '

253 18gs•'lS~448 t897

to1901

",2,24118~,233 to234 ,1806

S3 1910to

1911

INDEX.

D-contd.

DIVERSION of estate from natural heirs to religious endowment shouldbe strictly looked into ••• ••. ...

O;VORCE-A marriage under the Christian Marri~e Law undis­solved by death- or-is a bar to a subsequent marriage in anyform-Suit for :restitution of conjug-al rights

.-.- Under Buddhist Law-Suit for a bare-without partition ofproperty will not lie ..

-- A suit for bare-without and as distinct from partition ofproperty will not lie under Buddhist Law-See Buddhist. Law-Divorce ... '" .. ••. •••

- coliusive-to avoid attachment of property- division of property on-reference to arbitration-extent to

which parties are bound by the award . '" .- for ,purpOses of defeating creditor in execution of decree .-- suit for-under Buddhist Law and claim for half joint property

on grounds or cruelty ... ...-- under Buddhist Law cannot begranted merely on the ground of

an allegatiop that the destinies of the husband and wife are. not -cast together ...

-.- under Buddhist Law cannot be granted merely On the ground. that the husband has' not supported his wife for a year, she'} having left his protection without reasonable cause ...

- Strict pr~f required of the r~wal ofconnubial relations when. a re-union is ~et up by the former wife on the death of the

{-or'mer husband .•. .•. '"-- Suit for the declaration of nullity of marriage...:lndian Divorce

Act-Christian Marriage Act

-- Mahomedan Law-Guardiansbip-Surety for custody of minor- Buddhist Law-Mutualconsent-parties not previously married

-wife entitled on partition to one-third .property inherited byhusband during converture and vice-versa. See Buddhist Law.-Divorr.e... ...... .••.

--:.. When under Buddhist Law a suit has been bt-ought for-withoutpartition of property, a subsequent. suit for partition of thejoint property is maintainable-. See Buddhist Law.-Divorce

Gm

PAGE yEAR

397 ISgitoI¥

30 1910to

1913

::1/.4S

481

561 ISgZ}- to

j' 1896

,:1338

1536)

civ INDEX.

D-contd.PAGE TUR'

DIVORCE-The ruleexc1uding the daughter of a divorced wife who haslived with her mother and has not maintained filial relationswith her father does not extend to the case where the daughterwas born after-and the father left no other wife, child orgrand-child-In such a case when the' father lived with hissister the daughter's share as against the sister is half-SICBuddhist Law-Inheritance .•. ." ...

- Buddhist Law-DivisiQn of property-atet-Iettetpwa-Nissayo-Nissito--See Buddhist Law-Divorce

._'- Buddhist Law-there is nO distinction in Buddhist Law betweenthe respective interests of a husband and wife in jointlyacquired property, when the parties have been married before(eindtlunggyi) and when they have not been married before­See Buddhist Law-Divorce

- There is nothing in the Buddhist Law (explained in Mi KinLat v Ba So) as to-at the will of one party on surrender of thejoint property and payment of the joint debts in the absence offault in the other party, which is inconsistent with the obser­vance uf the conjugal duties in a subsisting marriage, or willbar a suit for restitution of conjugal. ril{hts-See BuddhistLaw Marriage ...

DIVORCED HUSBAND AND WIFE-Daughter of-living with motherand separating'entirely from her father klses c1:1im tn inheritany share of her rather's estate

DIVORClID wIl'E-daughter or-position of-who lives "ith hermother or mother's family and not with her father

I 1901to

1909

II6 IS97to

/-901

159 1892to

1895

INDEX.

D-contd.

DocuMENT-dictation of-by transfer or equivalent to execution­Inadmissibility of parol evidence to contradict or vary termsof- •••

- Secondary evidence .. ,-- contract between the parties to a suit not reduced to the form

f)f a-admissibility of evidence of an oral agreement betweenthem .•• .•• .... . .•

- draw1ng up of-after old Burmese fashion does not amount tosigning-.,-Limitation Act, section 19

-- Secon.dary :vi?ence of a lost-not stamped in ac¥dance ",it"law madmlSslble .• , .•....••.

- admitted by the <Jpposite party need not be provedAny" fact may be proved which would invalidate a- •••Construction of-eontaining contract of guarantee--Alterationwith implied assent of obtigee-Construetion contr<Jlted by finalexpression of obligation written by obligor in his own language

Exclusion of evidence of contents of-other than documentitself, unstamped oocument excluded through refusal of partyto pay stamp-duty and penalty under section 34, Stamp Aet­Effect of such exclusion ... .. . .. '"

Mere presence on-of the impression of a seal such as was inuse by the Hlutdaw, or High Court of the Burmese Govern­ment not sufficient proof of genuinenes::; ... .,.

- "Secondary evidence of u~tamped or insufficiently stamped-which has been produced not admissible ..•...

-- Not stamped admitted in evidence by Court of First Instancecannot be excluded by AppeltateCourt .... .•.

Unstamped- Secondary evidence of-not prc.duced in evidence-inadm~sible '" ••• _., .. ,

- Dlcree cannot be given <-n-even though its production inevidence is not necessary .. . ." '"

-- unregistered-affecli,.g Immoveable property-,dmissible toprove a personal obligation, when it contains distinct, i.e.,separate admisr,ion of liability or personal undertaking to payand not otherwise-See Registration

- In Upper Burma a suit lies for a decree directing that a­shall be registered. S~e Registration

. - .Interpretation of-boundaries ()f land descrilied in a deed ·ofmortgage. Accession. Meaning of-See Evidence

necessity for careful treatment of-by the Courts so as to makethem admissible in evidence .•. ••.. .."

PAGlI: y&tit.

3451347

1ISgfi'354 t to

I IS96462 f63I~

3791399

1385 I

... 1•.."404j} I~'365

559

1361

ss6J

I 1904-to

19oI-r 1902-

to1905.

no 19q,.to

t916

SsS 18gs'tot~

~vi INDEX.

D-contd.rAG. '(flAK

DOCUMENT of Burmese times-proof required of-suit for possession,of land ... ... ... .•. •••.

DOCUMBNTAR y evidence-e~clusion of oral by-Burden of proof ..•- evidence-admission of oral evidence to clear up ambiguity ..•- Strong oral evidence necessary in case of claims unsup-

ported by-

3M} 189.230 to359 1896

368 I197to

Igol

INDEX.

D~C01ztd.

DUTY of Appellate COllrts in dealing thoroughly with cases that comebefore them in appeal. ... .,. .

- of Appellate Court-with reference to a· part of a decree notappealed against .. . ••. .' .. '" .

- of Appellate C.oUl·t in an appealable case to see that satisfactorycause is shewn fur cet preferring an appeal under the provisionsof section 14. of tl>.e Limitation Act before admitting an applica­tion for revision

- of Appeilate Court to give its reasons for believing the evidenceof One side in preference to that of the other when the evidence

. is conflicting. •••. .• . ..•• " ...- of investigating COlin'! in investi~tion of t::Iaim to property

attached in execution of decree-. oints for enquiry

61

111~'}omIt¥

245

1S1lJ

c263 rS91·

to19o1:

-cvili INDEX.

D-concld.

rAGB YE~

I:'-IDEX.

EPAGE yu,re

2ASKMRNl'.-Definition of section 1. Easements Act-Tort. Acquisi-tion of-otherwise than under section 26. Limitation Act n. 642 ISg2

toISgi

ECCLBSIAS'NC.LL AUTROMTIES.-Award by-on a secular matter notexempt from the usual roles regarding arbittatiJn

......0..- AUTHORITY-Duly constituted Buddhist-Decisionof-enforce-

able by Civil CoUR •••••••..

jurisdiction of tbehierarchicat authopties of the Buddhistcommunity

- JUIUSDICTI0N-suit f«ejectment from amonastery-Appoint-ment of ThathamrWng .• - _.. .,. ...

- MATTERS-Authority of Buddhist ecclesias~ authorities in-Suitforp~ma kyalt1'lg ••• •••

U I80Sto

r8g6

52 1807to

190 1:

71 r8g2toI¥

45118t74-1 1;:1

ex INDEX.

E-contd.PAGE TSAR

El11'RCT of award regarding claims of parties and period of limitationin consequence ••.

EFFECT of land passing from one branch of family to another-claimto share offamily estate-adverse possession for up\"ards ('ftwelve years. Burden of proof . ... ...

-- of section 5 of Regulation X of 1887-the Upper Burma Stampand Limitation l{egulation-

EJECTMRNT..,-Suit for-of a tenant from a house-governed asregards Court Fees by Article 17~ clause VI, Sch~dule II ofCourt Fees Act-See Court Fees... . ... •..

.;...... Suit for-eause of action

ENGLISH LAw-Application of principles of equity adopted in-

I 1902to

19°3251 18g:J

to.896

3IS 18g:Jto

1896

E-conttl.

EQUITY-Application of principles of-adopted in English law

EQUITY ow REDEMPTloN-Mortgage-Intention of parties to beascertained and followed ... •..

EQUITABLE RlGHT~·To remove buildings erected on another person'sland ••• ••• ••• ••. •••

.ERRON&0111 oRDJR lor withdrawal 01 suit on accgunt of the defen-dant's address not being known ••• ... .0.

PAGlit YEAIl

3IS I89~to

.. 1896

cxii INDEX.

E-conttl.

ESTATE of a. deceased-Claims to-by widow and grand-childrendescended from former wives who have been divorced orseparated from-

ESTOPPEL.-Transfer of land by head of joint family binding onco-heirs

~ settlement of accounts-omission of a.n item .••- claim to land alleged to be ancestra!..,-~amilycompact-:-- mortgage-Redemption-separate claim set up by one member

of a family to evade-by conduct of co-heirs .••- under section n6. Evidence Act-Redemption of land mort-

gaged-Burden of proof ••• .•• ... ..._ Aribtratio."i-Mortgage deed executed for f..audl1lent purpose­

Fraud not effected

- Effect and value of entries of mortgages in Settlement Record!lI -See --Evidence ... ••• ••• •..

........; E<VIDENCE. s. liS-Suit for specifi::peri )rm3.nce of an award

_ Priority-Incumbrance-Transfer of property ••• ..~_ Hell--that in order that an-undel:' section uS. Evidence Act.

may be cr~ted the thingwhich one person induces another tobelieve must be a fact in ~xistence or past and that the mere·promise to do something in future will not create an-SeeEvi4ence ~;;: = .,. ;,.~ ...

EYIDRN'OB-Improper omission to tl,lke-vitiates an award ..._ Discrepancies and inconsistencies in-to be carefully examined

andnoticed by Lower Courts ... ...-.--.; exclusion of oral by documentary-Bllrden of proof •••_ when a debt is eontracted with the formality of writing and the

writing remains uncancelled in the hands of the creatoi-. needfOr strict proof of repayment and. for reasonable and probableexplanation of circumstances. .. ••• • ••• . ••

- secondary~dmission of a document said to have been burnt­•. .. . .suit should have been brought within period of limitation •••--- mortgage-limitation-BurdcD ofproof ." ...- necessity for careful treatment of documentll by the COllets so as

to make them admissible in- . ......_ .of separate possession by one branch {)f family-Effect of mOrt-

gage by that branch .~••." ... .•• ••• .;..- necessity for unambiguous· and trustworthy-when an ancient

. mortgage is set up ... ... ... •••- secondary-of a lost document not stamped in accordance with, .law inadmissible . . .••. ••• ••• •••

- that marriage was the· considet'ation of the promise to beclearlyprove<f by:-. S~, Buddhist Law-Marriage

Ito Itlgzto

18g6

3831387 1:::r::;:561)

544 18g1to .

190r

3 1904to

1906

29.3}t891

. to573 1901

393r802

473· to509 18gp

5S8 II

SS8 f565 ,.

631)

INDEX.

E-contd.

'EVIDRNCE.-SS. 3.91.9', IIO-Transfer of share of joint family pro­perty-alleged deposit-effect of denial of deposit as to burdenof proof-dictation of document by transfer or equivalent toexecution. Inadmissibility of parol evidence to contradictor vary terms of document

- s. s-Questions as to the admissibility of evidence should bedecided as they arise and should not be reserved till judgmentin the case is given

._ ss.8. 18 (2),2(,65,66, QI, 157. 167-" Hears~y "-Distinctionbetween secondary evidence of the contents of a documentand oral evidence of the transaction

.- SSe 21, 3(~Relevancy-Effectand value of admissions

-- 32, 91-The necessity for a strict compliance with the Rules ofEvidence as laid down in the Evidence Act and explained inthe Rulings of the Court insisted on.U.B.R., 1892-96, U. 350 ,...Mi Nge Ma v. Nga Talok Pyu

.- 33. 145-:-Suit to set aside a summary decision Or order of aCivil Court not established by Letters Patent-Coun-feepayable-Evidence to be tendered-See Civil Procedure

- 35.- Supplementary Survey Records-Held-insufficient in theabsence of other reliable evidence to prove a mortgage ...

-'- 35, 91, US-Effect and value of entries of mortgages in Settle­ment Records-Estoppel

- 41. 4Io-Burden of proof-Res judicata-See Probate .andAdministration

_ s. 58-Document admitted by the opposite party need notbe proved .t.

- s8.-Non-registration-where a - document is by' referenceincluded in the plaint or written statement and its terms andexecution admitted on the record by the pleadings, it is notnecessary to prove it or put it in evidence and its noti-registra­tion is immaterial-See Buddhist Law-In{leritance .ff

.- S8~ 91-Evidentiary admissionsand admissions by the pleadingsdistinguished.-Held-that an admission by defendant (in hispreliminary examination) of an agreement alleged in the plaintwas not excluded by section 91, Evidence Act, and renderedproof of the agreement unnecessary ... 'ff

cxiii

PAGE '!lEAR.

345 X8\)2t,o

1896

376 1897to

191>;:

13 Ig07to

1909377 1897

toIgor

56 1914-to

1916

181 19[0to

19 i 5

19 1907to

19093 1904

to1906

61 1910to

1913

379 1891to

1901

1 1904to

1906

I 1907to

1909

·CXIV INDEX.

E-contd.

EVIDENCE 62-AdmissibiIity of copy of document in evidence undereltplanatioDI .

......... 62.91, IIo"'-Primary-dispossession of land-Burden of proof~- 6s-Secondaryevidence-Question of admissibility of---ordi­

narily for Court of First Instance-Party tendering must showthat it is admissible

---- tS.91-Document-secolldary evidence facts necessary forthe admission of-

___ 88-Admissibility of evidence regardiQg the contents oftelegrams ...

_ go-Mortgage-amount of mortgage debt in dispute-Burdenof preof on mortgagee. Necessity fot' great.caution in UpperBurma in making presumptions as to ancient documentsproduced from proper custcdy

9X,92-Contract ,between the parties for a suit not reduced tothe form of a document,-admissibility of evidence of an oralagreement between them , ...

- 91--Where money is lent on terms contained in a promissorynote given at the time of the loan. the plaintiff is debarredby-;-from reserting to the original consider;.tion

s. 91-Admissibilit.y of independent evidence of obligation":';';Promissory note not proved '" •••'

s. 91-Admissibility of independent evidence in suit on promis-sory note ...

- s. 91-Construction of document containing cOntract ofguarantee-Alteration with implied assent of obligee­Construction eontrolled by final expression of obligation writtenby obligor himself in his own language .• ' ...

_ 58. '9r, 102. n4-EJl;clusion of evidence of contents of documentother than document itself-Urtstamped docu:r.ent exCludedlbrpugh l"efusal of party.to pay stamp-duty and penalty undersectionM, Stamp Act-Effect of such exclusion,Burden ofproof-Presumption as to usufructuary mortgage not carryinginterest plllsusuft'uct ....... '.;. '"

-\- 92.-A person who has ~xecut~d a d,fe'd of sale cannot beallowed to produce oral evidence showing that the transaction'was intended to take ~ffect (Inly' as a mortgage, unless the,evideh~e tendered is ShOWA to be admissible under one of theprovisos tc-. Alu-the embargo contained in-applies notonly to direct evidence of a cont:eroporaneous oral agreementbut also to indirect e'videoce showing by the acts and conductof the parties that thel'e-wassllcb anagteement

92.- In a su:it-bet~enmortga:g.eces:!.lrd til'drtgagors' it is 'noto'pen tc some bftlie exeeutants of the mortgage deed whoslgnedasptineipal debtors and inortgagors,to adduce otalevidence to'provethat they.Wer.e only sureties ••• ' ••,

382 1897to

190~'

347 1892to

18¢<

38.f 1897to

1901.

350J1892

to35'4- 181)6

S 1907to

rooo.3901'

'391 f'.897­385" toI19()1

I39'6)

J5 1907to

1909-

INDEX.

E-contd.

cxv

PAGE YEAR

EVIDENCE S. 92 (i)-Any fact may be proved which wouldinvalidate a document •• ...j 399 J1891

_ s 92 (i)-Non-payment of consideration may be proved not- towithstanding recital in deed-Any fact may be proved which Igorwould inl'alidate a contract 400

_. s. 92-Mere verbalevidence 9f contemporaneous oral agreement,showing that an apparent deed of sale was really a mortgage,insufficient-such evidence not admissible against an innocentpurchaser without notice of the existence of the mortgage.-See Evidence •••

S.92 ,4)-When a partnership has been constituted by it regis­tered deed, proviso 4 to-does not bar it from being dissolvedby ~n oral agreement

--- s.92 (b)-Interpretation of documents-When the boundaries ofland are described in a deed of mortgage and c'l.n be identifiedthey should beaccepted as defining· the area of the land affectedby the deed.Transfer of Property Act, 63. 70. Accession. Meaning of­

Nga Clio and 2 others v. Mi Se Mi and 3 others

-- 92 (6)-Admission of oral evidence to clear up ambiguity indocumentary evidence ••:"" 319 I89~

toI89~

5s. 92,102, IJ4-When a creditor is allowed to retain writtenevidence of an existing obligation, the burden of provingsatisfaction of the debt cannot be discharged without a reason­able explanation of such retention and the most trustworthyoral testimony of repayment ...

_.- s. I02-The mere presence on a document of the impression ofa seal such as was in use by the Hlutdaw. or 'High Court cfthe Burmese Government, is no sufficient proof of the correct­ness of the document as a coPY, of the existence of the originalOr of the genuineness of the transaction to which it purports totestify ... .... ..

._- 5S. 102, 106-Exemption from im'prisonment on plea of povertyunder s. 3.~7A, Code of Civil Procedure-Burden of proof onjudgment-debtor' .........

-- ss. 102, 1I0-Suit for redemption.of mortgage-Long possessionby alleged mortgagee. without recognition of mortgagor'sclaim-Unsatisfactory evidence of mortgage-Necessity forstrict proof in such circumstances •••...

._- ss. 102, rIo-Suit for redemption of mortgage-Burden ofproof-Necessity for clear proof of existence of mortgage whendisputed ....

._- 55. 109, J I4-Presumption of continuance of same state ofthings-Tenancy-Termination of-No proof of definite termof notice to quit-Presumption of continuance of tenancy undercircumstances. ... ..~ ... . ..

4021

I4041

18~7

"9 r,;:,4°9 I412 )

414 1891to

Igor.- s. log-Where plaintiff occupied land by permIssion of the

defendant for 18 years and although no re.nt was paid theplaintiff never set up any title as owner but continued, untilGovernment claimed the land as State to occupy under the'permission. Notwithstanding this fact such occupation will not..give them a title as there was no adverse possession S63 189-

.to18"

exvl INDEX.

E-contd.YBA!£"·

379"1I

383 I1892"'

}o to111896,

387

390 J

__ s. !Io-Burdenof proof-Suit for redemption of mortgage

no-Defendant in possession of land there being no wrongfuldispossession of plaintiff-Plaintiff .asserts that he gave thedefendant permissive occupation-Defendant asserts possessionof land by gift outright-The burden of proof lies on the plain­tiff to show that he gave permissive occupation and that hehas a subsisting title '"

_ s.· IIo-Land-P{;Ssession of-Burden of proof as to ownership-Bobabaing-Sisa-Thugyisa- Distinction betweenc!aimsfounded on official and on private tide . ••. . ...

_ s. no-Ownership c,f Ial}d- Burden of proof on person Qut ofpossession •.- . •.. •.. '" ...

_. 1I0-Documents of Burmese times-proof r.equired of-posses-sion .•. ••• .•. •••

~ IIo-Dutyof AppeHate. Ceurt to give its reasons for believing~ the ~viderice of one side in preference to that of the other when

the evidence is conflicting ••. ... ... ..._ 110-In a suit for poSsession of .land on the ground Qf dispos5...<>S­

sion or discontinuance of possession-period within which suchdispossession or disContinuan<:e of possession-must be proved­Burden of proof ••• .., ...

_ IIo-To oust a person from the possession of land on theground of a mortgage presumption in faVOUr of mortgage asagainst sale according to the customs of the country to supplythe want of the necessary direct evidence-Burden of proof asto ownership '" ...II0-Possession by plaintiff not shown to be unlawful, sufficientproof that defendant is not the owner when all the evidence ondefendant's behalf is that he is in possession as a trespasser ...

_ IIs-Heid-that in order that an estoppel under section !I5.Ev~denceAct, may be created the thing which one personinduces another to believe must be a fact in· existence or pastand that the mere promise to .do something in future will not

create an estoppelI.L.R. IO A,U., 433. •Ma Pyuv. Maung Po Chet and two others

___ n5-~ffect of intentionally allowing vendor to appear asostensible owner of land at public survey and registration oftenures in preventing original owner from afterwards settingup concealed title--e"idellee of sale .. .•. •..

lIs-Transfer of land by head of joint family binding oncoheirs-Estoppel-presumptlOn in the absenc~ of rebutting

evidence •• ..._ -J]5-~ettJ€rrel1t d .T.utual accounts on favourable terms on

the urderstar.ding that it was a final arrangemeirt-sut&quentsuit fn f:n itun emitted being the balarce due Cn a documentwhith ought to hl;vebecn ginn up but was not pre-cucrdbyhim €ither 1hrcugh ("crsight or ir:tenticc-e5tcppe1 •••

!-- IIS-Claim to lar.d alleged to be ancestra!-:family >CClllpact-esmppcl .

7

7

1904­to

19061897

to1901

19°21to

190 3.

1914­to

,191&

cxvii

- The best-producible and not second-hand-should be broughtforward to establis.h the facts necessary to be proved-Thereasonable finding of a Lower CouIt cn a point of fact shouldnot be disturbed in appeal without substantial grounds ...

EVIDENCE 50 lIS-Estoppel-Suit for specific performance of anaward ... ••. 't. 0'" u'.

~ s. lIs-Mortgage deed executed for fraudulent ptirpose-Fraud not effected-Estoppel- A"bitration •.. ...

f:-- Additional-Production of-in Appellate Court-Civil Prcce-dure. sectien 508-Evicence, section 153 ... ...

- Unstamped d~c~ment-Secondaryevidence of-not producedin-not admIssIble •••. ... ... ...

;..... When witnesses are named but not examined or when either, patty produces no witnesses the record should show the reaSon~ n6. Redemption of land mortgaged-Burden of proof-

estoppel.... •...

E-contd.l'AGE YEAR

293 1544-

I309"

. Burden of proof- Adopticr.- Fartiticn of property beheen Jbrothers and sisters- Fqt·alit) of shares.~ 104-

tDocument notstampec acmittedir.-by Court of First Instance I. cannot be eXcluded by Appellate Ceurt ... m 559

'"~ Mortg;;ge deed containip.g no separ;;te admission of debt or pro- I

mise to repay it-not divisible and cannot ceadmilted in- 375

Redemptien- Claim founded on subsequent loan which saves IIimitatkn-Corrcboration-Discrepancy... 500I

~ ORAL-Admissibility of-: explain a point on which a written:;':agreement to refer to arbitration issiIent ... ... 5

- S"""d.,y-ol .",t'm"d., .",8'o1"lIy ""mp,d d".m'.' I_ S:::::I::'::::·::'~;:'::::::P.:;~ bY": 3'5 I

rnentary- .;. 368

I3631

361 I313 J56% t8ga

to1~

INDEX,.

E.-contd"PAGE TSAR

INDEX.

E-contd..

EXECUTiON OF DEcRER-decree passed against the wife alone, thehusband and wife being 8uddhists-Attachment by actualseizure to the extent of the wife's interest-Lawful-Malicecannot be infe.rred from surrounding circumstances -unless it isshown that the attachment was made in an unreasonable andimproper manner.-See Execution of Decree ••• -•.

- Decree·holder who attaches and sells moveable property of hisjudgment-debtor, on which a third party has a lien. is liable tothat third party for the loss that he sustains by havin, his liendestroyed or impaired.-See Civil Procedure ~.. - ..•

- power of Court to execute decrees in excess of the limits of itsp~uniary jurisdiction as an Original Court.-See Execution ofDecree ... '0. •• _ "0 ...

- Suit will not lie in a Civil Court to execute the orders of a Revenueofficer whether by restitution or otherwise.-See Civil Procedure

- A Township Court has jurisdiction to try a suit brought undersection 283, Civil Procedure Code, to assert the same rightwhich a Subdivisional Court has disallowed [under section 28t-Jurisdiction of Court to be determined by amount in dispu tenot by amount of decree in execution of which property hasbeen attached.-See Civil Procedure .•• - _•.

- A suit will lie to-recover costs incurred in unsuccessfully object­ing to attachment of p!op6fty in-when it is shoWn in a suitunder section 283, Civil ProcediIre Code, that the defendanthad no colourable' justification for attaching the property norfor' defending the application for removal of attachment.-SeeCivil Procedure •.• ... •..

