Kader Moideen vs C. W. Nepean and others

Macnaghten, J. 1. The appellant Kader Moideen seeks to redeem certain lands situated in the district of Shwegyin in Lower Burma which the respondents, deriving title from one John Nepean who died in 1883, claim to hold free from any right or equity of redemption. 2. The lands in question were originally waste lands, the property of the Government. In 1866 and 1867 they were sold to Kader Moideen in three lots under the rules then in force for the sale of waste lands in British Burma. On payment of preliminary expenses, and a fraction of the purchase money as required by the rules, each of the three lots was conveyed to Kader Moideen "in full proprietary right," subject to conditions intended to protect the interest of the Government as an unpaid vendor. In 1871, at the joint request of Kader Moideen and John Nepean, the property was transferred into Nepean''a name in the Government books, and thenceforth he was recognized as owner and acted as such. The question is : What was the real meaning of this transaction? Was it an absolute sale or a transfer by way of security? The question is one of some difficulty depending upon the construction of documents, not wholly unambiguous, and upon a consideration of all the surrounding circumstances. Very little light is thrown upon the transaction by what has occurred since, or by the oral evidence on the one side, or on the other, which to say the least, does not merit implicit confidence. The Judge of First Instance, the District Judge of Shwegyin, decided in favour of Kader Moideen. This decision was reversed on appeal by the Commissioner of the Tenasserim Division. The Commissioner''s judgment was affirmed by the Judicial Commissioner of Lower Burma, from whose Court the present appeal is brought. 3. The waste land rules, to which reference has been made, were a collection of regulations authenticated by the signature of the Officiating Secretary to the Chief Commissioner of British Burma and published by the Government of India (Foreign Department) under date 30th of June 1863. All unasaessed waste lands, not subject to any private rights of proprietorship or exclusive occupancy, were to be available for purchase in lots not exceeding 5,000 acres. But the same person might apply for two or more lots. Applications for purchase were to be entered in a register. There was to be a rough survey, and then, if the application was found to be in order, the land applied for was to be advertised for sale by auction at an upset price on a day named in the advertisement. Government sales were to be held quarterly. Sales were to be entered in a register in a prescribed form, containing separate columns for all necessary particulars, the last column No. 15 being headed: "Remarks in which are to be entered all transfers subsequent to the sale and the names of the persons to whom transferred." Rule 12 provided that, on payment of one-tenth of the purchase money and of all expenses of survey, demarcation, advertisement and sale, the purchaser should "receive a deed in the Form D annexed signed by the Deputy Commissioner, conveying to him the lot in full hereditary and transferable proprietary right free for ever from all demands on account of land revenue." The 18th rule provided that the purchaser might pay the whole of the purchase money when the lot Was sold, or if he chose he might pay a portion, not being less than 10 per cent., at the time of the sale, and the remainder in instalments at any future time "not being more than ten years from the date of sale." In the latter case simple interest at the rate of 10 per cent, per year was to be charged on the unpaid portion of the purchase money, and the whole lot was to "remain hypothecated as security for the full discharge of the amount, including principal and interest, and be liable to sale by order of the Deputy Commissioner, if the said amount be not paid within the stipulated period." Interest on unpaid purchase money was to be payable on the 15th of May in each year. 4. Form D-the prescribed form of conveyance-so far as material is as follows:

Know all men by these presents that the Chief Commissioner of British Burma has conferred on his heirs, executors, administrators and assigns the grant of a tract of land measuring British Statute acres situated in to be holden by him in full proprietary rights subject to the following conditions: I. The purchase money for this grant is Rs. of which Rs. have been already paid. On the if the entire purchase money has not been paid up interest at 10 per cent, per annum will be charged on the balance and thereafter until the entire purchase money be paid up such interest will be chargeable on all unpaid arrears of the purchase money and all payments by the grantee shall be first carried to the credit of any outstanding arrear of interest due en such purchase money. II. Arrears of interest shall be treated in the same manner as arrears of land revenue,, and be subject to the same measures of realization. III. No transfer of proprietary right, or transfer of interest, or creation of new interest in the grant beyond a lease of three years, will be recognized by the Civil Courts or the Revenue Officers of Government, unless duly registered in the office of the Deputy Commissioner of the District in which the grant is situated. IX. On the payment of the purchase money in full with all arrears of interest the grant will belong to the grantee free for ever from all demand for land revenue. 