MAUNG SIN Vs. MAUNG BYAUNG

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Rangoon made in a suit that was begun as long ago as 20 December 1912. A complete history of the proceedings in the suit and the events that led up to it would occupy many hundreds of pages of printed matter. But the question to be decided on this appeal is a short one, and the facts material to its decision can be stated with comparative brevity. They are as follows: One U Baw, a Burman Buddhist, died intestate on 28 December 1907, leaving surviving him a son (the appellant Ko Sin), two daughters, and the widow (respondent 4) and three children (respondents 1, 2 and 3), of a son, Ko Po Cho, who had predeceased him intestate by only 15 days. After some dispute, letters of administration to the estate of U Baw were granted to his son Ko Sin on 14 January 1910. At the time of U Baw's death there were properties both moveable and immovable standing in the joint names of U Baw, Ko Po Cho, and Ko Sin. There were others that stood in the joint names of Ko Po Cho and Ko Sin. But there appear to have been serious disputes between the members of U Baw's family as to the beneficial ownership of these various properties. On 20 February 1910, with a view apparently of settling these disputes, an agreement was entered into referring them and some other matters to an arbitrator for decision. The parties to the agreement were Ko Sin, his two sisters, Ko Po Cho's widow. Ma Shwe Yu, and two persons purporting to act as guardians of the three children of Ko Po Cho, who at that time were minors. Disputes arose at a later date as to the extent of the duties and powers of the arbitrator under this agreement and under a supplemental agreement of 12 April 1910, between the same parties. Their Lordships are not however concerned with these matters on this appeal, and it is not therefore necessary to consider the precise terms of the agreements. It is sufficient for the present purpose to state that it was provided in effect by cl. 5 of the principal agreement that out of the share in the two before mentioned categories of property found to belong to Ma Shwe Yu and her three children, Ma Shwe Yu was to take one-third and the children were to take two-thirds.

(2.) On 10 June 1910, the arbitrator made his award. He did not deal with all the items of property included in the two categories; in particular he excluded from his award such of the items as consisted of mortgages. But he purported to ascertain the shares of the several parties in the remaining items, including the shares in such items of Ma Shwe Yu and her children. It is unnecessary to state in detail the effects of his findings about the several shares. All that need be said about them is that out of the properties in the two categories with which he dealt in his award he found that a very large proportion belonged to U Baw alone, and that the beneficial interest therein of Ko Po Cho was quite small in comparison. On 9 December 1910, Ko Sin applied to have the award filed in Court. This application was opposed on various grounds by Ma Shwe Yu and her three children, the principal ground of their opposition being that the whole award was invalid owing to the minority of the three children. In the end the application was dismissed by the District Judge by order dated 4 October 1912. He was not, he said, prepared to say that the award was invalid or that no suit could be filed to enforce it on the major parties thereto; but it certainly appeared to him that the award was not one which should be filed. No suit was in fact ever filed to enforce it.

(3.) Nor for the moment did Ma Shwe Yu take any steps to have the award declared invalid. She merely ignored it, and on 20 December 1912, she instituted the present suit with the object (amongst others) of obtaining by a decision of the Court a larger share of the properties contained in the two categories of properties mentioned above than had been given her by the award. By her plaint she accordingly set out in Sch. A thereto various properties moveable and immovable standing in the joint names of Ko Po Cho and Ko Sin, and in Sch. B similar properties standing in the joint names of U Baw, Ko Po Cho and Ko Sin. It should be mentioned that in the schedules are to be found not only properties that had been dealt with by the arbitrator in his award, but also properties that had not been so dealt with by him. The original defendants to the suit were her three children and Ko Sin, but U Baw's daughter Ma Nge Ma, who had by this time acquired her sister's interest in the said properties, was added as a defendant shortly after the institution of the suit.