- sections 230, 235. Civil Procedure Code-A Civil Court may senda -decree simultaneously to two other Courts for execution andissue process in execution itself without waiting for the reports ofthe other Courts-Execution may not be ordered on an applica.­tion which does not comply with the provisions of section 23S,Civil Procedure Code. Execution may be had simultaneouslyagainst the person and property of the judgment-debtor, unlessthere be special cause to the contrary _" .oo '.0

- Application by joint decree-holder-Exercise of judicial discre­tion by Courts in dealing with applications under section 231,Civil Procedure C{)de... '. .• ...

- Applications for-governed by Article 179;Schedule II, Limita-tion Act ... ....... ... ...

- Against one ofseve::-al partners-Only judgment-debtor's interestin the .partnership attachable-Procedure to b~ followed inexecution ... -... .•. ... ...

- Costs incurred by decree-holder in -Contesting the removal of. attachment cannot _be added to amount of decree· against the

judgment-debtor-where a Court has jurisdiction and orders orref1Jses costs. the parties cannot bring a separate action forsuch -costs .~. ... ... ... . ...

- A Court executing a decree bound by it-andcannot question its. yalidity or the validity of a!1y part of i~ in execution pr~d.. mgs-Theeffect and Int.ention of the decree to be ascertained

- Investigation of claim to property attached in-points for.enquiry-Duty of investigating Court ... ... .oo

- Judgment-ciebtor arrested and released immediately withoutbeing imprisoned may be re-arrested ... .•• . ...

- L~nd sold in-Attached property-Burden of proof of posses-sIon .••....•. .... - •••

- Mortgagee'w'no has not obtained a decree on his mortgage bas, no right to obtain by an order in execution proceedings or by

_ miscellaneous application payment of his debt out of sale pro-~eeds of the property under mortgage when sold in- ...

PAGB Yu.iIt

41

L904} to

11906

tJ

INDEX.

E-contd.

- Collusive divorce to avoid attachment of property... .o.- Attachment of joint property of Buddhist husband and wife in-

Against husband alone-divorce for purpose of defeatingcred;tor .... ... ••• ... •••

- against persons standing security for judgment-debtor on the.latter absconding-Procedure " ... ••.

- barred under section 179, Schedule II, Limitation Act-Effect of-for purposes section 206, Succession Act ••. •••

_ Property wrongfulIy seized in-Special procedure laid down insection 278 intended to provide a speedy and summary remedyand not to deprive a claimant of his remedy by way of suit

_ Question to be decided by Court executing decree-Civil Pro-cedure, s. 244 '" ...

Right of use and occupancy of State land not liable to attach­ment and sale in-Upper Burma Land and RevenueRegulation, s. 25

EXECUTION.-Distribution of sale-proceeds in~ontravention ofsection 63.-S" Civil Procedure ... ••• 53 1910

to1913-

iNDEX.

61$ 18g$~!

t¥

«

9

I

I90ftGI~

5

.Ae£ YlUR.

EUCUTI0N SALE-Proceeds of-Parties claiming interest in-shouIdbe given an opportunity of being heard~and of establishingtheir claims to participate in the distribution ... 314 189'f

t9EgGl:

~SALE of land held under usufructuary mortagage-decree.holder'sright to sell such land ••• •••. ••• .•••

- Holding an-at an earlier hour than that specified in the prOaclamation of sale is a material irregularity to ~rrected inaccordance with section 31I, Civil Procedure COde, and nQt annIegaiity rendering the sale void-See Civil Procedure •••

- Signing-A man may sign a promissory note by getting someone to write his name for him ... ... ...

-- Signing-Heltl-thatap4f'ahaik mottgage deed,dated 1256 B.E.- (1894"95), though not signed was executed within the meaning

of the Stamp Act then in force (I of 1879) and therefore liableto stamp duty_ Held-slso.-that where the defendant wasalleged to be withholding an unstampedparalJaik document, thatdid not render secondary evidence admissible .

·CXXlI INDEX.

E-conta.

PA.GB TEAR

Ex-parle.-Construction ordinarily to be put upon the words-in thetrial to a suit in which the defendant after being duly servedwith summons fails to put in an appearance at the first hearing

_ Decision of appeal-on the ground that the defendant was. not entitled to appear by an agent .•• ••• •••

_ J?dgment-Service of summons of defe.ndant-eare to be takenIn ••• .•• ••• ••• •••

_ Fraudulent decree-Suit to set aside an-See Civil Pr~cedure

_ ORDER-Under section 258. Civil Procedure· Code. Appealagainst- ...

28211~g2

262518g6106 1914-

to1916

254 1891to

19di

. INDEX.

E-conttl.

EXTENSION OJ' LIJilI'I'A'I'ION Acr to Upper Burma and operationsuspended forthree years so asto give ample time fotenforcing

. old claims-Construcn of instrument-Acknowledgment offresh oontract: ••• 46t I~

tox8g6-

INDEX.

E-conc!tl.

PAGE 'liAR

INDEX.

F

FAMILY COMPA<lT. Claim tcland alieged to beancestral-Estoppel

FAMILY Join!-cohei~s-:-SE;pat'ateholding by one branch-Adversepossesston-Luuitat:iOR. •• 1' ••• ••• .. •

...--Limitation-Award not followed by possession without effect in

stopping running of time ••• ••• •..

!'at.GB· YiW.t

3~ I89~to

t$g1i

··cxxvi INDEX.

F-contd.

PAGB YEAR

),fATHER of iUegitimate child if not personally disqualified, may beentitled tQ the guardianship of the child ... .•. 415 1892

to1896

taxation of-of AdvOcates-Civil CourtsFEEs-Control andRegutl¢on, 27 ... . ...

INDEX.

F-contd.

FnsT WIn. Children of-and child of subsequent wife-Rules for. division of sh.ares of inheritance under Buddhist Law ••,

FOROIBLa OR WaORGI'V!.·: UlSPOSSt:SSIOR 01. LAND.-Burden ofproof •••

FORECLOSVRB-Deeree -of nature of....net ~y grantable in a suit .for redemption efland under usufructuary mortgage .•..

cnvii

INDEL

- --

~ tu.1il",llI'G O. ISSUllS. At 1M hearilag of IUit-New ground &fobjection in appeal .

INDEX.

F-co"M~

5 I~

to1903

FRAVn-:-A suit by a. p::rty to execution proceedings to have a~Courtsale set aside on the ground of- will Iie'wl:en the decree has

· ceased to be capable of ex~cution, and it is 110 longer open=::to the plaintiff to apply under section 244, Civil Procedure. SC/£'Code, to the Court executing the decree-Up~rBurma CivilCourts Regulation, 10 j Specific Relief 39 j Limitation 1I~1:&,91.95. 178-Se/l Civil Prccedure ••• ...

- Burden of proof-when section l10, Evidence Act~applies-Se,Civil Procedure ... .oo . ... •••

-- Effect, of-on the part of persons dea\illg with the Agent- Con-·struction of the SIX generafollprinciples f)f pOll'ers of attorney-·See Power of Attorney '"

- Existence of-national presumption of honesty and Cairdealing not to be (,vercome by clrculll,Jttances of mereauspiciQn, but ovidence roq.ind sui1cient to satisfy a reason­able mind of-

- Mortgage-deed executed for purpose of-Fraud not effected--Estoppel-Arbitration ....... ... •••

- Tort-Responsibitity-N~ligene:e-Agent and princi~. Agent mIStaken for prmcipal personally-Dealing. with

Agent in such assumed character ... ... '"

INDEX.

FIlA.UDULBIiT SBTTLBXllft to defeat or delay creditors-Burden ofpl:OOf 00.

FUUAIoOBSKQUUS and death4led attentions- Value of evidenceof performanQnf--in cases for inheritance under Buddhist1.ILw .0 ••• .f. ... ...

3!5 lagsto

1196

18+ l~to

1196

.INDBX.

G

GurBr.s- Money lent for the purpose ot enabling the borrower to­is not recoverable by Civil Suit, if the gambling contempla­ted bj'the parties when the money was lent is such as isprohibited tiy law, but if the gambling is not illegal a suit forthe recovery of the loan will be-See Contract

GABBLING-Illegal-Money lent for the purpose of-not recover-able .f'

GAHllfG-Unlawfut-Money lent for the purpose of-eannot berecovered ... f"

1 1904­to

1906

.lNDEX.

GBB£RAL POW"'""Ol'-A'r!'OR.lll'EY~forciissolutiGn of .Partnersbip...... Princlpat and A.,.aoot-Limitation .•• •••• •..

\li•••L .. tAUfCU'LU te be f<llH.wed in mortgage cases

_ to bt followed in mortgage eases-ilOn joinder of patties

INDEX.

- By a Buddhist monk not accompanied or followed by deliveryof possession and intended to take effect only on his death,invalid

-- By a Buddhist monk-Under Buddhist Law a layman uponembracing a religious life becomes ipso facto divested of allproperty, which thereupon vests as it would upon his divorceor decease

GIFT. Buddhist Law. i'oggaliIJa andbetween-

Thing/klZ-Difference.....

-- Possession-wbat is requisite t:transf~r possession-7'hlngikGgift of mortgaged land-Assent of son to gift by father­vested interest possessed by son in father's estate beforefather's death

- Revocation of-Buddhist Law not applicable to-Saccession­Inheritance-Meaning of terms

- ordinanly Buddhist Law is not a~plicable to-but it is applicableto deatb-bed gifts.-see BuddhIst Law-Gift ... •..

Gun. Poggalika and Thingi!a

- Poggalika and Thlngika

--- Under Buddhist Law-Validity of-Necessity for strict proof. . of;transfer of possession, which is the crucial test

-- Under Hindu "Law-deJivery or transfer of possession essentialto validity of';" ••• ... .... ...

3971 "11892~ to11:896

400)

I I gallto

190~

59JI89:Oto

72 1806

59 1 801to

19o1

"'28 18~"

to1896

~confd.

Gm-r.. Baddbist-Suitforrestitution of Conjugal rights; against­under theageOftB .

GRAND-CmLDRIIN descended from former wives who have beendivorced or separated from husband, and widow-claims toestate ofd~by-

___ Partition of property between-and step..grand-parent-- Step-Shares entitled to-Original and joint property-

Joint living-Buddhist Law-Inheritance " •._ illegitimate-exduded£rom'inheritance'o~ gnrid.pat"ellts wh;~

,the latter have left legitimate children 'surviving them,

GR1l1i'D-DAl1GKTltR-Sbare of..;.. in her own parents' estat~ as againstfterstep-grand-parent under Buddhist LlJw... ••.

nO' t8g.zto

l'l}5U2JtS97, tola6 190r

14t 1892to

r896

164 1897to

'90S;

INDEX.

G-contd.

GRAND-PARENTS. Inheritance of-illegitimate grand·childrenexcluded from-when grand-parents have left legitimatechildren surviving them

-- Step-Partition of property between grand-ebildren arid- •••- Step-Shai'£s of grand-daughter in her own parents' estate as

against her-under Buddhist Law

GUARANTEl,;-Contract of-Construction of document containing­Alteration with implied assent of obligee-Construction con..trelled by final expression of obligation written by obligeehimself in his own IaDoouage .

GUARDIAN-Objection to the appointment oIa-under the Guardiansand Wacds Act-belonging to an undivided_ Hindu familysubject to the Mitakshara Law does not applJ in Burma, wherethe conditions and incidents of joint family property aredifferent under Buddhist Law-Duty C?f ~rdian

INDEX.

G-concld.

"GUARDIANS AND WARns. The father DIan illegitimate child. if notpersonally disqualified. may be entitled to the guardianship ofthe child-Adoption by Mahomedans .•. •••

-- s. 6-Guardianship of child and of child's property-- s. I3-The provisions of the Civil Procedure Code should be

folIo~edas far'as may be in proceedings under the Guardiansand Wards Act ••. .•• ... . .•

.- s. 15. I7--Mahomedan Law-Custody of children- So 17. z9, 21. 39-Appointment of a guardian through the Court

-Points to be considered in the-Duty of guardian-Objectionto appointment ... •••

. -So If-When the ordinary candidates for the guardianship of. the property of a minor are a mother and a paternal uncle,

lhereappears to be no authority. under the Mahomedan Law. for preferring the uncle

- s ..19-Appointment of guardian of a minor whose father ishvmg ... •..

.- s. zg-Prohibition of appointment or declaration of guardian ofperson of minor whose father is living, and not in the opinionof the Calirt unfit . '" .

So 4s-Powers of Courts in respect of guardians regulated andlimited by Guardians and Wards Act, z890 ...

Gl1ARDUNSUn of child and of child's property and ownership ofsuch property upon second marriage of father subject toBuddhist Law

.1 1901to

14;)00

41aJ18

9:2to1896

~13

43; 18«)7to

19°1

INDEX.

H

.HEADwN-Village.-An agreementby which a-transfers his officialduties to another person who in consideration of performingthem is to obtain a ~roportion of the commission, is one ofwhich the consideratton and object are unlawful and opposedto public policy, and which should not be enforced by a Courtof Justice.-See Contract - .

'HEAD WJFB.-Position of concubine at'lesser wife living along with-and of clJild of such concubine living with father-Effect ofsubsequent regular marriage after death of-on position ofoffspring of a concubine or lesser wife

...-- Son of-Son and daughter of second regular wife-Son of slave

concubine-Suit for' partitionbetween-Shares to which entitled

HEARsAY. "-Distinction bet"'een secondary evidence of the con·tents of a document and oral evidence of the transaction.-Su':viclence

Iin:RARCHtCAL authorities of Buddhist community-Ecclesiasticaljuristiiction of-

145 lipto

t8¢

i76 1891to

. (got

·..CXXXV1l1 .INDEX.

PAGB 'l'XAR;

Hmns inherit estate when .the person from whom they inherit diesa.,d not when their inheritance is partitioned... •..

__ Natural-Diversion ofestate from-to religions endowmentshould be strictly looked into ... ... •..

.- of a mortgagor-Persons entitled to redeem a mortgage

Hnwv BUDDlIJ9'1'S-Buddhist Law 01 inheritance among-of. Arakan and Chittllgong .. .- I'AMILy-Minor belongin.g to-subject to Mitaksharalaw­

Objection to .guaraian appointed for-does not apply inBurma .•. .., ... ... •..

-- LAw-Law and custom of the community of Ponnas orManipuri Brahmins settled· in Upper Burma in respect ofthe appointment of priests to the charge of temples or 'religious endowments. Respe!=tive rights of the founders ofsueh ~ndowments and of the priestly family selected for theperformance of religious duties with regard to the appointmentof one priest in succession to another .... .••

- Wills-A will made bya Hindu in Upper Burma-Construction-Gift-Delivery or tr3.nsfer of possession essential to validityof- .t. ....

fllRI-'VllOBASE agreement-equiva.lent to an agreement to purchase

INDEX.

H-contd.

HLUTDAW.-Them~ presenceon a document of the impression of aseal such as was in use by the--or High Court of the BurmeSeGovernme.llt, is no' sufficient proof of the correctness of thedocument as a copy, of the existence of the original, or of thegenuineness of the transaction to which it purports to testify

HNAPAZON LETTBTPW....-A mortgage by a wife of her interest in ahouse and land which was-without her husband's consent wasvalid.-See Buddhist Law-Marriage-Joint Property

UUNm-Construetion of a-See Negotiable Instruments

HVSIANn.-Miscondaet on the part of-which gmy not in ~If

be sufficient to entitle a wife under Buddhist Law ,to divorce;may nevertheless be sufficient to entitle her to insist on a divorce

. by mutual consen~-SeeBuddhist Law-Divorce ' ,

- .A Burmese-Buddhist wife is entitled' to soeher-duringthe marriage to recover, with interest, money raisedon mortgage of her separate property and lent to hE'r-for hisseparate use. See Buddhist Law"":"Marriage

- Buddhist.-Suit by-for himself and as sole representative ofhis deceased wife ... .•. ••. ,._.

- AND wIFB.-Buddhist-Joint property of-attached in executi(Hl, of a decree against the husband alone .• . .

4()4 18grto

19t)t

5 19"toIgoS

exl INDEX.

H--conc/d.

HUSBAND AND WIFE.-Buddhist..:-Property jointly owned by-shouldordinarily be deemed to be in the 'possession of the former-

- AXD WJFB DIVORCED.-·Daughter of-living with her mother andseparating entirely from her father loses' claim to inheritany share in her father's estate ••• - '"

-- AND Wu'g DYING WITHOUT ISSUE.-Rights to inheritance ofestate of~Divided and undivided ancestral estate ...

- AND WIFE.-There is no distinction in'Buddhist Law betweenthe respective interests of a-in lointly acquired property whenthe parties have been married before (eiffdaunggyi), and when

,they have not been married before.-See Buddhist Law-Divorce ... "'. '"

--- when a-die within a short time of each other, leaving neitherdescendants nor ancestors. the relations of both may inherit theEstate.-See Buddhist Law-Inheritance ... '"

- Buddhist-or wife:-lnterest of-in properly ~quired by theother alone upon divorce by mutual consent-Collusive divorceto a...·oid atta~hmentof property

-- Deceased-Claim of wife, to inherit the property of her-to whomshe was unfaithful

- Exclusion of-from share in estate of parents under BuddhistLaw wben wife' predeceases her parents '

__ Legal representative of deceased "'ife~BuddhistLaw-Di't'orce

HUSBAND OR W1PE.-Deceased-may have married before or after thedeath of parents. but must have survived them so as to be in!eac~ of Inheritance-on death of one, succession of~other tomhetltance ., . .<0 ... • ..

- Union of-as it exists under J3uddhist law should be treated asa partnership ...... •

- whose destinies are not.cast together-divorce cannot be,grantedon lhio; allegation ......

u 61II89r'> to

J1901146

169 1897"It)

190153 1292'

to1896

INDEX~

I

h.ueAL CON'1'RACT.-Money paid under an-not recoverable becausethe illegal contract was~ca~ried out

- GANIILDlG.-Money lent for the purpose of-net recoverable ... SU 1891·to

ItIO£

II.UGITIJl4TIl cHlLD.-Appoil'ltment of guardian o!'-Father'sdaim

-Father of-if notpet'Sonaily 1iisqualified, may be entitled tothe guardiaaship of the chid .•.

I LLCGITIMATa grancH:hildren excluded from inheritance of grand­parents when the latter have left legitimate c:hildren survivingtbCfD 141 IStS'

toIS96·

ILt.-YU!TMKNT AND DESERTION BY PETITIO!fI:a.-A valid plea ofjUltifit:ation and« Buddhist Law-Conjugal rights-Restitutionof-S,~BuddbistLaw-Marri~e . 5 lf04:-

toItw'·

INDEX.

I-contd.

hurovBABLEPROPERTY.-Action for enforcement of contract for saleof land-Breach of contract-when specific performance maybe enforced

_ Customs with regard to succession among the owners of the rightof digging for petroleum oil at Yenangyaung ..• '"

_ Mesne profits for the period prior to institution whicb can beclaimed in a suit for-must be Pt:0fits which the person inwrongful possession actually received, or might with ordinarydiligence have received during that period.-See Civil Procedure

- Tari palms and coconut trees are not "standing timber"as referred to in section 3 of the Upper Burma RegistrationRegulation, but are--S,e Upper Burma Registration Regu­lation

- The proviso to Article 148, Limitation Act, in respect of the. period within which a suit must be brought against a mort­

. gagee to redeem-mortgaged has no application in Upper.Bunna where the general period of 60 years is allowed .•••

539 1897to

IgoI

231 189Sta

1196

5° 1904-to

1906

I 1901l .to

1903

524 1892to .

1896

lMPOSSIBILITY discussed and explained.-Se8 Contract '. .:.j 108 1910to

1[913

INDEX.

I-contd.

cxIiii

hlPROPBR admission of appeal after allowed period of limitation ... 547 I~to

1896

INADMISSIBILITY of parol evidence to contradict or vary terma of adocument 345 18g:!:

toI8g6

II INA.NI'"ATB" property ~pplies to land anIong other things ~..

INAPPLICABILITY of Buddhist Law in regard to questions of limi~tiolt ", ...... 487 I~

to1896

01

INDEX.

I-contd.

fKftM£NCE-Unde-P~of Cotzrtto deal with unconscionable,contract .,.. ••• _ .e. 3&:$ ISgf

to19o1

INDEX.

I-contd.

INHERITANCE among Chins-Joint family property-custom

- Buddhist Law-Daughter of divorced wife born after divorceliving with mother-and did not maintain filial relations withfather-father having left no other wife. child or grand-ehild-is entitled to inherit half against sister of father with whomfather lived.-See Buddhist Law-Inheritance

- Buddhist Law.-Exclusion of illegitimate children ••• •

-- Buddhist Law of-among Hindu-Buddhists of Arakan andChittagong... ~.. •••

- Buddhist Law.-Second wife entitled to share in-with first orchief wife when she has clearly the status of a wife undEr Bud­dhist Law

- Buddhist Law.-When a·husband and wife die within a shorttime of each other, leaving n~ther descendants nor ancestors,the relations .nf both may innerit the estate.-See BuddhistLaw-Inheritance .

Children who voluntarily separate from their mother on hersecond marriage and perform no filial duties .are excludedfrom-

._- Claim to share of-before death of both parents-under Bud­dhist Law

Claim to share of undivide'd family- Burden of proof-Limita­tion

- Distinction between wife and concubine-See Buddhist Law-Inheritance ••• •••

_ Duties and share of l:itlima adopted child-Buddhist law ...- Husband and wife-on death of one succession of other to-•••....:.-. Living apart from.parents and not attending in llIness does not

of itself rupture family-ties, or disqualify children from.- SeeProbate and Administration .

.- Mahomedan and not. Buddhist law applicable to Zerbadis ornative Mussulmans in Upper Burma In matters of- •••

- Presumption under Buddhist law as to status of woman to sharein-when shy has a separate residence to that of her husband

cxlv

PAGE YEAR

. 238 1892to

I8g6

160 1891to .Igor

113 1897to

19o1

ISS} 18gato

1896493 '.

42' 1910to

. 19i322}18g2

121 toI¥

1 .1902to

1903

529111892} kJ z8g6 .

194)

cdvi ·INDEX,

I-contd.

PAGE YE~

INHER,ITANCE.-Property inherited during- marriage-Definition ofAUf'atha son-See Buddhist Law-Inheritance

.-- Right to-of estate of husband and wife dying without issue­Divided and undivided ancestral property-Buddhist Law­Inheritance

Succe,>siol1-me~ningof terms

__ Sqit for share of-Limitation-doubtful whether Article 1'A7,~hedule II of the Limitation Act, is applicable to a case be­tween Buddhists in Burma

- The rule' that mere absence of joint living is not sufficient toexclude from-and that filial neglect must be proved, appliestostep-children.-See Buddhist Law--Inheritance

_ Under Buddhist Law-can ascend when there are no descen..dants-Authorityof Manukye Dhammathat, X-62-c-enied

_ Under Buddhist Law-for daughter of divorced wife who liveswith her mather or mother's family and not with he. father ...

IN.lUR,T-DonebYone animal ~oanother-Pt"ooft"equired-D~mages--F~ocity--Negligen~Tort ••• .... ...

. --- Done by one animal to another-Proof required-DamagesFerocity-:-Scienter-Tort ....

66 1914·to

1:916·

146 1897-to

Ig01400 1892 '

toz896-

458 1897-to

19°1:

J: . 19°4--to

7906-Ul 1897

to19°1

~S9 1892to

1896,

, ­

S61.l18

91'to565 IgOI.

INDEX.

I-contde

'INSOLVBNcy-Provincial-Acts of bad faith-Adjudication-See Pro.vincial Insolvency ... ... ... ..,

INSOLVENT-Application by judgment-debtor to be declared-Burdenof proof ....

-- Judgment-debtor-Liability of person furnishing security £or-

-- Section 40 (2). Provincial Insolvency Act. must be read withsection 16 (2) and section 60. Civil Procedure Code, and theCourt acting under section 40 (3) cannot allow more than halfthe-salary for the maintenance of himself and his family­See Provincial Insolvency Act ... .... ...

INSTRUMENT admitted in evidence-provisions of Stamp Act-Section. S6 to be observed ... •.•• ... •••

cxlvii

283 1897to

19G1269 1892

to18g6

132 1914to

191 ')

633 1892­to

18g5

cxlviii INDEX.

I-cOt1;td.

PAGE YBAB;­INTEREST on promissory note or bill..of-exchange.....how to be cal~

culated .,. 000 .• '0 ."

-Rate of excessive~reduetionor-under Contract Act. section 74

INTBRPRETATION o! section 20 of the Limitation Act

INTESTATJj:-Co-heir cannot sue administrator for partition of estate-of an-. See Probate and Administration ... ...

1NV£STIGATION':"-Held-th~tthough a Judge may refuse to make_an-under o. _XXI. r. 58, if he is of opinion that the applica~

tion has been designedly delayed. he cannot dismiSs an appli­cation on that ground once- he has made an-but is bound topass an order under r. 60 or r. 6I-See Civil P1"ocedure

- opel-AIM To paOPERTYattached in execution of decr-ee......Points- for enquir):-Duty of investigating court ...

4{)O 1892.­to

1890

I 1902­to

.19°3-

136 I914to

1:916

262 1891to

JCf<1-

INDEX.

I-cone/d.

ISSUlls. Framing of-at first hearing of suit-new ground of objec.troo in appeal .t. .•. ... ... . u.

- Settlement of-burden of proof-necessity (or making partiesclearly understand points on which evidence is required ...

cxlix

265J1892

to400 1896

iNDEX.