5. It may be observed in passing that in Form D no period is limited for the payment of the balance of the purchase money. On the other hand no provision is to be found in the rules corresponding with Condition III in Form D. Nor is there anything in the rules purporting to give the force and efficacy of a conveyance to an entry in the register of sales of waste lands. 6. The three grants in favour of Kader Moideen were all in the prescribed form. The total quantity of land in the grants was about 4,524 acres. The aggregate amount of purchase money was Rs. 7,158-13-7. The amount paid up was Rs: 768-9-11. The annual amount of interest payable on the balance was Rs. 639-0-5. 7. Kader Moideen had not sufficient means to turn these waste lands to a profitable account. Nor could he afford to pay the purchase money in full and wait until the lands rose in value with the general improvement of the country under British rule. He was a poor man at the time, and such attempts as he made to develop the property were not remunerative. He brought a number of people upon the land who were to pay no rent for three or four years. They were collected in settlements which are dignified by the style of villages and hamlets. The settlers received a little money and some rice and perhaps a few buffaloes. They made some clearances round the settlements. But the undertaking did not prosper. Many of the settlers left; their places were not filled by others, and lands which had been reclaimed became jungle again. 8. In his difficulties Kader Moideen had recourse to Mr. John Nepean, a prosperous money-lender in Shwegyin, and obtained accommodation from him apparently on the usual terms and with the usual result. It was contended by the learned Counsel for the respondents that the money paid to the Government for interest while the lands stood in Kader Moideen''s name was supplied by Nepean. Very probably that was so. The contention is certainly correct as regards the payments made in 1869 and 1870. 9. On the 6th of June 1870 Kader Moideen assigned his interest in the lands in question to Nepean by way of mortgage to secure Rs. 3,000, which Kader Moideen acknowledged to have received that day "in cash." He bound himself on or before the expiration of ten months to repay the loan with interest at the rate of 3 per cent, per month, the principal and interest being payable in a lump sum. In default Nepean was empowered to sell, and Kader Moideen undertook to make good any deficiency. Out of the sum secured Rs. 639-0-5 were paid to Government in discharge of interest. The balance all but a few rupees consisted of old debts and arrears of interest. The mortgage is in English, a language which Kader Moideen did not understand. It is referred to as Exhibit F. 10. In the year 1871, as the time approached for payment of interest to the Government, Kader Moideen was at his wit''s ends for money. Twice apparently he had been put into jail for non-payment of some judgment-debts, and twice he had been released on proof of his inability to pay. Nepean refused to lend him anything more, and he had neither cash nor credit. 11. On the 12th of May 1871 Kader Moideen presented a petition in the Court of the Deputy Commissioner of Shwegyin setting forth the Government grants, and alleging that he had given buffaloes and food to poor people to clear the land. Then he complained that the people on the land had been interfered with, and that he had lost a large amount of money, and he prayed the Court to make an inquiry according to the law and pass such order as the Court might think proper. 12. On the following day, the 13th of May, Kader Moideen presented another petition complaining that his petition of the 12th of May had been rejected and suggesting that if no inquiry were made on that petition "no benefit would be derived for the moneys which had been paid by him," and adding that he thought that no benefit would be derived "if he paid the money due for the present year," and therefore he prayed that, if the Government did not wish to settle the matter in respect of the land, moneys which had already been paid by him might be refunded to him and the land taken possession of. 13. It was suggested, and it seems not improbable, that these applications were made merely with the view of procuring some indulgence from Government. 14. On this petition the Deputy Commissioner Major Duff passed an order stating that he declined to go into vague general complaints, but adding "if petitioner wishes to give up the land let him state exactly the terms on which he will relinquish it, and he will meet with every encouragement free (? from me)." 