TUAN MAN Vs. CHE SOM

JUDGEMENT

(1.) This appeal is brought by the defendants to an action which was tried by Burton, J., at Ipoh in the State of Perak. The action was dismissed ; but an appeal by the plaintiffs to the Court of Appeal of the Federated Malay States was allowed, and an order was made by that Court, which is set out hereafter, and from which the defendants have appealed to His Majesty in Council. For the proper appreciation of the cause of action which the plaintiffs seek to enforce, and of the methods and procedure which they adopted for that purpose, and of the relationship of the parties, it is necessary to embark upon considerable detail.

(2.) Tuan Kundor was a Rajah of Raman, in the kingdom of Siam, who died in the year 1867. He was the owner of a tin mine at Khan Hitam in Siam. He had nine children, five sons and four daughters, all of whom, according to one witness, survived him. His eldest son was Tuan Timoon, who became Rajah and entered into possession of the mine on his father's death. On the death of Tuan Timoon, in the year 1875, he was succeeded as Rajah by his brother, Tuan Jagong, who also took possession of the mine and kept it until his death in 1901. Tuan Timoon had left a widow him surviving, Raja Prernpuan, who subsequently married Tuan Jagong. She survived Tuan Jagong, and on his death she took possession of his property and of the tin mine. She continued in possession of the tin mine until her death in 1916, Letters of administration with her will annexed were granted in 1918 to the appellants, who assumed and continued in possession of the tin mine. Their title to the tin mine was called in question by the present action, which was commenced on 17-9-1927. By that time all the children of Tuan Kundor had died. The plaintiffs in the action were ; (1) Tuan Balai Jawa, the son of Tuan Timoon ; (2) Tuan Kalumpang, the son of Tuan Cherik (a son of Tuan Kundor) ; (3) Nai Tuan Tandok, the son of a daughter of Tuan Kundor; (4) Toh Nang Bayam, a daughter of Tuan Jagong ; (5) Toh Nang Kechik, the daughter of Tuan Timoon ; and (6) Toh Nang Keboon, a daughter of another daughter of Tuan Kundor. The firstnamed plaintiff died pendente lite, and his administrator, Che Som, was substituted as a plaintiff in his stead. A few further facts as to pedigree should be stated. Tuan Jagong left another daughter, Tuan Kembang, who was married to the said Tuan Kalumpang, and also a son, Tuan Leebeh, who had disappeared in the year 1902 and of whom nothing had since been heard.

(3.) One other fact of importance must be stated. The tin mine in question was until the year 1909 situate in the kingdom of Siam. In that year certain Siamese territory, which included the mine, was ceded by treaty to the Government of Perak. In view of the various contentions which have at different times been raised on behalf of the plaintiffs, it is necessary to scrutinize with some care the cause of action alleged in the plaint and the nature of the relief which is therein claimed. As their Lordships read this document, the plaintiffs claim to be entitled to the mine, or to shares therein, as persons who are entitled to shares in the estate of Tuan Kundor, as on an intestacy. Each plaintiff is claiming to assert a personal right of ownership in regard to the mine upon the footing that it belonged to Tuan Kundor, and that it still forms part of his estate. In terms, the claim of ownership is asserted in respect of the whole estate of Tuan Kundor, moveable and immovable, but the asset more specifically referred to is the mine. The relief claimed by the prayer is (1) an account of Tuan Kundor's estate with the Raja Prempuan held "as trustee for the beneficiaries of Tuan Kundor," and which had come to the hands of the administrators of Raja Prempuan ; (2) an inquiry as to "who are the beneficiaries of the estate of Tuan Kundor, deceased, and the shares to which they are entitled ;" (3) distribution and payment to the plaintiffs of their shares ; and (4) administration of the estate of Tuan Kundor.