KIRKWOOD ALIAS MA THEIN Vs. MAUNG SIN

JUDGEMENT

(1.) THE facts of this case are complicated and involved. This is due to the circumstance that several of the parties concerned have on many occasions embarked somewhat recklessly on needless litigation, the different branches of which were not always consistent with each other. It is nevertheless essential to unravel these complicated facts in order to apprehend clearly what are the questions which must be dealt with on this appeal, and to appreciate the true nature and reach of the decisions upon them. The subject-matter from which the litigation sprung was the administration and distribution of the assets of two Burmese Buddhists, father and son, named respectively U Baw and Ko Po Cho, the latter of whom died on the 13th of December, 1907, and the former of whom, the father, died fifteen days later namely, the 28th of December, 1907. To make the proceedings which have taken place intelligible it is necessary as a preliminary to examine the following pedigree:

(2.) THE words "plaintiff" "defendant and" appellant" and "respondent" printed underneath the names of the members of this family indicate the positions they respectively assumed, and the action they respectively took, in the legal proceedings subsequently instituted to assert their claims to certain shares to the assets of U Baw and Ko Po Cho, deceased. At the date of the latter's death it is admitted that his three children were minors; that none of them had come of age before the 20th of February, 1910, when the submission to arbitration hereinafter dealt with was entered into; that two of them, namely, Maung Aung and Maung Byaung, were still minors on the 13th of March, 1914, when the suit was instituted in which the order appealed from was made, and that the girl Ma Thein, the eldest of the three children, had failed to establish that she was a minor within three years of the 13th of March, 1914. Letters of administration of the estate of U Baw, deceased, were in the year 1910 granted to his son Maung Sin. Ma Shwe U, the widow of Ko Po Cho, deceased, married again in the year 1910 a man named Maung Po Yeik, and Ma Thein, the daughter, married Colonel Kirkwood on the 1st of July, 1913. Disputes having arisen between the descendants of U Baw and the members of the family of Ko Po Cho, a submission of these disputes to the arbitration of one Lugyi U Hla Baw was on the 20th of February, 1910, drawn up. It purported to have been executed by Ma Nyein Aung, Muing Sin and Ma Nga Ma, descendants of U Baw and Ma Shwe Yu. These executing parties were all adults. The submission further purported to have been executed in addition by the three children of Ko Po Cho, then minors, by two guardians, one Maung Tundu, acting on behalf of Ma Thein and Maung Aung, and the second, Maung Po Yeik, on behalf of Maung Byaung. It was not disputed on this appeal that these two persons purporting to sign this submission as guardians for the three minors, the children of Ko Po Cho, were never appointed guardians of the children on whose behalf they purported to sign and had no right or authority whatever so to do. The consequence of this is that the three minor children are no parties to the submission and are not bound by the award made in pursuance of it. On the 12th of April, 1910, a further question touching the ownership and disposition of certain property, was by the agreement of the pleaders representing the parties to the first submission, referred to the arbitration of the same arbitrator. The submission is very obscurely worded, and its provisions are to a great extent immaterial in the present appeal. They are in addition rather peculiar in character. The first begins by reciting that the parties to it have a dispute amongst themselves, that they bind themselves to abide by the decision of the arbitrator, that he may decide this dispute finally in the manner thereinafter indicated, that is, first by partitioning in the manner set out certain properties which are stated to be the subject of the dispute. These properties are divided in five classes or categories, marked by five letters of the alphabet. The first Class (a) comprises land and rent belonging to U Baw, Ko Po Oho, and Ko Sin. The second Class (b) comprises similar lands and rents belonging to Ko Po Cho and Ko Sin. The third Class (c) comprises certain paddy lands, 216*11 acres in extent, belonging to Daw Hmo. The fourth Class (d) comprises movable and immovable property, debts, rents, etc., belonging to Ko Po Cho and his wife Ma Shwe U. The fifth Class (e) comprises debts due and to be paid to, and debts to be recovered by Ko Po Cho, his wife, and his three children. As to the first Class (a) the direction is that U Baw's share is to be left out of it and the remainder of the property comprised in it is to be divided into four share?, one of which is to be given to Ma Shwe U and her three children, and the three remaining shares to be given to the persons named. The property comprised in Class (b) is to be similarly dealt with. The paddy lands, 216'11 acres in extent, are to be divided into three shares, one to be taken by the widow Ma Shwe U and her children, the two remaining share to go to the persons named. The fourth Class (d) is to be divided into two shares, Ma Shwe U taking one of them and the remaining share to go to the same three children. Further, minute directions are given as to the manner in which the indicated partitions are to be effected. They are not material, however, to the matter now in hand. If the law as to the limitation of property existing amongst Burmese Buddhists were the same as the English law dealing with such matters, it might be plausibly contended that under the limitation directed and carried out, Ma Shwe U and her three children would become joint tenants of the lands to be allotted to them, with rights of survivorship amongst them.

(3.) AS far as the Board have been able to ascertain, the proceedings in this suit have not since the year 1924, when the decision of the Board was delivered, proceeded farther. On the 20th December, 1912, nearly 13 years ago, Ma Shwe U filed a suit against her three children and Maung Sin, alleged to be in possession of part of her deceased husband's estate, for apparently the partition and administration of that estate. For nearly six years this litigation was carried on, and ultimately on the 15th of August, 1918, a preliminary decree was made directing that accounts of the properties belonging to Po Cho, of the liabilities thereon, and of mesne profits payable by Maung Sin in respect thereof, should be taken by a Commissioner. The accounts are apparently still being taken, and no final decree has as yet been made. These facts appear from the judgment of Mr. Justice Heald, p. 214 of the Record. It was during the hearing of this appeal much pressed by Mr. Dunne on behalf of the respondents, either that the present suit was unnecessary, or that the claim of all the parties concerned to interests in the assets of U Baw or Po Cho could be adjusted and satisfied in one or other or both of these administration suits. It is quite obvious, however, that the information before the Board is not full enough or precise enough to enable it to express any definite opinion on the soundness of Mr. Dunne's contention on this point.