15. Nepean came to hear of these applications, and naturally he was alarmed for his security. So he presented a petition which, after stating that he had a lien on the three grants, and that he had heard of Kader Moideen''s application, proceeded as follows: Your petitioner begs that the waste land rules referred to in the grant (Section 2) now in his possession may be carried out and orders issued accordingly. That if Kader Moideen be unable to pay the interest due to Government, your petitioner may be allowed to occupy his place in the matter after the above rules have been carried out. That your petitioner is ready to produce these three grants and the mortgage bond held by him to prove his claim. 16. The order passed was: The time given for payment has not yet expired, and in such cases a little grace is always allowed, so that at present I am unable to pass any definite order in the matter. A.G. Duff, 15th May 1871. 17. On the 20th of May 1871 before the Deputy Commissioner a report was read stating that Kader Moideen had failed to pay Rs. 639-0-5 due on the 15th of May. The matter was ordered to stand over till the 25th; but as regards Nepean''s application an order was made that notice should be issued to him to appear on the 23rd, if he should think fit, and show cause why his claim to intervene should not be rejected under Section 3 of the grant. 18. Nepean appeared on the 23rd and presented another petition alleging that o- transfer of interest had been created by the mortgage of the 6th of June 1870, and the deposit of the three grants, and after protesting against Kader Moideen allowing the Government to resume the land before satisfying his claim he stated that, in the event of the Government not being able to recover their dues on the land from Kader Moideen, he would be willing to make good the amount, so that the Government would be no loser by the transfer. 19. The Deputy Commissioner having heard Nepean on the subject rejected his application and deferred the case as against Kader Moideen till the 26th. 20. On the 26th of May it was ordered that notice be served on Kader Moideen conformably with Section 1, Rule 46 of the Revenue Rules that, in default of payment within the time therein specified, the land would be liable to be sold. 21. So far Kader Moideen and Nepean had been working separately each for his own interest. The next thing is that they come before the Court with a concerted application. On the 29th of May they present a petition in Burmese, of which the Judge of first instance gives the following translation certified by him to be correct: In the Court of the Deputy Commissioner, Shwegyin. The joint petition of Kader Moideen, land owner, and Mr. Nepean,- Humbly sheweth, 1.-That whereas Mr. Nepean desires to transfer to his own name from the name of Kader Moideen the land comprised in three grants that have been made to Kader Mojdeen, Kader Moideen consents to the name being changed. 2.-That Mr. Nepean for his part will pay now the price due for these lands, together with Rs. 639-0-5 interest due, if the three grants owned by Kader Mcideen are transferred to the name of Mr. Nepean. Wherefore we have both come to an agreement, and pray that the three grants be transferred from Kader Moideen ''a name to Mr. Nepean''s. Signature of Kader Moideen. 29th May 1871. J. NEPEAN. 22. The order on the petition was- The matter requires consideration; a definite order will be passed to-morrow. A. G. Duff, 29th May 1871. 23. On the next day the following order was passed: Rangoon, the 30th May 1871. Kader Moideen, Mr. Nepean, both present. Read petition of Kader Moideen and Mr. Nepean requesting that the lands in question may be transferred to the latter.... Court.-As Mr. Nepean is fully aware of the circumstances of the case, and that in taking over the land he takes with it the responsibility for what is due to Government on it, I see no objection to the transfer being made and therefore- Order-Transfer to be made as requested. A.G. DUFF. 24. On the 3rd of June Kader Moideen and Nepean again attended before the Deputy Commissioner, and the following note in English was entered in column 15 of the register of sale of waste lands against each lot: Ownership transferred by original purchaser Kader Moideeu to John Nepean on the third day of June 1871. KADER MOIDEKN, (in Native character), Original purchaser. J. Nepean, Now holder. Before me, A.G. Duff, Deputy Commissioner. 25. On the same day a memorandum in the same words signed and attested in the same manner was endorsed on each of the three Government grants. 26. On the 5th of June Nepean paid into the Government Treasury Rs. 639-0-5 on account of interest and Rs. 3,390-3-8 on account of principal in respect of the lands transferred into his name on the 3rd of June. In the waste land register this sum was apportioned so as to pay up in full the purchase money of two of the lots leaving a balance due on the third. 27. On the 12th of June Nepean paid into the Government Treasury the sum of Rs. 3,041-5-4, which discharged in full all claims of the Government in respect of the property. 