J

!«mmER....-defect in plaint for non-mortgage-rooemption-generalprinciples to be followed ... ••• ••• •••

-- OY PAR-TIM-of all persons interested in property

JOINi' <:LuM-among Burmese. Presumptions as to portions beingjoint or separate property o~ heirs under varying circumstances-Burden of proof .... .•• ... . ..

--- Claim for-and divoree on ~rounds of cruelty on part of thehusband .•• ... .00 •••

•......... Ciaim to share of ancestral property by certain co-heirs againstother co-heirs in possession for upwards of over 12 years'

. limitation .•• ...... •..~ Claim to share of family estate-effect of land passing from

. one branch of family to another-limitation-Burden of proof- Claim to share of undi~ided family inheritance-Burden of

p.roof-nature of proof requir..ed-limitation

JOIKT DBCREB-SOLDBtt-Application for execution of decree by­Exercise of judicial discretion by Courts in dealing with a ppU­cations under section 23!, Civil Procedure Code ... •..

JOINT ~l'AMItY l'RofRRTt'-Inheritance-division of-under Chinlaw... ... .•. ... ...

- Suit by ehildrenagainst. their widowed mother for protectionof-

JOINTLY ACQqIRED PltOPERTY'.--Pa1inproperty or property anteriorto second mardage-claims to-under Buddhist Law •••

,

::l :~:

INDEX.

J-contd.

JOINT LIMITATION-Award not followed by possession without effectin stopping running of time ••. .... ...

JOINT LIVING-Original and joint property-shares to which step·grand~ildrenare entitled ... ... . ••

-'- Question whether mere absence of-excludes a child or grand­child from inheritance-Necessity for filial tl"..gIect to exclude

4St ISgato

1896

cHi INDEX.

J~contd.

JOINT IIORTGAGOa5" Representatives of mortgagors ...

JoINT-Partial division of-portion under mortgage-Redemption byco-heir claiming in individual right-Time from which periodof limitation begins t~ rUIl ... . ... •••

JOINT PRoMlsoRs-Liabil!ty of-to joint promisor although thecreditors" claim as against them was barred by limitation •••

PAGj Tau:

556 1892to

:1896-

500 1892to

1896

iNDEX.

]-contd.

45 I~to

18g6,

1 !lJOZ'to

1m102 z89J,

c to1901

- Right of a husband ;;r wife to alienat.e-without the other'scon,sent.-A mortgage by a wife of her interest in a house andland which was hnapas6n lettetpwQ without her husband'sconsent Was valid-See Buddhist Law-Marriage-Joint Pro­perty

I PAGE

JOINT PROPERTY-attachment by actual seizure of-to the extentof the wife's interest-when decree passed against the wifealone~usbandand wife being Buddhists-lawful.-See Exe­cution of Decree

- Claim to share of-of brother and sister, both being alive-Law of Inheritance nOt applicable... .-. .••

11901­to

- .. - Igag--- Suit for partition of a pornon of-eannot lie-the whole estate

should be brought iato division ... ... ... - ~2' 18gf'to.;;

19ft- Suit for a share of-land in possession of member of family

holding Thugyiship for time being-Father losing Thugyishipand second son obtaining it during father's Iifttime on elderson rclusing to take it. Partition of portion of land amongco-heirs of father ••• .,. ••• . ...

- There is no necessary presumption that where a family breaksupthe family property remains undivided. Even though someof it may be mortgaged there is nothing to prevent anarrangement between the heirs as to the partition of the rightsof t"edemption ...

_. Oll BUDDHIST HUSBAND AND WIPE. Attachment of-in exccU-- tion of a decr.ee against the husban4 alone

...;... Transfer of land by head of joint family binding on -co-heirs-estoppel ... ... ... ... _.. 383 I~­

toIstf·

IND~X.

J..-contd.

JOINT PROPERTY.-Transfer of share of- ...

JUDGE. Judgment written by a-after making over charge of hisoffice not invalid .••

JUDGMENT-CREDITOR-A-does not cease to be a creditor for thepurposes of section ~o6, Succession Act-through execution ofhis decree being barred under section 179, Schedule II,Limitation Act .... .

JVDGMENT-DEBToR-Possession-Proof-Burden of - Attached pro..perty ...... ......

-The judgment·debtor is the party who has to show the Courthis right to. exemption fromrthe provisions of law which the­has put in force against him

PAGB 'fBAR

345 1892to

18g6

INDEX.

J~contd.

JUDGMENT-DEBTOR-AppUcation by-to be declared insolvent-Burden of proof •.. ..; ... .,.

- Arrested and released immediately without being imprisonedmay be re-arrested ... •••

- Costs incurred by the decree-bolder in contesting the removalof attachment cannot be added to the amount of the decreeagainst the- .. . ••• ." .••

Execution may be had simultaneously against the person andproperty of the-unless there be special cause to the contrary.-See Execution of Decree ...¥.

Interest in a partnership attachable in execution of a decreeagainst one oheveral partners-Procedurtl... ..•

- Liability of person fumishing security ror-to appear whencaRed upon ... - ...

- No authority fGf permitting a-in execution proceedings toprove in iJOntravention of O. XXI, r. 2, an adjustment out ofCourt. if such adjustment. not been certified and he hasnot applied within the time allowed by Article 174. Schedule I,Limitation Ad. to have it-eertified.-See Limitation

- The-is the party who has to show the Court bis right to- exemption from the provisions of law which the judgment-

creditor has put in focce against him ...

elv'

i 1904­"'to

-19OO

431 ISg7­to

I9Dt

~ I8gato

18g6-

191 iglO-to

191:$-

~79 1891'to

19o1..

..c1vi INDEX•

. J-contd.

PAGE YBAil

.Jl1DG!tIBNT.~E,::.parte-serviceof summons On defendant-eare tobe ta.~en 10- ••• ••• ,.. ....

_ Application for a review of-on the 'ground of non~productionof certain evidence in the Court of First Instance ...

._ Application for review of.-conditions necessary for an-to'beentertained .. ,

- Review of--eannot be admitted {or the purpose of re-arguinga case on previous material-Error of law can be good groundfor review only where the law is definite and capable of distinctascertainment-Self Civil Procedure .. , . .t. '. .0'

.621 1892to

1896

S 1902to

Igo3

INDEX.

j-contd.

lUDGMBN'l'.-R~Gf""'CQnditiofllHulderwhich"'""Can be.granted ... 153 r8fimtG

~

- written by a.~u=r makitJg ewer cbugeofhis office notinvalid '.~ .'.... .... ••• ... q6 I:8'IF

•rgoE

clviii INDEX.

J-'-contd.

PAGE YEAR

JURISDICTION-:-A High Court by directing under fection 22, CivilProcedure Code, that a suit shall proceed in a Court in

. another-and flot in the Court in its own-in which it has beeninstituted, in effect stays further proceedings in the latter Courtand makes the Court incompetent to proceed with the case; andhenc-e the only course open to it. is to retUrn the plaint to theplaintiff for presentation in the proper Court-Seq Civil Pro­cedure

~ Ci~i1 Court bound of its own motion to consider whether it has. -Duty of Appellate Court to rectify error in appeal when

question of-:has been overlooked '"

Civil Court has no-in any matter which a Revenue Officer isempowered under the 'Upper Burma Land and RevenueRegulation to dispose of-Suit will not lie in a Civil Court to

. execute the orders of a Revenue Officer whether by restitutionor'otherwise-See tivil Procedure... ... ..,

~ Consent of parties cannot confer-where it does not exist

_ Court has .no-to execute decree sent for execution when it isin excess of the limits of its pecuniary jurisdiction as an Origi­nal Court-See Execution of Decree ...

~ COURT-Return of plaint to be presented in proper Court-Removal of attachment-Regular suu:-Objections tojurisdiction cannot. be passed over .

_ Ecclesiastical-Civil Court should abstain from deciding pointswhich £all within the sphere of-See Buddhist Law-Ecclesias-tical .

_ Held-that the:-of Ciyil Courts is not barred by section 53 (2)(x), Upper Burma Land and Revenue Regulation, to claims toa right to fish, or .connected with, or arising out of, the demarca­tion or disposal of any fish~ry-See Land and Revenue

. Regulation •••

25 19°7to

190 9

443 1897to

IgOI

13 1902to

1903447 189:1

to18g6

5 19°2'to

1903

216 1897"to

19°1,1 1902

to1903

INDEX.

J-contd.

JURISDICTIoN-Held-that clause (ii) to sub-section (2) of section 53of the Upper Burma Land and Revenue Regulation, neitherbars nor purports to bar the- of Civil Courts over claims to theownership or possession of any State land except in respect ofsuch matters as the Local Government or a Revenue Officer isempowered by or under the Regulation to dispose of; andinasmuch as the Regulation does not empower Revenue Officersto dispose of claims between private persons to the owr:ershipor possession of any State land more than one year after thedate of the declaration by the ColIector that the land is Stateand does not give any authority to the Financial CIlmmissionerto make rules for deciding such claims, the-of.the~ivil Courtsis not barred and they are. entitled and bound to take

.cognizance of such c1aims.-See Land and Revenue Regulation.

- of a. Township Court to try a suit brought under section 283,Civil Procedure Code, to assert the same right which aSubdivi·sional Court had disallowed under section 281. In such a suitthe jurisdictiun of the Courl is determined by the amount indispute, and not by the amount of the decree in execution ofwhich the property had been attached-See Civil Procedure ...

_ OP (IVIL COURTs-Statt' land-Upper Burma Land andRevenue Regulation, section 53 (2) (ii)

01' CouWI'-Suit for redemption of mortga~e· of State land­barred by Upper Burma Land and Revenue Regulation,section 53 (2) (ii)-Possession

OP COURT UNDER THE INDIAN DIVORCE ACT. ChristianMarriage·Act-Code of Civil Procedure

- Redemption Suit-Value of sait.-Held-that in a suit forredemption of a usufructuary mortgage that subject-matter ofthe suit is the land sought to be recovered, and that accordinglyfor the p1,lrposes of jurisdiction the value o( the suit is theactual market va lue of the land at the time the suit is filed

Maung Kyaw Dun v. Maung Kyaw and one. I L.B.R.,96referred to.

Kubair Singh v. Alma Ri8m, I.L.R., 5 All., 332, referred to.Amanat Begam and Oni v. Bhajan Lal and others, I.I•.R. 8

All. 438, referred to.Rupchund Khemchand and one v. Balvant Narayan and

others, I.L.R•.II Born., 591, referred to.Ramchandva Baba Sathe v. 'jancrda# Apaji, l.L.R. 14

Bom., 19, referred to.ll1ana Vikrama Zamorin Maha'Yaja Bahattur of Calitu& v.

Surya Narayantl Bhatta and another, I.L.R.5 Mad., 284,referred to.

Nga Tun Baw and one v. Mi Kye andone

II

clix

PAGE YEAR

IS! 1914to

1916

330 189:2to

1896

clx INDEX.

J-concld.

PAGE YEAR

JURISDICTiON-Service (If summons on defendant whose residenceis out dfthe-of a Court ••• ••• '" ...

_ Suit for recovery of. money paid as compensa.tion for a.cquisitionof land by Government-Not a land suit-Jurisdiction ofTownship Court

- Suit for rent of State t30nd not-oognizable by the Civil Courts.­See Civil P-rocedure

441 1897to

19°1:

I "1902to

rgo3

INDEX.

K

'KITTIMA ADOPTED' CHILD-What is a share of a-

-- adopted son-takes position of natural son when there are nonatural children

-- adoption..oo.to establish a-proof of publicity and notorietyessential

- sON-Conditions under which-en,titIed to' inherit-thoughliving apart'from his adoptive parents

-- SON-THAHETA sON-La~relating to--

c1xi

PAGE YllAR

22 1892to

1896

171 189~to

1896

34 1892to

t896

clxii INDEX.

PAGE TEAm:

KYAl1NG. Suitforelectment from a-....... Suit for ejectment from 2-C«entony of making a iibation of

water in the consecration of land and buildings " ........ Suit for possession of a~Authority of Buddhist -ecclesiastical

authorities in ecclesiastical matters •

12}1~2.51 ·[896

42 1891to

19°1-

INDEX.

L

<LAND-Although ordinarily trees may be presumed to belong to theowner ofthe-on which they grow and vice versal the presump­tion may be rebutted by evidence of separate ownership ofland and trees and of the existence of local custom to thateffect

- Building on another person's-by other than a mere iespasser

-- Claim to-alleged to be mortgaged-Burden of proof_ Dispossession of-primary evidence-Burden of proof

- Defendant in pcr.:;session of-there being no wrongful disposses­sion of plaintiff-Plaintiff asserts permissive occupation uydefendant-Defendant asserts possession of land by gift out­l"ight-Burden of proof on plaintiff.-See Evidence

-- Forcible or wrongful dispossession of-Burden of proof .••-- in possession of a member of a family holding thugyiship for

the ti,ne being-Joint fam~ property-Suit for a share of­-- Need for clear proof of ancient claims to-after long undis-

turbed possessbn ••• .ft ... • ••

-- Ownership of-Burden of proof on person out of possession ...-- Possession of-Bobabaillg-Sisa-Thugyisa-Distinction be-

tween claims founded on official and 011 private title-Burdenof ploof... ...... ..,

-- Possession of-Suit· for recovery of--ot which possession hasbeen lost-Barred by limitation ... ... . ..

.- Practice in Upper -Burma of making further advances on usu·fructuary mortgages as-becomes better cultivated and morevaluable-Effect as regards limitation . •••

-- Redemption of-m9rtgaged-Burden of proof-estoppel ...-- Right of owner of-to enjoyment of water of natural stream-

Substantial interference with such enjoyment constitutes Tort-Easement ......

-- Rival claimants. Contending possession of--- Sale of-State land-title-occupancy ...-- State-private land-Questions concerning-... •••-- Suit for possession of-on the ground of dispossession or dis-

c0ntinuance of possession-period within which such disposses­sion Or diSContinuance of possession must be proved-Hurdenof proof ... ... .... . ..

-- Suit for recovery of-assigned by award-Article 144 or 14.8 ofschedule·to Limitation Act applicable-Plea of limitation canbe raised in appeal ... ... . ...

._- Suit for recovery of money paid as compensation for acquisitionof-by Government"';"not a land suit-Jurisdiction of TownshipCourt ... ... .. ... . ..

- Suit for recovery of possession of-. Burden of proof on wrong­doer. Claim to waste-as boba6aing anti not State-l..1nd•.Title arising from possession of-after and before annexation

- Suit for redemption of-aIleged to have been mortgaged-Pos-session-Adverse-Limitation •• ••• .~.

clxiii

PAGE YEAR

360 1.897to

1901

214J1803

6 to5 g 1896234

7 1902to

1903233""1

I 18921441 ~ to

11896551)

42rJ18

97. to416 Igor

:::'1561

f 18!,l2642} to25111896615634

375)

224 .1892to

1896

464 1897to

I,gOX

dxiv INDEX.

L-contd.

PAGE VIAe..

LAND-Suit for redempticn of mortgage by persons holding-astenants on the a1legation that they ",ere representatives of theoriginal tTtortgag{;r and the landlord representative of theoriginal mortgagee-Burden of proof-Limitation

"""':-Suit·{o!' value of trees and crops standing on-may not be sub­star.tiany in issue in a suit for ownership of land-custom •••

-- Suit to recover a piece of-Burden of proof of ownersh ip

T!t~ to. ownership of-occupied with permission-possession-hmltatlOn ... ... ... ... •.•

Transfer of-by head of joint family-binding on co-heirs­Estoppel·

Usufructuary. mortgage of-Failure of mortgagor to deliver.possessio~Remedy of mortgage

LAND bOlitD. Claim as representative of deceased-Suit for ejectment. -Cause of·actio'Q: . .. ••• .... ••. ••.

- Suit by a-to eject a tenant frombis house. is ~overned .as. r~aids Court Fees by Article 17, Clause VI, of ;:,chedule II.

of the Court Fees Act.-See Court Fees ... ...

- AND' TENANT-In Burma. the practice of annual letting beingcu!ltomary the presumption of a relationship of--once provedcontinuing to subsist not strong-open to tenant to. show that.previous relationship has ceased to exist .... ...

579 1892 'to

18gti

213 1897'to

19oE.311)

I3631

ISgS-} to

38311896

I573J

2'51 .1892to

18g(i

1 1902to

19°3

535 1S9Tto

1901

INDEX.

L-contd.

LAND AND REvENUE REGULATION-Section 23-island and alluvialformations in rivers and waste land considered Stat~Custom

- 39, 53 (2) (ii).-A Civil Court may attach the produce ofState land in execution of a decree, but that before paying thesale'proceeds the Court should ascertain from the Revenueauthorities whether all revenue and arrears due on the landfrom which the produce was obtained have been satisfied, andif these dues have not yet been satisfied, should make themgood as a first charge from the sale-proceeds

53. (2) (ii)-A right of way as. an easement is an interest inland within the meanil1g~f-and Civil. Courts are debarredfrom entertaining a suit to establish such a right over Stateland ... ••• •.•

- 53. (z).(ii)-A Twinyo or Ayo is an interest in State land, andconsequently in view of-the Civil Courts have no jurisdictionto entertain a suit to recover a Twinyo or Ayo .••

-- 53 (2) (ii).-Held-that clause (ii) of sub·section (2) of section53 of the Land and Revenue Regulation neither bars nor­purports to bar the jurisdiction of Civil Courts over claims tothe ownership or possession of any State land'except in respectof such matters as tbe Local Governmentor a Revenue Officeris .empowered by or under the Regulation tooispose of; andinasmuch as the Regulation does not empower Revenue Officersto dispose of claims between private persons to the ownershipor possession of any State land more than orie year after thedate of the declaration by the Collector that the land is Stateand does not givp. any authority to the Financial Commissionerto make rules for deciding such claims, the jurisdiction 'of theCivil Courts is not barred and they are entitled and bound totake cognizance of such claims.

U.B.H., 1897-01, II, '2J'7, 20g, 2II (dissented from). CivilAppeal No. 195 of 19I~ (Unpublished).

- No. 372 of 1913 (Unpublished).Blackstones' Commentaries, Chapter X.Journal of the Society of the Comparative Legislation, Vol.

XXXVI, p. 211. ... .Sonilal Sheoshanka lJy his Agent, Ra.1n Pershild v. D,lawar

_ 53(2) (x).-HeId..-..that the juriSdiction ohhe Civil Courts is notbarred by section 53 (2) (x), Upper Burma Land arid RevenueRegulation, . to claims to a riglit to fish or connected with, orarising out of, the demarcation or d~posal of any fishery.

Civil Second Appeal No. 307 of 1915.MaungHme ana !,oe, v. Afaung Tun RIa

clxv

PAGE TEAR

I 1901to

1909

IJI904-to5 1906

1511

1914­to

J1916

136 .

dxvi INDEX.

L-contd.

PAGE TEAR.

,LAW AP2UCABLE '1'0 TO~'L'.-asuitwinnot lie where the damage

·conu>lained of is too remote-See Tort .- . I 1904to',·

I90G

INDEX.

L-eon:td.

LAW AND CUSTO M of the community of P6nnas or Manipuri Brah­mins settled in Upper Burma in r-espect of the apP<jrtment ofpriests to the charge <)f temples or religious endowments

LEASt; by mortgagee whetber dete."1llinahte on redemption-SeeMortgage '" .

LBGAL ADVIce AND ASSJSTANCE-Duty of Courts·· to allow a reason­able time to parties to procure-and to take into considerationthe circumstances under which alone such-are obtainable inUpper Burma

-- Representative of deceased debtor-Suit a§!ainst-41Ot necessaryto prove that assets have come into hands of legal represen­tative if there are 2ssets of which he might become possessetl­Decree should mention that it is a..aainst-in that character ...

cIxm

PAGE YEAlIt

dxviii INDEX.

L;"""contd.

LESS.ER WIFE OR CONCUBINE living along with head wife-position of-and oLchild ofsuch ccncuhineliving with father-Effect ofsubsequent regular marriage after death of head wife onposition of offspring of

LESSER WIFE. Family of--Chief wife-family of-Inheritanceentitled to-

145 1892to

1896

138 1891to

• 1901

INDEX.

L-·contd.

LETTERS OF ADMINISTRATION, ApnIication for revocation of the'grant of-Refusal of Court to grant revocation-Duty ofC?uyts in reg3Fd to applications under the Probate and Ad·mInIstration Act •.. •••

-- Deceased person-Succession -Certificate Aet-.j.

~-- Effect and grant of-Scope and object of the Act-See Probate

and Administration ••• .•• ... .•

-- Grant of-to .creditor

-- Merits of. parties to be considered in granting-

Need for care in issuing dtations and scrutinizing claims for-Procedure ....

Objection by persons claiming as adopted .children-See Pro­bate and Administration

-- a suit following five months after the issue of-proPerty in thepossession of persons to whom it bad been distributed by the

. administrator or did riot invalidate the suit-Decree shouldhave merely specified the share to which plaintiff was entitledof the deceased's interest in the undivided property and shouldnot have defined the extent of the deceased's interest -SeeProbate and Administration

--when an applicant for-is entitled to inherit and is under nopositive disqualification and there is no application by any otherperson, the application should not be refused.-See Probate andAdministration ••• ••• ... •..

, .CIXlK

PAGE YEAR

533 1891to

638Igol18g2·

tol¥.,

69 I9IGto

63519I!18g2

toISgC

531 1897to

1901:

610 IBgIto

ISgii

101 1914-to

1913s'l

l'FtoI'9"&

1)

·-elxx INDEX.

L-C01Zfd.

PAGE YEAR

Lettetpwa and Payin property.-Buddhist law-Divorce-awardby arbitrators

··LiABILITY. Acknowledgment of-Dismissal of-instituted afterperiod of limitation

:LIMITATION. Claim to land on ground of descent from remotecommon ancestor. Long posSC!i6ion by one branch of des·cendants. Omission to show or even allege"possession or enjoy·n1ellt within 12 years of institution of suit. Limitation-Plaintshould have been rejected as showing no causeof action

._ Claim to redeem a mortgage founded on a subsequent loanwhi$::h saves-Evidence-Corroboration-Discrepancy

- Claim to share of ancest~al family property by certain co-heirsagainst other co-heirs in possession for upwards of twelve years

-- .Improper admi:.sion of appeal after allowej period of--- Joint family property~co·heirs-Separate holding by one

branch-Adverse possession ,.. - ....- Joint-Promisors-Liabilityof-to joint promisor although the

creditor's claim as against them was batred by-10

507 1892,to1896

500 1897to

I~OI

'1437 I 18gz .54-7} to

I 1896444J

331 1897to

llJOI

INDEX.

L-co'lttd.

LIMITATIOr.:. Original mortgage barred by-Renewal of mortgagewithin time set up-Burden of proof '"

__ Redemptkn of mortgage--exclusion of case from the usualprescribed period of 60 years

__ Subsequent small ndvances to keep alive an old mortgage ofwhich the redemption would otherwise be barred by-should becarefully tested and considered

Suit to set <!s:de an award which was base<l. on"~ point of­Rules of-under Buddhist law obsolete

--Act s. 4. Articles II3, 144, 148-Suit for recovery of land assignedby award-Article 1:14 or 148 applicable-Plea of limitationcan be raised in appeal ..

-- ss.4, H)-Dismissal of suit instituted after period of-Acknow­ledgment of liability

-- SS. 4, 5· Reject-ion of appeal as being beyond time limited there­for- Rejection of application for revision in a case where theremedy of appeal cannot be had '. •... . ..

-- s.5. Judicial discretioao.o be exercised in construction of wordsl' ~ufficient Cause" in section 5, with reference to spl?cialcircumstances of particular case. Attachment by respondentof duly stamped ;md completed memorandum of appeal con­sidered sufficknt cause for delay in presenting the appeal ...

55. S, 12. Computation of peri<'d of limitation under section 12-Construction of I he words" time requ isite for obtaining copyof the decree appeah;d against-"

--5, 5. On general grounds a plea of sickness should only beaccepted upon the very strongest proof of entire disability toattend to any duty, if accepted at all as an excuse for delayin the presentation of an nppeal

-- s. '5. The true rule under-is whether under the special -circum_stances of each case the appellant acted under an.hOlleSt thoughmistaken beliefformed with due. care and attention. In theexercise of discretion under the section the words "sufficientcause" should receive a liberal construction so as to advancesubstantial justice when no negligence nor inaction nor wantof bonafides is imputable to the appellant. Where an' appealwas dismissed for default and the appellant applied to havethe appeal reopened on the ground tha~ he was misled by hisadvocate who hac;! misunderstood the date fixed for hearing.­Held-that a fair opportunity must be given' to the appellantto prove that he had sufficient cause for,his nOn appearanceandthe explanation, if made out, would be a reasonable one andthe appellant would be entitled under section 558, Civil Proce­dure Code, to have the appeal.reopened ... ...

: -- 55.5,17,22. Civil Procedure--O. XXII.-An amendment that-' would deprive a party of the defence of limitation should not be

allow&<!. .Thakur Rajhmalhji v. Shah Lal, I.L:~. 19 All., 330. ­Malikajuna v. PuUaga anil qfhers, I.L.R. 16 Mad., 319.

PAGB YRAR

soi £891to

igotcI} I8g2

to1896·

450 )

L~)0 to

452 1!8g6

456)

451 1891­m

Igor

-clxxii INDEX.

L-·;ontd.

Alagappa Cherty v. VeUia1l Clze~ty and a/wther, I.L,R. 18Mad., 33.

