Sir Lancelot Sanderson:-

This is an appeal by Maung Sein Shwe by special leave from a decree of the High Court of Judicature at Rangoon, dated 13th June 1929, which affirmed the decree of the District Court of Myaungmya, dated 3rd April 1928. The suit was brought by Maung Sein Gyi (hereinafter called the plaintiff) against defendant 1, Maung Htin Gyaw, the father of Maung Sein Shwe, who was defendant 2 and is hereinafter called the appellant, Maung Po Chein, hereinafter called defendant 3, and defendants 4 and 5, who were assignees of the plaintiff and defendant 3 of some of the property in dispute. At the time of the suit the appellant was a minor and was represented by his guardian and father Maung Htin Gyaw. The suit was brought by the plaintiff for the administration of the estate of U Po Thet, a Burmese Buddhist, who died in the Myaungmya district on 4th January 1924, leaving a considerable fortune, and the question in this appeal relates to the succession to the said estate.

The following are the material facts : U. Po Thet was married to Ma Kyi Nyo. They had four children: the three eldest children died young and without issue. The fourth, a daughter, born in 1894, was called Ma Saw Hla. In 1912, the daughter married Maung Htin Gyaw defendant 1 in the suit. On 1st may 1914, the appellant, son of the said daughter and defendant 1, was born. Five months later Ma Saw Hla died : both her parents were alive at the time of her death. In 1922, Ma Kyi Nyo, the wife of "U Po Thet and the mother of Ma Saw Hla, died. On 31st December 1922, U Po Thet made a gift (called a shinbyu gift) to the appellant by a registered deed of about 511 acres of paddy land, a pucca house and diamond and gold ornaments An issue was raised at the trial as to the execution and the validity of this deed, but there is now no question as to this deed except that it is alleged by the appellant that by a slip the pucca house was omitted from that part of the decree which related to the shinbyu gift. Reference to that matter will be made later. On 11th October 1923, U Po Thet executed a deed of adoption which was duly registered. By this deed U Po Thet adopted the plaintiff and defendant 3 as his kittima sons "with a view to inherit good and bad inheritance:" This phrase was said to mean that the adopted sons would inherit not only the assets but also the debts of U Po Thet. The deed provided that :

"The two adoptees, namely, Maung Sein Gyi and Maung Chein also undertake according to the duties of sons towards the parent to perform the duties important and unimportant towards, look after and feed the Kyaungtaga U Po Thet when he is in sound health, to treat him with medicine and by the help of physician during his illness and to look after and take care of, according to law as the natural sons of Kyaungtaga U Po Thet, his own moveable properties, such as diamonds, gold, rice, paddy, household furnitures, etc., and immovable properties, such as paddy lands, pucca house, granary, garden lands, etc., with the exception of the pucca house, paddy lands and diamond and gold jwelleries which had been given previously to his grandson Maung Sein Shwe by a deed. Accordingly, after this deed of adoption of Maung Sein Gyi and Maung Chein who are the sons of his own younger brother Maung Tha Dun (deceased) as Kittima sons with a view to inherit, is drawn up, he, the adopter Kyaungtaga U Po Thet, signs it with consent."

In January 1924, U Po Thet died. In 1924 a suit was brought by the appellant's father in which he claimed to be an adopted son of U Po Thet; in this he failed, and it is not necessary to refer further to that suit beyond stating that the District Judge disposed of that suit and the present suit, which was instituted in January 1925, in one judgment. In the present suit, viz., No. 9 of 1925, the plaintiff, one of the adopted sons, prayed for a decree:

"(1) Declaring that he is a Keittima adopted son of the deceased U Po Thet and as such is entitled to 11/48th share in the Estate of U Po Thet deceased. (2) That the Estate of the said U Po Thet deceased be administered by and under the direction of this Honourable Court. (3) That accounts of both moveable and immovable properties together with mesne profits accruing therefrom may be taken."

An issue was stated at the trial as to the validity of the adoption deed, but no question was raised in respect thereof in this appeal, and the adoption must be taken as a valid adoption. The question remains as to what was the effect thereof. It appears that it was not until the end of the trial, in fact, during the final argument, that the point was taken on behalf of the appellant that he must be considered as the son of the only surviving child of the first marriage, and that the adopted sons must be considered the children of a putative second marriage.