28. As soon as Kader Moideen realized the fact that the effect of the transfer was that he was put on one side altogether he repented of the bargain. He presented two petitions to the Court making random allegations and asking for relief on grounds more or less absurd. The Court refused to listen to him as he had transferred the property. Nepean presented a counter-petition and obtained a certificate that the land was legally transferred to him. Then Kader Moideen sued for the balance of the money expressed to be secured by the mortgage of the 6th of June 1870 which he alleged he had never received and he applied for leave to sue as a pauper. But this application met the fate of the rest. It was ultimately rejected on the ground that his statements on cross-examination were not satisfactory. 29. Baffled at all points, outcast and bankrupt, Kader Moideen went away to Toungoo, a place distant about three days'' journey from Shwegyin, There he seems to have lived ever since. Lately in the disturbances which followed the annexation of Upper Burma he made some money by Government contracts, and then, as he alleges, he sent a message to Mrs. Nepean asking her to furnish accounts of the rents and profits of the lands which he had transferred to her husband. After some little delay a formal application to the like effect was made on his behalf. It was refused, and then the present suit was brought against the respondents. 30. Among other defences, to which it is not necessary to refer, the principal defendants set up that the transfer to Nepean was an absolute and unconditional transfer, and that Nepean agreed, in consideration thereof, "to cancel the said mortgage of 1870, to release the plaintiff from his covenant to repay the 3,000 rupees and interest secured thereby and other debts, and to pay and indemnify the plaintiff from all liability to pay the balance of the purchase money of the said land and the interest due thereon." 31. The evidence of the witnesses on behalf of the plaintiff at the trial is not worth much attention. No statement by the plaintiff himself can be accepted without corroboration. There were witnesses who said they heard Nepean tell Kader Moideen that he could redeem the land at any time, One of them was a subordinate officer of the Court who remembered drafting the joint petition of the 29th of May 1871. Another was a person who is described by the principal witness for the defence with some breadth and freedom of outline as "an East Indian gentleman of sorts," but who seems to have been neither more nor less than an itinerant hawker of jewellery. Another was a person who is now a myook or township officer. The learned Judge of first instance gave weight to his evidence on the ground of his position and also on the ground of his age. The latter consideration is not unimportant having regard to the habits of the people and the teachings of their religion. "His age, observes the learned Judge, is in his favour. He is 59, and the older a Burman the more truthful." But however respectable these gentlemen may be, and whatever may be their claims to attention, it would be dangerous to rely upon the recollection of witnesses as to conversations which took place twenty years back. 32. The principal witness on behalf of the defence was a Mr. Moss who claims one-fourth of the property. He was at one time in the Police, force and is now apparently a certificated advocate. He had married a daughter of Nepean and was very intimate with him. Nepean always "consulted" him "about his private affairs" and got his "help to write petitions." He wrote the mortgage of the 6th of June 1870--a well-drawn instrument, except that one statement in it certainly is not quite in accordance with the facts. According to his own account he took part in the negotiations which led to the arrangement in question, and in his examination in chief he gave a list of the debts from which the said Nepean agreed to release Kader Moideen. Much must depend upon the view which is to be taken of his evidence. 33. Of the judgments which have been pronounced in this case it is enough to say that the judgment of the District Judge of Shwegyin is a very painstaking and able review of the evidence before the Court. The judgments of the other learned Judges seem to be more concerned with questions as to the admissibility of evidence than with the facts and circumstances of the case. 34. The learned Counsel for the respondents did not contend that any evidence tending to throw light upon the real meaning of the arrangement between the parties ought to be excluded; but they suggested that the proper course would be to take the joint petition of the 29th of May 1871, the orders made upon it, the entries in the register of waste lands, and the note or memorandum endorsed on each of the three deeds of grant, and to consider the effect of those documents by themselves apart from the rest of the evidence; if the transaction so regarded presents the appearance of an absolute and unconditional transfer then, they said, arises the question whether the rest of the evidence is sufficient to displace the prima facie view of the transaction. That was a very plausible way of putting the case for the respondents, and it was urged with much force and ability by Mr. Fox as well as by his learned pleader. But in their Lordships'' opinion the learned Counsel laid too great stress on the endorsements upon the deeds of grant, and rather overlooked the effect of the statements in the joint petition. 