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3. There were two other plots of land, which may be called (a) and (d). Kyin and his wife on the 13th February, 1902, having advanced 11,565 rupees, purchased these properties, which then also belonged to Myaing, by public auction. No possession passed. On the 4th March, 1903, Kyin and his wife transferred these properties to Shwe Pe and his wife in consideration of a payment of 11,000 rupees, 565 rupees having in the meantime been paid by Myaing. The state of matters accordingly was that, on the date last mentioned, namely the 4th March, 1903, U Shwe Pe and his wife became by ex facie absolute conveyances from Kyin and his wife vested in all the properties in suit.
6. U Shwe Pe having died, his widow and children brought this suit for possession of the lands, it being directed against Kyin and his wife. They resist possession being given, and maintain in substance that, although the conveyances to U Shwe Pe and his wife bear to be absolute in form, it was well known to them that the true nature of the transaction was one of mortgage upon the security of the properties. In particular, it is maintained that Shwe Pe and his wife knew that Kyin and his wife, who purported to grant the convey- ance in absolute terms, were not in fact the owners of the property, but themselves only lenders thereon. This is an important consideration, as will afterwards appear, because it amounts to this: that the transfer, although ex facie of the deeds absolute in form, was in truth and to the knowledge of both parties a transfer a non domino. The dominus was Myaiug, who was not a grantor. In short, the Kyins were purporting to sell and the Shwe Pes purporting to buy what both the nominal sellers and buyers knew to belong to somebody else.
The evidence in ray opinion taken as a whole, coupled with the conduct of the parties, shows that U Myaing and defendant meant their dealings resulting in Exhibits C and D to be mortgages. It is clear that U Myaing's object in the negotiations, which resulted in Exhibits A and B, was to transfer defendant's mortgage to his relative U Shwe Pe at a lower rate of interest, and U Shwe Pe's letters show he knew this and agreed to take over a mortgage. If he deliberately got deeds of sale executed, it was a gross fraud on U Myaing, and the evidence is admissible to show this. He now endeavours to profit by his fraud or has since determined to try and get the property by taking advantage of the old Purmese custom of taking a sale deed where a mortgage only was sontemplated. He cannot profit by this fraud.
I therefore hold that defendants were mortgagees only and that U Shwe Pe had notice of the fact.
9. Upon appeal in the Chief Court (Civil Appeal) the learned Judges hold :
If, however, evidence is admissible for the purpose of showing what was the real transaction ; the facts (apart from the evidence which has been admitted under Section 33 of the Evidence Act) would clearly show that the parties concerned, viz. : U Myaing, defendant Maung Kyin and U Shwe Pe, all intended that U Shwe Pe and his wife should take a transfer of the defendant's mortgages in the form of outright sales.