Ownership of Machinery/Equipment

Claimant: AID

1. Personal property of AID

a) s.14 Partnership Act 1932 (Burma Code IX; pg 171)

b) Used own money rather than shared pool of money in SPTs bank account

c) Miles v. Clarke (1953) 1 All ER 779

Clarke carried on business as a photographer at premises of which he owned the lease for seven
years from 1948. In 1950 he and Miles, who was a freelance photographer entered into partnership
by which all the profits were to be shared equally. Miles brought with him his personal connection.
The partners quarreled, and a dispute arose as to whether the following items constituted
partnership property;

(i) the consumable stock-in-trade

(ii) the personal connection brought in by each partner

(iii) the lease of the premises

(iv) the furniture, fittings and equipment of the studios.

It was held by the Chancery Division that no more agreement between the parties should be
supposed that was absolutely necessary to give business efficacy to the relationship between the
parties. Accordingly, since the only agreement was as to the share of the profits only the consumable
stock-in-trade should be regarded as partnership property.

d) Arjun Kanoji Tankar v. Santram Kanoji Tankar (1969) 3 SCC 555

Defendant started the printing business and built up certain assets including certain immovable
properties. Later he admitted his brother into partnership with him on certain terms, one of them
being that they would have equal share in profits, losses and all assets and properties of the business.
They could not pull on together and the question arose whether the properties acquired earlier to the
admission had also become the firms assets? Apex Court held that this was not the case. SC
observed there was no agreement that the properties brought in by the partner when he established
the partnership with his brother, that he would surrender his ownership to the firm and there is no
rule of law that whatever is brought by a partner in the partnership and is continued to be used by
the members necessarily becomes the partnership property.

e) Lachhman Das v. M.T. Gulab Devi, AIR 1936 All. 271

Members of HJF effected partition, but agreed to continue the business of the family by way of
partnership. Some variance was made in their respective share in the business but none in their
shares in the property, except that they were to have equal shares in any property which they might
later acquire. A partner died and the partnership was dissolved; his heir did not institute any suit for
an account and a share of the profits of dissolved partnership but for the paritition of certain
properties(as inherited from the deceased partner). The question was whether the properties were of
a partnership or of a HJF?
Court observed: Whether it is or is not depends upon the agreement (express or implied) between the
partners. In present case the question was whether it was the intention of the members that
properties in existence at the time of partition should become partnership property or that it should
be regarded as JF property apart from partnership and should be used only so far as necessary for
purpose of partnership.

Court held that because certain partners jointly own immovable property which was used for the
purpose of partnership business, it does not necessarily follow that the property is partnership
property. If two brothers jointly inherit a house and thereafter set up a business in the house in
partnership, it could not be inferred that they were intending to transfer their shares in the house to
the partnership business. Thus a mere use of a property for its business does not make the property
as belonging to the partnership. In the present case the fact that the shares in properties were not
varied whereas the shares in business itself were varied, is a strong evidence of the fact that they did
not intend the property to be treated as an asset of the partnership. Moreover the value of the
property does not appear nowhere in the accounts of the firm as an asset of the firm.

f) Property of a partner does not become partnership property merely on his permitting it to be used
in partnership business (Noor Mohd Mir v Qadir Mir, AIR 1983 NOC 181).

2. Holding it on trust for AID

s.82 Trust Act 1882

It is usual for foreign investors to invest in Myanmar mining ventures through a local company.
Burma or Myanmar? : The Struggle for National Identity ; Lowell Dittmer (2010) pg 275: Official
Chinese FDI in Burma is rather small but it is widely believed that there are a large number of hidden
Chinese investments & business ventures, most of which are under the names of Burmese
citizens to avoid going through the rigorous procedures stipulated by the national level Myanmar
Investment Commission (MIC)

Similar sentiments have been expressed in In the Name of Pauk-Phew; Myanmars China Policy
Since 1948; Maung Aung Nyoc and as reported by the South China Morning Post on 23 October
2015 as well as the Asia Times on 7 January 2017.

Before 2016, for a foreign investor to directly invest in mining ventures, a permit was required by
the MIC which is a tedious process. This permit was not obtained on the facts of the case (Q7
Additional Clarification). As such, it is argued that the intention of the parties was that SPT would be
named on the Bill of Lading as well as the owner and operator on the permits for the machinery and
equipment to ensure the efficiency and smooth-running of the venture. It is well known that this is
frequently done in Myanmar and it was not intended for SPT to gain ownership of the machinery or
equipment.