35. It may be conceded that if the Court had nothing but the endorsements before it, the proper inference would be that for some consideration or other, which was not disclosed, the property had been made over to Nepean by way of sale. But when the joint petition, and the orders made upon it, are examined, it becomes apparent that the entries in the register of waste lands were intended merely to give effect to the prayer of the petition, and that the endorsements on the deeds of grant are nothing more than a record of the arrangement proposed by the parties and sanctioned by the Deputy Commissioner. The petition asks that the lands may be transferred into Nepean''s name. But that is not all. It purports to proceed upon an arrangement that Nepean shall forthwith pay the arrears of interest due to the Government and the balance of the purchase money. What is the effect of this arrangement? If the transaction were an absolute sale, or even an out and out gift, it would have been immaterial to Kader Moideen whether Nepean paid the balance of the purchase money or not. On the other hand, if the transaction was really a transfer by way of security, the condition that the purchase money should be paid up at once was some consideration for the transfer and a stipulation essential for the complete protection of Kader Moideen. When once the purchase money was paid in full the right of redemption would not be liable to be defeated by failure on the part of Nepean to fulfil the conditions of the Government grants. It may be suggested perhaps that Nepean''s undertaking to pay the purchase money was not a stipulation in favour of Kader Moideen, but merely an offer intended to gain the favourable consideration of the Government. But the answer is that that is not the natural meaning of the language of the petition, nor was it so understood by the Deputy Commissioner. The Deputy Commissioner warned Nepean that in taking over the land he was taking with it the responsibility for what was due to Government. But he did not suggest that Nepean, as between himself and the Government, was assuming any greater responsibility. He did not propose to alter the conditions of the Government grants, or to bind Nepean to pay up the whole purchase money at once. In fact he completed the transfer in the waste lands register before Nepean paid anything on account of either principal or interest. 36. The result, therefore, in their Lordships'' opinion is that on a view of the transaction thus limited, it could not have been the intention of the parties that there should be a transfer outright depriving Kader Moideen of all interest in the property. 37. In connection with this part of the case it may be stated that the District Judge points out that the Burmese word which would naturally be used to describe a transfer out and out, and which Mrs. Nepean, a Burmese lady, does use in her evidence to describe the transaction, is not found in the joint petition of the 29th of May 1871. It is, said the learned Judge, "conspicuously absent." 38. The next question is this : Can any reliance be placed on Mr. Moss'' statement that the consideration for the transfer was the cancellation of all debts then due from Kader Moideen? According to Mr. Moss'' story there were many interviews between Kader Moideen and Nepean in connection with the matter, and the final bargain was made in his presence on the evening of the 28th May. His account of it is as follows: Mr. Nepean said the land must be made over to him entirely and no other rights allowed. It was further agreed that upon the land being entirely made over all debts due from Kader Moideen to Nepean should be cancelled. It became late when the interview ended -it took place in Mr. Nepean''s house- the bargain was that they should present a petition next day. The debts referred to were the money due on Exhibit E and" also on some promissory notes Exhibits 1, 2, 3, 4, 5, and 17. 39. That account has an air of precision, but it is a careless statement at best. On cross-examination Mr. Moss admitted that on one of the notes, Exhibit 1, (which was the largest in amount and only Rs. 100 short of all the rest put together) there was endorsed a memorandum, dated the 6th of June 1870, showing that that document did not at the time of the alleged bargain represent an existing liability on the part of Kader Moideen. It had been merged in the mortgage security of the 6th of June 1870. When he gave his evidence in chief Mr. Moss must have been either aware or ignorant of this endorsement. If he was aware of it his evidence was intentionally misleading. If he was ignorant of it his recollection of the arrangement between Kader Moideen and Nepean is obviously not entirely trustworthy. Of the other documents (Exhibits 2, 3, 4, 5 and 17) two purport to be given to Mr. Nepean; the other three, in which the interest is at a higher rate, amounting in one instance to 108 percent, per annum, purport to be given to both Mr. and Mrs. Nepean. Now it is not a little startling to find that Exhibit F and all these documents were retained by Mr. Nepean until his death without anything to show that they had been cancelled by the arrangement of May 