Mi E£n Zi v. 1I1i Ni and one

PAGE Y

:LIMITATlON, ~ I I. Execution of decree for money must be effectedby attaching the property of the judg:ment-debtor and selling itby auction. The attachment mu~t be considered as continuipgand no bar of limitation could be raised to ~revent co-heir

. from cischarging the amount of the decree and obtaining therelease of the share-of the estate from attachment

-so 12. The 'f time requisite for obtaining a copy" in..,...does notcommence until the appellant .does something to obtain th:copy-Delay in signing a decree cannot be brought in tobenefit a person who has not made any application to obtaiJl'"a'copy-See Civil Procedure

- So 12, Held-that article 12 of the Limitation Act applies only toparties to the suit or to the execution proceedings arising fromit and not to strangers.

. I.L.R., 17 Mad., 316­--:"'n Born., 130.I.L.B.R., 53. .IV.L.B.R.. 40.IvIa Nge Ma v. Shwe Hllit ami two otheYs

- s. I-\-. Duty of Appellate Court to see that satisfactory cause isshown for not preferring an appeal under-before admittingan application for revision

._. s, 19. <' Signed "-what constitutes signing, Drawing up ofdocument after old Burmese fashion does not amount to sIgn­ing-Extension of Limitation Act to Upper Burma and opera­tion suspended for three years so as to give ample time forenforcing old claims ... .•• ...

.- S. 20. Interpretation. of-payment of interest as such-Effectof section 5 of Regulation X of 1887 ... •..

.- Held-that to save limitation the payment towards Interestmust be the payment of interest as such, i.e., there must be anintention an the debtor's p~rt that the money ·should be paidon account by interest and something to indicate that intention.I.L.R" 31 All., 495.U.B:R., 189~·96, 11, 466.Nga Twe and one v. Nga Ba

_ s, 25. In computing the period of li$itation in a suit broughton a promisfoory note, the note in question having. beenexecuted on the. 7th May 1907.-He~d-that the period oflimi­tation should be computed from the expiration of the day onwhich the note was made and that the three years expired at12 midn~hton the 7th May 1910.

Tara "hand Ghose v. Munshi Abdul Ali, B.L.R., VIII, 24,Mitra's Commentaries on the Indian Limitation Act. 5th

Edition, p. 769, Notes under section 255_

I'

458 ISLv

1896--

t16 19J4­to

1916

1945

1I 1892} to

I,1896

462

466.1

,80 1914

to1916

INDEX.

L-contd.

Nga Po Yin v. Mi Shan Nu and one •••

LIMITATION s. 26. Acquisition ofeasementsothenvise than under-Tort .•• . ... .••

-- s.28. Reclaiming of land held for 18 years where there hasbeen no adverse possession ... . " ...

-.- 5S. 57,132,120. Period from which limitation begins to runin case of a usufructuary mortgage when the security isdestroyed

- s. 66. 'Time from which limitation begins to run when there is ~V€rbal agr-eement fixing future date for repayment of money lent-and when. repayment is. promised in a certain month withoutspecifying day of month . ..•.

- s. 66. The plaintiff sued .on a docuinent, of which secondaryevidence was admitted, the document having-been burnt.torecover principal and interest allel{ed to have been lent by him.The loan was to be repaid in ten months from the date of deed.The suit should have been brought within thr-ee years of thedate of the term stipulated for repayment or within such termas when the Limitation Act came to be in for-ce fixed the

. expiry of ihe period of limU4tion ... .•.. .••-_. ss. 91,95, [14. A partition. by a Y"I11ag-aung is not necessarily

an award, and therefore still less a contract, and before a Courtproceeds to apply Article 95 of the Limitation / Act, it shouldsee that there h;u: been a contract which can be rescinded ...

-- SS. 9J, 95, II4, 142, 14·4. \Vhere there is an award in exist­ence valid untH set aside property attached by the awardcannot be fdlowed after the period of limitatiOn for setting

. such award aside has expired .•. ..,_ _.. . ...- s. II3- A suit may be brought for specific performance of an

award within a period of three years as provided by- ...

- 5S. u3, II 7, 120. 122,144- Joint family property-An awardnot foHowed by possession-no interruption to adverse posses­sionso as to prevent the running of time and bar limitation ...

__ SS. lIS, u6, 120, 13'2. Trarisfer of Property-68 {b) (c).-When a mortgagee's right to sue fOi' his money is a rightarising from a wntraet between the parties, Article J IS or 116,Schedule I, Limitation Act, apply, but when it is an equitableand not a contractual right the article which applies is 120.

Maung Skwe Dok v. Ma Sa, U.B.R., 1891-1901, 11,578.Unichamen v. Ahmed Kutti Kayi am/. others. I.L.R. 21Mad.• 242.

Kallar Roy v. Gang-a Pershad Singh.I.L.R. 33 Cal.'998.Ri'Uas on Limitation, frth Ed., P.31S. .Nga Tok and one v. Ng-a E Gyan and 2

.- SS. 123. 127, r«, r48. Mortgage-Redemption by one branchfamily-elaim to share of land on ground of co-heirship­Burden of proof of fact and date of mortgage on the party

.alleging it, and also of redemption being in interest of othersthan the person making it-EtI~tof award regarding claims

clxxiii

P~GE YEAR

146 I91Gto

1913

4701

I1.89s,. to

4131t8gli

4781I

475)

293 1S91to

19o1

iSr 1892to

I8g6

clxxiv INDEX.

L-contd.

PAGE YRAR.

"),l

490 ~ 181)11• to

493 1,,,.,.500)

375 1892to

1899

461 . 1897to

1901

,516 I3g2

to. 18g6

469 1897to

19o~

5091I89z502)- to

118965 (3)

55. 142 144, q.S.;.....The period of 60 years allowed for a redem p­tion o'f a mortgage isfor a suit against a mortgagee, and itmust be c1earyshown that there was a mortgage and that theperson sued is mortgagee

55. 142, 144-Mortgage-Presumption from admission byalleged mortgagee of alleged mortgagor's original ownershipof land. Presumption in Upper Burma in favour of mortgageorretention of right to repurchase and against out-and-out­sale of land-Burden of proof .••

5S. 142, 144-Rederription of mortgage-Adverse possession­Limitation

55. 142. 144-Suit for recovery of posSession of land of wllichpossession has been l()st-Barred by limItation "'

58. 142,144, J48.-Suit for redemption of land alleged to havebeen mortgaged-Adverse possession-Why bal'ied underlimitation .

.....;.. 58. 142, 144, lA8--Tre~pa55 ('11 tJ"iortgagor's interest, by personwho redeems in his own right-where the mortgagee. 'was inpossession and a third party, a trespasser,red~nied withoutthe knowledge of the mortgagor and without notice to him-

of parties and period of limitation created in consequence-Adverse possession from date of award ... 487

LIMITATION 5S.123, 127, 148.-·A co-mortgagor or co-heir whoredeems ordinarily steps into the rhoesof the mortgaaee andthe 60 years of limitation run from the date of the "'originalmortgage or from the date of the accrual of the right toredeem ..... ...

- 5S, 123, 142, 144-Claim to share of undivided family inheritance-Burden of proof-Nature of proofrequired-Limitation '"

58. ,23. 144, 148-Joint family proper(y-Partial division-­Presumption from when portion of estate under mortgaO"e­Redemption by co· heir claiming in individual right-Timefrom which period of limitation be~ins to run ...

55, 123, 144, 148·-Person whq redeems a mortgage otherwistlthan as the representative of the mortgagor and who claimsthe mortgaged property in his own right-Adverse possession-Period of limitation when property is in adverse possessionand in possession of original mortgagee ... .,.

-So 127-Suit for share of inheritance-doubtful whether Article127 applied to a case between BUddhi~ts in Burma .••

s. 142_ln a suit'for possession of land orithe groundof dispos'.session or discontinuance of possessi,.n-period within whichsuch dispossession or discontinuance of possession must beproved

--5S. 142, 14.4-Burden of proof-when onus on plaintiff 'andwhen on defendant

_ 55. 142, 144. 14g.;...Trespass on mortgagor's inte~est by personwho redeems in his own right-Adverse possession

INDEX.

L-cofttd~

Held-that the redemption extinguished the m()rtg~ge andthe mortgagor could only sue for' TeCovery of thei!lter~s~fr.o~which he had been ousted, but that .Artic~e IA4. a~p;I'~9, apR.it was f(·r defendant, the trespasser, to show when 111s pos­session become adverse-also:"'thatdeffmdant's' poss~ioncould not become adverse till he did something Nai'f£;<:t'ihemortgagor with notice of his adverse claim' . f ••• '.'

'LIMITATI<.>:--S. 144 -Adv~rse possession for upw;lr~~ of l~r~rS-;:-;'Claim to share ..{ family estate-Effect of land passu. fromone branch of family to another-Burden of proof.· .'

·-s. 148-:VI~rtgag~~edemI>tionby ccrh~ir-Q~~tio"'Y~~t~er',!,o~tg~ge Isextmgulshed or merely tra~sferred~P~rlOd ofItmltatJOn ... •••. .. '. ... ...

.-s. 14~t-Practicein Upper Burtt'a of makillg further advances inusufructuary mortgages as land becomes better cultivated andmore valuable-Effect of practice as regards limitation

_5. 148-The proviso to Article 148, Limitation Act, in respect ofthe period within which a ~it must be brought against amortl!agee to redeem immov~le property mortgaged has noapplication in Upper Burma where the general period of60 years is allowed ... ..

,-5. I52.-General power-of-attorney-Suit ft r dissolution dpartr.ership-;-Pr}ncipal and Agellt-:-Lim,it8;lion....

-So I7C)-Apphcatlons to execute d~r,et:s gov~rn~dby-

- Schedule I, !U-Civil Pn.)(:edure-:-47, Sch¢duJe I, O.XXI, r. 2.-No authority for permitting a judgm~t-4eb~or .in execution proceedings to prove in contravention of O.XXI, r. 2, an adjustment out of Court, if such adjustmenthas not been 'certified and he has not applied within thetime allowed by Article 174, Schedule I, LImitation Act, tohave it certified.

Asissan v. Matuk Lal Sahu, I.L.R. 21 Cat, 437.DeliO lJandhu Nandi v. Hari Moti Dasi, I.L.R. 31 CaJ.,

480.Manurath Sil.gh Y. Raj KumlJ.ri, U.B.R.,1907-09, II

Civ. Pro., 31 .Nga Sa Gyi v. Ye San,U.B.R., 1904-06, II Civ. Pro. ~6.p. K. Sanyat v. K. D. Sarzyal, 1.1;..&. 19 <::al., 68.3. ' ~ .Sa,yidMitkammqd lJu'i'v. Ko La'DJ Pan .. .

- H, Article 83' Contract of indemnity. Time when the plaintiff .is actually damnified

- Schedule I1-Io, Held-that the right to redeem land in posses·sion of a usufructuary mortgagee does not admit of physicalpossession, and therefore limitation for a suit for pre-emption,based on the sale of such a right, runs from the date of registra-tion of the sale-deed . .>. •..

clxxv

9 ]90~

to19°6

518 18~to

J896

473. 1897to

1901

52£)

11892

} to52411896

.525)417 1891

. to190 (

191 1910to

1913

308 18g2to

J896

clxxvi iNDEX.

L-contd.

36}I904­to1 1006<

...-. Schedule U-164-An attadtment of pr(lperty not belongingto the judgment-debtor is not execution of process for enfor.e~ the judgment and does not bar an application undersection 108. eivil Procedure Code-Su Civil Procedure •••

- Schedule 11- I78-Heltl-that afteran appeal haa been rejected.-. under section 549. Civil Proeedul'e Code. the· applicant may

apply to bave it restored on furnishing the required security.No special period of limitation being provided for such anapplication, the article (,f Schedule 11 to the Limitation Actwhich applies is Article178.. .,.

_ n-Il9-Civil Procedure 23o-0rderingexecution of decree-mOTe than three years from date of last application forexecution, an iUe~alitywithin the meaning of section 622. CivilProcedure Co4e~eeCivil PrOcedure

9 1901'toI~

4a 1904-toI~

,5 Igor

toIO~'

,26 1904'

toI~

INDEX.

L-cofl.ed.

LIMITATION. 1790 Schedule It Execution of decree of judgmento

c: editor batred under- EtIect of for purposes of section 306.Succession .Act 635 I~

to18gG

INDEX..

Lt'i'f;'.i'Ie'$MT-XXXV of 1858.-1£ a person be admitted or foundto be of unsoundmind.~lthauglt pe h;1p not ,been-adjudged,to beso under th..~r 39Y other l~w fo~ the time 'beingm force, hesbould. 'if a plamtiff,be allowed to sue 'tnrough his nextfirena, and the Court should appoint a guardian ai/litemwhere he is the defendant-See CIVil Procedure

M

MADlUS mortgages •••

MA.HOMllDAN-A-eannot marry a Buddhist

- LAw-Zerbadi customary practice of being their own Muta·wallis not i1legal~Zerbadi dedication not invalid Wakfs byrason of this practice

- Adoption of children by-

l\fVHAMMADAN' LAW. Adoption-Guardianship of illegitimate child

......Divoree-Guardianship-Suit forcustodyfor Minor-Muhamma·dan law among Burman MussuImans ... ...

~ Gift.-A<:tual delivery of possession is not necessary under-SleBuddhist Law-Gift... .... ••• . •••

30 1904to

1906

548 1892toI¥

49711897to

J'IOot

480415 I8ga

to18g6

I Ig01to19~

INDEX.

MUHAMMADAN< LA.. Guardianship-Custody of child.ren.....Theparties lreing M~guls:or PEnSiat.ls, thepersQD~Haw to. whichthey were subject was the Muhammadan Law asappticableto the Shiah community •••

- Inheritance. By Muhammadan Law the husban~ share.where there are children. is ()ne-fourth_See Buddhist Law- .Gili .

- Property acquired during mafTI:tg-e under Muhammadan Lawnot regarded as partnership property.-Essentials of partner­ship as defined in the Contract Act.-See Muhammadan Law

-Will made by'~Zerbadi-TCS:ame' t:.ry power 1!D4~ Muhamma.dan Ia.w-Muhammadan. and not fJu4!!I1J~tlaw :qiplicableto.Zerba,~jj; or native MUs§1l111lit~ in. Upper Burma in matterso( inheritance .... . ....

.;...- A custom having the for. e 01 law b" which Z",badis in Manda­lay are governed in respect of succession and inheritance byBuddhist Law does not exist-they are governed in thosematters by- ...

- Where the only candid!ltes for the guardianship of the propertyof a minor are the mother and a paternal uncle, there appearsto be no authodty under the-for preferring the uncle-SetGuardian and Wards

MAINT'BNANcs-Section 40 .(2), Provincial Insolvency Act, must beread with section 16 (2) and section 60, Civil Procedure Code,and the Court acting under section 40 (2) cannot allow morethan half the insolvent's salary for the-of himself and hisfamily-See Provincial Insolvency Act

PAGB YSAK

540 18~to

1896

'"i .1907

to1909

I IC}6Jto

1903

5.29 1892to

18g6.

I 1904-to

1906-

I Igorto

1909'

132 1914·,to·19·(1,

M-contd.

PAGIt YllWt

MA10lUTY Act. IS1$. SKCtiONS 2 ARD 3. Application of-to a suitforrestoratton ofconjugahights against a Buddhist girt underthe age of .IS ••• aoo tSgl

todlg6

MALICE-attachment bi-~otdel" of property of judgment­debtor-malicecannotbeinfeKed irom ~urroundingcircumstancesunless it can be shown that attachment Wii£ made in an un­

·reasonable and improper manner.- See .Execution of D~ree... t

MALICIOUSLY CAUSDfG .. SUitOR Foa STOLEN PROPERTY.- A suit. ·for.compensatiofl for-'to be made by theJlolice in the plantiff's

.house is IlQ&: &~ for compensation for injury to the person with­in (SchedUle II) Article 35. and is not exc:Iuded from the cogni­anc:eof a Small Cause Court-See Provincial Small CauseCourts 40' 1910

to1913

'INDEX.

M-contd.

PAGB YBAR

:MALICIOUS PaOSECUTIOlif--Essenthdpoints'in action fo~-

.- Malice--reasonable and probable cause-a conviction even whenreversed on appeal is strong evidence in favour of there beingrea.'1onable and probable cause-See Tort ... ... 5

- Property inherited during-Definition of Auratha son-SeeBuddhist Law-Inheritance '.. .•.

-Under Muhammadan Law not a· partnership as defined underthe Act.-See Muhammad:lO Law

"'.MARRIAGK. Apparent principle of Buddhist Law with respect to­effect of subsequent regular-after death of head wife on positionof offspring of concubine or lesser wife ... .

-Buddhis-t Law.-In Burma polygamy is undoubtedly lawful andit is not unlawful to marry the sistet' of the living wife-SeeBuddhist Law-Inheritance-Marriage 1910

to19'3

1914to

191618~2

to18g6

1902to

19O5

C6

r4S 1892to

18964971

.1

488 11807~to

499 111}O1

I

II3 1197 ).

194 1892to

"18g6

ttl

. .,.. 'Suit for declaration of nullity of-

.-- A Muhammadan cannot marry a Buddhist...

._ A marriage under the Christian marriage law undissolved bydeath or divorce i<; a bar to ... subsequent marriage in any form­Suitfor restitution of conju~al rights ... ...

_ Breach of promise of-Burmese woman can sue for damage for-but nol for seduction ...

_ Children who voluntarily separate from their mother on her,second-and perform no filial duties are excluded. from inheri-<tance .•. .. . ..,

__ Consent ofboth parties is necessary to a valid-Buddhist Law_ Living and eating together.is not an essential of-but merely

poof of the validity of a marriage under Buddhist Law.

INDEX.

M-t:ontd.

PAGB

~ASTER~ND SERvAN'r.-:-~heretheco~~c~ct9{~i~ing f;I~o~id~{orthe payment of certam wages, 21tl\ough it may be optaonal onthe part of the master to 6ndwork and he may, if he pleases,discontinue. his business, yet. he must ne~!'lrthetess.pay the wagesaareed ut\OJi:\irl1ethe'r'hefitid work fqr tne~rvarit or riot, or hewiUrender hin'i"self liable to an acrion (or da:rliages I

· .··r" . Contract-74 -Ill the absence of a binding contract by whichthe servant agrees fO t":>deit wages if he withdraws without givingnotice, a monthly 1'ervant who leaves without notice is.entitled tobe paid down L t:· e date wtvo..n wages were last due but not (orthe oeriod he has ,served since that date . ..•.•• I·

··l.bt.nirALLIs-Zerbadis customary practicE" of being their own-notillegal-Zerbadi dedications not invalid wal:fs by reason of this. .

'practice ••• 480

Igorto

19CI?'

1904­to~,

l8gTto

Igor:.

MBSNE PaoPl'l's-Future-Rtsjudicata-Se~Civil PrOcedure

~ Held that-for the period prior to institution which can be, . claimed. in a suit for '{mmoveable property must be profits which

the.person in wrongful possession actually rueiv-ed Ot'1l'Ii~htwith

ordinary dilqrencehave received during that period-See Civil· '" Procedut'e •. ••• .••'...;;.;,.... which can be claimed in a suit for immoveable 'property up to

date of suit. but which were not so claimed, cann~ be subse­quently sued for in a subsequent suit because the cause of actionis the sarne:;-See Civil Procedure ..;. ..

-~ Right t~Qtiestivn of wrongful dispossession ·sett~d;in5uit fot'. ".; reCovery of land-Improper admission of appeal after allowed

period of lilnitation ...

80 ''l9lt4:ta

1~.6

1.".90 4­

50 ~ to

'-It)06,.I

'[ J',54-7 189~

. ·tot8g6;

INOEX.

M~contil.

MINOR. Appointment of a guardian tor a~bjectiOn to-Hindufamily-Mitaksbara Law-does not apply in Burma

-'-Appointment of a guardian of a-whose father is living

- A female-cannot sue for compensation under the ContractAct f.:>r the breach of a promise of marriage made to her. Butwhere the circumstances entitle her to compensatio~under theBuddhist Law, she can succeed independently of -contract-SeeContract

- .contract made with a-is not void. but is merely voidable at theoption of the-Contracts for the composition of non-eompoundableoffences are void

- iIIe¢timate-appointment of gu~rdian-father's claim .••- SUIt for -custody of--Mahomedan Law-Divorce-Guardian-

. ship-Burman Mussulmans "..- Where the only <;andidiUeli for" the guardianship of the property

of a~re the 'irlbther"a.'tld ap'1\~nal, tiricfe,"toore appears to beno authority under'the Muhamnllldan Law for preferring theuncle-Su Guardian and Wards .••

MlscoNDucT-Divorceon Rrounds of husband's-Husband previouslymarried-Wife a maiden at time of marriage-Divisi9n ofproperty

- on the part of a husband which mav not in itself be sufficientto entitlea wife to divor~eunder Buddhist Law where the husbandis the offender may nevertheless be sufficient to entitle her to insiston a divorce as by mutual consent-See Buddhist Law-Divorce

PAGB TEm:

39 18t:FtoI~

6 I~'

tGI,..

..clxxxiv· INDEX.

M-contd.

:MISCONDucT-Professional-See Advocates •••

P.AGB YEAIt

50 1910to

1913

:MITAKSHAEA LAW. Hindu family subject to-objection to appoint-ment of guardian does not apply in Burma 408 1892

to18g6

LMOGI1L~ OTt P£RSIANS. Mahommed~n Law applicable to-Shiahcomm·tOity 540 1892

to'18g6

iNDEX.

M-ciJntd.

':MONA3TER~-~uitfur ejectment frOm a-E~esiasticat" Jurisdietion­Appointment of Tiw.thafUffJll.ilzg,

.- Suit for the possession oi a-based o~ a decision of the Thatlta­nabai'·g-~ft-llda.nts contending tbey were schismatics andnot subj<..""Ct to the T~nabaiug'sautbority-~eeBuddhist Law-Ecclesiastical .....

"MONRY lent for the pttrpo-.eof Ilfltawftti ~d.~;:: .cannot be recovered-- el1trust,.d til .. stake-bolder to abide tbe result of a. wager U;;,;r

be recovered If d-=maq;i.-,d before it is paid away.. ., .. -paid under illeg:al amtr"lCt not recoverable because the illegal

contract was notcarried oUt .••

PA.GE TR.A£

45 IstJto

19'G[

35 Ig[1Ir>

'" toI'(~

PAGE YEAit'"

MONE-·Gift by, a ~u;clclhist....to t<lk~ eff~~~~te.r hisde:;lth i.nv.a1id__ Gift by Buddhist-Onder Buddhist Law, a layman. U-pOll;

etribractn~ a religious life becomes ipso facto divested of all pro­perty which thereupon vests as it would upon his divorce ordecease

MORTGAGE-A - of land being established, the burden ofproving thatit was converted into an absolute sale is on the person allegingthat change in the condition of things ... •••

- Admission by defendant of previous. ownership of part of landclaimed by plaintiff's predecessor in interest-Burden of proof

- Amount of-debt in dispute-Burden of proof on mortgagee •••- Ancestral estate-conflicting claims of alleged co-heirs-Evi-

. dence of separate possession by one branch of family-Effect ofmortgage by that branch. Necessity for careTul treatment ofdocuments by the courts so as to make them admissible inevidence

- A Buddhist monk is prohibited by his personal law fromengaging in any monetary transaction and is thereforedebarred from suing: for the redemption of a-See BuddhistMonk' ,

- 'A mortgagee who has not obtained a decree on his-has noright to obtain' by an order in execution proceedings ,or bymiscellaneous application. payment of his debt out of the sale'proceeds of the property under-when sold in execution of adecree- ... ••. ... •.•

- As a general rule a claim to redeem a -founded on a sub~queilt loan which saves limitation is open to suspicion and re­quire$close testing; but there are exceptions when surroundingcircumstances supply corroborative evidence of the genuinenessof the claim .•. . .. ~ .•• ••. . ..

276)

! 1891')0 to1190 1;

!'ooJ

H~BEX:.

:MORTGAGB-A person who haseaecuted a deed of sale cannot beallowed to produce oral evidence showing that the transactionwas intended to take effect only as ~--uil1ess the evidence ten­dered is shown to be admissible u!lder one of the provisos tosection 92 oHheEvidence Act-Seil Evidence ••. •••

..- Barred by limitation-renewal of-withiii time set up-Burdenof proof ... ... ... ... ...

- Burdt;n of .proof-A mC?~;a~e mU!it b~ strictly~blishe4:""'"conSIderatIon of probabIlItIes. .

.- Claim to compeil!?3-tion for improvemen~. before allowing re­. demption ~n. absence of expi:<lSS condition to that ~~~ in

.mortgage deed-'IIecessity of proving established and acknC)w­ledged customs controlling contract of mortgage aceordirtgly­Madras mortgages ... ... ... •..

- Condition for sale without the intervention of the Court-SellMortgage

- DBED containing no separat~ admission of debt Ol'promise· torepay it-Not divisible and annotbe admitted in evidence ...

- executed for fraudulent pIlI"pose-C~nceIJation of~Fraud noteffected-Estoppel-Arbitration ••• .., ...

- executed before the introduction of the Registration Regulationto be binding on persons who were not parties to the transac­tion must be accompanied with delivery or change of posses­sion or made with publicity, or to the knowledge of suchpersons ... ...