The theory on which this allegation was based was that inasmuch as the adoption of the plaintiff and defendant 3 was made by U Po Thet alone, after the death of his wife, Ma Kyi Nyo, the plaintiff and defendant 3 must be considered as the children of a putative second marriage. It was therefore argued that the plaintiff and defendant 3 must he considered as the step uncles of the appellant, whose share was alleged to be two-thirds. The learned District Judge said that he believed the said theory was new to Buddhist law and rejected the above-mentioned contention. He stated that there is no authority for the proposition that there must be a fictitious second wife presumed to be the mother of the children adopted by a widower. He therefore made a decree that the plaintiff's share in the estate was 11/24ths and that the share of defendant 3 was 11/24ths. The learned Judge stated that he understood it was admitted that if Htin Gyaw (defendant 1) did not prove his adoption and the plaintiff and defendan 3 prove theirs, the share of the appellant as an out-of-time grandchild" would be one-twelth. The learned Judge therefore after giving certain directions as to the interest of the assignees, made a decree according to the above-mentioned judgment. The appellant and his father appealed to the High Court, which heard, both appeals together.

In dealing with the above-mentioned contention, the learned Judges of the High Court said that no authority in support thereof had been cited and that the point was not pressed in argument before them. Both appeals were dismissed. It is against the decree made by the High Court in the 1925 suit that the appeal to His Majesty in Council is brought. The only question argued was to what shares the appellant and the adopted sons, viz., the plaintiff and defendant 3, are entitled. The case for the appellant at the hearing of this appeal was not based on the contention which was urged in the Courts in Burma, and the point, which was presented on behalf of the appellant, was taken for the first time at the hearing of the appeal before their Lordships.

Stated shortly, the contention was that on the death of U Po Thet the appellant was entitled to the whole of Ma Kyi Nyo's interest in what was called during the argument, for the sake of brevity, the common estate; and that as regards the interest of U Po Thet in, such estate, the appellant was entitled to two-thirds thereof, or in the alternative, if he was entitled to no more than an equal share, with the adopted sons, he should not be treated as an "out-of-time grandchild". The above-mentioned contention was based upon the fact that the adoption was made by U Po Thet after the death of his wife, and it was argued that he could only adopt the plaintiff and defendant 3 to inherit a share in his share of the common estate, that the effect of the adoption was equivalent to the effect of a second marriage by U Po Thet, and that on such adoption there vested in the appellant a right of inheritance to the whole of Ma Kyi Nyo's share of the common estate of U Po Thet and Ma Kyi Nyo. To put the point in other words, it was contended that the sons adopted by U Po Thet after his wife's death could not have any interest in the wife's share of the common estate. The argument was based mainly upon the dhammathat known as Manukye, and reference was made by both sides to the translation thereof by Mr. D. Richardson. The tenth volume relates to the law of inheritance, and reliance was placed chiefly upon Rr. 66 and 67 of that volume.

No. 66 is as follows:

"A person takes a wife who dies leaving children; he takes another, she also dies leaving children; he takes a third, she also dies leaving children, the law of inheritance between these three children at the death of the father is this: if a person have a wife and she die leaving children, and before the property is divided amongst them the father takes another wife, having borne him children she dies, and whilst the property is still undivided, he takes a third and she dies in giving birth to her first child, and the father also dies; the Judge having collected the property to be divided between the three families shall thus decide : let the children of each wife take their own mother's separate hereditary property (Thengthee). The hereditary separate property of the father he has had since the time of the first wife, which has not been increased or added to, during the time of the other two wives, shall be called 'ahtet,' former property. It is said, when there are two families, that the children of the elder shall have two and of the younger family one share. Now when there are three families, the mothers only differing, because they centre all in one father, let it be divided into four shares, of which, let the children of the first wife have two, and the children of the others one each, and if there be debts, let them pay them in the same proportions. Should the property have come into his possession in the time of the second wife, or of the last, let the division be the same, of property and debts. Why is this ? because after the death of one wife the husband took another, and after her death a third, and the law has laid it down that the husband is the owner of the wife's property. Of the original property, let the children of the mother in whose time it was received have two shares; this is said when the parents were living together at the time the property came into possession."

No. 67 relates to the converse case, viz., the case of a woman having three successive husbands, and children by each, and prescribes the partition between the children on her death. It is not necessary to refer to the terms thereof in detail, as the terms of No. 66 are sufficient to illustrate the argument which was presented.

It is clear, of course, that No. 66 in terms does not apply to the facts of the present case, because U Po Thet did not marry anyone after the death of his wife, Ma Kyi Nyo. It was however argued that having regard to the terms of the dhammathat, and especially to the provision contained therein, that on the death of the father the children of each wife should take their mother's separate hereditary property, the proper inference to be drawn was that the children of each marriage had on their mother's death a vested interest in her estate which could be enforced on the father's death or by way of partition on the father's remarriage.

