MAUNG SEIN DONE Vs. MA PAN NYUN

JUDGEMENT

(1.) In this appeal their Lordships find it unnecessary to decide upon the merits of the case as in their opinion the plea of res judicata must prevail. In order however to explain how the plea arises, it is necessary to relate the facts in some detail.

(2.) The four parties to this appeal are two sons and two daughters of Chan Sit Shan and Ma Myit, his wife. Chan Sit Shan had three other children born of this wife, two of whom died before their father; the third died in 1903. Chan Sit Shan was a Chinaman, who was born in China and settled in Pyapon, Burma. There he married Ma Myit, a native of Pyapon, who before her marriage was a Burmese Buddhist. At some time, Chan Sit Shan went back to China and there married a second wife, a Chinawoman, named Ma Kee Ya. He returned to Burma with this second wife and a Chinese boy named Pwin Lit whom they had adopted. Subsequently his wife, Ma Kee Ya, bore him a daughter, who was named Ma Kyin Myaing.

(3.) Chan Sit Shan died in 1902 intestate. On his death, there was a division of property between his two families as a result of which no further claim has arisen from or on behalf of Ma Kee Ya, Pwin Lit, and Ma Kyin Myaing, or any of them. When Chan Sit Shan died, the eldest of his five surviving children, off spring of Ma Myit, was only about 15 or 16 years old. Their mother took possession of and managed the property which had not, on the division, gone to the other family, and she seems to have remained in possession and management until her death, which took place on 22 January, 1918. She was survived by her two sons, the respondent Maung Sit Paung, and the appellant Maung Sein Done, and her two daughters, the respondents, Ma Pan Nyun and Ma Sein. On her death her two sons took possession. Thereupon one of the daughters instituted legal proceedings, the nature and course of which require consideration, inasmuch as these are the earlier proceedings upon which the defence to the present suit of res judicata is founded.