.- Explains what is meant of the transfer of a­U..B.l(, 1897-01, 11,473.-- 1904-06, I I, Limitation 9. .Mi Ria Yin v Mi Hma1J and si~ others

- Held-in a case of a simple-with condition of a sale by the mort­gagee without the intervention of the Courf, when the sale hadbeen held and the mortgagor had had seven .months' notice,that on principles of equity I justice, and good conscience, the'mortgagor was not entitled to recover possession from thevendee, abondflfie purchaser for value

. - Held-in a suit for redemption of a usufructuary-the sJlbjectmatter of the suit is the land sought to be recovered, and thataccordingly for th~ purposes of jurisdic;tion the value of the suitis the actual market value of the land at the time the suit isfiled-See Jurisdiction

~ Held-that anomalous-like other-are.subject to the rules con­tained in section 60, Transfer of Property A<;t, and that theinsertion of a forfeiture clause in a-bond does not make the-anomalous but is merely of no effect-See Transfer ofPC9perty

PAGE, YElEt

I~ 1907to

I90f

22°1570. • ISgJ;

~ to

rS96

548)

S 1901to

19o9:

3751544 I IS97~ tor 19o1

J573)

5 1901to

1900

141 1914­to

1916 ~.

~lxxxviii INDEX.

M-contd.

MORTGAGf'.-Held-that in Upper Burma the Courtsbein~bound potby the a"cient law of India in relation to mortg-ages, but byequity, ju"tice; and good conscience, theequitable rule contai"edin section i.o of the Transfer of Property Act would applv infavour ofredemption. But that jf the case were one dept n':lingon the terms of the contract when the terms of thf'-deedwere that the mortgagors would redeem at a certain time and

. . if they failed to do ~o would make over t1)e land outright tothe mortgagees, and the mortgagors sued for redel'"(lption afterthe expiry of the stipulated time, the mortgagors' tight tol'edeem ,vas not forfeited by reason of their having faIled toredeem at the stipulated time, that the contract was not inteni­

·ed to execute jtself, and that a furth,,!" transaction wasnecessary before the land could become the property of the.mortgagees

- Held-that, when one co-heir mortgages undivided ancestral. property a suit by another co-heir to compel partition of the

mortgage money is, in the absence of any agreement forpartition, not maintainable•.

HarmukhgauTi v. HarisukPrasad, I.L.R. 7 Born., 191.Mauchlal v. Shivlal, I.L.R, 8 Born., 426Ramdin v. Kalha Pel'shad, utA" 12•.Nga Ya Raw anti one v. NgaRya

mere 'verbal e"idence of ,-,ontemp<>raneous oral agreement,showing that an apparent deed of sale was really a-insufficient-'- such evidence not adOlis.<;ible against an innocent purchaserwithout notice of the existence of the mortgage-See EVidenc~

I

I:

5511II

~77 11892 ­

} to, 1896 '

58t

I50 9J

5U) .. 11897'261} to

I 'Qot473J

- Need for clear proof of ancient claims to land after long un-disturbed possession-consideration-Renewal of old mortgagein favour of claimants under original mortgagor ... .•.

- Necessity for clear and salisfactory proof of the existence of­to oust a personlrom the possession of lal1d--· presumption infavour .of mortgage as ag3inst sale, according to the customsof the country, to 'supply the want of the necessary directevidence' ••• •••

- Persons entitled to redeem-Heirs of mortgagor-persons. having interest in property-Joinder of parties of all persons

interested in property-vested interest of children in parentalproperty under' B"i.tddhist Law-General principles to befollowed in mortgage cases ... .. . . •.

_ Presumption in Upper Burma in favour of-or retention of rightto re-purchase and against_out-and-out sale of land-Evidence- Limitation-Burden of proof .. , '.. ., .

_ Pre-emption before sale applies against outsider only and notagainst a co-heir . . '" ,.. '" .••

Property under-With possession-Not liable to be .attached-Right to redt:em-Liable to attachment '"

Redemption by co~heir-Questionwhether-is extinguished or.merely transferred-Period of limitation ••.

_ Redemption by ,one branch of family-Burden of proof-Limitation .•. .., . 481JI892

to.......;... Redemption of-Adverse. possession-Limitation 502 I8g6.

INDEX.

M-contd.

MORTGAGB~-Redemption ofa- lhe perkd of 60 years allowed for a­is Illf asuit against a mottgagec"md it must be clearly shownthat there was a m....rlgage a.nd Ihat the person sued is mort­gagee

Redemtpion of- for a trifle after lap"e of 5.1. years ?.nd aflee theland has been improved by m, rtgagee-Inequilable •.

Redemption of -' Period of hmltadnn whell property is in adversep("s<;5Sion nnd in possession of ri}~mal moitg-t, ee .,.

Redemptkn uf-person!- emIt ed t ,rcdl.'em-pfaint dWfe'~tlVe fornon-joinder (If 1 arties-gel er.l pw-eiples to be-follow. d

Redemption of land mOrlgaged-l·-~toppelunder section u6,Evidence Act -. _ -

- S'uit for r-edt:mption of-Adverse possession-Limitation

- Suit for redemption "f':"'OO person~ holding land as tenants onthe a1legati;'11 that the)' were ;epresentatives of the originalmortgagor and lhe lane-Iurd represent .live of the originalmortgagee -Burden of proof-Limitation

- Suit for redemption of-Buulenof proof-Evidence _ .••_ Suit for redemption cof- aUf-den of proof-Necessity for clear

_ pr<.'Of of existence of-wilen disputed _, _ .,-- Suit for redemption of-:-Long possession by alleged mortgagees

without recognition of mortgagor's .claim-Un:;atistaetor} evi­dence of-Necessity for strict prouf it: such circumstan(:es

-- Subsequent small advancC:'s to keep a mortgage alive should bestricLly proved .. . .••...

- Should be construed in accordance with the intentiun of theparties _.. - . ••

- Supplementary Survey records held insufficient in the absence«:-f other reliable evidence to prove a-See Evidence ..•.

- The redt.mption of a-eannot be split up and effected piecemeal-- The rule that once a-;olways a-dues not apply in Upper

Burma to mtlrtgages made btf(;re Upper Burma became Britisht· rr ite·ry, and in such cases tke intention of the parties must be-ascert<lined and followed-.. -... ., .••

- Trespass on mortgagor's interest by perscn who redeems in hisown nght-Adverse -possession-l.imltatiGn -..

l'lansfc:.r of Pa'perly-4l. iO. ,8, SS, 237,-Wherea mortgagee.knowing, or havlllg reason to know at the time of filing amortgage suit Ihat the propertY was sold to ~ third part)', failsto jllin the purchaser as a def-endant in the suit-Held-themvrtgagee by his. own f;mission 10 join the.purchaser a party inhis !>uit. .IS estopped Ir m denying that the purchaser has a rightto thf; dlclarati. n lhat tl,e dec.ee.in the mortgage suit is in­operative asagail!st the purchaser regar4ing the mortgagedproperty. -

Maul1g" Ko ". M"unl: Kyi ared two others, U.•B.R., I8g2...;.g6,Il, ;\"iortgage. p. 5~6.

1ka Kaing v• .Ma Htaik,3 L.B.R., 241.Tiu Afadras HintIu Uni.:m Bank. Limitetl. v. C. Veneatf'an_

giak antI others, 1.1. R. t 12 Mad., 424.Damodara v. Somasundara and oihers, J.L.R. 12 Mad., 4-29.­Jag-anatka v. Ganci Reddi and ot1u:rs, "L.R. 15 Mad.. 3GII

SUi ISg2'to

I¥-286 )ISgr·

454J 1;:1:586 '189t""

S61il¥464 1891

to19o1

579 lip'to

lap418)

•..trw4091 to

J

Igor.507

- -

'509)

19 1901'to

r909~

50S)

118g~}- to

50211go&;

469) --

I~Pt£X.

Kasturi v. Venkatachalapathi, I.L.R. 15 Mad., 412.Gour's Law of TransfeririBtitish India, P.954.Amir Ali and WoodroWs Evidence Act, 5th "f!:dn., Notes to

section u6. .. .Nga Paw E v. Nga Sin ...

.:Mq~XGAG.E..-:-Usufructuary--'debts and securities-meaning of.. debt "'-Succession Certilicate Act

--.- U~ufructuary-Decreefor redemption of-Mere direction forpayment of mortgage money Within seven days without any~altyor condition by way of debarring redemption or other­wise without effect-Insufficiency of time allowed for payment-Rules of the Transfer of ·Property Act apply as rules ofpractice-Decree of nature of foreclosure not generally grant­able in case of usufructuary' mortg~~e

~ Us~fructuary-executive sale of land held. under-Decreeholder's right to sell such land

- Usufructuary-Lease by mortgagee whether determinable onredemption.-Held-'-that a lease by a usufiuctuary mortgageeis determinable on redemption. Alsc-'that apart from customt~e mortgagor is entitled to immediate possession and there-fore. to compensation for ·obstruCtion.· .

ShtIJe Thin v. Nga NY1in, U.B.R.• 1904-06, II Civ.Pro.,26, referred ·10.

San Pyi v. Nga Tun, U.B.R., 1897-1901. II; 414. referredto.Gour's Law·of Transfer in British hlliia, Vol. 3, p. u6.Ghosh's Law of Mortgage, 3rd edition, p. 376.

Nga Nyall Gyi v. Nga Kyaw Nya .••

- Usufructuary-Mortgagor cannot ordinarily be compelled toredeem-Mortgages to be ·construed as far as possible inaccordance with the intention of'the parties

- Usufructuary-of land-Failu.re of m0r.tgagQr to deliver posses­sion-Remedy of·mortgagee'

- Usufructuary-Presumption as to.....not carrying interest plusUsufruct-Burden 9f proof ... ,.

--. Usufructua.ry-...Quel;ti(\n1!irhether a.-·usufructuary mortgagee cansue for the mortgage money where ther~ has been no cov~nantto pay it-Where the seCudtyhas been wholly or partiallydestroyed the right should be ~dmitted......No authority forlumping mortgages together;"";;Umi6i.tion ... ••.•

- When an ancient mortgage is set up it must be satisfactorilyproved against persons b!ling .in possession who deny itsexistence· .. ,: •.• .~.'

PAGB ygAIl

92 1910to

1913

639 18g2to

I¥

St4 1897to

1901

613 1893to

1896

14 1910to

1913

573 1 892to

J.896

39611891l tor I 901I

518)

INDEX.

M-contd.

MORTGAGEB.-A co-mortgagor or co-heir who redeems ordinarilysteps into the shoes of the original-and the 60 years' limitationrun from the date of the original mortgage or from the date of

the accrual of the right to redeem

_ A-may sub-mortgage-there is privity between a mortgagorand his sub-mortgagee-See Sub-mortgage... •••.

~ Lease by-whether determinable on redemption~Usufruc­tuary-See Mortgage

...... If payment of the original mortgage debt is made to the. original-without notice ofthe sub-mortgage, the sub-mortgage

is extinguished and the sub-mortgagee cannot hold theproperty against the original mortgagor. If otherwise thesub-mortgagee can hold the property against the originalmortgagor till the sub-mortgage is redeemed-See Sub-mortgage - ...

_ The' proviso to Article 14fC'Limitation Act,' in respect of the. period within which a suit must be brought against a-to

redeem immoveable property mortgaged has no application inUpper Burma where the general period of 60 years is allowed.

p- Usufructuary-suit by-wrongfully disposed of land by holderof decree against his mortgagor ••• . ... . ...

- Who has not obtained a decree on his mortgage has no r.ight toobtain by an order in execution proce~ding(or by miscellaneousapplication, payment of his debt out of the sale proceeds of theproperty under ~ortgage when sold in .execution of a decree.

PAGE YEAR

4go 189:9­to

1896

I 1904to

1906...

14 1910to

f19I~

cxdv INDEX.

M-concld.

PAGE YEAR

MUS5ULlI1ANS, Burman - Mahomedan law among.,..... Divorce­GuardiansbiDS~suitfor cu~tody of minor

~ Native-Mahamedan and not Buddhist law applicable toZerbadis or-inUpper.Burma in matters of inheritance

MVlIlICIPAUTy-'When a person from whom money is due to the­alleges that in contE'avention d Rule 4- of the cules in Municipaland Local Department Notification No, I48, dated the nthDeceml>er 1900, he paid the money atthe Municipal office andit .~ppears that the money was not paid to the treasury, it is nota valid defence in a $uit by Municipal Committee to recovertbe money-S~~Upper Burma Municipal Regulation ...

INDEX.

N

NATURAL CItILD. Duties of-similar to those of kittima adopted child- CHILDREN. Adopted children..,....Shares of-under Buddhist Law- HEIRS. Diversion of.estate from-to religio1!1s endowment-

should be strictly looked into ... .e. ...- SON. Kittima or adopted son takes position of-when there are

no natural children

NEGLBeT-Question whether mere absence of joint living excludes achild or grand-child from inheritance-Necessity· for filialneglect to exclude

. NBGLIGENcR-Contributory-Trespass in the infringement of a rightand gives a cause of action even when no damage results, andnot only substantial but even exemplary damages may be givenif the circumstances required-See Tort ... •..

- Ferocity-Damages-Injury done by one animal to another ...- Proof of-on part of owner required ilJ case of damage done by

one animal to another .... .... ... •••- Responsibility-Fraud~Tort-Agent and principal-Agent

mistaken lor principal-Dealings with agent in such assumedcharacter- .

cxcv

PAGE Ysm

2311892176

397 ~ toI

171) 1896

I 1901to

Igog5671570 1891

toI IgorI

347J

cxcvi INDEX.

PAGE rEAR.

523 '1891to

19°:1:

5 I90Zto

t903·

591 18l}Zto

18g6

593 I89Z~to

x8g(i,

NEGOTIABLE INSTRUMENTS.-Contract-Breach of a bond-rate ofinterest . ••• . •• 79, 300 1892:-

to18g6

- S 79-When intecest at a specific rate is expressly made on apromissory note or bill-of-exchange, interest shall be calculatedat the rate specified on the amount of the principal money duethereon from the date of the instrument until tender or realiza­tion of the amount or until such date after the institution of asuit to reewer such amount as the court directs. There is thusno option as regards the rate to be allowed within one of theabove periods •••

-83I--Construction of ahundi-No privity between the holder ofa cheque as such and the banker on whom it is drawn

~ss 9. 56, 713-Holder in dt.tecourse of a promissory note-Necessary- . for him to have for consideration become the payee or endorsee

'Jefore the amount mentioned in the note became payable. .Immaterial whether the holder acts in his own interest entirelyor mciely as the banker of a third party. Holder who deriveshis title from holde~ in due course has the rights of that holderin due course .

........ s 87-Promissory note-Material alteration-addition ofsignature of maker's wife-Note sole not joint and several.Maker',s name entered in body of note-No alteration in bodyof note when signature added

... .......:s87=Ha.pr-oiltissorr notepayab1e to order runs " I, John Brownpromise to pay "and,it issubsequentIyheforenegotiationsignedby Smith, Smith is not a. co.-maker, and the addition of hisname is not a matenal alteration which renders the note void­See Negotiable Instruments

INDEX.

N-concld.

NEPHEWS AND ~IECES. Share each entitled to-under BuddhistLaw-of property of deceased aunt ...

Nissayo-Nissito~Property-Division of-on divorce by mutualconsent-atet propartY-],lttetpwa property-See BuddhistLaw-Divorce- ... ... ••• •..

cxcyji

PAGE YEAR

19 1904to

1900

NON-NEGOTIABLE DOCUMENT-Alien over money lent may becreated by deposit of a-which is evidence of the 1030-··Such a transaction is not necessarily contrary to public policy.See Contract ... •••

NUIfs-In the absence of any evidence of an ordination ceremony anun (Methila). so-called, is a lay cevotee. and a woman doesnot lose her right to her property by becoming a nun-SeeBuddhist Law-Inheritance ...

I 1904to

.1906

II 1904·to

1906

cxcviii .,INDEX.

o

OATH:-Award-settling matter in dispute conditionally on oneof theparties making:-to certain effect-Form of oath taken inUpper Burma~••

:OB!.IGE&-(;onstmction of document containing coatract ofguarantel'l-'-Alteration with implied assent of-Constructioncontrolled by final ex:pres<>ion of obligation written by obligorin his own language . ~Il ...

OB!.[GOR-Construction of document containing contract ofguarantee-Alteration with implied assent of obligee-Con­struction controlled by finaJexpression of obligation written by-in his own language

OBSTRUCTION BY PARTY. Proeedure

PAGEYEAIl

245 [892to

18gti

INDEX.

O-contd.

OMISSIoN-tmproper-to take evidence vitiates an award

of item-during final mutual settlement of accounts-estoppel

ORAL-Admission of-to clear up. ambiguity in documentaryevidence ...

- Agreement-Evidence of an-when admissible

r-'_"-':-- O

Mere verbal evidence of eontemporaneous-showing that allapparent deed of sale was really a mortgage, insufficient-suchevidence not admissible against an innocent purchaser withoutnotice of the existence of the mortgage.-See Evidence .••

-- When a partnership has been constituted by a registered deed,proviso (4) to section 92 of the Evidence Act ·does not bar itfrom being dissolved by an oral agreement.-See Evidence92 (4) ••• ..,,;,.. .•• ••• .,.

- Award.-Reduction of-to torm of a document-Arbitration ..~

Evidence-Admissibility of-to explain a point on which awritten agreement to refet" to arbitration is silent

_.- Distinction between secondary -evidence of the -contents of a. document and-of the transaction-See Evidence

.- Exclusion of-by documentary evidence-Burden of proof

-- ·Strong-necessary in <:aseof daims unsupported by documen-tary evidence ~ .•• ... ~ ... .. •.

.o,.asa-Eldest born son, means t be eldest son and not necessarilythee1dest child-See Buddhist Law~lnheritance . •••

CXCIX

SS.9}IBg.2to354 18g6

11~t~~2t 19°3

6) .276 1893­

to1896

5 1897to

Igor

13 1901to

1909230 1893

to18g6

368 1891to

19oJ:

INDEX.

ORDER-Under section 556, Civil Procedure Code, dismissing anappeal for default not a decree under section a... ...

OWNER OF LAND-Right of-to enjoyment of water of naturalstream-Substantial interference with such enjoyment consti··tutes Tort

206 1897to

IgOl[

642 1892'to

18g6.

-:-- Suit to recover a piece of land-Burden of proof of-

.--. Suit for-of land-effect· of allowing vendor to appear asostensible owner of land at public survey and registr-ation oftenures... .

OWNERSHIP-Burden of proof as to- ,.. ... 377'1I}18g2·

I to319 18g6

371)

OWNllR5HIP OF LAND-Burden of proof .on person out of possession 421 l89Tto19o~

INDEX.

p

PAPER CURRENcY ACT-23,24,-Evidence-57 (I),1I5-Contract­2S-N€gotiabJe Instruments-I2o-Held-a promise to pay asum of money on demand to a specified person. or bearer (sic)is in contrav.ention of section 24 of the Paper Currency Act,I II of 1905, and the agreement is therefore void under section23, Contract Act. -Po Tho, v. D'Attaides, 5 L.B.R., 191.'.letha Parkha v. Ram Chandra Vithoba, I.L.R., 16 Born., 6SgDhanji G. Desmane v. Taylor, 4 Sind Law Reports, 44.A~torney-GC1f"fJlv. Birkbeck, 12 Q.B.D., 60S. -¥.Bmsley v. Bzgnold, S B.N.A., 335. ."Nga Waik v. Nga Chef, U,B.R., 1907-<>9. 11, Evidence 5.

o Minsa Hidayat Ali Beg v. Nga Kaing

Parabaik-Mortgage deed-Held-that a-dated U56 B.E. (1894­95), though not signed was executed within the meaning of theStamp Act then in force (1 of 1879), and therefore liable _tostamp duty. HeLd-also,-that where the defendant wiisalleged to be withholding an unstamped-document, that didnot render secondary evidence admissible-See Execution­Signing

eel

FAGE TE£,E-

INDEX.

P-conld.

PARENT-Buddhist-when a-has given his child· in adoption toanother, he is entitled until the child has grown up, to cancelthe adoption and recall his child.-See Buddhist Law­Adoption

.- Adoptive-Adopted son-Natural parents-Buddhist Law-Inheritance .•• •••

_ Adoptive-stand in the same position as natural-and have thesame rights so l.ang as the relationship constituted by adoptionsubsists-also that-are entitled to inherit in the absence of

. direct descendants ••..- Claim for share of inheritance before death of both-under

Buddhist Law ..•

'-lliving apart from-and 110t attending in illness does not of itselfrupture family ties or disqualify children from inheriting-.Se_Probate and· Administration .•.

.- Succeed to estate in preference to all other relatives whenperson who dies leaves no surviving husband, wife, or directdescendants under Buddhist Law ...

,PAR'l'IES-Consent of-eannot confer jurisdiction where it does notexist

_ Suit brought by-without status to sue-no cause of action

_ When-are so ignorant of their rights and of the law, as ismostly the case in this country, considerable freedom ought tobe allowed by the .CourtS in the amendment of plaints 'or th cirtreatment as amended .... ... ...

X 1902to

1903

135

} 1897to

19°1log

138 1893to

1896

157 1897to

19°1

4411

2441 1893I to. r~6

573)

INDEX.

P-contd.

PARTITloN-Co-heir cannot sue administrator for-ohstate of anintestate,.-See Probate and Administration

- Of property between brothet"s and sisters-Equality of shares-Adoption~Evidenee-Burdenof pc()of- ......

- Of property between grand~ildren and step-grand parent •••

. - Of propert;)"-Laws rela.Jingto shares awardable to children and~doptedcbikken'-BudObist Law-Inheritance ...

- Of property-When under Buddbist Law a suit has been broughtfor divorce without-a subsequent ~uit for partition of thejoint property is maintainable-See Buddhist Law-Divorce...

- OF INHERITANCE. WhHe a widowed mother is alive thechildrenare not entitled under Buddhist Law for claim

PAGS YEA&.

r rgoa-.to

19O5:

121goa­ta

1!J°3~

114 18ga"to

tSgti,

,cciv 'INDEX.

P-contd.

'"

PARTNER-A secret agreement bet\'l~n two partners that implies acivR injury to a third-is an agreement with an unlawful objectand is void.-S,e Contract

:p~TNERsHl~Claim to share of joint property of brother andsister working togeth(lr,,~th being alive, constitutes a claim toa share of the profits of a-Law of Inheritance not applicable

-_ Exeeutjon of decree ag~st one of several pa~ne~OnJy,judgment-debtor's interest in-attachable-Procedure to befol1~wed . .. ••• ... ••• ... "••

,- Property acquired during m~rriage under Mahomedan Lawnot regarde<J essentials of partnership as defined in the Con­tract.-See Mahomedan Law ••• ..~

,- When a-bas been constituted by a registered deed, proviso (4)to section 92 of the' Evidence Act does not bar it from beingdissolved by an oral agreement.-Se, Evidence •••

,- When one person advance:; money to another to enable himto take contracts the fact that the former is remunerated by ashare of the profits does not of itself constitute a-Set Contract

,- Union of husband and wife as it exists. under BuddhistLaw should be treated as a-

PAGE YEAR

4 1902'to

£903

I

J)I~~3

6 1

1903

101902to19°3

INDEX.

P...-..conttl.

PATERNAL RBLA'1'IVEs-Claim of-to estate of deceased step-dau.,ahter .

PAUPER-An order rejecting at'refusing an application for permis;sian to sue as a-is not a dectoee and no appeal lies. See"Civil

. Procedure ••• ••• .•. ... •..- Where the Lower Court dismissed an application for J>ermission

.to sue as a-on the ground that the applicant had co·heirswith means who had not sued and might come in as defendantsin an administration suit, and that these circumstances· dis­closed an abuse of tJJepr~ of the CQurt.-kM-tbat no .such abuse was disclosed aDd that the .Lower CoUrt wasbound to decide under: O.XXXIII, r. 7, on the ground speci­fied in kule s.-Se, Civil Procedure ••• ••• ...

Payin and Letteep'Wfl property-Buddhist Law,.,..Divo~~by arbitrators ... ..-" ~••• ' .~... ~ •• -. ..... '.:~

- property. Meaning of- ... ••• ••• •..- property or property ·anterior to second marriage-step-father's

.claim to estate of deceased wife. and to estate of deceasedstep-daughter ••• •••

as)

·CCVl INDEX.

P-contd.

PAGE YEAR.

PJl~ALTY for breach of a contract-compensation payable in accordcance with the principle of section 74, Contract Act •••

PERSONS entitled to redeem a mortgage-Heirs of mortgagdr-per­sons having interest in property-joinder of parties of allpersons interested in property .. ... _'0 0..

- entitled to redeem a mortgage-plaint defective for non-joinderof parties-general principles to be followed .. 0 . 0 ..

PSRSIANS OR MOGux.s-Mahomedan law applicable to-Shiahcom..munit,. :oo.

PATaOLBUH-Suit to decide rival claims to the right of obtaininglicenses to dig for-at Yenangyaung-eustom ...

291 I8gzto

1896

58I}IS92to:586 Igo6

540 I81)~

to1896

INDEX.

P-=-contd.

PAGE YBAmPLAINT-Amendment of-on account of ignorance of parties~ to

their rights and the law-Courts permitted to amend- ...-- Duty of courts to amend-to put the case on a right footing and

decide it on the merits ... ., .•. •••- Rejection of-under section 54. Code of Civil Procedure .- Return of-for amendment instead of rejection of- •••- Return of-to be presented to the proper Court-Jurisdiction

of Court-Removal of attachment-Regular suit •••- When-may and should' be returned for amendment 01'

amended

PLEADER-Every Magistrate has a discretion to permit a person,. including a-not otherwise authorized to practise in his Court,

to appear for a person accused before the Court-Se8 CriminalProcedure

Po~galikaand thingika gifts : ... ... ... ;;. 59, 18JxSgaPoggalika GUTS. The person to whom:made has a right to keep itl 78 to

. - 18g6

ceviii INDEX.