No authority precisely covering this point was produced to their Lordships, and it therefore becomes necessary for their Lordships to examine the Burmese Buddhist law, for the purpose of ascertaining, if possible, whether there is any ground for the above-mentioned contentions. There is no doubt that U Po Thet, according to Burmese law, had a right to adopt the plaintiff and defendant 3, even though the appellant, the son of his daughter, was alive. This was not disputed; and, further, U Po Thet had a right to adopt the plaintiff and defendant 3 with a view to inheritance. The position and rights of keiktima adopted sons were stated in the judgment of the Full Court of the High Court at Rangoon, consisting of the Chief Justice and four Judges in Maung Po An v. Ma Dwe, 1926 Rang 148=98 IC 621=4 Rang 184 (FB), at p. 200, as follows:

"We are satisfied that according to the dhammathats the position of the keiktima child in respect of inheritance was inferior to that of own children, but in view of the judicial decisions which for many years have recognized the right of the keiktima child to share equally with the own children we are of the opinion that that right should not now be questioned."

The learned Judges then proceeded with the question whether a keiktima child could be 'auratha.' In view of this judgment and the judicial decisions referred to therein, their Lordships are of opinion that it must now be taken that apart from the question relating to any rights of an eldest child, the kittima adopted sons are entitled to share equally with the natural sons of the adopter. The question therefore arises, and in their Lordships' opinion it is the crucial question, what was the property with respect to which U Po Thet was entitled to adopt the plaintiff and defendant 3 as kittima sons, i. e., sons with a view to inheritance. It could only be to the property of which he was the owner. After his wife's death he was the sole owner of the property which he had brought, on his marriage, to the common estate, and he was entitled to adopt the plaintiff and defendant 3 to succeed him to that property in such shares as the Burmese law permits. The question then is, was U Po Thet entitled to adopt the two above-mentioned persons as his sons with a view to their inheriting or sharing in the inheritance of his late wife's shave of the common estate.

In their Lordships' opinion, the answer to that question must depend upon what was U Po Thet's right upon the death of his wife in respect of her share of the common estate. On behalf of the respondents, for whom Mr. Dunne appeared, viz., respondents 4, 5, 6 and 8, it was contended that U Po Thet on his wife's death became absolute owner of her share in the common estate, inasmuch as there was no eldest son or daughter entitled to any specified property, and remained such owner inasmuch as he did not marry again. On the other hand it was contended on behalf of the appellant that on his wife's death U Po Thet did not become absolute owner of her estate, that the rights given to children by the abovementioned dammathats could only rest upon some specific right in the nature of property in the mother's estate, and that therefore U Po Thet on his wife's death had only a limited interest in her estate. It was admitted that U Po Thet was entitled to take possession of such property and to remain in possession thereof until his death or re-marriage, and that he could dispose of it during his lifetime, but not by will.

It appears however that by Burmese law when after the death of one parent the surviving parent remarries, the children of the first marriage are entitled to claim partition, unless there has been a previous partition between them and the surviving parent, that such right has been regarded as vesting on the remarriage, and that the estate, subject to such partition, is the estate held by the surviving parent at the time of the remarriage: see Ma Shwe Gu v. Ma Kin Nyam, 1929 Hang 155 =118 IC 630=7 Rang 240. This is relied on by the appellant in support of his contention. On the other hand, the fact that the surviving husband has a right to enter into possession of the deceased wife's share of the common estate and to dispose of it as he likes during his life, seems to be consistent only with his being the absolute owner. In this state of things it is satisfactory to find that there is authority upon this particular point. In 1915 it was held by the Full Bench in Ma Sein Ton v. Ma Son, 1915 LB 1=30 IC 588=8 LBR 501 (FB) that:

"Subject to any claim by the eldest son to certain specified property and to a quarter share of the joint property, and to any claim by the eldest daughter to certain specified property, a Burmese Buddhist widow has an absolute right of disposal over the whole of the joint property of herself and her late husband as against the children of their marriage."

That was the case of the wife surviving her husband, but on reference to the judgments it appears that the learned Judges were of opinion that the same rule would apply to the case of the husband surviving his wife. As for instance at p. 516 (of 8 LBR) Parlett, J., is reported to have said as follows:

"I think therefore that the following rules may be deduced. On the death of one parent the surviving parent inherits all their joint property; if however the eldest son or daughter is grown up he or she is entitled to certain specified property of the deceased parent and in the case of the eldest son to a one-fourth share of the bulk of the estate; unless the surviving parent remarries none of the other children are entitled to claim anything until that parent's death; nor do the texts indicate that such children have an interest in the property, though their right to partition is postponed till the death of the surviving parent; such a principle would I think be foreign to Burmese Buddhist Law and on the contrary many of the texts make it clear that the children cannot protest if the property is exhausted before the right to claim partition accrues."