1871. It was said, and said truly, that Kader Moideen, who by the way was never worth suing during Nepean''s life, was never sued upon any one of them. But that does not destroy or affect the inference to be drawn from their retention. Why should they have been retained? It was contrary to Nepean''s practice. Mr. Moss admits that "when documents ware cancelled his practice was to return them." It was suggested that Nepean was justified in retaining Exhibit F as a document of title relating to the lands made over to him. That may be an excuse for retaining it, but it is no excuse for retaining it uncancelled. No such excuse, however, applies to the case of the other exhibits. It was said that it was not wrong on the part of Nepean to keep these documents if ha did not mean to sue upon them; but if Nopoan had died before they, were statute barred, and Kader Moideen had been then worth suing, and had been sued, he would have had probably no defence to an action by Nepean''s legal representatives, and certainly none to an action by Mrs. Nepean. Then there was another excuse. It was said that Kader Moideen was a troublesome person, as indeed he seems to have been, and that Mr. Nepean was justified in not performing to the full his part of the bargain until Kader Moideen executed an absolute conveyance of the property in his favour; but Nepean never set this case up in his lifetime. His case was that the transfer entered in the Government books and recorded in the endorsements on the deeds of grant was sufficient and complete, and that nothing more was required; and, if Mr. Moss is to be believed, Nepean never asked for anything more. "I don''t know," he says, "of any efforts being made after the transfer in 1871 to get Kader Moideen to sign a regular conveyance of the land." 40. If matters stood there, and there were nothing more in the case, the inference from the retention of the documents in question would be very strong; but it seems to be irresistible when the circumstances connected with one of these documents (Exhibit 5) are examined. 41. Exhibit 5 purports to be dated the 25th of June 1869, and to be a security for a loan of Rs. 300. It is not merely a bond or note binding Kader Moideen personally, but it is also a mortgage of his house in Shwegyin to secure the sum borrowed with interest at 3 per cent, per month. This house was not situated on any part of the lands comprised in the Government grants. So Mr. Nepean could not have had the excuse for retaining it, which it is alleged he ? had for retaining Exhibit F. If Mr. Moss'' statement is correct, the house ought to have been released, and the mortgage itself handed back to Kader Moideen when the lands were transferred to Nepean. Now the subsequent dealings with this house can be traced in the record. When Kader Moideen applied for leave to sue as a pauper in September 1871 he had to file a list of property belonging to him and to account for it. In that list is to be found this entry (p. 76, Exh. V.) "a house mortgaged to Mr. Nepean. It is now under attachment. "Upon this list he was examined before the Sikke or subordinate officer. In his deposition (p. 104, 1, 11) he said: I have never paid money as interest on the money for which I mortgaged my house to the defendant as shown in the list filed by me." His object of course at that time was to show that he had no beneficial interest in the house by reason of the charge upon it in favour of Nepean. It does not appear whether Nepean was present at that examination or not; but he certainly was present at the cross examination of Kader Moideen upon this deposition (p. 95) when the proceedings were removed to the Court of the Deputy Commissioner. It is not a little remarkable that Kader Moideen was asked no questions about this house. That it was still in mortgage to Mr. Nepean and under attachment seems to have been common ground. If the truth had been that the mortgage was cancelled, and that Kader Moideen was the unencumbered owner, there would have been an answer at once to his application for leave to sue as a pauper. Then it is stated in Kader Moideen''s evidence in this suit, and not contradicted by Mr. Moss, that the house was actually sold under the attachment, that it came into Mr. Moss'' possession, and that Kader Moideen was turned out. Mr. Moss'' statement is, therefore, disproved in the only instance in which it was possible to test its accuracy and consequently their Lordships have no hesitation in rejecting it entirely. 