POLYGAMY-in Burma is undoubtedly lawful and it is not unlawfulto marry the sister of the living wife. See Buddhist Law-Inheritance-Marriage 000

P&NNAS Olt MANIl'URI BltAltUINs-Lawand custom of-settled inUpper Burma in respect 'to the appointment of prie»ts to thecharge of temples or religious endOwments . ••• •..

.POSSBSSION-Actual partingwitb-ofpr~"tl is the only true testof~hecompletion of a gift undec BuddhISt Law-Necessity forstriCt proof... .0. .00 ... • ••

III 1910to

1913

INDEX. ccix

P-contd.

PAGB YEAR

l'OSSEssIoN-AnvERSE-Limitation-Suit for redemption of landalleged to have been mortgaged

- Break in-for about 20 years before annexation of the country-Decll:!ratory decree of title to ownership of land refused ...

- Period of-limitation when roperty is in-and in possl'lSSion oforiginal mortgagee .

-- Trespass on mortgagor's interest by person who redeems in hisown right-Limitation •.. '" ... -D.

- An award not followed by-without effect in stopping runningof time":'-Limitation

-_- by plaintiff not shown to be unlawful-sufficient proof that de·fendant is not the owner when all the evidence on defendant'sbehalf is that he is in possession as a trespasser-time allowedby section 9,.Specific Relief Act. to sue for repossession irres­pective of title... ... - '" _ '" - ...

Delivery or transfer of-essential to validity of gift under Hindulaw ... •..

- Gift-what is necessary to transfer-tm'ngika gift

464 1897to

1901363 18ga

to1896

454} 1897to469 1901

481 1892to

1896

554 t897to

19°1

619JI892428 to397 1896

...- adverse-occupation of land-Limitation

.- Gift by a Buddhist monk not followed by delivery of-to take. effect after his death-invalid ... '" ...

.- .Judgment-debtor-judgment-ereditor-Attached property-Burden of proof ... ... ... ..•

.- Meaning of-Burden of proof in cases of wrongful dispossessionin suits under section 9. Specific Relief Act, and suits based ontitle. See Evidence ... ••• ... •..

- Omission to show or even allege-or enjoyment within 12 yearsof institution of suit in claim to land on ground of descent fromremote common ancestor. Long possession by one. branch ofdescendants-Limitation ... . '0' ... ...

1 1904to

1906

507 1892to

18g6

ccx INDEX.

P-contd.

POSSESSloN-AnVIlRSE-Presumption from-of property is prima, facie ownership-Transfer of property-Incumbrance-

Priority-Estoppel .... ••• I

Suit by usufructuary mortgagee wrongfully dispossessed of landby holder of decree against his mortgagor .•• . •.

- Suit for ownership or-of State !and-eognizable only byRevenue-Courts-Civil Courts barred from trying- •••

__ Suit for recovery of land-foccible ouster-Burden of proof onwrongdoer

- '-Suit for redemption of mortgage-Long possession by alleged, mortgagees witboutr~ognitionof mortgagor's daim- U nsatis­

factory evidence of mortgage-Necessity for strict proof insuch circumstarn:es

When an ancient mort§?:ag-e is set up' it must be satisfactorilyproved against·persons in-who deny its existence

OF LAND. Adverse-redemption of a mortgage-Limitation

OF LAND-Burden of proof as to ownership-Bobabaing-Sisa­Thugyisa- Distinction between daims founded on offidal andon private title .... •••

- 01' LAND--Defendant in-there being no wrongful dispossession'of plaintiff-Plaintiff asserts permissive occupation by defend­ant-Defendant asserts posse.n of land by giflt outright-Burden of proof on plaintiff. S" Evidence ...

--- OF LAND-Document of Burmese timeS~proof require<! of- ... '

--- Ownership of land--Burden of proofon person out of-

_ Oli' LAND"":"Suit for recovery of.....of which possession has beenlost-barred by limitation .•• .•. ...

_ Suit for-on ground of dispossession or discontinuance ofpossession-period within which-such dispossession or dis·continuance of poss~ion must ,b~ proved-Burden of proof ...

Tooust a 'person from the-on t.he ground. of a mQrtgage-:­neCessity for clear and satisfactory proof dfthe -existence ofsucb mortgage ' .t.

PAGE YEAll/;:

573 1891to

1goI:

602 1892-to

1896 ,

201, I897'to'

Ig01::

224 1892t.o

1896-

409 U197'.to1:90"

56511:892,502 to .

. 1896"

416 r89'"'to

19<n.

7 Igo::l-to

36619031892

to

<1-211896"1:897;

to,1:goi.

5131t-t89:i-

375} toli89~

377J

INDEX.

P-contd.

POWER OF ATTORNEY--Construction of-Six gerieral principles­Effect of fraud on the part of persons dealing with the agent.See Power of Attorney... ..... ...

Extent of authority of advocates under-:Praetice as regardsadjournments ...

- General-suit for dissolution of partnership-Principal and'Agent-Limitacon

-Transfer of brier" orally by one advocate to another-recognisedpractice and not contrary to law-suflicientcause such as sick­ness or engagement in another Court being shown

ccxi

S 1902to

19°3

528 1891to

Igor

51&5 1892to

18g6

I 1902to

1903

,POWBjtS of COURTS in respect of Guardians-Regulated and limitedby the Guardians and Wards Act, 1890 .. .-' .... . 435 1891

to19o1

CCXIl INDEX~

P-contd.

PRACTICBin Upper Burma of making further advances on usufruc­tuary mortgages as land becomes better cultivated and morevaluable-Effect as regards limitation

PRE-EMPTioN-Before sale of a mortgage applies against outsideronly and not against a co-heir ••.•••

- Sale of ancestral property to persons not belonging to thefamily.....,l-~uddhist Law-Inheritance ...

- Sale of undivided ancestral property under Buddhist Law ...The widow bas the eight of-in a case under Buddhist. Lawwhere she has inhedted on her husband's death the share wbichshe Obtained at a partition in his lifetime with his co-beirs,and her deceased htisband's co-heirs sold their shares to astranger, and she had a son by l>.er deceased husband. SeeBuddhist L~w-Inherit:mCe

PRIESTS-Law and customs of the community 'of P6nnas or Mani­puri Brahmins settled in Upper Burm,p. in resp.ect of theappointment of-tQ the -charge of-temp!es or religious endow­ment!?

PalMARy EVIDJl:NCE.-.DispossessiOnof land-Burden of proof

522 18gJllto

1896,

19°7to

Igog,

INDEX.

P-eontd.

PRINCIPAL-Agent personally bound by contract of saie~en he doesnot di!close name of-and liable to be personally sued for losscaused by deprivation of thing sold by reason of invalidity of

. title-whether he has paid away price to-or not-actionfounded on tort rather than on contract

Extent of liability of agent by contract-presumption as to con-tract when agent does not disclose the name of his- •••

- Non·liability of agent of disclosed principal-substitution ofsubsequent verbal agreement for written contract . •••

- Untruly representing himself to be agent of another p~on- .sections 230 and 231, Contract Act. inapplicable-Section 236applies :.. ~... . ... .-, •••

- AND AGENT.-Agent mistaken for-personally-Dealing withAgent in such assumed character-Negligence-Fraud­responsibility-Tort ... ... .... ...

- AND AGENT.-General power-of-attorney-suit for dissolutionof partnership- Limitation ... ... . ..

- AND AGENT.-Scope of authority-Burden of proof •••- AND SURETY.-Money lent-discharge of surety by variance in

terms of contract or giving of time witbout suret)··s assent

ccxiii

3411 1891to

1901

306} 1891»to

470 .1896

339 }.1891to

347 1901

525 }I8921 to

470 1896

PRINCIPLBs-On which compensation should be assessed undersection 74. Contract Act ... ••• 333 1S91

totOOl

INDEX.

P-eontd.PAGE YBtU\

PRIVATE· ARBITRA'J;:OR-Awar:d of-5uil: lies to set aside- .•._ Want of power of-to procureattendance of:witnesses-General

rilles that parties agreeing to private arbitration accept thisJimitation-Exception in circumstances of particular caseowing to special undertaking of arbitrator to examine aUwitnesses •••. .•.

10111891»- to

11901

4)

PaI'fAI'E LAND.-Stateland-questions regarding- ... u34. .

..PIlOJlABILtTIBS-Consideration of-mortga"ae-Burden of proof ...578

INDEX.

P-contd.

PROBATE AND AOIIUN1STRATION-A eo-heir cannot sue the adminiSQtrator for partition of the estate when letters of administrationhave been obtained to the estate of an intestate-but mustprosecute his claim in the manner provided by the Probateand Administration Act ... .•• .•• •••

-- A suit following five months after the issue of letters of adminis­tration of property in the possession of persons to whom it hadbeen distributed by the administrator did not invalidate thesuit-Deeree should have merely specified the share tQ. whichplaintiff was entitled of deceased's interest in the unl'lividedproperty, and should not have defined the extent of thedeceased's interest-See Probate and Administration

Merits of parties to be considered in granting letters ofadministration .••

- Res judicata-Burden of proof-Evidence-41, ITo.-Thedefendant as widow had applied for letters of administrationto the estate of Maung Ha Va. Her status had been deniedand the question had been fought out at length in the proceed­ings under the Probate and Administration Act. In a suitbrought against her for the ~ate on the ground that she wasnot a widow and had no right to inherit from Maung Ba IYa­Held,-that the question of the defendant's status (;ould befought out again and that section 41, Evidence Act, had noapplication. But held-further-that as the defendant was inlawful possession of the estate the burden of proving that shewas not the owner lay on the plaintiff.

MaGaungv. Ma Nyutz, Civil Appeal No. 227 of 1914(unpublished). .

Kanhya Lal v. Radhachuran, 7 W R.} 339.Ma Hmyin anrJ one v. Ma On Gaing and S others, U.B.R.}

1902-03, Il,:Prob. and Admn. I.Mi Ngwe Zan v. Mi Shwe Tai! ••.

- Scope and object of the Act-Effect of grant of letters­Question of title ean only be determh)ed finally in a regular5uit.-The Distrkt Court after granting letters is functusofficio, except in regard to the exhibition of an inventory andthe revocation of the letters.

Ye Gyan v. Mi Hmi, I.L.B.R., ISS.Karim Baksh v. K.E. (1903) 2 L.B.R., 161.Mi Pwa v. Hi Thein Yon, (z908) 4 L.B.I:<., 287.Nga Pwe v. Mi Ch.an Tha ... .•• .••

- When an applicant for letters of administration is entitledto inherit a·nd is under no positive disqualification} and thereis no application by any other person the application shouldnot be refused. Living apart from parents and notattending in illness does not of itself rupture family ties ordisqualify children from inheriting .••

-23-Letters of administration-objection by persons claiming asadopted children.-Held,-that when an objection to the grantof letters of administration is raised on the ground that theobjector is an adopted son of the deceased, and the ObjectQfif he proves the adoption totally excludes the applicant fromthe inheritaw-ve then the question of the adoption must be goneinto and decided. .

S L.B.R., 18.

coXV'

PAGE TEAll:.

11

L90~to to

3 J19oi

531 1897to

1901:

61 ")

11910} to

1

1913

6gJ

7 [goato

190!

ccxvi INDEX.

P-contd.

C. A. No. 266 of 1910.--No. 270 of 1910.

Nga Ba Sin v. Nga Po Han

PROBATE AND ADMINISTRATION 23,50, 98-The person primarily. entitled to the grant of letters of administration is the person

who. according to the rules for the distribution of the estatein question would be entitled to. the whole or any part of suchestate that is. the grant should follow the inter.est-Buddhistlaw of inheritance among Hindu Buddhists of Arakan andChittagong ... ••• ... ...

5°.64, 83-Need for care in issuing cit~tions and scrutinisingclaims for letters-of-administration. Grounds f<1r revokinggrant of letters-Procedure ..

- .55.50. 83-Application for revocation of grant of letters ofadministration-Refusal of Court to grant revocation. onpreliminary ground that appeJlants were not prepared' totake outadministtation themselves-Duty ofCouet in regardto applications under the Probate and Administration Act ...

- 79:-Nature of suit that may be brought under-Poi.·,ted out­that a person bringing a suit under-cannot sue merelyto recover the loss which he has himself sustained owing to themal-administration of the estate. but m1,L<;t sue as trustee forall persons interested in the estate.Hi Saw Me v. Nga Nyun Hlaing and one

PAGE YEAR·

101 1914to

1916 .

533 1897.to

19°1

174 . 1910to

IgIS.

INDEX.

P-contd.

PAGE YBA&.

PROCEDURE in execu.tioD of a decree-Irreg-..llarity of-limitation ... 458"}- in issuing letters of administration wider the Probate and I8g2

Administration Act ... ... .... 610 to- regarding attachment of property before judgment ••• 274 ISgO- to be followed in proceedings under the Guardians and Wards

Act ~7J

PROCEEDINGS AND ORDERS OF BUDDHIST ECCLESIASTICAL AU1'UOR­ITIES -cannot be questioned in the Civil CourtS so long asthey keep within their jurisdiction and do nothing contraryto law . 59 1892'

to18g6·

PROFESSIONAL MISCONDOC'l'-See Advocates 50 . IgIO,to

IgIS·

PROMISSORY NOTE-Admissibility of independent evidence in suit00- . 391

- A man may sign a.~by getting some~ to write his name forhim-SI' Execution-Signing ... ••• ••• I

OR BILL-OF-ExCHANGE-How interest should be -calculatedon- "591

- Holder- in due course of a-Necessary fur him to have for con~sideration become the payee or endorsee before the amountmentio!1ed in the note became payable' ••• 523

1891.'to

19o1'

Igo1to

19Oi'

18g2fa,

1890-

·ccxviii INDEX,

P-contd.

:PROMISSORY NO~E-Incomputing the period of limitation in a suitbrought on a-See -Limitation ... •..

Material alteration-addition of signature of maker's wife

.- f'Yot proved-Admissibility of-Independent evidence of obli-gation ... .•. . ..

.- Where a-bearing a stamp which was not duly cancelled hadbeen admitted in evidence in the Court of First Instance,­Held,-thatthe Appellate Court could not question itsadmissi-bility-See Stamps . ..

.- Where money is lent On terms contained in a -given at thetime of the loan, the plaintiff is debarred by sect,ion 91 of theEvidence Act from resorting to the original consideration­See Evidence ••• ... ... ... •..

-- NOTE PAYABLE TO ORDER-If a-runs" I, John Brown,promise to pay" and it is subsequently before negotia~ion

signed by Smith, Smith is not a co-maker, and the addition ofhis name is not a material alteration which renders the notevoid.-See Negotiable Instruments

PAGB YEAR

146 1910to

1913593 1892

to1896

390 1897to

19°1

3111907~ to

5 J190~

I 1902to

19°3

'PRooF-Burden of.;...Agent and principal-scope of authority-Burden of-alleged sale after a mortgage ...

- Burden of-Bailee-Care to be taken by- ....I 11892

575 j to1896

337 1897to

19°1:.- Burden of-claim to share of undivided family inheritance-

Nature of proof required-Limitation .•• 493 18921to18~

INDEX. ccxoc

P--contd.

PAGE YUE.

59 1891to­

1901 '

34 1

194 IISgz"

'fl¥'202

366

'556 I

7 Igcn,to

1903·234 1230 I233 c

ll~-

;;; J}I¥>224418 11891-461 } tc;t'

llgmt412 )

393 }I8g2to

551 ISgi­is the crucial test of a gift

- of publicity and notoriety essential to .establish a feittima adoption-of the existence of a superior status-presumption that a woman

who has a separate residence from that of her husband hasthe status of one entitled to share in his inheritance may berebutted b,- '" ... ... ...

-of the renewal of connubial relations required when a divorcehas taken place between busband and wife and a .ce-union isset up by the former wife in order to set up a claim to his estate

- of document of Burmese times-suit for possession of land ...- required when one member of a family claims the right of

redeeming land separately mortgaged by other members . •••

PROOF-Burden of-Defendant in possession of land there being nOwrongful dispossession of plaintiff-Plaintiff asserts permissiveoccupation by defend~nt-Defendant asserts possession ofland by gift outright-Burden of proof on plaintiff.-SeeEvidence

--Burden of-dispossession of land-primary evidence-- Burden of-exclusion of oral by documentary evide~e

_ Burden of-forcible or wrongful dispossession qf Iatl'l'l ...- Burden of-mortgage-admission by defendant of pt'evious

ownership of part of land claimed by plaintiffs predecessorin interest .•. ....

-- Burden of-mortgage barred by limitation-renewal of-withintime set up ... ~ ..

-- Burden of-mortgage-probabilities ...-- Burden of-suit for recovery 6£ possession of land-forcible

ouster-,-Burden of proof on wrongdoer ..•-- Suit for redempti(ln of mortgage ... ...-- When onus on the plaintiff and when On the defendant-limi-

tation ••• ... ..._ Necessity for clear-of existence of mortgage when disputed-

burden of proof -... ......-- Necessity for strict-of repayment of debt -contracted with the

formality of writing which remains uncancelled in the handsof creditor ... ••• ... ... . ..

-- Need for c1ear-of ancient claim to land after long undisturbedpossession-consideration ...

--.. Of tr.~nsfer of possession, whichunder Buddhist law

_Strict-in a suit for redemption of mortgage-Long possessionby alleged mortgagees with recognition of mortgagors claim-Unsatisfaetory-evidence-o£ mortgage ... 409 ISgr-

to190£:

'Ccxx INDEX.

P-contd.

PA.GS YEAR

:PaoPBRTy-A deed of conveyance of-to one creditor with the object. of defeating another creditor is not void, provided that, it is

bonafide, i.e., if it is not a mere cloak ·forretaining .a benefitto the grantor-See Civil Procedure .•• ... . .••

._ acquire<fduring marriage under Mahommedan Law not regardedas partnership property-S66 Mahommedan Law. •••

.- Ancestral-claim to share of-by certain co-heirs against otherco·heirs in possession for upwards of [2 years-Limitation .••

- Ancestral-presumption from circumstances as to division of-

- An attachment of-not belonging to the judgment-debtor is notexecution of process for enforcing the judgment and does· notbar an application under section lOS, Civil Procedure Code­Limitation II, 164-See Civil Procedure

.- A suit for bare divorce without and as distinct from ·partition of-will not lie under Buddhist Law-Sq, Buddhist Law-Divorce .

-- Ascent of-when there are no direct descendants-Buddhist Law---Inheritance

- Attachment of-before judgment-Procedure... ....- Claim of wife to inherit the-of her deceased husband to whom

she·was unfaithful .........- Division of-Divorce on grounds of husband's miscOnduct­

Husband previously married-Wife a maiden at time ofmarriage ....

4~ 1904to

1906

39 1897to

1901

INDEX.

P-contd.

FROl'l·;RTv-Family-among Burmese-PresulJlptions as to portionsbeing joint or separate property of heirs under varying circumo

stances-Burden of proof '" .•• •••Immovable-The provIso to Article q8, Limitation Act, inrespect of the period within which a suit must ~ broughtagainst a mortga'gee to redeem-mortgaged has no application

~:::;: in Upper Burma where the general period of 60 years is=~.~ allowed ...-- Inanimate- applies to land among other things

in divorce as by mutual consent under Buddhist Law betweenparties I.Ot previJu5ly married-Wife entitled on partition toone-third share of-inherited by husband during cov~tureand'lJice 'lJersd-See Buddhist Law-Divorce . . .•.

Inv~5tigation of claim to-attached in execution of decree­Points for enquiry-Duty of investigating Court .•.

- Joint-of Buddhist husband and wife-Attachment of-in exe-cution of a decree against the husband alone ... .•.

Joint family-Division of-Inheritance among Chins-Customs-- Joint family-Suit for a share of-... .•.- Joint family-Limitation-Award not followed by possession

without effect in stopping running of time. . '"- 'Joint family-Partial division"8f"":'Portion under mortgage-Re­

demption of co-heir claiming in individual right-Time fromwhich period of limitation begins to run . •..

- jointly owned by a Buddhist husband and wife should or.dinarilybe deemed to be in the possession of the former-Sale of-byone joint owner '" •••

-- Joint -:;uit for a portion of--cannot lie-The whole estate tobe brought into division

- Jointly acquired-There is no distinction in Buddhist Lawbetween the respective interests of a husband and wife in-when

. the parties have been married before (eindaunggyi). and whenthey have not beea married before-See Buddhist L:.:.w­Divorce

- Original and joint-Joint living-Step-grandchildren-Sharesentitled to- .•• ... ... ... ...

-- Partition of-between brothers and sisters-Equality of shares-Ad6ption-Evidenee-Burden of proof ... •••

-- Partition of-between grandchildren and step-grandparent- Payin-Meaning of ... .•• ... .••- .Payin-or property anterior to second mairiage-Step-father's

claim to estate of deGeased wife and to estate of deceased step-daughter ••• ••• .•• ••• •••

--- Rule of Buddhist Law with respect to the disposal of-upondivorce on the ground of wife's adult~ry, where tbe husbandand wife had been married from. youth. but separated andsubsequently reunited .

- Suit to establish right to-removal of attachment of which hadbeen refused

--- Transfer of-\\ith a view to defeat creditors

ccm

PAGB YEAR

4351

'ISga} t(\

l ISg;S524121)

1 I~2

to(903

262 I8grto

Ig01

:~ll4'81 18ga

)- to

soo/'...g03)

229 18g1to

19o1

I JI)04.to

1906

::11~712251901:

nOJI8g2to

184 1896

34 1891to

Ig01

2S'S}I~:a318 t896

..CCXXll INDEX.

P-contd.

PAGE YEAR

PROP ERTY-Transfer of-Incumbrance-Priority-Estoppel •••- Under Buddhist Law a suit for a bare divorce without partition

of-will not lie .. . . ...Under mortgage with possession not liable to be attached-Right to redeem-Liable to attachment .•• ...

Undivided ancestral-Sale of--Pre-emption under BuddhistLaw... ... ...

Wrongfully attached in execution of decree-Decree-holder whowrongfully attaches liable for damage

- vVrongfully seized in execution of decree-Special proceQutelaid down in section 278, Civil Procedure Code, intended toprovide a speedy and summary remedy and not to deprive aclaimant of his remedy by way ofsuit ... .••

P~OSBCUTION-Malicious-Malice-Reasonable and probable cause-A conviction even when reversed on appeal is strong evidencein favour of there being reasonable and probable cause-SeeTort •••

PROSECUTION-S-Malicious.;...Essential points in action for- .., 414 18~1to

1901

5 19°4,to

1906

INDKX.

P-contd.

PROVINCIAL INSOLVENCY-II, 4'3 (2).-Hetd-that the insolvent byomittiflg to mention certain property in the schedule attached tohis application under section II of the Provincial InsolvencyAct and by representing that it did not belong to him when hehad a proprietary interest in it fraudulently or vexatiouslyconcealed the property within the meaning of section 43 (2) (h)of the Act. Also-that the District Court was not actingillegally in giving the creditor an opportunity of showing badfaith.

Tin Ya v. Suhbaya Pillay, 6 L.B.R., 146.Mi Bu v. Po Saung, U.B. R., 1910-13, 1, 8~.

Nga C/Wk v. Mi P'II1a On •••..- 15, J6-Acts of badfaith-Adjudication.-Held-thatthewords

"for any other sufficient reason" in section 15 have referenceto petitions presented by a creditor, and th.at when a petitionhas been presented by a debtor, if the Court is satisfied of themntters referred to in section 6 (3) (a), (b) and (c), it must passan order of ndjudication and that questions of acts of bad faithdo mt arise for consideration until a later stage when thedebtor applies under section 44 for his discharge.

Aranvayal Sabhapothy Moodalillr, I.L.R., 21 Born" l!97.Nathu Mal v. Th, District Judge ofBena..es. I.L.R.. 32 All••

547· .Uday Chand Maiti v. Ram Kumar Khara, 15 Cal. W.N.,

P· 2I3·Mi Bu v. Nga Po Saung ...

_ IS.I6-Acts of bad faith-Adjudication U4a.1 Chat}a Maiti v.Ram Kumar Kho,a,I5 Car. W.N., p.11l3.

Nathu Mal v. The Dist'Yict Judge of Benares, J.L.R.32. All., 541.Lami,uddin v. Kadumogi Dasi. 12 C.L.J•• 446.Crirwardhari and one v. 'fai Narain and others, I.L.R. 32

All., 645.Nta Naingv. Mi Bu

- H,ld-that section 40 (2), Provincial Insolvency Act, must beread with section 16 (2) and section 60, Civil Procedure Code,and the Court acting under section 40 (2) cannot allow morethan half the insolvent's salary for the maintenant:e of himselfand his family.

XVIII, C.W.N., 1032.Tulsilal v. H. Gifsham ttt

15

ccxxiil

PAGB yEAlt

86 1910­to

1913

·CCXXIV INDEX.

P-concld.