In Ma Thaung v. Ma Than, 1924 PC 88=80 IC 1031=51 IA 1=-51 Cal 374 (PC) it was held that:

"Under Burmese Buddhist Law, where after the death of the wife, the husband partitions the property with their children, and marries again taking his share with him, on his death the children by the former marriage cannot claim to inherit."

The question in that case was the true construction of a certain document, and it was held that it was a partition made by the father with his children after his first wife's death. Mr. Ameer All in delivering the judgment of the Board is reported to have said at pp, 7 and 8 (of 51 IA) as follows:

"U Nyein was about to contract a second marriage. Under the Burmese law whatever he possessed at the time of contracting the relationship which he contemplated would become on the marriags the common property of his wife and himself. Nothing was more natural than that, influenced by the effect of such an eventuality on the position of his children by Ma Gale, he should, in order to provide for them during his lifetime, whilst he was absolute owner of the properties he possessed, decide upon a partition which would secure a definite share in his or her own right to each child. He accordingly, with the agreement, and consent of his sons and daughters, entered into the arrangement embodied in Ex. L. None of them was entitled to any share in his lifetime."

There seems to be no doubt on the facts of that case that "the properties he possessed" referred to in the cited passage included the common properties of U Nyein and his first wife Ma Gale, and their Lordships seem to have assumed that after the death of Ma Gale, the surviving husband, U Nyein, became the absolute owner of such property and remained the absolute owner until his second marriage, and that it was whilst he was such absolute owner and before he contracted the second marriage that he entered into the arrangement with his children by the first marriage. There are other decisions in Burma to which their Lordships' attention was directed. It is not necessary to refer to them beyond saying that they point to the same conclusion.

In their Lordships' opinion these decisions show that the contention of the respondents is correct, and that on the death of his wife U Po Thet became the absolute owner of the property which had been the common property of U Po Thet and his wife during his wife's lifetime, and as he did not make a second marriage, he remained the absolute owner until his death. That being so, U Po Thet was entitled to adopt the plaintiff and the third defendant with a view to share in the inheritance not only of his own share of the common properties of himself and his wife, but also the share of his deceased wife therein. Their Lordships therefore agree with the conclusion of the High Court as to the adopted sons' right to share in the inheritance, and that the adopted sons would share equally with the appellant subject to the question whether the appellant must be treated as "an out of time grandchild. The only dhammathat to which their Lordships' attention has been drawn, as affecting this question, is Manukye, X. 15. The last paragraph thereof runs as follows:

"In the case of the death of the younger children occurring before the parents the law for partition of the inheritance between their children and the (co-heirs) relations of their parents is this: The children of the deceased have one-fourth of the share which would have come to their parents."

It was argued for the appellant that the rule should only be applied when the question relates to relations of the whole blood, and not in such a case as this, where two of the parties claiming to share in the inheritance are adopted sons. Apart from the fact that this does not seem to have been relied on in the Courts in Burma, their Lordships having regard to the above mentioned decision in Maung Po An v. Ma Dwe, 1926 Rang 148=98 IC 621=4 Rang 184 (FB) as to the position of kittima adopted sons, can see no reason why the above mentioned rule should, not apply to this case. Upon adoption, the plaintiff and the third defendant became sons of U Po Thet, and the appellant is a son of U Po Thet's daughter, and is therefore entitled to one-quarter of the share which would have fallen to his mother, i. e., one-quarter of one-third, which is one-twelth, or two twenty-fourths, and that is the share which has been awarded to him. It only remains to refer to the allegation made on behalf of the appellant that the decree made by the District Judge in Suit 9 of 1925 dated 3rd April 1928, did not award to him the pucca house included in the shinbyu gift to the appellant. The learned counsel for the respondents was not able to make any admission with respect to this matter in the absence of any instructions thereon. Their Lordships therefore are of opinion that this case should be remitted to the High Court, but solely in order that such steps, as may be necessary, should be taken to ascertain whether there has been a slip in the decree, as alleged and if so, in order that the necessary amendment of the decree may be made. Their Lordships, for the above reasons, are of opinion that the appeal should be dismissed with costs, with a direction to the High Court as hereinbefore indicated, and they will humbly advise His Majesty accordingly. The costs will include those reserved by the two orders in Council of 27th October 1930, which must be paid by the appellant.

Appeal dismissed.