The Lord Chancellor. -
This is an appeal from the decree of the High Court of Judicature at Rangoon, reversing the decision of the District Judge of Myaung mya.
A man named Ko Lu Gale died on the 14th October 1913. There were then standing in his name a number of convey ances of paddy lands and also a number of mortgages of considerable value. The principal appellant, who was his brother alleges that he was beneficially entitled to the lands comprised in the conveyan ces and to the mortgages and that the deceased was a benamidar for him. The burden of establishing that claim was, of course, upon the appellant, and the ques tion in the case is whether he has dis charged that burden. The trial Judge said that he had, but the High Court came to the opposite conclusion. The appellant appeals, and it is for him to satisfy the Board that the judgment of the High Court was wrong.
The facts have been brought before their Lordships in a very able and careful argument by Mr. Law rence. No doubt there are circum stances which tell in favour of the appellant. First, it was he who ac tually paid the purchase moneys for the lands and the sums advanced on mort gage or the greater part of them, al though it is not shown where he ob tained those moneys. Secondly, when the matter came to be litigated, he held the title-deeds ; and, although the High Court seems to have thought that he came by the title-deeds dishonestly, and in short that he stole them after the death of his brother, there is, in their Lordships' opinion, no evidence to support such a conclusion. If the property was not held by his brother in trust for him, he probably held the deeds, not because he stole them, but because he had the cus tody of them for his brother. Thirdly, the appellant let some of the property (according to the evidence) and received some of the rents ; but the receipts for those rents are not produced, and it does not appear whether he received them as being his own or as agent for his de ceased brother. All these facts are circumstances which are very justly ad duced in favour of the appellant's claim. But on the other side there are also some most important facts. To begin with, and this no doubt is the most im portant of all, all this property stood in the name of the deceased ; and on some of the documents it is stated that the de ceased (apparently the deceased in per son) paid the money. Of course the burden is on the appellant to displace the natural inference to be drawn from that fact. The burden is no doubt a difficult one to discharge, because in all these benamidar transactions the very object of the parties is secrecy ; but still the person who alleges that property conveyed to another belongs to him must prove his allegation and prove it beyond reasonable doubt. In the next place, it is to be noted that the appellant, the first defendant in the case, did not on the death of his brother tell his brother's heirs, that is to say his brother's widow and son and daughter, that there was property standing in the name of the deceased which he, the appellant, claimed to be his. In fact, it is plain from the appellant's own statement, that he con cealed from the heirs the existence of this property and these mortgages. That is a very suspicious circumstance indeed. Then there is this : that about a year after the death Ko Lu Gale the appellant, the first-named defendant in the action, procured the daughter of his deceased brother, then a girl of sixteen years of age and living in the appel lant's house, to give her formal consent to a mutation of names under which the greater part of these properties were transferred to the appellant's sister and, as the appellant says, in trust for him. One would have thought that an honest man seeking to bring about such a trans fer would call, not upon the minor daughter of the deceased, the youngest of all the heirs, but upon all the heirs including the deceased's son and his widow, to join in effecting this mutation of names, and, if they refused and if the claim was a proper one, would have taken proceedings to enforce it. Nothing of the kind was done, and the mutation was effected secretly through the agency of this minor daughter. That again is a most suspicious circumstance.
At a later date, the appellant applied for a succession certificate to the estate of the deceased in order that ho might transfer into his own name, or that of his nominee, two mortgages which up to that time had not been transferred. On that application the heirs were cited. They inquired as to what was meant, and, having been told that the appellant claimed that the deceased held these mortgages for him, they immediately made further inquiries and then for the first time learnt of the existence of the conveyances and mortgages and what had been done with them ; and ultimately they brought this suit to compel the defendant and his sister to re-transfer the property and to account for the pro ceeds.
There is this further fact. The widow of the deceased swore that after her marriage to him, that is to say about six months before his death, she and her husband went to the appellant's house and took with them two cash bags, con taining about Rs. 3,000, for investment. That evidence was not shaken on cross-examination, and it supports the view that the deceased was entrusting money to his brother for investment in his own name.
It is also to be observed that the de ceased had jewellery to the value of about Rs. 10,000, in addition to other jewellery of about the like value which had been lost or made away with by a former wife, whom he had divorced ; and it is unlikely that a man, possessed of jewellery to that value, should have such small resources as have been disclosed, apart from those which are in issue in this suit. It is unnecessary to refer at length to the history of the jewellery in question, although a good deal has been said about it ; but the facts are so con fused that it would be dangerous to draw any definite conclusion from that part of the evidence. Nor would it be useful to examine whether the deceased had suffi cient means to enable him to make these investments, or whether, on the other hand, the appellant had sufficient means for that purpose. The evidence tinder that head is so slight that it is undesi rable to build any conclusion upon it
Upon the whole, while the case no doubt admits of serious argument, such as has been addressed to the Board, the appellant has not satisfied their Lord ships that the decision of the High Court, which was expressed in a de tailed and careful judgment, was wrong. Accordingly their Lordships have come to the conclusion that this appeal must fail, and they will humbly advise His Majesty that the appeal should be dis missed with costs.
Appeal dismissed.