PROV~NCIALSMA.LL CAUSECOURT-I6-33.-Where the same Judgepresided over a Small Cause Court and District Court and triedby .mistake as Judge ~ of the District Court a case of a SmallCause nature.-Held-that the mistake did not alter thecharacter of the suit, and that no appeal lay from the decree .••

.......... ss...,.ReU-that a suit for compensation for maliciously causinga search for stolen property to be made by the Police in theplaintiff's house. is not a suit for compensation for injury to theperson within (Schedule II) Article 35, and is not excludedfrom the cognizance ofa SmaUCause Court.Koila Buksk v.Lokeman Khan and one

- Schedule II, Article-l5-1I,ld-thata suidor an amount dueon a bond is not a suit for the specific performance of a .contractas contemplated in- .. Also-the jurisdiction of the SmallCause Courts cannot be ousted merely by asking for an alter-native relief to which plaintiff is not entitled '"

- Schedule II-8-H.ltl-that a.stall in a market is a house orpart of a house, arid that a suit to recover stall-rent is a suit torecoverhouse-rent within the mea,ning~fclause 8 of Schedule IIto the Provincial SinanCau~ Courts Act, and is cognizableby a Court of Small Causes

1 ,1907to

1909

40 1910to

1913

311907.to

S~ 1909

INDEX.

R

"RECEIVER-The appointment of a-is a step which should not betaken without special reasons, particularly in the case of abona fiae possessor with legal title. Parties who have acquiescedin prOperty being enjoyed against their· own alleged rightscannot obtain this form of relief-See Civil Procedure

REDltMPTION-Equity of-Mortgage-Intention of parties to be.ascertained and followed ... '" •••

.- Right of-liable to attachm8llt although property under mort-gage with possession not liable to attachment .•. •••

-- Mortgage-Claim founded on subsequent loan which saveslimitation-Evidence-Corroboration - Discrepancy .••

-- of a mortgage cannot be split up and effected piece-meal­. Transfer of Property Act, s.60 '" ... '"- of mortgage-for a trifle after the lapse of 54 years and after

the land has been improved by the mortgagee-inequitable­--. Lease by mortgagee whether determinable on-Usufructuary-

See Mortgage ,oo '"

--BY ONE BaA-NCH OP FAMILY. Mortgage-Burden of proof-Limitation ..• .....0

-- of co-heir claiming in individual right joint family property aportion of which was under mortgage-time from which pertod

. of limitation begins to run ... •••- Claim to compensation for improvement before allowing-in

absence of express condition to that effect in mortgage deed .........--of land mor~gaged-Butdenof proof-estoppel-of mortgage-Adverse possession-LimitatIon ...-ofmortgage-persons entitled to redeem-Plaint defective for

nonjoinder of parties-General principles to be followed ...-of mortgage-suit for-by persons holding land as tenants on the. allegation that they were representatives of the original

mortgagor and the landlord representative of the originalmortgagee-Burden of proof-Limitation ... -.o.

---of mortgage-the period ()£ 60 years allowed for a-is for a suitagainst a mortgagee. and it must be clearly shown that therewas a mortgage and that the person sued is mortgagee '"

-Ri~ht of-not forfeited when the terms of the mortgage-deedwere that the mortgagors would redeem at a certain time andif they failed to do so would make over the land outright tothe mortg<1lgees. and the mortgagors sued for-after theexpiry of the stipulated time-See Mortgage

ccxxv

PAGE YEAR

17 1\)01to

i909

1 1907to

1909

INDEX.

R-contdo

RBGIST£RED DEED-When a partnership has been constituted bya­proviso 4- to section 92 of the EVIdence Act does not bar it,from being dissQlved by an oral agreement.-See Evidence •••

REGISTRATION-In Upper Burma a suit lies for a decree directingthat a document shall be registered

_ An unregiStered document affecting immoveable pt"opet"ty isadmissible- to prove a personal obligation' where it containsadistinct, i.e., separate admission of liability or personal under­taking to pay and not otherwise... ••• •..

_. The right to redeem land in possession of a usufructuary mort·gagee does not admit of physical possession, and thereforelimitation for a suit for pre-emption. based on the sale of sucharight, runs from the date of-of. thesale-deed-See Limitation

6, IgM­to

I903,

I I90~,, to

1903.

I' I904,to

IgOO.

IND.EX~

R-contd.

RBGULATIOl!lT X 01' I881-the Upper Burma Stamps and LimitationRegulation-Section S-eftect of- ......

RSJJl.CTION of application for revision in a case where the remedy ofan appeal cannot be had-Limitation ... .._

-of plaint undervalued and under stamped-Section 54. Code ofCivil Procedure . ...

,RELIGIOUS BUILDINGS AND OTHER KINDS OP PROPERTY-SUCCes­sion of one member of the Buddbist priesthood to another inrespect of- ••••..

l'AGJI YUR.

466 I89~to

18g6

4501 I8g~~ tc

Z53J 1896

ccxxviii INDEX.

R-conttf.

PAGE YElI/,-

REMOYAL OF ATT"CHH,EN'l'~Costsincurred by. decree-holder in con­testing the-eannot be added to amount of decree againstthe judgment-debtor

RIIN£WAL of old mongage· in favour of claimants under originalmortgagor

RgNT, Execution sate of bindbe!d under usufructuary mOi'tgage-D.ecr-ee-holder's right to sell such land '" . ...

Tenancy presumed to ~etenure running on from year to year,In Burma the practice of annual letting being customary thepresumption of a relationship of landlord and tenant Onceproved continuing to subsist not strong-open to tenant toshow that previous relationship bas ceased to exist

R£·Ol'ENING OF A CASE-Application for-Disposed of at a ht'.aringat which defendant was not present, but his advocate put inan appear.ance and w-..s present at the examination of wit·nesses-rightly rejected by Court of First Instance ...

- Objection to~not having been takenjn the Original Court,the point C&nnotbe raised in the Appellate Court '"

- Principles by which Courtsshould be guided in dealing 0, XLI,with applications for-of suits,etc., under O. IX, rr. 9,13. andr. Ig-See Civil Procedure

0 13 I1I9a-to

18gt)--

535 1897to

rgoZ'

,240J 1897

to237 Igol

27 Igo,.­to

1909-

INDEX~

R-contd.

Rz!oaUEllT'l'ATIVBS 01' MORTGAGORs-Joint Mortgagors

RESIDENCR-Separation of-does not afford more than a pre~sumption under Buddhist Law that the woman has not thestatus of one entitled to share in the inheritance left by ber.deceased husband

Ras m DlcATA'-Burdfn of proof-Probate and Administration-Evi-d ence-41, IIo.-See Probate and Administration •••

- Future mesne profits-See Civil Procedure

- Orders in executio~ proceedings .are governed by principlesanalogous ·to those of-and are binding, if not appealedagainst, in subsequent proceedings in the same Court-SeeCivil Procedure ••. -

- question as the bar of-when the position of the parties isr~ersed ••. ... ... ••• ....

- Suit for restitution of,conjugal rights-second suit upon freshdentand .... ...

ccnix

61 Igloto

8119181914

to1916

1 1907to

1~'9

234J18gsto

242 lag6

IND'EX.

R-eontrl.

RssroNDI!NT-A-in an appeal -is not ordinarily entitled to urgecroJS-objection, except against the Appellant-See Civil Pro­-cedure

Rc£STU1J'l'IOR of .cONJUGAL -RIGKTs-IlI~reatment and desertion avalid plea of justification under Buddhist Law-See BuddhistLaw-Marriage ••• ...

_. There is nothing in the Buddhist Law (explained in Mi Kin£at v. Ba So) as to divorce at the will of one party on surren­der of the joint proper;y and payment of the joint debts in theabsence of fault in the other party, which is inconsistent with­the observance of the conjugal duties in a subsisting marri-

_age. orwill bar a suit for-See Buddhi& Law-Marriage •••

_ Suitfor-Divotceby l:uutual consent-Question fot decision

_ Suit for-ag~nst Buddhist girl under the age of 18_ Suit for-Seeond suit upon fresh demand-Res julicata

I 1901to

19O!J -

31 lSgtto

19o1

200') [8923tj.Z}- to

J 1896

INDEX.

R-contd.

'REVENUE onrt<:ER-In revenue proceedings of a judicialnatu.re a­has inherent power to exeCute his own orders-A Civil Courthas no jurisdi.etion in any matter which a-is empowered underthe regulation to dispose of-A suit will not lie in a. Civil Courtto execute the -orders of a-whether by restitution Of other-wise.-SeeCivil Procedure •••.

REVIEW of judgment cannot be admitted for the purpose of l'e-argu­ing a case on previous matCl'iaI-Erl'Or of law can be a goodground for l'eview only where the Jaw is definite and capableof distinct ascertainment-See Civil Procedure

- OF JUJ)GMENT-Conditions under which-.can be granted- on the ground of non-produetion. of <:ertain evidence in the

Court of First Instance-Upper Burma Civil Justice Regula­tion, section Bs ••• .•. .•. .••

.- Application for-conditions necessary fOf the entertainmentof­- Pointed out that tbepl'Ovisions of O. XLVII. r. 4 (zJ (0).

are imperative and that a-of judgment on the ground of dis-covery of new matter or evidence cannot be granted withoutstrict proof that such new matter or evidence was· not withinthe knowledge of the party applying or could not be adducedby him at the trial-5ee CIvil Procedure ... . ...

ccxm

PAGE Tna.

ccxxxii INDEX.

R-contd.

REVISION-Application £or- Duty of Appellate Court to see thatsatisfactory cause is shown for not preferring an appeal under·the provisions of section 14 of the Limitation Act beforeadmitting an-

--rejection 01 application for-in a case where the remedy ofappeal canonot be hlld-Limitation ......

-H.ld-that whE'n a Civil Court takes action under section 476 of.. the Code of Criminal Procedure, the High Court cannot inter­

fere under section 439 of that Code in-, as the power of......iseXl'cessly confined to the records of Criminal Courts; but theHigh Court can interfere in the exercise of its Civil jurisdiction·under the provisionl> of section 1 I 5 of the Code of Civil Pro­cedure-See Criminal Procedure

Not ordinarily allowed where other remedy is available-CivilProcedure, s. 6~2-Civil Courts, s. 14

REVOCATION or GIPT.- Buddhist la.w not applicable to gifts.

83 1914to

~9t6·

3I1 . ~891to

1901-

400 t8g:i·'to

1896.

INDEX.

R-Co1ztao

RIGHTS of Buddhist -co-heirs to col1t:ra1:t between themselves irres­. pective of the tules of Buddhist law

RIGHT of son of a concubine orfesser wifebrol1ght up by the fatherlike the offspring of a riguJar union to share the inheritancewith a setond wife and child

RIGHTS of twC? adjacent riparian proprieto.-s of land to the land inthe bed of a stream situated between their respective holdings

PAGE~

>ccxxXiV INDEX.

R-concld.PAGE TSAR

;RIGHT TO PROf/ERTY.-Suit to establish-removal of attachment of. which had been refused

lIbGHT 0' WAy-As an easement is an interest in land within themeaning ofsection 53 (2), {iil, Land and Revenue Regulation,the Civil Courts are barred from entertaining a suit to establishsuch a right of way over State land-See Land and RevenueRegulation' ' .i.· ...

;RIVAL CLAIMs.-Suit to decide-to the right of obtaining licenses to. dig for petroleum at Yenangyaung-Custom

IRuns regarding arbitralion~anaward by ecclesiastical authoritieson a secular matter not exempt from the usual- ....

·-for- division of shar-es of inheritance under Buddhist law betweenchildren of first wife and child of subsequent wife .

--01 succession among the owners of the right of digging for. petroleum at Venangyaung-t'lllinsa$ and twinsayo$

- The-epntained in Municipal and Local Department Notifica­tion No. 148, dated the 11th December 1990, have the force oflaw-Money paid in contravention ofR-ule 4 to Munif?ipaloffice instead of to treasury not a valid defence in SUIt blMunicipality for- recovery of money-See Upper Burma MUnl­cipal Regulation

INDEX.

s.SALARY~eCtion 40 (2), Provincial Insolvency Act, must be read

with section 16 (2) and section 60, Civil Procedure Code, and·the Court acting- under section 40 (2) cannot allow more thanhalf the insoJven~s-·for the maintenance of himself and hisfamily-S.e Provincial Insolvency Act

SALE of ancestflll property to personsilot belonging to the family-Pre-emption-Buddhist Law-Inheritance ..It! •••

-- Execution-Proceeds of parties claiming interest in-should begiven an opportunity of being heard and of establishing theirclaims to participate in the distribution

--Execution-Holding an-at an earlier hour than that specifiedin the proclamation of sale is a malerial irregularity to becorrected in accordance with section 31 I, Civil ProcedureCode, and not an illegality rendering the sale void-See CivilProcedure .

-- of property by one joint owner-VaJidity of- •••- of land-Presumption in Upper Burma against-and in favour

of mortgage or retention 9ltright of re-purchase •••-- alleged-after a mortgage-Burden of proof .•.--. Execution sale of land held under usufructuary mortgage-

Decree-bolde£'s right to-of landOP LAND subsequently declared to be State land. Defencethat the absolute title to the land had not been sold, but. onlythe right of occupancy

SAL~·PROCBEDS OF I'ROPERTY IN EXECUTION-Distribution of-incontravention of section 63-See Civil Procedure

SCIENTER-Injury done by one animal toanother-Damages­Ferocity-proof required-Tort-

SEAL-Of Hlutda'IIJ, or High Court of Burmese Government-Merepresence of impression of a-on a document not sufficient proofof genuineness- ... ... ••. ...

ccxxxv-

fAGS YE4.1>.

Isa. 1914­to

Ign)..

9 1901­to

t9O!J"303"'1

s09l575··I~

6131.1896.

615J

565 1891­to

Igol:

404 189,.­to

190IL

-ecxxxvi INDE;X.

S-contd.·

:SBARCH OF STOLEN l'ROPERTY-A suit for compensation for malici­ously causing a-to be made by the Police inplaintif('s house.is not a suit for compensation for injury to the verson within(Schedule II) Article 35. and is not excluded from the cogniz­ance of Small Cause Court-Sle Provincial Small CauseCourts

.:SECONDARY EVIDBNcE-Distinction between-of the cOntents of adocument and oral evidence of the transaction-See Evidence

- Question of admissibility of..:oordinarily fot Court of Firstlnstance-'-Party ten~ering must show that it is admissible •••

- Of contents of telegrams not relevant unless the non-production. ofthe originals is duly ll~ountecl for- ••; -

- Of unstamped document not produced in evidence inadmissible- Of unstamped or insuffici~ntly stamped document which has not

been produced is not admissible .•. ••• •••- Facts necesaary under section 65, Evidence Act, for the admis-

sion of- t.' .,. ••• ••• . ••.- admitted 011 document said to have been burnt. suit should

have been brought within time of limitation •.• •••-- of a lost documentllot stamped in accordance with Jaw inad·

missible

PAGR YBAR

I 1907to

1909

34711892473)0. to

Ji8g6631

INDEX.

S-contd.

.SECOND WIPE entitled to share in inheritance with first or chief wifewhen she has clearly the status of a wife under Buddhist Law

:SroURITy-Lia:bility of person furnishing-for judgment-debtor toappear when called upon-Procedure in -execution of decree ..•

._ for paylll"'..nt of costs incurrecf'in COurts when ordered to begiven should be ordered with caution and the careful exerciseof diS<%etion .•. ••• .••

._ BOND. Jointly executed after an alleged agreement was cometo that only one party should be held responsible-Oralevidence-Admissibility of-

ccxxxvii

PAGE YBAR

2691.ISga279} top895

SS4J

SEDUCTION-Burmese woman can sue for damage for breach ofpromise of marriage but not for- ••• ••• •••

._- Compensation in cases of-In deciding whether an award of1:ompensation in a seduction case should be enforced· or not,the Courts have only to look to the provisions of sections 520and 521, Code of CiviI·Procedurel and determine whether anyof the grounds mentioned or referred to in those sections areshown against the award. The fact that the subject-matterof an award is not such that it could be a cause of action in aCivil suit is n~ necessarily an objection to the legality of the.award-See Cm' Procedure . ••• ••• ••• 19 fgt:Yf

toItct.

·... ccxxxvm INDEX.

S--contd.

SIPARATIl CLAIM for a redemption of a mortgage set up by onemember of the family to evade estoppel by conduct of co-heirs

- residence of a wife from her husband-Presumption underBuddhist Law as to right of woman to share in the in­heritance left by her deceased'husband.

SERVICE OF SUMMONS ON A DEFENDANT-Substituted se1'flice­residence out of jurisdiction

.SET-O~ AND RIGHT TO DEDUCT-Distinguished-Civil Procedure,

section In •••

SETTLEMENT OF AceouNTs.-Omission of an item being balancedue On a document-Estoppel ... ... •••

- OF ISSUBS. Burden of proof-Need for making parties clearlyunderstand points on which evidence is required ... ...

PAGE YIlAl'I.:

$16 189~-

to~899;-

194 1892"to

1896r

262 1892­to

1896 -

244 1891"to

19°1-

INDEX.

S-contd.

PAGJ: VilA5/,SHARE to be provided for offspring of concubine or lesser wire under

Buddhist Law... .•• ••• ... •...- of property to which wives and nephews of a deceased aunt are

entitled to under Buddhist Law... ... ...- of children of first wife and child of subsequent wife under Bud·

dhist Law-Rules for division of inheritance .• ' ...

SRIAR COMMUNITY. Mahomedan Law as applicabl~Mogul5'='Persians-Custody of children .... ... . ...

SICKNEss-Plea of-Delay in presentation of an appeal-Sufficient 'r. .'.

cauae- Limitation ... '" ... ... 451 1891to

19°:

SIGlmw.-A man may sign a promissory note by getting some oneto write his name for him-See Execution-Signing ...

- What constitutes-Drawing up of document after old Burmesefashion does not amount to-- ... ... ...

Sisa.-Thugy,·sa-Bo"htlbaing land-Possession of-Distinction be-­tween claims founded on official and on private title-Burden ofproof- <,'"

SLANDER,-Abatementf-The plaintiff-appellant obtained a decree fordamages for slander in the Court of .First Instance. Thedecree was set aside by the Lower Appellate Court. ThePlaintiff·Appellant then. filed a second appeaL Whilst thisappeal was pending the defendant died--Held-that the appealdid not abate. /

LL.R., a6 Bom•• 597.- 26 Mad., 499.Nga Kyet S,in v. Mi Kyin Mya and on,

16

1 1907to

J909

46z 189ato

1806

INDEX.

fAGE TUESLAVE CQNCU.INE.-Sonof.....Sonof he3d wife-Son and daughter of

. second rocgular Wife-Partition-Suit for-between-Shares towhich ~ch is entitled 116 t891

to1901i

SHALL CAVSIl COVRTS-3S-Pnwinciat-Heltl-that a suit for -com­. pensation for maliciouslycausinga sear~h for stolen property to

be made by the Policem the plaintiff's house, is not a suit forcompensation for injury to die person within (Schedule II)Article 35. and is not eXclndedfrOm the cognizance of a SmallCause Court-$,. Provincial Small Cause'Courts •••

Scnt-Adopted.-Nat-..rat parents-~ptive .pa.rents-BuddhistLaw-Inheritance .t.

SOW OP ACoNci:rsIlU;OR£BSSER. wuz.-Rigbt of-braug'fIt up by, .father like the offspring ofaregulat' union to shat"e inheritance

with a se--..ond wife'and child

135 rlg1Ie

Igor,IS! 189s

to18g6

INDEX.

S-contd.

"SPECIFIC PERFORMANCE-Beld-that a suit for an amount due on abond is not a suit for the-of a contract as contemplated inArticle 15 of the 2nd Schedule of the Provincial Small CauseCourts Act-See Provincial Small Cause Court o..

SPECIFIC RELIEF, 9-Burden of proof in 'cases of wrongful dispos­session in suits under-and suits on title-. Meaning of posses­sion-Se.e Evidence

.- s. 42-Declaratory decree of title to ownership of land refusedwhere' break in possessiot'll for about twenty years beforeannexation of the country .•• .,. •• . ..

'- So 2I-EtIect of agreement to refer to arbitration after institu- .tion of suit ... . ..

._- 55.21, 39-Mortgage deed executed for fraudulent p~rpose­

Cancellation of-Fraud not affected-Estoppel-Arbitration-- 9-Possession by plaintiff not shown to be unlawful-sufficient

proof that defendant is not the owner when all the evidenceon defendant's behalf is that he is in pOS5e5$ion ~ a· tr~­p,iLsser-Time allowed under-to sue forrepClssession quiteirrespective of questions of title ••• .....o.

..- s. 2I-Reference to arbitration bar to suit-Refusal essential tobring a case with in ... ... ...

.- S. I2-Specific performance of any contract may in the discre­tion of the Court be enforced when the act agreed to be done issuch. that pecuniary compensation for its non-performancewould not atIord adequate relief-Unless and until the con­trary is prClved the Court shall presume that the breach of acontract to transfer immoveable property cannot be adequatelyrelieved by compensation i.n money

.- s. 42-Suit for declaratory decree

- s. 42-Suit for declaratory decree or order-when CClnsequential. relief was prayed for-Court fee payable-... ....- s. 54-Suit for restitution of conjugal rights' under the Christian

Marriage Law... ... ... _.. . ..'--. S. 30-When ~n award has been ma4e if) afhitr~on proc~ings

held without the ioterventiol\ of a (;purt of Justice. during thepe1Jdency f?f a suit or appeal, a party ~n Pring a regular s~i~to enforce itunder-eventhough the existence of ,the awafd w,asnot broughttQ the no.tice of the Court before thes~itor~PP~;11was decided ..... •. ... ... ....

.- 50 39.-ln a suit under-it is immaterW which party is in ppsses•$ion.-See Civil Procedure .o. ... ... . ....

ccxli

PAGE YBAR

3 1907to

1909

7 1904to

1906

5541ISg7541 to.1901544)

5421J:~S39 .

613 189:1:to

1896

355JI891to

488 19°1

3}1904.36 i~

ccxlii INDEX.

S-contd.

STAKE-HOLDER-In a suit to recoVer money which the plaintiff hasdeposited with a-the" paying Qver" which would bar thesuit, means the paying over upon the event of the wager­Where in such a suit the plaintiff does not repudiate the wager

- but claims not only his original stakes but the whole winllings:he can .get nothing-See Contract .•• ... •••

Monev entrusted to a-to abide the result of a wager may berecovered If demanded before it is paid away

STALl. RE~T-As!all in a market is a house or part of a. house, :lUUa suit to recover-is a suit to recover house-rent within themeaning of clause 8 -01 Sched.J11e II to the Provincial SmallCause Courts Act,aridis cognizable by a C9ur t of SmallCauses-See Provincial Small Cause Court

PAGE YEAlit.

3 (1)04­to

1906

329 ISg7­to'

1901'

5 Igorto

1909'

STAMPS-So 34-Unstamped docu~ent excluded through r.efusal ofparty to pay stamp-duty and penalty under-Effect of suchexclusion·... •••. ...

-":'s. 3S-Decree cannot be given on unstamped document notproduced, even though its production in evidence is not neces-sary - ~... ••• ..••• ... . ...

_ I. 36-Document not stamped admitted in evidence by Coud of_First Instance cannot be excluded by Appellate Court •• ~

- 396}- ISgr

to­550.....SSO

INDEX.

S-contd.

STAHl'S s.3S-Held-that where the defendant was alleged to bewithholding an unstamped paYabaik document, that did notrender secondary evidence admissible-See Execution-Signing

-- s. 36.-Where a promissory note bearing a stamp which was notduly cancelled had been admitted in evidence in the Court ofFirst Instance,-Held-th.at the Appellate Court could notquestion its admissibility ... ... .. "._

-.- s. 26, Schedules-I-S. Where parties were engaged in a busi­ness in which the plaintiff advances money to the defendant onpromissory notes and an instrument was drawn u~etweenthem in which among other arrangements it 'was providedthat a certain rate of profit (or interest) should be paid on theloans, the document was not a bond but an agreement charge­able with fixed and not ad valorem duty and that subsequentlysection 26 of the Stamp Act was not applicable ..

-- s. 3s-Secondary evidence of a lost document not stamped inaccordance with law inadmissible ...

-- S. 36-When an instrument has been admitted in evidence suchadmission shall not except as provided in section 61 be calledin question at any stage of the same suit or proceeding on theground that the instrument has not been duly stamped

STANDING TOlBIR-Ta,.i palms and coconut trees are not-asreferred to in section 3 of the Upper Burma RegistrationRegulation but are immoveable property.-See Upper BurmaRe~tration Regulation ....

ccxliii

PAGE YBAR

6291631 f 1892

~ to

11896

633)

~cxliv INDEX.

S-contd.

YIIIAI/t

- Helel-t.hat clause (ii) to sub-section 2 of section 53 of theUpper Burma Land and Revenue Regulation neither bars norpurports to bar the jurisdiction of Civil Courts over claims tothe ownership or possession of any-except in respect of suchmatters' as the Local Government or a Revenue Officer isempowered by cr under the Regulation to dispose of; andinasmuch as the Regulation does not empower Revenue·Officers to dispose of claims between private persons as Lo the'ownership or possession of any -more than one year after thedate of the declaration by the Collector that the land is-anddoes not give any authority to the Financial Commissioner to .make any ru.!es for deciding such claims, the juri<;diction of th~·CivilCourts is Rot barred and they are entitled and bound totake cognizance of such c1aims.-See Land and RevenueRegltlatiQn

- Rights Of two ciparian proprietors of land to the land in the. bed of a stream situated between their respective holdings­Custom

- Sale of land-'Title-Occupancy ..~ Question to land being State land or private should not be

raised when they are unnecessary for the decisions of claimsas between the parties themselves . .. ..

Right of use and occupancy in-not liable to attachment andsate in execution of decree-··Upper Burma Land and RevenueRegulation, 25 ...... ...