42. The probabilities of the case remain to be considered. From the evidence before the Court it is easy to see what manner of man Kader Moideen was, and what was the exact position of the parties at the time the arrangement was made. Kader Moideen had staked his all upon this property. He seems to have spent upon it everything he had and everything he could borrow. It was the only thing he had to look to. He evidently fancied that it was of great value. That it was of some value is plain from the Deputy Commissioner''s reply to his petition of the 13th of May 1871, and plainer still from Nepean''s own conduct. Kader Moideen clung to the property desperately. He was a reckless and an unscrupulous man and certainly had no consideration for his chief creditor. It is inconceiveable that he should have consented to give the land to Nepean without stipulating for some benefit for himself. He was under no personal liability to the Government. The only remedy the Government had was against the land. As regards his debts to Nepean he was secure in his impecuniosity. To such a man as he was a release from debts, which he could not possibly pay, and for which in all probability he would never be troubled, was no benefit at all. Mr. Nepean was quite at his mercy. He had simply to do nothing, and the land would be forfeited, and Mr. Nepean''s chance of saving anything from the wreck would be gone. On the other hand it was well worth Nepean''s while to give something to get the land into his own hands. He thought so too. There is a significant passage in Mr. Moss'' evidence. In the course of the negotiation which led to the final arrangement the position which Nepean took up according to Mr. Moss was not that he had advanced as much as the land was worth, and that he would not throw good money after bad. His refusal to give any further assistance was based on the precarious nature of the title. What he said to Kader Moideen according to Mr. Moss was, "I refuse altogether to advance you more money, because I find you have not got a full title to the land. Mr. Moss it seems and Mr. Nepean had been studying the waste land rules together, and they were alarmed by the provision in Rule 18 as to hypothecation. No wonder Mr. Nepean was puzzled by the word. " He was not a good English scholar." Later on Mr. Moss adds: "Mr. Nepean did not understand written English fully, and that is an instance." Mr. Moss who referred to books "in connection with this transfer of land" came to the conclusion that the title was not secure so long as any part of the purchase money remained due to the Government. 43. It must be added that "it is indeed a common custom in Burma when land is mortgaged, even when only for a short term of years, to transfer it into the name of the mortgagee in the revenue registers." So says the District Judge, and the statement was not controverted. 44. Under these circumstances the arrangement that would naturally suggest itself would be that Nepean should pay up all that was due to Government for principal and interest, and hold the land in his own name to recoup himself for everything he had advanced and for all he might have to spend in order to make the land profitable. Kader Moideen would be flattered with the hope of redeeming the land some day. Such a prospect or dream would be likely to take the fancy of such a man as Kader Moideen. And no doubt it would seem to Nepean at the time that he was making an empty concession, and that nothing more would be heard of Kader Moideen after he was once dispossessed. 45. It was said in the course of the argument that a decision in Kader Moideen''s favour would involve an imputation of fraud upon a dead man, and that seems to have been the view of the Courts below; but it is to be observed that Nepean never asserted that he had bought the land from Kader Moideen. Kader Moideen had "abandoned" it. It was "legally transferred" to him. But there was no suggestion of a sale. That case was not set up until after his death-nor was he ever called upon to allow Kader Moideen to redeem. It is not by any means clear that he would have resisted a suit for redemption if such a suit had been brought in his life-time. 46. As regards the terms of redemption Kader Moideen states that the land was to be retransferred to him when he repaid all he owed and all Nepean paid on account of the land to Government, and that the interest was to be 10 per cent, and To be compound interest. It was said there was no proof in support of these statements and that they rested on Kader Modeen''s word alone. That is true. But they are statements in some degree against his interest; and having regard to the rate of interest payable to Government, it seems not improbable that such an arrangement should have been made. If there is to be redemption the terms are certainly not unfavourable to the persons in possession, and Kader Moideen must be held to them. As regards moneys laid out in improvements the decree as originally framed gave no interest. On the application of the defendants with the consent of the plaintiff the decree was varied so as to give simple interest. But the rate of interest was not specified. The rate of interest will be the same as the rate of interest on the moneys paid to the Government. Probably the decree as it stands would be so construed. But in order to prevent any possible misunderstanding the decree will be varied by leaving out the word "interest" in paragraph 2 and inserting "simple interest at the rate of 10 per cent, per annum." 47. In the result their Lordships will humbly advise Her Majesty that the judgment of the Judicial Commissioner and the judgment of the Commissioner of the Tenasserim Division should be reversed and the decision of the District Judge restored with the variation above mentioned. 48. The respondents must pay the costs of this appeal and the costs in the three Courts below.