- Civil Courts barred from trying suils as to ownership or posses-, sion of- ..- Civil Courts to he guided by decisions of Revenue authorities

in deciding whether land is- ... •••--,.. Jurisdiction of suit for redemption of mortgage of-barred by

Upper Burma Land and Revenue Regulation. section53 (z) (ii)- Suit for rent of-not cognizable by the Civil Courts-See Civil

Procedure -..•

15119[4:to

1916, .

2581209 11891

} to211,1 Ig01.

2q7)

INDEX.

S-contd..

ccxlv

FAGa YIlARSTATUS of wife living in aseparate residence to that of her husband

under Buddhist Law to share in inheritance ••• ...

STATUS TO sUIl.-Suit brought by parti~_without-no cause ofaction ••• ... _

STATUT&LAw.-Erroneous application of Buddhist Law to caseswhich are governed by- ... It. ••• • ..

Snp·CHILDRBlf_The rule that mere absence of joint living is notsufficient to exclude from inheritance, and that filial neglectmust be proved, applies to-S" Buddhist Law-Inheritance 1 11104

to1906

1 •CCXtVl INDEX~

S-contd.

STI!lP~CHn.DREN OR STEl'-GRANDCIULDREN.-Excepting undividedancestral property estate of deceased step-parent or grand­.,arentO"oes by des::ent to-in preference to coliateral relativesby blo~-Rules as to reaching inheritance or obtaining avested interest ...

STU -GRAND-!'ARENT.-sn:we of grand-daughter in her own parent'sestate as against bei.o.-and,er Buddhist Law

S.,a.-sON succeeds to the est:de of the step-lPother in preferenceto the collateral blood relatives ••• ••• •••

l'AGE TIAR

66 1891to

IgG[

53t 189rto

.goa

INDEX.

S-contd.

STEP-DAUGHTER.-Estate of deeeased-step-father's claim to-papinproperty .•- ••• .., ...

- PATHER.-C1aim by-to estate of deceased wife, and estate ofdeceased step-daughter--payin property

Sn-XORTGAGE. A mortgagee ma, sub-mortgage-Thereis privitybetween a mortgagor anl'fh.s sub-mortgagee. If payment ofthe original mortgage· debt is made to the original mort­gagee, without notice of the su]).mert",aage the su~..:mortgageisextinguished, and thesub~eecannot hold the propertyagainst the original mortgagor. If otherwise, the sub-mort­gagee can hold the property against the original mortgagortill the 5ub-mortgage is redeemed

ccxlvii

PAGE YBHt

[ 1904to1906

ccxlviii INDEX.

S-contd.

PAGE YBAl!t.SUBSTITUTED service of summons On defendant-Residence out of

jurisdiction 262 1893.to

1896·

SUCCESSION-Inheritance-Meaning of terms •••~ ACT-206. Grant of letters-of-administration to creditor-a

_judgment-creditor does not cease to be a creditor for the pur­poses of-'-through execution of his decree being barred underArticle 179. Schedule II of the Limitation Act •••

- CBR!'Il'1CATE-:4. A Buddhist husband acting for himselfand as sole replrcsentative of his deceased wife-bound to pro­duce letters-of-administrationor a certificate ...

CtlRTI1'ICATE-4. Will made by Hindu in Upper Burma­Construction-necessity for probate or letters of administrationwith will annexed or a succession certificate before passingdecree

...- CBRTIl'ICATE-4•. Prohibits a Court from passing a decreeagainst a debtor of a deceased person for payment of bis debtto a person claiming to be entitled to the effects of thedeceased excepf on the production by the person so claiming­among other things-either letters-of-administration or a certifi­cate granted under the Act with the debt specified therein •••

_ CERTII'ICATB-7. What is meant by summary manner.-Debtsand Securities-Meaning of co debt "-15 money advanced onusufructuary mortgage included in term ?9 .f. ....

- 7. Grant of joint certificate under-determination of rivalclaims

400)

I635 1204

1

4,8 r::::,

6381

639J

563 1897, to19°1

INDEX. ccxlix:

S-contd.

The words-in section 5 of the Limitation Act should receive~ liberal construction so as to advance substantial justice whenno negligence. nor inaction, nor want of bon4 fides is imput­able to an appellant who applies to have an appeal dismissedfor default re-opened-See Civil Procedure

PAGE YUR.SUFFICIENTCAUS1l-Judicial discretion to be exercised in construc­

tion of words-in section 5, Limitation Act

SUIT-AppHcation to rcoopen a-disposed of at a hearing at whichdefendant did not appear, but bis advocate put in -an appear- ­ance and was present at the examination of witnesses-riglttlyrejected by Court of First Instance .•. ••. -•.

- Decided on merits cannot~manded for fresh decision under- section 562, Civil Procedure Code-section 566 applicable .••- Objection to re-opening a-not having been taken in the

Original Court, the point ainnot be raised in the AppellateCourt ••• ... ... - ... •••

- Withdrawal of- with the consent of the d.efendant-Refer~nceto Arbitrator which proved infructuous~~nota bar to institutionof a fresh suit on the same cause of action •••

- Withdrawal of-on reference to Arbitrators which provedinfructuous not a bar to institution of a fresh suit on the samecause of action ._ _.. .••

- TO RECOVER STALL-RENT-A stall in a market is a house orpart of a house, and a-is a suit to recover .house-rent withinthe meaning of clause 8 of Schedule II to the -Provincial SmallCause Courts ACi:, and is -cognizable by a Court of SmallCauses-·See Pi"Ovincial Small Calise Court

- Mesne-profits which can be claimed in a-for immovea~lepro­perty up to date of-but which were not so claimed, cannot besubsequently sued for in a subsequent-because the cause ofaction is the same-Se, Civil Procedure -.f. ...

- In Upper Burma a-Hes for a decree dir.ecting that a document_ shall be registered-See Registl'ation - ••• •..

- may be brought to enforce an award- irrespective of the pro-visions of Chapter XXXVII of the Code of Civil Procedure ...

- to set aside an award-grounds for impugning an award ..- for ejectment from a Ryaung-Poggau'luJ. and Thincika gifts- by children again!;t their widowed mother for protection of joint

family property ••• .•• ... ...- ,withdrawal of-erroneous orders for-on account of the defen-

dant's-address not being known - .y

- for declaration of nullity of marriage ... ... •••- Succession Certificate Ad, section .; bar to decree-not to suit

r 1904­to

1906,

1903to

1905.

·eel INDEX.

S-contd.

SUITS VALUATION ACT-Il.-W~erea~uit for sp:ci~c p~rformaneeof a contract for sale was trIed wIthout objectIon In the Sub­divisional Court, plaintiff's allei{ations beingthat, of the totalconsideration of Rs. 4,600, Rs. 600 had been paid, Rs. 2,000

were to be paid by redemption of a mortgage held b,ya thirdparty and only Rs. 2,000 remained payable to the defendants,and that the value of the suit was therefore Rs. 2,000, andwhere on an objection raised by the defendant in the LowerAppel'ate Court, the decree was set aside and the Subdivi­sional COurt directed to return the plaint for presentation tothe proper Court on the authority of Maung Mya£ng v.Maung ShW6 Yon-Held-dissenting from Maultg Myainif v.Maung ShW6 Yon, .that section 1 I, Suits Valuation Act,applied and that it was not competent to the Lower Appellate .Court to make the order it did unless satisfied that the undervaluation prejudicially affected the disposal of the suit on itsnlerits

MaLok v.San Fa Tha.U.B.R., 1897-19°1, II, 443.Ngq. M'Yaingv. Ngq ShW6 Yon, l.L.B.R., 85 dissented fromKYishnasamiv. Kanakasabai, I.L.R., 14 Mad., 183.Vas£d6'/1a v. Madhavll, I.L.R., [6 Mad, 326.-Gauro.ohandro. Patnaikudu v. Vikrama Deo, I.L.R., 23,

Mad., 367. .lJaiinath Singh .;, Mi Gauk and on,

PAGE '(liAR

INDEX

S-contd.

SUMMARY MANNER. Meaning of term-Succession Certificate Act,section 1

SUMMARY ORDER-In a suit under section 283,' Civil ProcedureCode, the burden of proof is not affected 'by the-under section280, 281 or 28z-See Civil Procedure

SUMMoNs-Secviceof-on defen&nt-shoutd be served personallyif possible and a reasonable time should be given him toappear and defend the action if he wishes

SurERloa-Ecclesiastical award by-should be treated as an vrderof ecclesiastical authority or as an ordinary arbitratioil award

SUPERIOR COuRT-A-eannot make an order of transfer of a caseunless the Court from which the transfer is sought to be madebas jurisdiction to try it-See Civil Procedure ••• •••

cdi

PAOli YEA,i!;.

16 ICJOC;.to

1906

82 [~­

to1896-

<oelii INDEX.

S-concld.

:SURE'l'IEs.-In a suit between mortgagees and m()rtgagors, it is notopen to some of the executants of the mortgage deed whosigned as principal debtors and mortgagors to adduce oralevidence to prove that they were only-See Evidence

'S11RBTY-Discharge of-by omission of creditor to sue principaldebtor witbin period of limitation ... .•. .••

-_ Discharge of-by variance in terms of contract or giving oftime without surety's assent

SURVIVING PARENT cannot give one heir status to sue another for a- share of inheritance without being in position to put the

former in possession of the share to be churned •••

T

"TAlU I'ALMS AND COCONUT TRE"&S;are notstandingtimber-as'definedin section 3 of the Up_per Burma Registration Regulation butare immoveable property-See Upper Burma RegistrationRegulation ... ....••

-TZLEGRAMS-Admissibilityof evidence regarding the contents" of....Secondary evidence of contents- of--,not relev8.l1t -unless - tbenon-production of the -originals is duly accounted for -...

PAGE YEAR

308 J189:1to

470 181}6

138 18gsto

1896

I 190ato

1903

INDEX.

T-contd.

TUfFLES OR RELIGIOUS ENDOWHBNTs-Appomtment of priests tothe <:barge of-Law and Custom of Ponnas or ManipuriBrahmins se..ttled in Upper Burma in respect to-Hindu Law .

TaNANT--Suit by a land{ord to eject a-from his house is governedas regards Court Fees by Article 17.Clause VI of Schedule II .of the Court Fees Af;t-See Court Fees

T.NAN'J'S~Suit for redemption of mortgage by persOns holding landas-on the allegation that they were representatives of theoriginal mortgagor and the landlord representative of theeriginal mortgagee-Burden of proof •••

T&NANCT-Teminatton o.~~.:proof ·ot.definiw'tenn9f ·notice toquit-Presumption of~1Ia~o~~undet.circgmst$"ee.... ..414} l!!t

--.- proved to be tenure running on from year to year-landlord ....and ter.aet-eustGmary practice in Bul'llla of- ... 53S fflK

'cc1iv INDEX.

T-contd.

Thaheta sON-Kittima son-Law relating to-

Thathanabaitrg.-Appointment of-Ecc1esiatical jurisdiction-Suitfor ejectment from a monastery

- A Civil Courtcannot give effect to an order of the-or any otherecclesiastical authority until such order is confirmed by judg­ment and decree of the Civil Court-See Buddhist La:w-Ecclesiastical .• . . ••.

-- Nature of a suit to enforce a decision of the-Court fee payable. on the same-See Buddhist Law-Ecclesiastical _.. •••--AND Thudama COU.NCIL.-Authority of-in matters of ecclesi-

astical discipline and control

PAGE TEAR:

142 . 1891'to

1901.

4S 1897.to

1901,

I) 1907} to'

sJ 1909

S9 1892to

1896.

Thuaama COUNCIL AND TliathanabDillg-Authority of-inmatters of ecclesiastical discipline and control ••• S9 1892

IP1896

INDEX.

T-contd.

'UMUClYI&HlP.-Lana in p<l&session of a member of a, family hol4ing-Suit for a share of joint family property .. ••. •••

Thugyisll-Sisa-BobaZ,"'fI£ land. POIise5$ion of-drstinction be­tween claims foundeCi on official and on private title-Burdenof proof

Tuu requisite for obtaining copy' of the decree appealed against-construction of the words-Limitation Act ••• .. •....

TITLIt-to land-adverse possession-Limitation ..; •••-, effect of iatentionaDy allowing, vendor to appear as ostensible

owner .f land at public survey and registration of tenures hapreventing orie-inal owner from afterwards setting upconcealed- ••• ••. ••• ••. •••

eel-vi iNDEX.

T-001ztt!.

TORT-Agent personally bound by contract of sale when he does notdisclose name of principal, and linble to be personally su~d fot"

.loss' caused by deprivation of thing sold by reason of in­validity of title-whether he has paid away price to principalor not-Action apparently founded on-'ratherthan on contract

Damage done by animal-F'l"oof of negligence on part of ownerrequired ... ... .... ... .•.

-. Damage done by a domestic animal-plaintiff to froye thatsuch was -caused or rendered possible by the defendant'snegligence-owner of animal .liable to such damage as it islikely tJ do from the nature of the animal-Not liable for the.vicious acts of an animal of an ordinarily 'quiet .natilre unless~e knows' the animal to be vicious.~SeeTort .- .

...... Defamation-defamation as distingaished from mere vulgarabuse, is actionable without proof of special damage

-Fralld-Responsibility-Negligence-Agent and prirtcipaI­Agent mistaken for principal personally-Dealings with agentin such assumed character ..... ~ ..

~~ Held..-that if there is a right and if there be an infringementof that right, it is not necessary to show that there has been anysubsequent injury, and if the plaintiff's undoubted right hasbeen invaded he would be entitled to a remedy whether anydamage has' accrued to himornot-Also-that the' principleordinarily applied to aJl:tionsof tort is that the plaintiff isnever precluded Crom recovering ordinary damages by reasonofhis failing to prove the special damage he has laid, unlessthe special damage is the gist of the action

--, injury done py one animal to another-Damages-Ferocity-.' Negligence ..• . ... .•• ... .••

~.' Injury done by one ani!Ual to another-Proof requir-ed-J;'erocity-Damages-Scienter ••• .... ...

, Law applicable to-a suit will not lie when the damage com-plained of is too remote .•• •••

Malicious prosecution-m<l1ice-Reasonable and probablecause-a <:onvictioll even· when reversed on' appeal is strongevidence in favour'of there being reasonable and probable cause

-'- .Negligence-Contributory Negligence-Trestlass.-Trespass isthe infringement of a right, and gives a cause of action evenwhen no damage results, and ~ot only substantial but evenexemplary damages may be given if the Circumstances r.equjre

gight .. of owner of .land to enjoyment of water of natu<:!l.stream-'-'-substantial interference with such enjoyment<:onstitutes Tort-Easements-D"efinition of section 7. Ease­ments Act. Acquisition of easements otherwise than underse-ction 26, Limitation Act ....

1 1003to

Ig03

10°4to

1906

347 1807to

19°1

9 1904­to

1906

561) I~:1

S6sJ 1901

Ij .1904to

51906

'€fa7to

1909

lNDEX.

-T-co'lztd,

cclvii"

".AGE YEAR

iNDEX.

TUIiS~ll!R.....l~xpiains what ~ meant of. the-of a mottgage.-S,.,; ~ortgage •••.

~~JnlS AND CR~l's-Suit for value of trees and cmps standing on. laRd may not be substantially in issue in a suit for ownershipofland-Custom as regards stal1ding croJls and trees on bind

!'a~Sf'ASS~R. n~iIding on anothe person's land by other tbaR amer_

89 1914­to

1916.-

213 189Tto

190t

214 1892 ­to

1896,

'I't\€Si'ASS-OS mo.'·tgagor's interest by person who redeems in his.(\wn 't"ight-Aaverse possession-Limitatron .•• ..,

- Suit for damages for-Tenancy-.Evidence .., ...- Owner of animal. liable oRly for the ordinary consequences of

such-plaintiff to prove that damage was done and that suchwas caused -or rendered possible by defendant's negligence.-See Tort ... "0 ,.. ••• •..

(jn J11.rt~g:{fc·~ interest by pecson who redeems in hi6 own right.....s:l1e.-L1IDltatlon=-- .__••• --- --.-.~ --~..-----.---- -

4691 18974rd" to

19°1·

1 1902, to'

Igos;.

9--1904­to

1906•

INDffiX.

T-coneld.

TRlITST. Guar.dianship of child and 01 child's prop'elty und ownershipof such property upon second marriage 01 father subjel!lt toBuddhist L,aw. Guardians and 'Yards Act, seetion 6

TRUSTJtES-Appointmeat of-by any body or authority-Burden ofproof of a trust •••. •.• ••• ...

T'WinyO-OR A1o-A-is an interest in State I~nd, and consequentlyin view of section 53 (2) (ii) of the Land and Revenue Regula.tion, the Civil Courts have no jurisdiction to entertain a suitto recover a-- See Land and Revenue Regulation

1winga.s .\NB Tuin.alos. Peculiar, rules of succession among theoWRe" of the tight of digging for petroleum at Yenangyaung.'

ocl~i

PAGE YEAR

5 1904­to

1906

odxiv INDEX.

PAGE YEJ,R.

UNCLES AND AUNTS-Buddhist Law--Inheritance-'-Suit for posses­sion of land-Heirs on either side being-or their representa­tives-Shares to which entitles ... . . . •..

UNION OF HV~BAND AND WIFE as it exists under Buddhist lawshould betteated~sa partnership ...

INDEX.

U-contd.

UNLAWFt1L AGREEMENT'-by vitlage h~dman who transfers Idsofficial duties to anothcl: per~on who in consideration ofperforming them is to obtain a proportion of·the commission~not enforceable by a Court of Justice-See Contract •••

- Suit on a bond executed for an unlawful consideration-Bondvoid and the suit not enforceable.---Su Contract ...

UNLAWFUL OBJECT-Any fact may be proved to show that the docu-ment sued on was an agreement for an- .._ .••

UNSTAMPED DOCUMENT-Admitted in evidence by Coun of FirstInstance cannot be excluded by Appellate -Court ..•

_.- Decree cannot he given on-not 'produc-ed even though ·itsproduction in evidence is not necessary ...

-- Excluded through refusal of party to pay stamp duty andpenalty under s.3.f. 'Stamp Act-Effectofsuch exclusion "

-- Secondary evidence of-not produced in evidence-inadmissible- ..- Secondary evidence of-or insufficiently stamped document

which has not been produced not admissible ..•• .-- Secondary evidence of-which has been lost-inadmissible

UNSTAMPED INSTRUMENT-Held-that a suit may be brought toset aside an-without duty and penalty being paid-SeeArbitration Award .

3i 7. J8<}f­to

1901:

cclxvi INDEX.

U-t01ZCtd.PAGK YB\Ut

'UsurRUCTUART MORTGAGIl-Debts and securities-Meaning of" debt "-Succession Certificate Act ••••••

- Execution sale of land held tinder-decree-holder's right to sellsuch land ... ... ... ... ...

- OF LAND. Failureof mortgagor to deliver possession-Remedyof mortgagee ... _. __ ... •..

- In a case of a-where the security remain;; unimpaired, if thereis no co.'enant for the repayment of themortgage-maney, themortgagee cannot sue to compel the-mortga~orto reqeem themortgage-Mortgages to be construed as far as possible inaccordance \yith the intention of the parties

- Practice in Upper Burma of making further advances on-asland becomes better cultivated and more valuable....Eftect as

- -regards limitation

- Question whether a-ean sue for the mortgage money.where. there has· been no covenant to pay it-Security whony or

partially destroyed-Limitation ... . ...- Redemption of--Decree under S.QZ of the Transfer ofl'roperty

Act is not absolute till an order is passed' under So 93 .•,- suit for redemption of land under-Transfer of Property Act, ~.

92-Decree of nature of foreclosure not generally grantable •- Suit by-wrongfully dillposses~ed-:"ofland by holder of decree

against his mortgagor ••• ••• ••• .••

- The right to redeem land in possession of a-does_not-admit oEphysical possession, and therefore limitation for a suit for pre­emption, based on the sale of such a right, fllns from the dateof registration of the sale deed-Sse Limitation ...

639} 189'1613 •• to

11896573)

516 1897to

1901

522}J892to

1196

S18lI 1897

S132}o toI tgor

5[4)

602 1892. toJ896

7 1to7to

1909

INDEX.

v

VALlDITY 01' G.wT. DeUveryor tranSfer of pOSSGllSion essential to­Hindu law-Wills

VaNDoR-Effect of intentionally allowing-to appear as ostensible, owner of land at public survey and registration of tenures in

preventing original owner fl'orn afterwards setting up Con-cealed title .•. ..•• ••• '" .••

- Notwithstandingan admission in a sale deed that the considera­tion had' been received. it was open to the-to prove that noconsid..-rntion had actually been paid

VUBAL ,AGRBEIIEN'l'-Time from which limitation begins'to runwhen there is a-fixing future date for repayment of moneylen'-and when repayment is promised in a certain monthwithout specifying day of month

VaitBAL E-f'IDXBCa-Mere-of contemporaneous o~ agreement.Ihow~ that &11 apparent~ of sale was really a mortgage,insufticient-sueh evi~DOt admissible against an innocentpurchaser without notice of the existence of the mortg~e-S"Evidence .•• ~.. •••. ... ••.

Val'r.EV INT ERSS'l'-No-.possessed by a son in father's estate bef(,refather's deatb ... ... ... •••

cclxvi

379 l~to

ISgi

400 18gtto

19G~

~ecb:vjii INDEX.

w

'WAGER-Money entrust.ed to .a stake.holder to abide the result ofa-may be recovered if demanded before it is paid away

'WAIVF.R. Arbttration-Award-Irregulai-ity of prQ(;edure-Objection.. waived by parties-Bar to same objection being taken subse­

quently

......... of interest in portion of estate by surviving parent

_ P.arties estopped from questioning irregular conduct of.arbitrators when they have 'consented to such conduct during'course of enquiry •.••

'WAKl's....,Zerbadi dedications not invalid-by reason of Zerbadisbeing their own Muta'WaUis

'WASTE LAND-Claim to-as bobabaingand not State land-Title'arising from possession of land after and befOre annexation' , ..

._ Suit for possession of land on the ground of dispossession ordiscontinuance of possession;""Burden of proof .... ...

WIDOW AND G1UNDCHILDRBN-Descended from former wives whohave been divorced or separated from a deceased-elaims toan estate by-

PAGE ·YEAR

~I 1897to

1901138 189:1

to1896

14 1897to

1901

a24J189l1to

375 I8g6

IIO 189:1'1;0

1896

INDEX.

W-conta.

ccb:ix

PAGEwiDOW WITH .ELDEST AURATHA soN.-Right of disposal of her sh<tre

of estate ••.

Wl¥l!;-A Burmese-Buddhist-is entitled to sue her.husband during'. marriage to recover, with ~st, money raised on :mortgage

of her separate property and I~nt to bel' husband for hisseparate use. See Buddhist l.aw-Marriage .... .., .

_ Buddhist-or husband-interest of-in pr:operty acquired by'the other alone upon divorce by mutual rconsent-eollusivedivorce to avoid attachment of property . .., ...

_ Claim of-to inherit the property of her deceased husband towhom she was unfaithful

- Distinction between-and'~bine. See Buddhist Law,Inheritance

_ Divorced-position of daughter of-who lives with ,her motheror mother's family and not with her father ••• '"

- Law when-predeceases her par$lts-Exclusion of husbandfrom share in estate of .parents .•. •••

Lessor and chief-Families of-Inheritance entitled te-- Seeond:....entitled to sha-re in inheritance with first or chief-

when she has clearly the status of a- .•. ...-- Share of property entitled to~n divorce by mutual consent­

parties not previously married. See Buddhist I;.aw"";'Divcrce

-.- Suit by a-as the wife of a deceased husband -to recover hisestate from his brother and sisters

- AND HUSBAND D1VoaCIID-Daug-hter of-living with her motherand separating entirely from her father loses claim to inheritany share in her fatber's estate

- DYrNG WITHOUT IssUE.-Right /0 inheritance of estate of- Divided and undivided ancestral property

I 1904­to.

1906

41JI8g2to

u6 1896

42 1010to

19l 5

159 1892to

r8g6

1'0]1891138 to[60 Il)O!

i 1902to

1903

202 1892to

I8g6

'cclxxii iNDEX.

W-'conctd.

1893to

[896

WRITING-Debt contracted in ....which writing remains uncancelledin hands of creditor-need for strict proof of t'epayment o.

WRONG!'l1L' or forcible dispossession of land-Burden of proof

y

Y'ENANGYAl1NG-Pecutia£ rules d "succession among the owners ofthe right of digging for petroleum, oil at-:custom

'YWAGAl1NG-A partition by....is not necessarily an award. and there­fore still less a contract, and before a Court proceeds to applyArticle 6S of the Umitation Act, it should see that there hasbeen a contract which can be rescinded ••• ."

393 181)3to

I&;6

233 18cpto

1896

327 181)2to

1896 '

478 1802to

1899

iNDEX.

z

ZERBADI-Customary practice of bein~ their own Mute/wallis notiIIegaI-Zerbadi dedications not invalid wakjs by reason of thispractice

ZERBADlS-A custom having the force of law by which-in Mandalayare governed in re;peet of succession and inheritance byBuddhist law does not exist. They are governed in thosematters' by Mahomedan Law. See Mahomedan Law

Mahomedan and not .Buddhist law applicable to-cr nativeMussulman5 in Upper Bunna i!1 matlers of inheritance-suitfor cancellation of will ma~-ea.use of action .•. , . ,

-- Mahomedan law-divoree-guardianship-suit for custody ofminor-

cdxxni

PAGE YEUI.

t [904­to

I(}06

529JISrPto,536 z8g4i